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FILED IN MY OFFICE
DISTRICT COURT CLERK
8/26/2015 1:44:53 PM
James A. Noel
Ann Hart

STATE OF NEW MEXICO

COUNTY OF BERNALILLO
SECOND JUDICIAL DISTRICT COURT
ELIZABETH WALLBRO, as Personal
Representative of the Estate of MARY Y.C. HAN,
Plaintiffs,
v.

No. D-202-CV-2012-10367

THE CITY OF ALBUQUERQUE; et al.

Defendants.

PLAINTIFFS EMERGENCY MOTION TO ORDER

DEFENDANTS TO PRESERVE ELECTRONIC INFORMATION
Plaintiffs by and through undersigned counsel of record, hereby moves this Court for an
order requiring Defendants to immediately preserve electronic information by securing it in the
custody of the Court or tagging into the New Mexico Department of Public Safetys Evidence
Unit for safekeeping. In support of this Motion, Plaintiff hereby states:
1.

On October 4, 2011, Katherine Han-Noggle, as daughter and personal representative

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of the Estate of Mary Y.C. Han, filed a Petition for Discovery with the Second Judicial
District Court, Cause Number 2011 CV 09975.
2.

On November 3, 2011, the Honorable Nan Nash ordered:

The City of Albuquerque and APD shall preserve all records, reports, documents,
photographs, and any other record or evidence in their possession, custody, or control
relating to an emergency call concerning Mary Y.C. Han on November 18,
2010, and any subsequent response or investigation. The City of Albuquerque and
APD shall not destroy, alter, amend, redact or issue new supplements to any records
and/or documents, electronic or otherwise, to include but not limited to cellular
phone records and/or texts and/or photographs relating in any manner to its
response to an emergency call regarding Mary Y.C. Han on November 18, 2010 to
include any investigation(s) or documents generated.
See Order attached hereto and incorporated herein as Exhibit 1.

3.

At oral argument on July 31, 2012, the Honorable Nan Nash again ordered APD to
preserve evidence and produce mobile phone datacards to Petitioner. See Transcript
attached hereto as Exhibit 2 at 48:20-22.

4.

Deputy City Attorney, Kathryn Levy, informed the Court that [t]he City has provided
the records it has. See Transcript attached hereto as Exhibit 2 at 19:3-14.

5.

In fact, Ms. Levy proposed to the Court that the cellular telephone datacards would be
preserved. Exhibit 2 at 29:21-22.

6.

Subsequent to the July 31, 2012 hearing, on September 19, 2012, Ms. Levy reversed
her position and informed Plaintiffs counsel that the data contained on the cellular

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telephones had been destroyed. See correspondence attached hereto and incorporated
herein as Exhibit 3.
7.

Ms. Levy also produced an affidavit from Richard F. Campos, city employee,
confirming that the City had failed to implement any policies and procedures to
prevent the destruction of evidence on the cellular phones. See Affidavit of Richard
Campos attached hereto and incorporated herein as Exhibit 4.

8.

On August 25, 2015, counsel was informed that the Albuquerque Police Department
has utilized an independent database to store information concerning high profile
cases and that this database is stored on computer hard drives and backup upon
compact disks. See Affidavit of Reynaldo Chavez attached hereto and incorporated
herein as Exhibit 5.

9.

Included in that database is information and documents relevant to the death of Mary
Han on or about November 18, 2010. Exhibit 5.

10.

Reynaldo Chavez was the public records custodian for the Albuquerque Police
Department. Exhibit 5.

11.

It is Mr. Chavezs opinion, based on his employment and experience with the
Albuquerque Police Department, that the database will most likely be destroyed now
that it is out of his control and possession. Exhibit 5.

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12.

Mr. Chavez also stated that Ms. Levy had taken deliberate action to prevent Plaintiffs
from obtaining relevant information concerning Ms. Hans death and the involvement
of Albuquerque Police Department personnel. Exhibit 5.

13.

On August 25, 2015, counsel for Plaintiffs emailed counsel for the Defendants
requesting that they agree to prevent the destruction of the database. See Email
attached hereto and incorporated herein as Exhibit 6

14.

Counsel for Defendants did not respond to the request from Plaintiffs counsel.

15.

