This is the text of an opposition to a motion to quash a subpoena for the audio recordings of three hearings held in front of Arkansas State Circuit Court Judge Susan Weaver. Attorney General Leslie Rutledge’s office wrote the Brief in Support, referred to as “BIS”. The statements made about any wrongdoing are allegations, except when a conviction was already made.

The filed copy with exhibits is downloadable at the bottom of the post.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS

LAURA LYNN HAMMETT, an individual,                      Plaintiff,             vs.   PORTFOLIO RECOVERY ASSOCIATES, LLC, a Limited Liability Company; DOES 1-99                      Defendants

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Case No.: 4:21-CV-00189-LPR

PLAINTIFF LAURA LYNN HAMMETT’S BRIEF IN SUPPORT OF OPPOSITION TO MOTION TO QUASH SUBPOENA

INTRODUCTION AND BACKGROUND

   “On March 29, 2022, Plaintiff Laura Lynn Hammett, pro se, caused a subpoena to be issued commanding Jana Perry to produce ‘[a]ll audio recordings of Searcy County Circuit Case No. 65CV-21-20 hearings held August 4, 2021; October 7, 2021; and March 17, 2022, a true and correct copy.’ [sic].” (BIS pg. 1) Agreed.

   “Jana Perry is a court reporter and worked in that capacity for all relevant hearings conducted in Case No. 65CV-21-20 pending in the Circuit Court of Searcy County, Arkansas. Judge Susan Weaver was the presiding judge.” (BIS pg. 1) Agreed

   Movant said: “The state court case concerns a title dispute between Plaintiff, the trust that she allegedly established, and her former romantic partner.” (BIS pg. 1) This omits important facts.

   Hammett met her former partner, “Pietrczak”, in December 2009, before the alleged final purchase on the alleged Capital One account was made. (Ex. 1, ¶ 42)

   Hammett’s former romantic partner was also a business partner, trustee of the Laura Lynn Living Trust (which was not the trust named in the suit), and defrauded Hammett of over $260,000. He is also a convicted felon for using a fraudulent document and stolen car at the U.S. – Mexico border and a lifetime substance abuser. (He was clean and sober for the first year Hammett knew him and was exceptionally charming during the sober period.) (Ex. 1, ¶ 43)

   In March 2022, Pietrczak produced a letter, through his attorney William Z. White, attached as Exhibit 1 to the Declaration in Support, Exhibit A. Pietrczak spelled out his intention to defraud Hammett of another $75,000 by misrepresenting that she would be paid in full for any claims, with the intention of using the $75,000 to sue Hammett for about six times that amount. (Exhibit 1A)

   Contrary to the Movant’s representation, the recordings sought by Hammett are relevant to the issues and claims presented in this case, as elaborated on in the Opposition, Declaration and Argument below.

   Hammett’s attempts to obtain the audio recording of the August 4, 2021 tape included the FOIA request that was denied by Judge Weaver, asking Jana Perry by email if she would allow Hammett to hear the tape, which was denied by Ms. Perry and a Motion to Settle the Record in Pietrczak that was denied by Judge Weaver. Hammett intends to ask the Arkansas Court of Appeals to settle the record, but that production will not happen for many months, if at all. Obtaining the recording via subpoena is much less burdensome, even though Ms. Perry filed her motion to quash.

   A Motion to Settle the Record regarding the audio of the March 17, 2022 hearing was also denied by Judge Weaver.

   Movant noted that “Plaintiff also was dismissed as a party in the underlying State court case.” (BIS page 1) Movant omitted that Hammett was not dismissed with prejudice until March 28, 2022 and then by amended order of April 4, 2022. At the hearing of March 17, 2022, Judge Weaver denied Hammett’s right to testify, object to improper examination and testimony, or protect her individual rights in any way. Hammett was threatened with criminal charges of the unauthorized practice of law and contempt if she continued to make objections or try to produce evidence that would exonerate herself and the defaulting trust defendant.

