Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BENJAMIN BURGESS, RHONDA BURGESS, HEIDI HOWARD, JOYCE MARTIN, BETH KARAMPELAS, TERRI DACY, and MICHAEL DACY, individually and on behalf of all others similarly situated, Plaintiffs, v. RELIGIOUS TECHNOLOGY CENTER, INC., ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL, NARCONON INTERNATIONAL, and NARCONON OF GEORGIA, INC., Defendants. NARCONON OF GEORGIA, INC.’S RESPONSE TO PLAINTIFFS’ MOTION TO PRESERVE EVIDENCE Defendant Narconon of Georgia, Inc. (“NNGA”) hereby responds to Plaintiffs’ Motion to Preserve Evidence, as follows: Plaintiffs seek an order directing non-parties – agents and agencies of the State of Georgia (the “State”) – to preserve possibly discoverable evidence in their hands.

Civil Action File No.: 1:13-CV-02217-SCJ

Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 2 of 9

NNGA has no objection to the principle of preservation of evidence. The present motion, however, is not well-taken. 1. The Court Has No Jurisdiction Over Non-Parties. The motion seeks an order in the nature of an injunction against non-parties. The Court is without jurisdiction to enter a preservation order against a non-party. In re Grand Casinos, Inc. Sec., 988 F. Supp. 1279, 1273 (D. Minn. 1997) (“Plaintiffs also requested an Order which would mandate the preservation of all documents, and other tangible evidence ... whether the evidence was in the care, custody or control of the parties to this action, or in that of a third-person or persons... [W]e are aware of no authority which would subject third-persons to our jurisdiction.”); see Ferrari v. Gisch, 225 F.R.D. 599 (C.D. Cal. 2004); Asset Fund Ltd. Partnership v. Find/SVP, Inc., 1997 WL 58884, *1 (S.D.N.Y. 1997). It is a weighty thing that the Plaintiffs are asking this Court to do, for they are requesting that the State be placed under a court order to preserve documents, on pain of potentially being subject to contempt – all without even being parties to the action or receiving any due process. 2. Plaintiffs Have Failed to Adduce Evidence of a “Risk of Loss.” At bottom, Plaintiffs’ rationale for its motion is that there is a risk of “loss or destruction” of evidence unless the non-parties are made subject to an order.

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Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 3 of 9

Plaintiffs primarily rely on Capricorn Power Co. v. Capricorn Power Co., 220 F.R.D. 429 (W.D. Pa. 2004). In that case, however, the court declined to issue a

preservation order, “based upon the lack of the presence of a specific, imminent threat [of loss or destruction] supported by the record.” In the present case, Plaintiffs urge that the State agencies be made subject to an order to “safeguard the seized information,” on the basis of unsupported speculation that the State will otherwise destroy evidence. E.g., Doc. 26 at 8 (“Plaintiffs’ limited request for a preservation order is necessary in order to ensure that the records at issue are not permanently destroyed.”) No evidence supporting this remarkable conclusion is presented,

however. NNGA knows of no evidence suggesting that the State will violate its statutory obligations to return seized property.1 Plaintiffs cite language from Hester v. Bayer Corp., 206 F.R.D. 683 (M.D. Ala. 2001), that “[t]he court will entertain the entry of a preservation order should it comply with equitable concerns of all interested parties.” [Doc. 26 at 5.] This quotation is pulled from Hester’s holding vacating a preservation order obtained by the plaintiffs in state court before removal because of a failure to satisfy the evidentiary burden:

Georgia law independently imposes a duty to return seized documents to their owner if no criminal charge is preferred. O.C.G.A. § 17-5-2.
1

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Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 4 of 9

The court finds the methods employed by Plaintiffs’ counsel to be an affront to the proper gamesmanship inherent in the adversarial system. They provided the state court with no evidence suggesting the possibility that evidence was at risk; the one page request for the preservation order was based entirely upon “information and belief.” (Mot.Ex. B.) Whether or not an ex parte proceeding is the proper form for the entry of such an order, at the very least some evidence should be offered to justify such an extreme remedy. The court will entertain the entry of a preservation order should it comply with equitable concerns of all interested parties, but on the face of the record as it presently stands, the present order is due to be vacated. Hester, 206 F.R.D. at 686. Here, the Plaintiffs likewise have failed to adduce any evidence that the documents in the hands of the State are at risk. Accordingly, the motion should be denied. CONCLUSION On the basis of the foregoing law and argument, NNGA respectfully submits that the motion should be DENIED. This 22d day of August, 2013.