Plaintiffs have reason to believe that the independent database which contains
information relevant to these proceedings will be destroyed by the Defendants
(particularly given the history of the Defendants to ignore Court orders) without
immediate Court involvement.

WHEREFORE, Plaintiffs respectfully request this Court order the Defendants to protect
and preserve the database that is referenced in Mr. Chavezs affidavit and for such other and
further relief as the Court deems just and proper.

Respectfully submitted,
/s/ Rosario D. Vega Lynn Rosario
D. Vega Lynn
Vega Lynn Law Offices, LLC
PO Box 65513
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Albuquerque, NM 87193
Telephone/Facsimile: (505) 227-5091
Email: vegalynnlawfirm@aol.com
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of August 2015, the foregoing was filed electronically and a
copy was served via email to counsel of record as follows:
Stephen French
Philomena Hausler
French & Associates, P.C.
6739 Academy Road, Suite 200 Albuquerque,
NM 87109
(505) 843-7075
Email:
phausler@frenchlawpc.com
sfrench@frenchlawpc.com
/s/ Rosario D. Vega Lynn
Rosario D. Vega Lynn
FILED IN MY OFFICE
DISTRICT COURT CLERK
11/23/2011 9:21:13
AM GREGORY T.
IRELAND
STATE OF NEW MEXICO
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SECOND JUDICIAL DISTRICT
COUNTY OF BERNALILLO

mjc
NO. 2011 CV 09975

IN RE: MARY Y.C. HAN

ORDER REGARDING ALBUQUERQUE
POLICE DEPARTMENT RECORDS AND DOCUMENTS
THIS MATTER having come before the Court on matters raised by Raymond D. Schultz,
Chief of Police, City of Albuquerque Police Department (APD), the Court having reviewed
the pleadings, and heard arguments of counsel on November 3, 2011 and being otherwise
advised in the premises, ORDERS as follows:
1. The City of Albuquerque and APD shall preserve all records, reports, documents,
photographs, and any other record or evidence in their possession, custody, or control
relating to an emergency call concerning Mary Y.C. Han on November 18, 2010, and any
subsequent response or investigation. The City of Albuquerque and APD shall not destroy,
alter, amend, redact or issue new supplements to any records and/or documents, electronic or
otherwise, to include but not limited to cellular phone records and/or texts and/or
photographs relating in any manner to its response to an emergency call regarding Mary Y.C.
Han on November 18, 2010 to include any investigation(s) or documents generated.

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2. APD shall fully and completely respond and provide to Petitioner the following documents
or objects as listed on Petitioners Subpoena Duces Tecum limited to APDs response to the
emergency call regarding Mary Y.C. Han to Ms. Hans home located at 3022 Colonnade
Court NW, Albuquerque, New Mexico 87107 on November 18, 2010:

Original 911 call recording to include but not limited to Paul Kennedy 911 call regarding
Ms. Han and APDs dispatch air and traffic of the incident;

Computer Aided Dispatch (CADs) records for entire incident involving Ms. Han in any
manner;

CADs for all APD officers and/or individuals requested to, or logged at, Ms. Hans home
for the period of time APD officers and/or individuals were at Ms. Hans home;

Any and all tapes for all department frequencies during time period APD personnel were
at Ms. Hans home;

Any and all frequencies, all air, including, but not limited to tactical, open space,
city tac or other interagency frequencies regarding Ms. Han taken on November 18,
2010;

Any and all inter-computer CADS and/or mobile data terminal (MDT) texting, messages,
or 51s transmitted during the time period each APD personnel was at Ms. Hans home;

Any and all MDT information for November 18, 2010 regarding Ms. Han;

Any and all data from mobile digital computer (MDCs) for November 18, 2010
regarding Ms. Han;

Identification of the APD officer who was the scribe at Ms. Hans home, and copy of the
scribes report;

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An accounting of all sworn and civilian personnel present at Ms. Hans home, time of
arrival and time of departure;

Identification of all dispatchers and/or radio personnel on duty during the time of the
call;

Identification of sworn and civilian personnel present in possession of department or city

issued cellular telephones who were present at Ms. Hans home;

Any and all reports and/or 42s from all sworn and civilian personnel present at the
scene on November 18, 2010;

Crime scene diagrams of the scene in Ms. Hans home;

AutoCAD renderings and original total station data sets from the scene in Ms. Hans
home;

