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Joshua W. Carden, SBN 021698 

JOSHUA CARDEN LAW FIRM, P.C. 

16427 North Scottsdale Road, Suite 410 

Scottsdale, AZ 85254 

joshua@cardenlawfirm.com 

(480) 454-1100 

(480) 454-1101 (Fax) 

Attorney for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jeremy Thacker, 

Plaintiff, 

v. 

GPS Insight, LLC, et al. 

Defendants. 

No. 2:18-cv-00063-DGC 

JOINT MEMORANDUM

The parties hereby provide this Joint Memorandum as ordered by the Court in the ruling 

upon the cross-motions for partial summary judgment (Doc. 151) (the “Ruling”). 

PLAINTIFF’S POSITION: 

After reviewing the file and the many – and early - discovery-related communications 

between Plaintiff’s former counsel and Defendants’ counsel, it is rather shocking how the 

disclosure process was handled by Defendants in this case. As required by the Court’s order (Doc. 

147), Plaintiff addresses solely the limited issues caused by Defendants’ and Defendants’ counsel 

lack of MIDP compliance and will raise separately any possible discrepancies in the existing MSJ 

record. There are two areas directly affected by Defendants’ violation: 1. The Title VII Retaliation 

Claim, and 2. Damages. Having read the Court’s analysis of the limited factual record (i.e. no 

LRCiv 56.1 Separate Statement of Facts required before the transfer of this case, compared to that 

normally required by this division of the Court) in the Ruling, it appears that the Defendants’ 

repeated failure to disclose items that Defendants themselves explicitly deemed relevant – did 

affect the outcome of the summary judgment rulings. And for trial, the sales policy – the very 

policy under which Plaintiff’s compensation would have been calculated for purposes of damages 
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during the relative time has simply “disappeared” without a trace. In footnote nine, the Court notes 

that Plaintiff relied “on the MIDP’s disclosure requirements alone” rather than conducting 

discovery. Ruling at 16 n. 9. While the undersigned agrees the MIDP program was never designed 

to function as a substitute for ordinary discovery (and, besides repeated meet and confers on the 

MIDP issues, and several subpoenas duces tecum, Plaintiff’s previous counsel did not serve 

“ordinary” discovery requests in this case), Plaintiff’s previous counsel’s reliance on the MIDP in 

this case was not devoid of context. On January 19, 2018, Defendants’ counsel sent Plaintiff’s 

first counsel a letter stating, inter alia, 

Per General Order 17-08, parties are required to disclose all documents that they 

believe may be relevant to any party's claims or defenses. This letter is notice that 

Defendants believe the following information is relevant to the claims and defenses 

in this case, and we ask that you include it in your initial production so as to 

avoid unnecessary requests for production later: 

.... 

• Any electronic information stored on devices within your control or possession 

relating to Kristin Lisson or Robert Donat, including text messages, e-mails, notes, 

photographs, audio or video recordings, etc. 

• Any paper documents relating to Mr. Donat or Ms. Lisson, including notes, photos, 

mementos, love letters, cards, receipts, etc. 

• Any backup copies stored in iCloud or another cloud backup service of the data 

formerly stored on your cell phone or personal computer, to the extent relevant to 

this case. 

• All text or multimedia messages, Instagram posts, Facebook posts, Snapchat 

posts, emails, or any other data stored on your phones, computers, or social 

media accounts that contains information related in any way to this case, 

including communications between you and any employee, officer, or manager 

of GPS Insight, LLC. 

On February 6, 2018, Plaintiff’s counsel sent his own commensurate list of categories, 

which also explicitly included text messages between Donat and Lisson. On May 28, 2018, 

Defendants’ counsel sent another letter reiterating categories of documents that they believed to 

be relevant under the MIDP – including “all” (i.e. not just subjectively perceived “relevant”) 

communications regarding Donat and GPSI. Defendant made it clear that they viewed compliance 

with those specific requests as “required” under the MIDP. Yet, as Mr. Palys admitted to the Court 

during the hearing on June 20, 2019, Defendants’ counsel has withheld documents in those exact 
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categories claiming that they did not believe them “relevant.” Plaintiff’s prior counsel conferred 

with Defendant’s counsel on multiple occasions regarding the deficiencies (far earlier than what 

was represented to the Court on June 20, 2019) and filed multiple discovery disputes. Yet, the text 

messages remain withheld. And this is Defendant’s behavior regarding just one of the discovery 

issues. 