   Judge Weaver made the oral order on March 17, 2022 that transferred title to Pietrczak, made several findings against Hammett as an individual and gave Pietrczak a blank check for attorney fees, property damage and even personal property that was never placed in the trust, including a box truck that was paid for by Hammett, had title in Hammett’s name and was given to a charity that helps people like Pietrczak that want help. Even after dismissing Hammett with prejudice, Judge Weaver put the “findings” and orders contrary to Hammett’s rights in writing. (Ex. 1, ¶ 44)

   PRA may use the order that states Hammett filed several unauthentic and fraudulent documents as evidence against Hammett in this case. Playing the recordings will convince the jury that Hammett did not file fraudulent documents and that Pietrczak is the person who committed fraud.

   Hammett filed a 42 USC 1983 case against Judge Weaver, Jana Perry and attorney William Z. White. Hammett clearly stated that the only act she was claiming caused damages was the distortion of the record through an inaccurate transcript.

   That claim should have been allowed to proceed because administrative acts are not protected by absolute judicial immunity and there is caselaw exactly on point.

   The Honorable Judge Billy Roy Wilson disagreed with Hammett and did not mention the inaccurate transcript in his order dismissing the case against all three defendants, even before Mr. White responded.

   (It is interesting to note that Judge Weaver’s joint defendant was dismissed before making an appearance based on Judge Weaver’s pleadings yet Judge Weaver did not dismiss the defaulting trust defendant based on joint defendant Hammett’s defenses in Pietrczak.)

   Regardless, the dismissal was not on the merits and was another thwarted attempt to play the audio of August 4, 2021.

   An error Hammett would have argued at appeal, if the Eighth Circuit had not dismissed the appeal sua sponte, is that Rooker-Feldman did not apply. There, as here, Hammett was not asking for any change in orders of the Pietrczak court.

   The Courts, not the legislature, invented absolute judicial immunity. While there is some reason to give judges immunity from civil liability, we should not extend immunity to mean protection from exposure of bad acts by court personnel. Immunity means only that civil liability for the bad acts cannot be awarded against the bad actors.

ARGUMENT

1.  Trial Subpoenas May be Served After Discovery Cutoff

   “”In California, federal courts interpret Rule 45 as setting forth two types of subpoenas: pretrial discovery subpoenas and trial subpoenas. See F.T.C. v. Netscape Comm. Corp., 196 F.R.D. 559, 560 (N.D. Cal. 2000); see also Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 562 (S.D. Cal. 1999). Pre-trial discovery subpoenas include requests for the production and inspection and books, documents, and tangible items. See Fed. R. Civ. P. 26(a)(5) (Parties may obtain discovery by requesting production of documents or things under Rule 45(a)(1)(C), for inspection and other purposes). Trial subpoenas, on the other hand, include requests for attendance at a hearing or trial, and may be used in narrow circumstances to secure documents. See Fed. R. Civ. P. 45(a)(1)-(2)(A); see also Puritan Inv. Corp. v. ASLL Corp., 1997 WL 793569, 1 (E.D. Pa. 1997) (trial subpoenas may be used to secure documents at trial for the purpose of memory refreshment or trial preparation); Rice v. United States, 164 F.R.D. 556, 558 n. 1 (N.D. Okla. 1995) (trial subpoenas may be used to ensure availability at trial of original documents previously disclosed by discovery). Generally, requests for production of documents and things under Rule 45 constitute pre-trial discovery and must be served within the designated discovery period. See Integra Lifesciences, 190 F.R.D. at 561-62″ Liu v. Win Woo Trading, LLC, No. 14-CV-02639-KAW, 2016 WL 661029, at *1 (N.D. Cal. Feb. 18, 2016) Hammett disclosed that she would use the entire record of Pietrczak. The recording is to verify that the transcripts are accurate (Hammett thinks not) and along those lines, the recordings will refresh Hammett’s memory and if Pietrczak is called as a witness, refresh his memory.

