Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 1 of 21

1 2 3 4 5 6 7 8

Gloria Grening Wolk MSW 4558-B Capital Blvd. #168 Raleigh, NC 27604 Ph: (919) 875-8627 Fx: (815) 572-9707 E-mail ggwolk@Viatical-Expert.net Plaintiff Pro Se

UNITED STATE DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 GLORIA GRENING WOLK 13 Plaintiff, 14 vs. 15 PHILIP R. GREEN, 16 Defendant. 17 _____________________________________ 18 19 MOTION TO COMPEL AND MEMORANDUM OF LAW IN SUPPORT THEREOF 20 Plaintiff Gloria Grening Wolk respectfully moves this Court pursuant to Federal Rules of 21 Civil Procedure 26, 33, 34, and 37 and Civil L.R. 33-1 through 36-2 to order defendant Philip R. 22 Green to provide a complete initial disclosure and full, unevasive responses to interrogatories, 23 requests for admission, and document requests for Set One Revised. 24 As set out more fully in the accompanying declaration, the Plaintiff has in good faith 25 conferred and attempted to confer with defense counsel in an effort to secure the disclosures 26 without court action, then with court intervention, then after the conference call with the Court. 27 Defendant has not provided any documents in response to the requests served by Plaintiff, 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

Case No.: 065025 BZ

Date: Wednesday, November 21, 2007 Time: 10:00 a.m. Ctrm.: G

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 2 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and has not provided substantive responses to any other form of discovery. The deficiencies in these responses, as addressed in this motion, are repeated and apply to most and, in some cases, all responses. As a result, Local Rule 37.2, read literally, would require the Plaintiff in this motion to quote verbatim each of Plaintiffs requests, state the objections, then cite authority and include a discussion of the reasons supporting the motion with respect to each. Plaintiff began to prepare such a document, literally compliant with the Local Rule, until it was not half done but exceeded fifty pages, and the objections were so repetitious that they were boring. It seems it would be a waste of the Courts time as well as waste of paper to follow the Local Rule exactly. Since the deficiencies are general and repetitive, Plaintiff proposes to summarize in this motion the relief she seeks with respect to each type of deficiency, give examples of the types of deficiencies in the responses, and summarize in the accompanying memorandum the reasons why the motion to compel should be granted. Also attached is a complete copy of the requests and responses (Exhibits 1-5). If the Court desires, Plaintiff will, of course, provide the longer document that is literally compliant with the Local Rule. In summary, and as more fully described in the accompanying memorandum, Plaintiff seeks an order compelling discovery as follows: 1. That Defendant respond to all interrogatories anew, without objections, with reference to his files and records, and responding with truth. 2. That Defendant respond to all requests for admissions anew, without objections, with reference to his files and records, and responding with truth. 3. That Defendant respond to all requests for production of documents anew, without objections, identifying with specificity any document he believes can be located in the files previously provided to the Plaintiff, or producing non-privileged documents that were not previously provided to the Plaintiff. 4. 5. That any privileged, withheld documents be sufficiently described in a privilege log. That Defendant respond to the documents produced with Set 2, either admitting or denying that he authored the attached copies of email. 6.
065025 BZ

That Defendant comply with the requirement to produce a copy of the entire liability
Pls Memorandum in Support of Mo. Compel Discovery Responses

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 3 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
065025 BZ

insurance policy. 7. That Defendant return the books belonging to the Plaintiff or reimburse her for the full retail value. 8.. That Defendant be required to reimburse the Plaintiff the costs incurred for this motion and for the purchase of telephone recorders (approximately $150.00) 9. That Defendant be required to pay sanctions to the Court for wasting the Courts time by causing this motion to be necessary, and by refusing to cooperate in Meet and Confer.

Respectfully submitted,

October 5, 2007

/s/ Gloria Grening Wolk

Pls Memorandum in Support of Mo. Compel Discovery Responses

ii

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 4 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
065025 BZ

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6I. INTERROGATORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6II. REQUESTS FOR ADMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9III REQUESTS FOR DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11IV. INITIAL DISCLOSURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15V REQUESTS FOR ADMISSION SET 2GENUINESS . . . . . . . . . . . . . . . . . . . . -15-

LEGAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-

Pls Memorandum in Support of Mo. Compel Discovery Responses

-3-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 5 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
065025 BZ

