Reconsider Order on Vogels Records of Two Incriminating E-Mails Doc 476

 
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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
DALLAS DIVISION 
 
NETSPHERE, INC.,       § 
MANILA INDUSTRIES, INC., and   § 
MUNISH KRISHAN,       §  
Plaintiffs.                     § 
  § Civil Action No. 3-09CV0988-F 
  v.   §   
  §  
JEFFREY BARON, and      §   
ONDOVA LIMITED COMPANY,    § 
  Defendants.          § 
 
MOTION FOR LEAVE TO FILE: MOTION TO RECONSIDER ORDER 
ON RECEIVER’S RECORDS OF THE TWO INCRIMINATING EMAILS 
 
TO THE HONORABLE JUDGE ROYAL FURGESON: 
COMES  NOW JEFF  BARON,  and moves this Court to grant leave to file the 
following motion to reconsider the Court’s Order [DOC 471] declining to compel Peter 
Vogel  to  produce  incriminating  records.  The  undersigned  counsel  understands  this 
Court does not want to hear accusations impugning the honestly of another attorney or 
that  another  attorney  has attempted to defraud the Court.   However, if a receiver has 
attempted to mislead the Court as to facts within the personal knowledge of the receiver 
and his law partners, the matter is serious and relevant. 
The Matter is Relevant and Material 
A  copy  of  the  original  emails  and  server  logs  would  establish  whether  the 
receiver  has  repeatedly  misrepresented  facts  within  their  personal  knowledge  to  this 
Court.   The receiver claims that a single invitation was circulated on April 1 and that 
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Mr. Schepps objected to  that  invitation  being sent directly to Mr. Baron, and that the 
receiver withdrew that invitation and did not make another to Mr. Baron.   Even if the 
receiver's  story  about  the  second  email  were  credible  (that  it  was  written  and  sent 
secretly and independently by their computer), the receiver still has admitted personal 
knowledge as to the first email, and clearly has a copy of that email in their sent mail.  If 
the truth is different than the story told by the receiver, ie., if the truth is that the receiver 
sent the first e-mail on March 30 and then sent a second e-mail on April 1, directly to 
Jeff,  the receiver has made an intentional and repeated effort to mislead the Court.   
The second email– if it is authentic as claimed by Jeff– was addressed directly to 
Jeff, and not also to Schurig.   In other words, Jeff was clearly intended to receive the 
email.   If  that is so, and the receiver  directed Jeff to call the 'new' phone conference,  
then the receiver set Jeff up.   To fabricate an incident and submit false evidence to 
accuse  a  defendant  of  “despicable”  (the  receiver's  words)  conduct  is  a  serious 
violation  of  the  obligations  of  a  receiver.    If  the  receiver  has  engaged  in  such 
conduct they have lost all legitimacy.  The issue is significant. 
As Judge Sanders expressed almost a quarter century ago: 
The  appearance  of  impropriety,  whether  real  or  not  …  is  quite 
worrisome,  especially  in  light  of  the  fiduciary  duty  owed  by  a 
receiver    …    See  Phelan  v.  Middle  States  Oil  Corp., 154  F.2d  978, 
991 (2d Cir.1946) ("A receiver ... owes a duty of strict impartiality, 
or ‘undivided loyalty,’ to all persons interested in the receivership 
estate, and must not ‘dilute’ that loyalty.").   
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Texas American  Bancshares,  Inc. v. Clarke, 740 F.Supp. 1243, 1253 (N.D.Tex.1990) 
(emphasis).   A receiver must be an indifferent person between parties, appointed by the 
court  to  receive  the  rents,  issues, or  profits of  land, or  other  thing  in  question  in this 
court, pending the suit, where it does not seem reasonable to the court that either party 
should do it.  He is an officer of the court appointed in behalf of all parties, and not of 
the complainant or of the defendant only. He is appointed for the benefit of all parties.  
Booth v. Clark, 58 US 322, 331 (1855). 
This Court's current ruling makes the statement that this Court does not want to 
know if the receiver has filed false representations in an attempt to mislead the Court as 
to the receiver's  actions.    The Court's  ruling also makes the statement that the Court 
will  not  allow  Jeff  to  prove  that  the  receiver  set  him  up,  and  that  the  receiver 
misrepresented material facts within their personal knowledge to this Court.  
Relief Requested 
Jeff Baron requests the Court to reconsider the order allowing the receiver to refuse 
to  produce  the  records  of  the  incriminating  emails, and  to  enter  an  order  compelling  the 
receiver’s production of the requested material. 
 
Respectfully submitted, 
 
  /s/ Gary N. Schepps 
Gary N. Schepps 
Texas State Bar No. 00791608 
Drawer 670804 
Dallas, Texas 75367 
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(214) 210-5940 - Telephone 
(214) 347-4031 - Facsimile 
E-mail: legal@schepps.net 
COURT ORDERED TRIAL 
COUNSEL FOR JEFF BARON 
 
CERTIFICATE OF SERVICE 
 
This  is  to  certify  that  this  brief  was  served  this  day  on  all  parties  who  receive 
notification through the Court’s electronic filing system. 
 
CERTIFICATE OF CONFERENCE 
This is to certify that I attempted but was unable to obtain the receiver’s agreement 
to this motion. 
 
CERTIFIED BY:  /s/ Gary N. Schepps 
            Gary N. Schepps 
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