FILED IN MY OFFICEDISTRICT COURT CLERK8/26/2015 1:44:53 PMJames A. Noel Ann HartSTATE 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 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 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. 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 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

1 1 1 FILED IN MY OFFICEDISTRICT COURT CLERK11/23/2011 9:21:13 AM GREGORY T. IRELANDSTATE OF NEW MEXICO SECOND JUDICIAL DISTRICT mjcCOUNTY OF BERNALILLO 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. 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; 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; 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: _____________________________________ Kathryn Levy Deputy City Attorney

1 2 4 SECOND JUDICIAL DISTRICT COURTCOUNTY OF BERNALILLOSTATE OF NEW MEXICO District Court No. CV 2011-9975 4IN RE: MARY Y.C. HAN, 5 6 7 8 9TRANSCRIPT OF PROCEEDINGS10On 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. 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: 2122232425 1THE 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 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 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 19so 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, 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.29A. 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? 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 48 1 2 3 1 2 3 1 2 3

TR - SHANON R. MYERS, CCR, RPR, CRROFFICIAL COURT REPORTER232425TR - SHANON R. MYERS, CCR, RPR, CRROFFICIAL COURT REPORTER232425TR - SHANON R. MYERS, CCR, RPR, CRROFFICIAL COURT REPORTER

From:Chavez, Reynaldo L.To:vegalynnlawfirm@aol.comCc:City Clerk Staff; Bailey, Amy B.Subject:IPRA / Michael Muniz - follow up /// 12/24/12 Date:Monday, 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. ChavezAPD 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: HighDear Mr. ChavezI 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 youRosario-----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 MunizDear Mr ChavezI 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 December14th 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 LynnSubject: IPRA / Michael MunizSent: Dec 4, 2012 3:01 PMDear 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 PoliceDepartment personnel initiated by/conducted by/or reviewed by Deputy ChiefPaul 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), andCox 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. NWAlbuquerque, 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. ChavezAPD Records Custodian/Central Records SupervisorOffice: (505) 768-2007Cell: (505) 235-2160 Fax: (505) 768-2540chavezr@cabq.gov From: Chavez, Reynaldo L.Sent: Monday, November 19, 2012 7:17 PMTo: '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. ChavezAPD Records Custodian/Central Records SupervisorOffice: (505) 768-2007Cell: (505) 235-2160 Fax: (505) 768-2540chavezr@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 byMichael 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 AlbuquerquePolice 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 3022Colonnade NW currently in the possession and control of the AlbuquerquePolice Department; 5. Provide any and all internal complaints against any AlbuquerquePolice Department personnel initiated by/conducted by/or reviewed by DeputyChief 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 LynnAttorneyVega Lynn Law Offices, LLC1019 2nd Street NWAlbuquerque, 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:R LynnTo:"Steve French"Cc:"Philomena Hausler"; "TJWilham@cabq.gov"Subject:Han v. CABQDate:Tuesday, August 25, 2015 2:16:00 PMHi 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 youRosario D Vega LynnAttorneyVega Lynn Law Offices, LLCPO Box 65513Albuquerque, 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:Mail Delivery System

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