Dias v. Dias

Background

The court issued a final pretrial conference order in a Hague Convention and International Child Abduction Remedies Act proceeding. It set the matter for a bench trial on October 29–31, 2024, with November 4 reserved if necessary. Each side received seven and a half hours to present its case.

The respondent filed a motion for sanctions and production of materials concerning the petitioner’s expert on Armenian law, Dr. Ashkhen Dashyan. The motion addressed an incorrect allegation about the length of the petitioner’s employment in Armenia, the petitioner’s deletion of WhatsApp messages, and communications between the petitioner and Dr. Dashyan.

Rulings on the Sanctions and Production Motion

The court declined to impose sanctions based on the incorrect allegation about the petitioner’s job. It concluded that Rule 11 sanctions were not warranted because the record did not show the required basis for such a sanction, including compliance with Rule 11’s 21-day correction period. The court also declined to make a bad-faith finding under its inherent authority. The respondent may cross-examine the petitioner about the allegation to challenge his credibility.

The court deferred ruling on the alleged destruction or deletion of WhatsApp messages. The petitioner acknowledged deleting at least some messages and offered explanations concerning his emotional state and efforts to recover them. At trial, the respondent may question him about the deleted messages, and the court may evaluate his intent and credibility. Depending on what occurs at trial, the court may or may not find bad faith and may then consider sanctions under Federal Rule of Civil Procedure 37(e).

The court did not find that the petitioner waived attorney-client privilege regarding Dr. Dashyan’s account of what occurred in the Armenian court proceedings because that portion of her report was a factual account rather than opinion evidence. The court reached a different conclusion regarding communications about the effectiveness of available domestic-violence protections. Because Dr. Dashyan would provide expert opinion on that topic, the petitioner had to disclose her opinions and the material she relied on or considered. The court ordered the parties to meet and confer so communications about those protections could be produced to the respondent, with the respondent’s request narrowed accordingly.

Trial Procedures and Exhibit Rulings

The court required at least 48 hours’ notice of intended witnesses, exhibits, and demonstratives, excluding weekends. Objections generally had to be raised by 6:00 p.m. the same day, or the parties had to file a joint statement 24 hours before the relevant trial day. The court expected few objections in the bench trial and stated that it would apply the Federal Rules of Evidence, including the residual hearsay exception when appropriate.

The parties were required to submit joint, rolling proposed findings of fact based on the evidence presented each trial day. They also had to meet and confer about witness order. The court allowed possible remote witnesses to testify out of order when time-zone differences warranted it.

The court ruled that a dispute over the petitioner’s exhibits 58–59 was moot after the respondent stated that no privilege protected the recordings. It overruled the petitioner’s completeness objections to the respondent’s exhibits 371–376 and 661–661A. It reserved ruling on exhibit 377 and exhibit 379. The respondent agreed to provide translations of specified Portuguese-language exhibits by October 22, 2024, and the court so ordered.

Other Orders

The court stated that the petitioner’s announced October 20 visit with the children would not violate the access order. It required him to clarify whether he intended to remain in California after the visit and to provide sufficient general-location information to the respondent, designated Attorneys’ Eyes Only. It also ordered him to try to retrieve any child’s passport purportedly in Portugal and surrender the passport or passports to the clerk before trial. Interpreters could appear in person or remotely, and the court continued to encourage mediation.

Disposition and Scope

This was a pretrial and evidentiary order, not a decision on the underlying dispute. The court declined the requested sanction concerning the false pleading allegation, deferred the spoliation issue, ordered limited production concerning Dr. Dashyan’s expert subject matter, and made the stated trial and exhibit rulings.