I. Unproduced Relevant Text Messages 

A key factor in the court’s MSJ ruling on Plaintiff’s Title VII Retaliation claim was a 

finding that Kristin Lisson did not engage in protected activity prior to Thacker’s termination. 

Doc. 151 at 9-10. Some of the deleted text messages between Lisson and Donat that Defendants 

have now openly admitted to withholding (based on Defendant’s numbering system, the number 

of withheld texts appears to total approximately 1,800 during the relevant time period) are quite 

likely to be highly relevant to this exact issue as they occur between January and February 

2017. Defendant previously got away with claiming that this issue was “moot” saying that Ms. 

Lisson had produced “all” of the text message she had between her and Mr. Donat when Defendant 

subpoenaed same from Lisson on March 1, 2018. However, Defendant conveniently omitted that 

Ms. Lisson testified that she had deleted a number of highly-charged texts between her and Donat 

prior to Thacker’s termination with statements from Donat such as “I want you to be my queen” 

and Ms. Lisson rejecting his advances to his ever-increasing anger at Lisson and Thacker. Plaintiff 

later sent several subpoenas duces tecum to several individuals associated with GPSI. On July 30, 

2018, Defendant’s counsel Stefan Palys sent an email stating: 

“Jeff [Silence] – on our call just now we agreed that we don't need to respond to any 

document requests in the subpoenas to Tyler Mortensen, Carrie Race, Robert Donat, Elliot 

Batcheller, or Jason Walker, since we have images of Mortensen, Batcheller, Donat, and Walker's 

phones, as well as access to their emails. Can you confirm so we don't need to prepare an 

objection? It'd otherwise be due today.” Defendant claims possession of a massive amount of data 

by virtue of this single email, yet Defendant has simply withheld the missing messages between 

Lisson and Donat (along with a great deal of other information that Defendant dangled but never 

produced). Defendant has justified this action by the bald assertion that none of the withheld 
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messages (including Donat continuing to pursue Ms. Lisson and her rejection of him) are 

“relevant.” 

II. Spoiled Sales Policy 

The sales policy was referenced at Defendant GPSI’s 30(b)(6) deposition of Jason Walker 

on May 15, 2018 who readily agreed that he had “copies” of the policies going back to 2014 on 

“Knowledge Base” at GPSI, including the then “current” sales policy. Yet, by September 15, 2018 

at his own deposition, Mr. Walker not only claimed that he lacked the current policy, but 

admitted that it had been changed as of June 6, 2018 after his original deposition. 

Defendant’s counsel claimed in disclosure that “all available versions” have been produced. This 

is spoliation at its finest as Plaintiff is left without any ability to demonstrate from Defendants’ 

policies what his sales compensation would have been under the actual policy as compared to the 

substantial changes in the policy because, in Walker’s words “the organization changed and grew, 

and we changed the levels because we wanted to provide a better career path for our salespeople 

to get promoted.” 

III. Spreadsheets on commissions 

The spreadsheets are a related issue to the Sales Policy in that they affect Plaintiff’s ability 

to prove damages. The company kept a “master” spreadsheet for all sales people for their 

commissions and a second spreadsheet deciding “profit sharing.” When sending the monthly 

commission report to each salesperson during Plaintiff’s employment, all underlying data was 

sent. However, in production GPSI removed data from the commission spreadsheet for most of 

the sales people and removed all of the underlying data, making a true comparison and analysis 

of comparable performance impossible. Furthermore, GPSI removed all underlying data from the 

profit sharing spreadsheet. This makes it impossible to determine those calculations from GPSI, 

which had to do more work to withhold this data, than if they had simply produced the single 

spreadsheet as kept in the ordinary course of business. Plaintiff has requested this information 

since the original MIDP discussion and it has never been produced. 

