Bias Analysis of October 13, 2023 Order (Costs)

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Bias Analysis of Judge Kevin Miller’s October 13, 2023 Order on Costs and Disbursements
Bias Score: -7 (toward Defendants)
Scale: -10 (highly biased toward Defendants) to +10 (highly biased toward Plaintiffs), with 0 as neutral.

Summary of Analysis:

Judge Miller’s October 13, 2023 order awards Defendants $60,757.12 in costs and disbursements despite the existence of undisputed misconduct by Defendants, including:

• Spoliation sanctions against Sean Stevenson for deletion of text messages and lying under oath;

• Sanctions against Defendants’ counsel for improperly terminating Lisa Stevenson-Allen’s deposition;

• An acknowledged need to re-depose these same Defendants because of their misconduct.

These serious discovery abuses were acknowledged and sanctioned earlier in the case, yet Judge Miller still taxed nearly all deposition and forensic costs to Plaintiffs, even when they directly stemmed from Defendants’ bad faith conduct. This heavily discounts the culpability of the sanctioned parties.

Key Findings Supporting Bias Score:

1. Disregard of Defendants’ Spoliation and Perjury as Basis to Shift Costs

Judge Miller found that Sean Stevenson lied under oath and deleted relevant messages. Yet, the Court still awarded 50% of Carney Forensics’ costs (over $9,300) and nearly all related phone transport and handling fees to Defendants.
➤ Bias indicator: Rewarding a party for forensic fees necessitated by their own misconduct shifts the burden of their wrongdoing to the innocent party.

2. Awarding Costs for Depositions Necessitated by Defendants’ Misconduct

The Court awarded costs for nearly every deposition, including:

• Two full deposition transcript fees per witness (for separate defense counsel) totaling over 30 entries;

• Partial costs for Lisa Stevenson-Allen’s interrupted deposition, even though the Court previously sanctioned her for counsel’s improper termination;

• Costs for Sean Stevenson’s second deposition, necessitated only because he lied under oath in his first.

➤ Judge Miller did exclude some portions of these fees (e.g., Sean’s second deposition, Lisa’s first), but the overall deposition costs were still mostly taxed to Plaintiffs — despite the misconduct being the Defendants’ fault.

3. Allowance of Weakly Justified or Unsupported Costs

Multiple cost categories lacked invoices or explanations (e.g., subpoena processing in California, duplicative medical record charges), yet were still accepted. Judge Miller gave Defendants the benefit of the doubt, despite his own acknowledgment that documentation was incomplete.

4. Judicial Tone and Selective Emphasis

The memorandum is presented as “thorough” and appears “balanced” on the surface, but it consistently excuses or minimizes misconduct by Defendants while holding Plaintiffs to a high evidentiary and procedural standard (e.g., requiring Plaintiffs to prove exact usage of each deposition at summary judgment while giving Defendants broad leeway).

Hearing Transcript Highlights Supporting Bias Score:

• Plaintiffs’ Counsel (Mr. Schaap) correctly noted that the burden was on Defendants to prove costs were reasonable, and that Rule 54 does not allow late evidentiary supplementation.

• Schaap also emphasized that some of the Defendants’ fees were for depositions or expert services directly tied to misconduct (e.g., spoliation).

• Judge Miller did not challenge or probe the defense arguments, nor did he ask questions about inconsistent documentation or burden-shifting from spoliating parties.

Conclusion:

Despite a superficial appearance of balance, the substance of Judge Miller’s rulings on costs reveals a strong and consistent pattern of favoring Defendants:

• He frequently minimized or excused defense misconduct (even when previously sanctioned),

• Accepted inadequately supported cost claims from Defendants,

• Taxed Plaintiffs for costs stemming directly from Defendants’ wrongful conduct, and

• Penalized Plaintiffs for failing to meet burdens that the law places on Defendants.

These factors, taken together, support a bias score of -7 on the judicial neutrality scale.