APD Officers belt tapes who were present in Ms. Hans home on November 18, 2010,
whether tagged by the officer or not;

APD Officers body camera data cards and/or transferred files limited to the APD
Officers who were present in Ms. Hans home on November 18, 2010;

APD Officers cellular phone data cards and/or electronic images limited to the APD
Officers who were present in Ms. Hans home on November 18, 2010;

List of all evidence taken from Ms. Hans home on November 18, 2010 tagged and
impounded by APD personnel;

Copies of any and all receipts for the property from Ms. Hans home and given to Mr.
Paul Kennedy;

Copies of any and all receipts for the property given to anyone at the scene on November
18, 2010;

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All APD standard operating procedures in force in November 2010 (to be produced in
electronic format).

3. APD shall produce the materials subject to this Order by December 5, 2011.
4. This Court shall have continuing jurisdiction over the subject matter of this Order and over
all parties covered by this Order.
IT IS SO ORDERED.

_______________________________________
__
HONORABLE NAN NASH
District Court Judge
SUBMITTED BY:
/ss/ November 3, 2011
Rosario D. Vega Lynn
Attorney for Petitioner
APPROVED AS TO FORM:
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_____________________________________
Kathryn Levy
Deputy City Attorney

SECOND JUDICIAL DISTRICT COURT

COUNTY OF BERNALILLO
STATE OF NEW MEXICO
District Court No. CV 2011-9975
4
IN RE: MARY Y.C. HAN,
5
6
7
8
9TRANSCRIPT OF PROCEEDINGS
10On the 31st day of July, 2012, at approximately
1110:30 a.m., this matter came on for a Motions hearing, before
12the NAN G. NASH, Division XVII, Judge of the Second Judicial
13District, State of New Mexico.

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14The Petitioner, KATHERINE HAN-NOGGLE, appeared by 15Counsel of
Record, ROSARIO D. VEGA LYNN, Attorney at Law, 161019 Second Street,
NW, Albuquerque, NM 87102.
17The CITY OF ALBUQUERQUE appeared by Counsel of Record,
18KATHRYN LEVY, City of Albuquerque Legal Department, P.O. Box
192248, Albuquerque, NM 87103.
20At which time the following proceedings were had:
21
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1
THE COURT: But I think there's some idea what
they're going for.
MS. LEVY: But that's the problem, Your Honor, some
4idea. And the rule, itself, talks about a verified petition
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5stating what the prongs of making their claim is. We have
6gone above and beyond in providing everything that both the
7Court ordered and what we ordered. Now I'm hearing that,
8somehow or other, personal records should be provided. As I
9stated, the cases are not on point. There is no lawsuit
10filed. There is no way for these individuals on their
11personal cell phones, whether used for business or not, to
12determine whether they need to file an objection. The City
13has been the respondent. The City has provided the records 14it has.
15It's fascinating to me that we have the respondent
16can say that Chief Schultz received eight phone calls or
17eight calls were made to his number. Well, none of those
18records say what the calls were about, so she has that
19information. Calls were made to the chief. He was out of
20town. Simply looking at one more log to say phone calls were
21or were not made on a certain date, doesn't make anything

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22more or less likely. Similarly, telling this Court that people use their

City

phones and it shows that they took photos on some dates doesn't change
anything. They don't -- at this point, they're saying, if they took photos, would we
19
so I can appoint a special master. I -- the City can make a suggestion as

to

how those would be inspected, but if they're on -- I mean, there's an SOP

that

says you can't photograph; 4there are photographs that are referenced in

the

records that 5are provided.