IV. Near-Fully-Redacted Tax Returns 

In a degree of compliance with the Court’s June 20th order, Defendant’s counsel has fully-
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redacted every financial line except “net income” from the single produced page of a Form 1120S 

for “Sedonatech, Inc.” tax years 2016 and 2017. Given the protective order that has been in place 

since February 2018 in this matter (Doc. 16), this redaction is excessive. 

V. Subpoena 

Plaintiff does not concede to the release of any privately-posted information online, but 

does not object to the Defendants seeking information via subpoena if the Court is inclined to 

allow additional discovery. Of course, if the Court is so inclined to further extend the time for 

discovery in this matter, Plaintiff respectfully requests the opportunity to revisit a few of the 

discovery issues that Defendant has failed to comply with along the way. 

Conclusion: 

Plaintiff contends that such MIDP failures by Defendants have tainted the overall discovery 

and MSJ process to a degree where justice has not been served – the documents and records that 

would have allowed Plaintiff to prove his claims have been successfully (and intentionally) 

withheld by Defendants. If the MIDP pilot program is going to have a chance of success in 

preventing such disclosure abuses, then the Defendants must be held to account for failing to 

comply. If, after the Court orders production of the withheld records, it is found that Defendant 

has indeed withheld relevant evidence, Plaintiff seeks 1. an opportunity to revisit the full scope of 

precisely how much relevant evidence was withheld or spoiled; 2. an order of sanctions for the 

withholding and the spoliation of evidence, including an interim award of fees and the possible 

reversal of the Court’s summary judgment order. Plaintiff will also be separately filing a motion 

to reconsider portions of the summary judgment ruling. 

. . . 

. . . 
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DEFENDANTS’ POSITION:

Plaintiff’s position goes beyond the limited scope of the Court’s order (Doc. 151 at 23 ¶ 4 

(citing Doc. 147)). Plaintiff instead complains about Judge Humetewa’s summary judgment 

briefing procedures;1 and asks to reopen discovery generally to conduct discovery about discovery 

(what was supposedly withheld or lost) and for an unspecified award of sanctions – precisely what 

this Court told him not to do again. Compare supra 5: 16-19 with Doc. 134 at 3 (“It has become 

clear to the Court that Plaintiff is attempting to use the rules of the MIDP to expand its intended 

purpose and to reopen and expand the scope of discovery. The Court will not allow this to happen 

going forward.”) and id. at 8 (“the parties cannot abuse the procedures of the Court by continuing 

to file discovery disputes to attempt to further conduct discovery in this matter.”). As detailed 

below, the issues Plaintiff raises are: (1) not relevant to any issue at trial; and (2) a sub rosa motion 

to reconsider the Court’s prior order (Doc. 134). As Judge Humetewa concluded: “[d]iscovery 

has ended, and the case must move on.” (Doc. 134 at 8). Plaintiff’s dissatisfaction with his prior 

two counsels’ conduct of discovery, no matter how nefariously spun,2 is not grounds to reopen 

discovery. 

I. Text Messages Between Donat and Lisson. 

Plaintiff seeks text messages between Donat and Lisson for the period from January 10, 

2017 to February 9, 2017. This is a request to reconsider Judge Humetewa’s ruling (Doc. 134). 

In the briefing preceding Judge Humetewa’s ruling, Plaintiff raised the identical issue he does 

1 See supra 1:23-26. Plaintiff never complained about that procedure previously, nor did he 

seek an alternative procedure like an extension to the page limitation. Instead, he submitted 

hundreds of pages of exhibits, as he was free to do. This is what he now calls the “limited factual 

record.” 

