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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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