6MS. LEVY: Well, no, the SOP talks about taking
7personal photos at a crime scene, so she's made a tremendous
8leap as to what these photos would be. This is not as if you
9can't use the cell phone to take another photograph, for
10example. It's a crime scene.
11THE COURT: Okay.
12MS. LEVY: That's a major distinction.
13THE COURT: Okay.
14MS. LEVY: And I have, again -- and so I
15represented to counsel in a letter -- talked to everyone,
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16except Tim Lonz and to a person -- every one of those people
17on that list did not take a photograph on that date. So I
18would argue preservation of those cards, but not production.
19Again, it's meaningless, it's expense.
20THE COURT: So your point is that the cards should
21be preserved, but not produced at this point in time?
22MS. LEVY: Yes, Your Honor.
THE COURT: And what about the -- pursuant to the Ortiz decision, at
the very least, preservation of the mobile phone records for that date of these
three individuals.
29
A. I have never seen Jacob Welsh since that day.
Q. Did you to ask Tim Lonz?
A. No.
4Q. And we've already talked about Mr. Muniz. In the almost
5two years since Ms. Han's death, have you seen any
6photographs, anywhere, that were not department photographs,
7of her death?
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8A. No.
9Q. Or in the newspaper?
10A. No.
11THE COURT: Thank you. You may step down. I
12think, given the testimony, what needs to be done is, there
13needs to be a direct inquiry made of these four individuals
14who have been identified.
15MS. LEVY: I will do so, Your Honor.
16THE COURT: And they -- I think if their response
17is that they did not take any unauthorized department
18photographs, I think an affidavit reflecting that needs to be 19provided.

With

regard to the other -- that -- Mr. Lonz is

20number 4 on this list. With regard to Adams, Bates, Hoffman,
21Paiz, White, and Wilhelm, the Court is ordering the
22department to preserve those datacards.
With regard to the private phones that had calls
coming in and out of the scene, I think for the date of the -- give me just

one

second. I think the -- pursuant to

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48

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From:
To:
Cc:
Subject:
Date: Monday,

Chavez, Reynaldo L.
vegalynnlawfirm@aol.com
City Clerk Staff; Bailey, Amy B.
IPRA / Michael Muniz - follow up /// 12/24/12
December 24, 2012 3:10:43 PM

Dear Ms. Vega Lynn,

The city will require more than three (3) business days to respond to your latest request.
We will respond to your latest request within 15 business days (per IPRA) from the time
you submitted.
I have taken the liberty of copying the City Clerk who oversees IPRA compliance.
As always, please do not hesitate to contact me with any additional questions or concerns.
Good day Ma'am.
Kind regards,

Reynaldo L. Chavez

APD Records Custodian/Central Records SupervisorOffice

(505)768-2007Cell: (505) 235-2160Fax: (505) 768-2540chavezr@cabq.gov

_______________________________________________________________________________
-----Original Message----From: RVL [mailto:vegalynnlawfirm@aol.com]
Sent: Monday, December 24, 2012 11:01 AM To:
'chavezr@cabq.gov'
Subject: FW: IPRA / Michael Muniz - follow up
Importance: High
Dear Mr. Chavez
I sent the attached email on December 17, 2012 at 10:44 a.m. To date, I
have not received a response so I am resending the original objections to
the IPRA documents produced by APD. I ask that you respond by close of
business today to the request as the 3 day response period has expired.
Thank you

Rosario
-----Original Message----From: vegalynnlawfirm@aol.com [mailto:vegalynnlawfirm@aol.com]
Sent: Monday, December 24, 2012 10:57 AM To: Chavez, Reynaldo
L.
Subject: Re: IPRA / Michael Muniz
Dear Mr Chavez
I have reviewed the records and CD produced by APD on December 14th.
Please note that I only received one report authored by Field Investigator Muniz
on November 18, 2010. The report was for a burglary. Yet, FI Muniz was in Ms
Han's home on November 18th. Thus, please provide the following as required
by IPRA:
1. All reports prepared by FI Muniz on November 18, 2010 to include: (a) the
copperfire report, (b) date originally entered into tiburon or the database
utilized by APD, (c) date(s) of supplements/amendments/edits and by whom
to include identification of the individual and identification of the individual's
rank or civilian title and time, (d) supervisor/Sgt approval to include date and
time and (e) any and all individuals who have either accessed or retrieved the
reports and/or computer file.
With regard to the photos on the CD, I informed Officer Torres on December
14th that I needed the jpg copies of the photos taken by FI Muniz on
November 18th. The pdf provided by APD do not include the metadata. Please
provide all photos in the possession and custody of APD in jpg format. This
request includes any photos taken by FI Muniz which are on the camera
memory.
Further, you indicated that emails concerning Ms Han in any manner were
nonspecific to produce. I do not agree as I clearly requested emails from
APD members (see below) and again request those emails be produced.
Please provide these records in electronic format as soon as possible.
Thank you for your attention. Rosario
Vega Lynn
------Original Message-----From:
Chavez, Reynaldo L.
To: Rosario Vega Lynn
Subject: IPRA / Michael Muniz
Sent: Dec 4, 2012 3:01 PM
Dear Ms. Vega Lynn,