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Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 5 of 9

Goodman McGuffey Lindsey & Johnson, LLP Attorneys for Defendant Narconon of Georgia, Inc. By: S/ JAMES T. HANKINS, III EDWARD H. LINDSEY, JR. GA State Bar No. 453075 elindsey@gmlj.com JAMES T. HANKINS, III GA State Bar No. 188771 jhankins@gmlj.com 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 Phone: (404) 264-1500 Fax: (404) 264-1737

Chilivis, Cochran, Larkins & Bever LLP Attorneys for Defendant Narconon of Georgia, Inc. By: S/ JOHN K. LARKINS, JR. JOHN K. LARKINS, JR. GA State Bar No. 438425 jkl@cclblaw.com J.D. Dalbey GA State Bar No. 003150 jdd@cclblaw.com W. TAYLOR MCNEILL GA State Bar No. 239540 tmcneill@cclblaw.com 3127 Maple Dr. NE Atlanta, GA 30305 Phone: 404-233-4171 Fax: 404-261-2842

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Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 6 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BENJAMIN BURGESS, RHONDA BURGESS, HEIDI HOWARD, JOYCE MARTIN, BETH KARAMPELAS, TERRI DACY, and MICHAEL DACY, individually and on behalf of all others similarly situated, Plaintiffs, v. RELIGIOUS TECHNOLOGY CENTER, INC., ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL, NARCONON INTERNATIONAL, and NARCONON OF GEORGIA, INC., Defendants. CERTIFICATE OF COMPLIANCE The foregoing document is double spaced in 14 point Times New Roman font and complies with the type-volume limitation set forth in Local Rule 7.1.

Civil Action File No.: 1:13-CV-02217-SCJ

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Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 7 of 9

S/JAMES T. HANKINS, III

James T. Hankins, III Goodman McGuffey Lindsey & Johnson, LLP 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 Phone: (404) 264-1500 Fax: (404) 264-1737 Email: jhankins@gmlj.com

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Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 8 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BENJAMIN BURGESS, RHONDA BURGESS, HEIDI HOWARD, JOYCE MARTIN, BETH KARAMPELAS, TERRI DACY, and MICHAEL DACY, individually and on behalf of all others similarly situated, Plaintiffs, v. RELIGIOUS TECHNOLOGY CENTER, INC., ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL, NARCONON INTERNATIONAL, and NARCONON OF GEORGIA, INC., Defendants. CERTIFICATE OF SERVICE This is to certify that I electronically filed this NARCONON OF GEORGIA, INC.’S RESPONSE TO PLAINTIFFS’ MOTION TO PRESERVE EVIDENCE with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record:

Civil Action File No.: 1:13-CV-02217-SCJ

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Case 1:13-cv-02217-SCJ Document 34 Filed 08/22/13 Page 9 of 9

Rebecca C. Franklin, Esq. Franklin Law, LLC 1201 Peachtree Street, N.E. 400 Colony Square, Suite 900 Atlanta, GA 30361 John H. Fleming, Esq. Sutherland Asbill & Brennan LLP Suite 2300 999 Peachtree Street, N.E. Atlanta, GA 30309-3996 Jeffrey R. Harris, Esq. Darren W. Penn, Esq. Stephen G. Lowry, Esq. Jed D. Manton, Esq. Yvonne Godfrey, Esq. Harris, Penn & Lowry, LLP 1201 Peachtree Street, N.E. 400 Colony Square, Suite 900 Atlanta, GA 30361 This 22nd day of August, 2013.

Cari K. Dawson, Esq. Alston & Bird LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309-3424 Thomas M. Barton, Esq. Coles Barton LLP 150 South Perry Street Suite 100 Lawrenceville, GA 30046 John K. Larkins, Jr., Esq. William Taylor McNeill, Esq. J.D. Dalbey, Esq. Chilivis, Cochran, Larkins & Bever LLP 3127 Maple Drive, NE Atlanta, GA 30305-2503

s/ James T. Hankins, III JAMES T. HANKINS, III GA State Bar No. 188771 jhankins@gmlj.com Goodman McGuffey Lindsey & Johnson, LLP 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 Phone: (404) 264-1500 Fax: (404) 264-1737
2224-0168/Doc ID #2341824

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