   “Quashing subpoenas as untimely was unwarranted in trademark infringement action, even though subpoenas were served after close of discovery, where it was only ten days before close of discovery that subpoenaed witness and his role in case were disclosed.” Bear Republic Brewing Co. v. Cent. City Brewing Co., 275 F.R.D. 43 (D. Mass. 2011) Hammett did not know how important Pietrczak would be until the Capital One statement was produced. One hearing did not happen until after discovery cutoff.

• The Movant Failed to Meet her Burden of Proving Undue Burden

   “Party moving to quash subpoena bears burden to prove that subpoena would create an undue burden. Fed.Rules Civ.Proc.Rule 45, 28 U.S.C.A.” Precourt v. Fairbank Reconstruction Corp., 280 F.R.D. 462 (D.S.D. 2011) This case is cited by Movant, as well.

   In another case cited by Movant, “quashing the subpoena on undue burden grounds was warranted because appellants had the opportunity to ask questions concerning harassment and nonharassment matters pertaining to the Florida case at the Colorado deposition, but did not do so.” [sic] Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 926 (8th Cir. 1999) The movant in Matter had already undergone a two-day deposition in a related case and there was an agreement that the parties in both cases could use the single deposition. In the case at bar, the audio tapes Hammett is trying to obtain have been withheld from her, and Jana Perry can hit a few keys on her computer and transfer the recordings to Hammett electronically. There are ways to handle privileged communications that were picked up by the recorder if there were any.

       Movant argued “courts should also consider the necessity of the information sought and whether that information is available through other sources. Precourt v. Fairbank Reconstruction Corp., 280 F.R.D. 462, 467 (D.S.D. 2011); see also Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, vol. 9A, §2463.1 (3d ed. 2008).” (BIS page 3) Hammett agrees. The fact that Hammett tried to obtain the same public record through a FOIA request, a motion to settle the record and asking Ms. Perry nicely shows that this is the next to last resort and is much more immediate than through a motion to the appellate court to settle the record.

   Both Movant and Hammett agree on another authority. “Relevant evidence, according to Rule 401 of the Federal Rules of Evidence ‘has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.’ Fed. R. Evid. 401.” (BIS page 3) The audio makes a few facts more or less probable.

1. Hammett’s hypervigilance about being wrongfully accused of owing $2,297.63 to PRA caused by PTSD stemming from dealing with a court that lacks integrity was reasonable.
2. If the jury believes PRA bought an account from Capital One that had a purchase made in 2010 and then was not repaid, that even if the account was opened by Hammett, the purchase was likely made by Pietrczak without Hammett’s knowledge and consent.
3. That Judge Weaver had a frightening bias against Hammett, rendering her “findings” in Pietrczak incredible.
4. Judge Weaver misstated what happened during the hearing in her orders. One misstatement was that Hammett “agreed” that a contract she and Pietrczak signed that would split their assets 50/50 was “void ab initio”. Hammett said the contract was voidable and she would be entitled to all the assets if the contract was void. This and the whole hearing of October 7, 2021 will show the jury that Hammett is kind, generous, reasonable, and does not collect debts to her aggressively, like PRA tries to collect alleged debts. Lest the Movant suggest Hammett repeat the things she said during the Pietrczak hearing to the PRA jury, playing the entire tape or an accurate transcript will rule out that there was something said in the hearings that was negative toward Hammett. Also, tone of voice and timing is important and can’t be reproduced.
5. The tapes show the lack of integrity of one of PRA’s witnesses.

    Movant said “’seeking information from a nonparty to use in a different court action” is a “blatant abuse of the subpoena power.’ Precourt v. Fairbank Reconstruction Corp., 280 F.R.D. 462, 467 (2011) (citing Alberts v. HCA Inc., 405 B.R. 498, 503 (D.D.C. 2009)).” (BIS page 4)

   Hammett is not seeking the tapes to use in a different court action. There is a final appealable order in Pietrczak. The appellate court might require Ms. Perry to give them a copy of the tapes to settle the record, but Hammett cannot submit new evidence on appeal.