2

 Plaintiff claims “it is rather shocking how the disclosure process was handled by Defendants 

in this case.” Supra at 1. In fact, with Plaintiff’s original counsel, it was cooperative. Defendants 

actually processed Plaintiff’s ESI as a favor to his original counsel, who lacked the resources to 

do so. Plaintiff is correct that each side exchanged letters about what material they believed was 

relevant. But neither side agreed the others’ list was correct, nor did they produce all of what was 

on each others’ list. Defendants therefore followed up with requests for production and 

subpoenas. As Plaintiff concedes above, his predecessor’s use of the MIDP was not correct, and 

he opted not to send any discovery of his own. Supra 2:3-6. Those choices are not discovery 

misconduct by Defendants. 
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here: he claimed that there must be relevant texts between Donat and Lisson that Defendants 

should produce under the MIDP, though he never explained what the relevance was. (Doc. 96, p. 

4, ¶ 15) Judge Humetewa noted Defendants’ position “that they have produced all relevant 

messages” and that others were produced by Lisson via a subpoena, such that “[t]his request is 

cumulative . . . .” (Doc. 134 at § J). 

If Plaintiff disagreed with this ruling, or believed that Judge Humetewa had 

misapprehended his position (as he apparently does (supra 3:12-16)) he was free to file a motion 

to reconsider “no later than fourteen (14) days after the date of the filing of the Order that is the 

subject of the motion.” LRCiv 7.2(g)(2). In that motion, he had to “point out with specificity the 

matters that the movant believes were overlooked or misapprehended by the Court, [and] any new 

matters being brought to the Court’s attention for the first time and the reasons they were not 

presented earlier . . . .” LRCiv 7.2(g)(1). Judge Humetewa’s order was filed on December 20, 

2018. Plaintiff never filed a motion to reconsider. Instead, he contacted the Court by phone in 

June 2019. For this reason alone, the Court should reject Plaintiff’s attempt to obtain untimely 

reconsideration of Judge Humetewa’s ruling. 

In any event, Defendants correctly determined that the messages were not relevant. 

Defendants previously explained that they used a combination of search terms and document-bydocument review to find and produce relevant material without burying it under irrelevant 

material. (Doc. 104 at 2) Defendants determined the texts here were not relevant: no one disputes 

that Donat and Lisson had a romantic relationship. Plaintiff now speculates that these messages 

could “quite likely” be relevant – not to an issue to be tried – but to the Title VII retaliation claim 

the Court just granted summary judgment on. Supra 3:6-17. Specifically, Plaintiff speculates that 

there might be a text in which Lisson engages in protected activity prior to Plaintiff’s termination. 

Id. 

There is not, as the Court just noted in its ruling. In its summary judgment ruling, the Court 

notes Lisson’s sworn deposition testimony that she made her first complaint on March 9, 2017. 

(Doc. 151 at 9-10 (also noting her declaration that does not describe complaints before March 9)) 

If she believed there were a text relevant to engaging in protected activity – the sole reason 
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Plaintiff claims the texts are relevant – she could have testified so.3 She never has.4

Finally, Plaintiff references an email exchange between defense counsel and Plaintiff’s 

predecessor counsel about objections to subpoenas. This email exchange is irrelevant. Plaintiff 

served subpoenas on several GPS Insight, LLC (“GPSI”) employees, as well as defendant Rob 

Donat. (E.g., Docs. 57-61) Defendants’ counsel explained that those subpoenaed were GPSI 

employees/a party, and that the material sought was actually in the possession, custody, or control 

of GSPI and would need to be obtained through a request for production, or else were already 

subsumed in Plaintiff’s disputes about the MIDP. The email had nothing to do with whether 

additional material would be produced. 

II. “Spoliated” Sales Policy. 

This too is a motion to reconsider. Plaintiff previously raised issues concerning what 

policies had been produced. Defendants explained that they had already produced all policies that 

exist. The Court ordered production of all policies, to the extent they had not already been 

produced. (Doc. 134 at § C) As they had been, there was nothing more to do. (Doc. 96 at ¶ 4 

(noting receipt of sales policies)) It does not appear that there is anything different about the 

current request. 

Though even easier: there is no spoliation or relevant evidence at issue. Plaintiff 

misapprehends what constitutes spoliation. He appears to believe that if material is altered or lost, 

even prior to when litigation is anticipated, that this is spoliation. It simply is not. See Fed. R. 