This email will acknowledge completion of your public records request dated
November 17, 2012 (Saturday) and received by my office on November 19, 2012
(Monday).
Please review the following.
Please provide any and all incident reports/field investigation reports prepared
by Michael Muniz from November 1 to November 30, 2010; Multiple reports
in excess of 308 pages. Available for review.
2.
Any and all electronic communications to include but not limited to
emails and text communications by cellular phone sent by any member of
the Albuquerque Police Department to anyone concerning Mary Han in any
manner from January 1, 2010 to the present;
Not possible to process. Emails have to be identified from one(1)
individual to another (1) individual. Voluminous.
Any and all correspondence (to include inter-office memoranda) concerning
Ms. Han in the possession and/or control of the Albuquerque Police
Department; Not possible to process or produce.
Provide any and all photographs in the possession or control of the City of
Albuquerque concerning Mary Han in any manner to include a full and complete
electronic copy of all of the photographs taken by Michael Muniz on November
18, 2010 concerning Ms. Han and/or her home located at 3022 Colonnade NW
currently in the possession and control of the Albuquerque Police Department;
Available for review.
Provide any and all internal complaints against any Albuquerque Police
Department personnel initiated by/conducted by/or reviewed by Deputy Chief
Paul Feist, Deputy Chief Allen Banks, Deputy Chief Beth Paiz, Deputy Chief
Steve Warfield and/or Chief Raymond Schultz from January 1, 2010 to the
present. The documents requested are exempt from production pursuant to
Sec. 14-2-1A(3), State ex rel. Newsome v. Alarid, 90 N.M. 790 (1977), and
Cox v. New Mexico Dept of Public Safety, 148 N.M. 934 (Ct. App. 2010).
I ask that you provide this information in electronic format.
The available information was not available in electronic format. Incident
reports require multiple processing steps (manual). Photographs are
available via CD. Network restrictions limit size to be transmitted
electronically. Current charges per Admin Instruction 1-7;
0.50 cents per page CDs - $5.00 per copy Please be advised that you may
review/inspect at

Law Enforcement Center

400 Roma Ave. NW
Albuquerque, NM 87102
Please contact Ms. Jackie Garza to schedule review @ 505.768.2141.
If purchasing documents and CD, please make payment ($159.00) by cash. Payment
may also be made by company check made payable to City of Albuquerque.
Please do not hesitate to contact me if you have any questions or comments.
Kind regards,
Reynaldo L. Chavez
APD Records Custodian/Central Records Supervisor
Office: (505) 768-2007
Cell: (505) 235-2160
Fax: (505) 768-2540
chavezr@cabq.gov

From: Chavez, Reynaldo L.

Sent: Monday, November 19, 2012 7:17 PM
To: 'RVL'
Subject: IPRA / Michael Muniz

Mr. / Ms. Vega Lynn

This email will acknowledge receipt of your public records request dated
November 17, 2012. Please be advised we are reviewing your request to
determine what public records are responsive and whether any exceptions to
their production apply. We will continue our review and contact you prior
to the expiration of fifteen (15) days from the receipt of your request. Please
do not hesitate to contact me if you have any questions or comments.
Kind regards,
Reynaldo L. Chavez
APD Records Custodian/Central Records Supervisor
Office: (505) 768-2007
Cell: (505) 235-2160
Fax: (505) 768-2540
chavezr@cabq.gov

From: RVL [mailto:vegalynnlawfirm@aol.com]

Sent: Saturday, November 17, 2012 5:12 PM
To: Chavez, Reynaldo L.
Subject: FW: Public Records Request
Dear Mr. Chavez:
I would like to amend paragraph 1 as follows:
1.
Please provide any and all incident reports/field investigation reports
prepared by Michael Muniz from November 1 to November 30, 2010.
My apologies for any confusion.
Rosario
From: RVL [mailto:vegalynnlawfirm@aol.com]
Sent: Saturday, November 17, 2012 4:28 PM
To: 'chavezr@cabq.gov'
Subject: Public Records Request
Dear Mr. Chavez:
Please accept this request as provided by the Inspection of Public Records
Act, NMSA 1978, Section 14-2-1 et seq. Please provide the following public
records:
1. Any and all incident reports/field investigation reports prepared by
Michael Muniz from January 1,2010 to the present;
2.