   There is an important distinction between these tapes as the record and these tapes as “information”. Hammett knows what is in the record, she just wants to present the accurate and best version of the record. Hammett told PRA in her initial disclosures that she would use the record from the various other cases she was involved in. Two of the tapes were not even made before the discovery cutoff. Hammett and PRA knew Hammett could use the complete record of Pietrczak. Hammett just did not know how difficult the Pietrczak Court was going to make obtaining an accurate record.

   “Government inspection records are public documents and would tend to prove or disprove that []. Thus, subpart A seeks relevant information.” Precourt. The recordings of hearings are also public records.

   Movant claimed the “information could easily be obtained from official transcripts of the hearings.” (BIS page 4) This is not true where the transcript is inaccurate. Normally a transcript is considered hearsay. It is only accepted as an official record when certified because we believe the court reporter has proven her integrity and understands the gravity of distorting the official record.

  “Transcription of stenographic notes taken by official court reporter should be accepted by court as accurate and literal record of proceeding, especially where there is no evidence to contrary.” People v. Henry, 167 Misc. 2d 1027, 641 N.Y.S.2d 1003 (Dist. Ct. 1996) There is evidence to the contrary in regards to the transcript of August 4, 2021 and transcript of March 17, 2022.

   Most importantly, Hammett was in the hearing of August 4 and can testify that the transcript is not as she recollects the dialogue. Hammett made notes during the hearing. Hammett has a degree in journalism, her investigative reporting was featured on Fox News and she was never sued for defamation, as much as some judges and lawyers wanted to silence her. Hammett takes good notes. She writes phrases in quotation marks only if those phrases are exactly what she heard or she makes clear it is a paraphrase. Several of the quotes Hammett wrote were not in the transcript (usually replaced by dash lines).

   The most egregious and purposeful inaccuracy is about whether Judge Weaver made an oral order allowing an extension of time for Pietrczak to serve summons on the trust. Hammett remembers distinctly that Judge Weaver left the bench for a short period. When she returned, she said she spoke to the “AOC” and they told her the motion for extension of time must be in writing and she must give Hammett an opportunity to oppose it in writing. Hammett was thrilled. This was perhaps the only favorable thing the Court said to her.

   The transcript produced more than two weeks after the hearing changed what Judge Weaver said the AOC told her. There was a section added later in the transcript where Judge Weaver granted the oral motion and said she did not “normally” do that. (Ex. 1-B, 24:18)

   That the Court was making an order that she does not normally make is one piece of evidence that she did not actually say that. That Ark. R. Civ. Pro. Rule 4(i) makes a written motion mandatory for the extension of time is another piece of evidence that a competent judge would not grant an oral motion for extension of time to serve summons.

   A fair and competent judge would not have granted a motion for extension of time to serve summons on oral or written motion if, as here, the plaintiff had not even issued the summons yet.

   Likewise, a fair and competent judge would not say, as in the written order, that plaintiff was having difficulty locating the defendant if, as here, the defendant’s address was on the tax roll, the counterclaim filed by the person in another capacity without being served summons, and Arkansas allows for service to be by certified mail. (In Pietrczak One, the same complaint with a summons to the trust was served by certified mail.)

   When Hammett objected in writing to the Court putting the supposed oral order into writing without an opportunity for Hammett to oppose, the Court said Hammett had more than 10 days plus weekends to object to the oral order and did not.

   Hammett did write a motion for the Court to put its oral orders in writing the day after the hearing. The Court ignored that motion until more than 10 days plus weekends had passed. The first Hammett heard about the supposed oral order was on August 18. 2021, exactly after her time to object had passed.

   Finally, that the Court and Ms. Perry are adamant that the recording not be heard by a neutral person is seen by anyone with common sense that they are hiding something. It is akin to spoliation of evidence.

   The Judge in this case can have the August 4 tape produced to him with a copy of the transcript (one of the copies given to Hammett) and he can listen to just the one section about the AOC to determine if there is good cause to believe the entire transcript is corrupted.