Civ. P. 37(e) (rule applies where information “should have been preserved in anticipation or 

conduct of litigation”); e.g., Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 286 (E.D. Va. 

3

 Again, if Plaintiff disagreed with Defendants’ conclusion, he was free to serve requests for 

production. As counsel notes above, he did not timely do so, nor were those untimely served 

within the numeric limit imposed by this Court’s scheduling order. Plaintiff never raised 

Defendant’s objections to those untimely, excessive requests to this Court. 

4

 Plaintiff also references Donat’s supposed “ever increasing anger.” Plaintiff does not 

identify any element of a claim, however, that this is relevant to. See Doc. 151 at 4-5 (“[P]ersonal 

animosity is not the equivalent of sex discrimination and Plaintiff cannot turn a personal feud into 

a sex discrimination case.” (quotation omitted)). Moreover, the window at issue is January 10, 

2017 to February 9, 2017. If the issue is “ever-increasing anger,” Lisson has already produced 

the texts in the month prior to and approaching the termination date of March 6, 2017. 
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2004) (“the vital question at issue [is]: whether Rambus intentionally destroyed documents 

notwithstanding that it anticipated litigation.”). Here, GPSI maintained its sales policies on a 

shared drive. In the course of its operations, it updated the policies from time to time. GPSI did 

not necessarily preserve the old policies because it was updating an electronic copy. It has 

searched for what policies exist, and produced them. As the Court directed at the prior hearing 

on this issue (Doc. 147), Defendants produced a verified disclosure statement stating that all such 

policies had been produced. Plaintiff does not contend that Defendants should have anticipated 

litigation when these policies were updated, nor has he identified any relevant information that 

was lost. 

Plaintiff contends otherwise, arguing that GPSI employee Jason Walker admitted that the 

policy had been changed as of June 6, 2018, after his original deposition. Defendants have 

produced that policy. The change is this: at the time Plaintiff was employed, terminated 

employees were paid out their commission for a period of time. After Plaintiff’s termination, 

GPSI changed the policy so that terminated employees would not be paid commission following 

their termination in the same way Plaintiff was. Here, however, GPSI paid Plaintiff out under the 

old policy, and has conceded that it is the old policy that would govern and it has paid out his 

commission under that policy.5 Consequently, there is no “lost” information and no spoliation. 

III. Spreadsheets on Commissions. 

Plaintiff presently complains about who and what were included in a commission 

worksheet. Plaintiff made the same complaint previously. (Doc. 96 at ¶¶ 1-3) Then he wanted 

all data about every employee, whether or not comparable to him, for an extended period of time. 

(Id.) Defendants explained that they provided information on the two salespeople Plaintiff 

eventually identified as comparable, and two others Defendants believed were comparable, 

limited to the time relevant to this case. (Doc. 104 at ¶¶ 1-3) Defendants further explained the 

limited information that had been removed, and that Donat had testified how to calculate the single 

5

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claim. 
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omitted formula.6 (Id.) Judge Humetewa found Plaintiff’s request to be over-broad and irrelevant, 

and that Defendants’ approach was reasonable. (Doc. 134 at §§ A-B) The Court therefore denied 

Plaintiff’s requests. Again, Plaintiff never filed a motion to reconsider, yet asks this Court to 

revisit Judge Humetewa’s prior ruling. Plaintiff’s motion is not only timely under LRCiv 7.2(g), 

but Plaintiff additionally fails to explain how Judge Humetewa overlooked or misapprehended his 

position. LRCiv 7.2(g)(1). 

The information Plaintiff seeks (again) was never relevant. Plaintiff does not provide any 

explanation to the contrary. 

IV. Redacted Tax Returns 

As ordered, Defendants produced corporate and personal tax returns. Since punitive 

damages are based on income, Defendants redacted all lines other than net income. Plaintiff now 

complains that he should get unredacted returns. He should not. 

The reason Plaintiff gave Defendants’ counsel for wanting unredacted returns was to see if 

Defendants took excessive deductions. (In his brief, Plaintiff provides no explanation at all why 

this information is relevant.) But tax returns are filed under penalty of perjury, and discovery has 

closed. Consequently, it is too late for him to conduct further discovery on the propriety of any 

deductions, and any information he did gather (there is none to be had) would not be admissible. 