Any and all electronic communications to include but not limited toemails
and text communications by cellular phone sent by any member of the
Albuquerque Police Department to anyone concerning Mary Han in any
manner from January 1, 2010 to the present;

3.

Any and all correspondence (to include inter-office memoranda)

concerning Ms. Han in the possession and/or control of the Albuquerque
Police Department;
4.

Provide any and all photographs in the possession or control of theCity of

Albuquerque concerning Mary Han in any manner to include a full and
complete electronic copy of all of the photographs taken by Michael Muniz
on November 18, 2010 concerning Ms. Han and/or her home located at
3022
Colonnade NW currently in the possession and control of the Albuquerque
Police Department;
5. Provide any and all internal complaints against any Albuquerque
Police Department personnel initiated by/conducted by/or reviewed by Deputy

Chief Paul Feist, Deputy Chief Allen Banks, Deputy Chief Beth Paiz, Deputy
Chief Steve Warfield and/or Chief Raymond Schultz from January 1, 2010 to
the present.
I ask that you provide this information in electronic format. Thank you for
your attention.

Rosario D Vega Lynn

Attorney
Vega Lynn Law Offices, LLC
1019 2nd Street NW
Albuquerque, NM 87102
(505) 227-5091
(505) 299-0518 FAX
Confidentiality Note:
This is e-mail, and any attachment to it, contains privileged and
confidential law firm information intended only for the use of the
individuals(s) or entity named on the e-mail. If you receive this
transmission in error, please notify the sender by reply e-mail and delete
the message and any attachments. Thank you.

From:
To:
Cc:
Subject:

R Lynn
"Steve French"
"Philomena Hausler"; "TJWilham@cabq.gov"
Han v. CABQ

Date:

Tuesday, August 25, 2015 2:16:00 PM

Hi Steve and Philomena:

I was just informed that APD has an independent database that Reynaldo Chavez was
responsible for as IPRA custodian. My understanding is that this database includes
information about Ms. Hans death and that Mr. Chavezs employment was terminated
yesterday. I am writing to ask if you would be willing to agree to a stipulated Order
whereby the APD agrees it will ensure that the database will not be altered or
destroyed? I realize that Judge Nashs order probably includes this database since her
order of November 23, 2011 stated as follows:
1. The City of Albuquerque and APD shall preserve all records, reports, documents,
photographs, and any other record or evidence in their possession, custody, or control
relating to an emergency call concerning Mary Y.C. Han on November 18, 2010, and
any subsequent response or investigation. The City of Albuquerque and APD shall not
destroy, alter, amend, redact or issue new supplements to any records and/or
documents, electronic or otherwise, to include but not limited to cellular phone records
and/or texts and/or photographs relating in any manner to its response to an
emergency call regarding Mary Y.C. Han on November 18, 2010 to include any
investigation(s) or documents generated.
Given the possibility that this language does not include a standalone database, I
wanted to ask you for your position on this matter. Please let me know as soon as
possible and I can prepare the joint motion/stipulated order.
Thank you

Rosario D Vega Lynn

Attorney
Vega Lynn Law Offices, LLC
PO Box 65513
Albuquerque, NM 87193
(505) 227-5091
(505) 227-5091 FAX (please wait for voice mail to pick up)
Confidentiality Note:

This is e-mail, and any attachment to it, contains privileged and confidential law firm information
intended only for the use of the individuals(s) or entity named on the e-mail. If you receive this
transmission in error, please notify the sender by reply email and delete the message and any
attachments. Thank you.
From:
To:
Subject:
Date:
Attachments:

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<phausler@hauslerlegal.com>: delivery via aspmx.l.google.com[74.125.28.27]:25:
250 2.0.0 OK 1440533777 bx12si23272444pdb.198 - gsmtp
<sfrench@frenchlawpc.com>: delivery via
ASPMX.L.GOOGLE.com[74.125.28.27]:25:
250 2.0.0 OK 1440533783 fn7si34726855pdb.166 gsmtp