   Movant stated “there appears to be a brief mention of [Hammett’s] circuit court case in her complaint []”. (BIS page 4) Hammett mentioned or alluded to Pietrczak in her FAC several times:

   “Hammett believes about eight people have stalked her since 2001.” (FAC ¶ 24) Pietrczak was one of the “stalkers”. In discovery, Hammett learned that over a hundred calls that were registered as hangups on her voicemail on the Witts Spring property landline which Hammett attributed to Pietrczak were made by PRA.

   “Every encounter in court is extremely stressful to Hammett.” (FAC ¶ 31) Pietrczak filed his suit against Hammett in 2018. It was dismissed without prejudice in 2020.

   “Before 2015, Hammett was self-hospitalized twice for acute anxiety, depression and suicidal ideation.” (FAC ¶ 37) Both these hospitalizations were while Hammett lived with Pietrczak. The medical records produced show that dealing with Pietrczak was one of Hammett’s main stressor. Hammett told her attending physician that Pietrczak was having sex with prostitutes and abusing substances. Hammett was allowed to testify about these behaviors at the hearing of October 7, 2021 and her testimony went unrebutted.

   “Unfortunately, Plaintiff had several stressors, including the bogus lawsuit against her []”. (FAC ¶ 45) This could have referred to the Pietrczak suit or the fake automobile accident suit. Both were dismissed at the time the FAC was written.

   Hammett’s FAC was more detailed than most Federal complaints. Her “glass head” was discussed, not to try to receive a million dollars as per PRA’s filings, but to show that there was enough emotional distress caused by PRA to give Hammett article 3 standing pursuant to Spokeo and Iqbal/Twombly. The amount of stress felt by Hammett was more than felt by a person who does not have PTSD. The PTSD caused by Pietrczak and triggered by PRA fulfilled the element of outrage: “the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it.” Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000)

    Hammett’s PTSD was caused in major part by Pietrczak. Pietrczak continued to cause Hammett stress, even after she broke up with him, by filing his bogus lawsuit against her twice.

   Movant claimed “the audio recordings of the hearings would not constitute the official transcripts. See Ark. R. Ct. Admin. Order 4(e)(4).” (BIS page 5) The citation says: “A transcript prepared from an audio recording of a court proceeding prepared and certified by an official court reporter is an official transcript for purpose of appeal or other use.” (bold added) “An” does not mean “the”. “Official transcript” does not mean “official record”.

   “The best-evidence rule provides that, when proving the contents of a recording, the original recording is generally required. Rules of Evid., Rule 1002.” Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007) It is preposterous to contend that a transcript, even a certified transcript, will be better evidence than the recording.

   The benefit to a transcript is that it takes far less time to read a transcript than to play the entire recording. Hammett will probably only play excerpts for the jury. The transcript also helps jurors to remember what they heard. If the transcript is inaccurate, as here, it is of no use at all, except to show apparent collusion. Hammett might hire a certified court reporter to make an accurate transcript for the jury to use.

    Ark. R. Ct. Admin. Order 4(e)(2) says “Electronic recording. An audio recording system may make the verbatim record of court proceedings.”

• There is No Privilege that Requires that Jana Perry’s Subpoena Be Quashed.

   “A party asserting a privilege with regard to items sought in discovery has the burden of proving that a factual basis exists for that privilege. Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 565 (8th Cir.1997); Cottier v. City of Martin, WL 4568989, * *2–3 (D.S.D. Dec. 19, 2007); Fed.R.Civ.P. 26(b)(5)(A)” Lykken v. Brady, No. CIV. 07-4020-KES, 2008 WL 2077937, at *3 (D.S.D. May 14, 2008) Not authoritative, but this order was cited by Movant.

   Movant claimed the “recording devices used by Jana Perry as a court reporter are highly sensitive and frequently record privileged communications between attorneys and their legal assistants and clients, as well as between Judge Weaver and her staff, and all communications that are conducted off the record.” But Movant failed to claim there were any such communications on the recordings requested.