Defendants are particularly concerned about producing such information given Plaintiff’s 

history of using litigation materials outside of Court in an effort to harass and harm Defendants. 

Thus far, Plaintiff has: (1) created YouTube videos outlining his allegations;7 (2) created a website 

laying out his case, using litigation materials, which he then sent anonymously to GPSI 

employees; (3) reached out to GPSI customers raising claims of discrimination and threatening 

them in an effort to interfere with GPSI contracts; and (4) posting anonymous negative reviews 

6

 Defendants did not want Plaintiff to have information about GPSI’s total profits, as he has 

misused information from this litigation, as detailed below. A portion of that data is subject to a 

Non-Disclosure Agreement. In any event, Plaintiff can see from the raw numbers whether he was 

supposedly treated differently than other similarly-situated employees. Plaintiff has never 

claimed that he needs the formulas/underlying data to calculate his damage claim, so the raw 

numbers should suffice. 

7

 https://www.youtube.com/channel/UCCqWFZI0twMLhOgRsQkIvEA 
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on a popular job posting website (Glassdoor) in an effort to disparage GPSI and drive away 

potential employees.8 Plaintiff has never denied that he is behind each of these actions. Indeed, 

he narrates some of the YouTube videos. To the contrary, when it comes to the subpoena to 

Glassdoor (addressed next), Plaintiff instead objects to the “release of any privately-posted 

information online . . . .” 

The last thing the Court should do is put unredacted tax forms in his hands to be used 

outside of Court. If the Court requires production at all (and it should not because the information 

is irrelevant) it should direct that the returns be produced for attorneys’ eyes only. 

V. Subpoena to Glassdoor 

After discovery closed, Plaintiff posted anonymous negative reviews on the job-posting 

website Glassdoor. Defendants sought to subpoena that information. (Doc. 145) Plaintiff does 

not deny that he is the anonymous poster, and he does not oppose Defendants’ request to subpoena 

Glassdoor. The Court should therefore allow it. 

What Plaintiff instead does is ask for a quid pro quo: if Defendants are allowed this 

additional, limited discovery, Plaintiff contends the floodgates should be opened for him. They 

should not – the situations are different. Defendants are seeking a single subpoena to obtain 

information first available after the close of discovery. Plaintiff is seeking to re-do discovery 

because he is unhappy with his prior counsel. Permitting Defendants’ discovery poses no reason 

why Plaintiff’s should be allowed, and Plaintiff develops no argument to the contrary. 

Conclusion 

Plaintiff has never been happy with his counsels’ conduct of discovery in this case. He has 

submitted innumerable filings containing unspecified sanctions requests and requests to re-open 

discovery. He does it in the current joint filing, even though it is beyond the scope of the Court’s 

order calling for this brief, and though Judge Humetewa expressly told him not to. As she 

deduced, Plaintiff’s various discovery issues are nothing but a ruse to try to re-do discovery. But 

she resolved the issues and directed that the case move on. The Court should not revisit that 

8 E.g., https://www.glassdoor.com/Reviews/Employee-Review-GPS-InsightRVW26248597.htm 
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determination. 

Respectfully submitted this 28th day of August, 2019, 

JOSHUA CARDEN LAW FIRM, P.C. 

By: s/Joshua W. Carden (with permission)

Joshua W. Carden 

Attorneys for Plaintiff 

Jeremy Thacker 

STINSON LLP 

By: /s/ Stefan M. Palys 

Carrie M. Francis 

Stefan M. Palys 

Michael Vincent 

1850 North Central Avenue 

Suite 2100 

Phoenix, Arizona 85004-4584 

Attorneys for Defendants 

By: 

SCHNEIDER & ONOFRY, PC 

/s/ Timothy B. O’Connor

Timothy B. O’Connor 

365 East Coronado Road 

Phoenix, Arizona 85004 

Attorneys for Defendant Donat