   If there is privileged information, it should be redacted. “If a court record, or part thereof, is rendered confidential by protective order, by this order, or otherwise by law, the confidential content shall be redacted, but there shall be a publicly accessible indication of the fact of redaction.” Arkansas Supreme Court Administrative Order 19 Section IV(C). Hammett will pay the additional cost.

   Ms. Perry did omit one word from the transcript of March 17, 2022 of which Hammett is aware. It was when Mr. White leaned toward Hammett and said “bitch” distinctly. If this is the type of communication Ms. Perry claims is privileged, she is wrong. By speaking loud enough for Hammett and her 73-year-old friend in the audience to hear, Mr. White gave up any privilege.

   Ms. Perry’s contention that her equipment is “highly sensitive” contradicts her claim that she did not hear Hammett say “objection” several times, she did not hear Mr. White say Hammett “ran and hid” and “dodged service” when he tried to serve the summons that was not even issued yet and that she missed the judge reciting the AOC’s advice that described ARCP Rule 4(i) to the letter. Her equipment seems to have selective sensitivity.

   Movant relies on Judge Weaver’s denial of Hammett’s FOIA request to conceal the accurate record of the Pietrczak proceedings. This is the fox guarding the chickens and telling the farmer to leave because foxy has it covered.

   “It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.” Ark. Code §25-19-102. Legislative intent. Freedom of Information Act.

    The denial of the FOIA request was agreeably on October 4, 2021. The October 7, 2021 and March 17, 2022 recordings were not part of the request.

   Movant contends that because Judge Weaver denied a FOIA request in October 2021, that Hammett is precluded from asking any court to make a different decision. Movant gave no authority for this contention.

   FOIA does not explicitly address whether a second FOIA request can be made. There is caselaw that is informative. “Res judicata can serve to preclude an identical FOIA request, assuming that that [sic] a post-judgment event has not given rise to a new claim. See ACLU v. DOJ, 321 F.Supp.2d 24, 34 (D.D.C.2004).” Nielsen v. U.S. Bureau of Land Mgmt., 252 F.R.D. 499, 510 (D. Minn. 2008)

   The FOIA request was made prior to the late disclosure of the Capital One Statement in the PRA case. Hammett had no need to prove Pietrczak might have used a credit card that belonged to Hammett without her knowledge or consent until PRA pulled out that scintilla of evidence that it didn’t invent the alleged debt.

   The court’s reasoning in response to the FOIA request is necessarily different than this court’s reasoning in whether to compel production of the document that was designated as evidence in Hammett’s initial disclosures.

   The purpose of the FOIA request is different than the purpose of the PRA subpoena. The purpose of the FOIA request was to expose the fox for the public benefit. The purpose of the subpoena is to present the best evidence of what went on in Pietrczak for Hammett’s benefit in the PRA case.

   When PRA made its late production of the Capital One statement, it opened the door to a second request for production of the recording of August 4, 2021. The Pietrczak court did not address the later recordings.

Laura Lynn Hammett

500 Amity Road, Suite 5B #306

Conway, Arkansas 72032

(760) 966-6000

TheNext55Years@Gmail.com

Plaintiff in Pro Se

Dated April 19, 2022                                       _______________________

                                                                         Laura Lynn Hammett

CERTIFICATE OF SERVICE

I hereby certify that on April 19, 2022, a true and exact copy of the foregoing was filed with the Clerk of the Court who entered it into the Electronic Filing System causing service upon counsel of record via email to the following individuals :

For PRA – James K. Trefil, Troutman Pepper, James.Trefil@Troutman.com;

John Komisin, Troutman Pepper, jed.komisin@troutman.com; David Mitchell, Rose Law Firm, DMitchell@RoseLawFirm.com; Nick Mote, NMote@roselawfirm.com

For Jana Perry – Andrew Middlebrooks Andrew.Middlebrooks@arkansasag.gov

__________________

Laura Lynn Hammett

500 Amity Road, Suite 5B #306

Conway, Arkansas 7202

760-966-6000

thenext55years@gmail.com

Plaintiff Pro Se