TABLE OF AUTHORITIES

FEDERAL CASES Computer Task Group v. Brotby, 364 F.3d 1112 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . -18Dorf & Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 922 (Fed.Cir. 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13Harner v. Greyhound Lines, No. 02-0088, U.S.D.C. E.Pa. January 2003 . . . . . . . . . . . -9-, -14Henry v. Gill Industries, 983 F.2d 943, 948 (9th Cir.1993) . . . . . . . . . . . . . . . . . . . . . . . . . -17Hickman v. Taylor, 329 U.S. 495 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11Moore v. Hartman, No. 92-2288 (D.D.C. March 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13Nobles v. Jacobs/IMC, Jacobs Engineering et al. No. 02-0026, U.S.D.C. V.I. (2003) . . . . -14OneBeacon Amer. Insur. Co. v. Jaco Airfield Const., No. 04-2432 (W.D. Tenn. 2007) . . . -14Virtual Vision Inc. v. Praegitzer Industries Inc., 124 F.3d 1140 (9th Cir. 1997) . . . . . . . . . . -18FEDERAL RULES Fed. R. Civ. P. Rule 33(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8Fed. R. Civ. P. 33(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Fed. R. Civ. Pro. 45(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-

Fed. R. Civ. P. Rule 33(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-

Pls Memorandum in Support of Mo. Compel Discovery Responses

-4-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 6 of 21

1 2

Fed. R. Civ.P. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-, -8-, -12-, -17CALIFORNIA STATE CASES

3 4 5 Deyo v. Kilbourne, 84 Cal.App.3d, 771 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-, -10-, -146 7 8 Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 376-377 (1961) . . . . . . . . . . . . . . . . -189 10 11 Lieb v. Superior Court, 199 Cal.App.2 364 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-, -1812 13 14 15 16 17 California Evidence Code 1152 18 19 20 OTHER AUTHORITIES 21 22 23 24 25 26 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

Burke v. Superior Court, 71 Cal.2d. 276 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

Glenfed v. Superior Court, 53 Cal.App.4th 1113 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Kimmell v. Goland, 51 Cal.3d 202 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Obregon v. Superior Court, 67 Cal.App.4th 424 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19Olmstead v. Arthur J. Gallagher, 104 Cal.App.4th 858; 128 Cal.Rptr.2d 573 (2002) . . . . . . -11CALIFORNIA STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-

Code of Civ. Procedure Section 2030, subdivision (f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

California Rules of Professional Conduct Rule 5-200(B) . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

-5-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 7 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
065025 BZ

INTRODUCTION

This Motion addresses Plaintiffs first set of discovery, initially pounded in May 2007 and slightly revised upon request of defense counsel in August. When responses were returned in September they were no more substantive than those returned in June. The most significant difference is that on the second try Defendant complied with the mandate to state each request before responding. Otherwise, responses for all discovery were uniformly unresponsive. Each form of discovery is replete with boilerplate objections, invalid privileges, evasiveness and, in some cases, outright refusal to respond. Now, after five months, responses continue to rely on recollection rather than Defendants files. Despite the lag of five months, Defendant refuses to supplement the factually devoid responses. In so doing, Defendant ignores Fed. R.Civ.P. 26(e)(2), which mandates that parties supplement discovery responses if additional or corrective information has not otherwise been made known to the other party. As late as October 3, 2007, Defendant continued to ignore Fed. R.Civ.P. 26(a)(1)(D), which requires production of a copy of the liability insurance policy. Objections based on privilege are invalid. If there is cause to claim attorney-work product, that is a well-kept secret known only to Defendant. Again, he chooses to defy Fed. R.Civ.P. 26(b), which requires the party who withholds information on the basis of privilege or as subject to protection as trial preparation material to describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. In sum, responses to discovery fail to narrow any issues, and fail to make available facts that are presently known to the Defendant and which may predicate his defenses. They are a boring read. All discovery requests and responses returned in September and initial disclosures, returned in late August, are attached as exhibits. Because these discovery responses uniformly
Pls Memorandum in Support of Mo. Compel Discovery Responses

-6-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 8 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

lack substance, and because they are redundant with repetitive boilerplate objections, they are summarized below but not incorporated in the text of this pleading. ARGUMENT I. INTERROGATORIES

Rule 33(b)(1) of the Federal Rules of Civil Procedure requires that each interrogatory shall be answered separately and fully. Although on the second try the Defendant answered each interrogatory separately, he employed a variety of objections to avoid answering fully. See Exhibit A. For example, interrogatory Nos. 1-5 request information about lawsuits, if they exist, that support Defendants representations about his trial experience and his knowledge of First Amendment rights. His objections include the privacy rights of clients. There are no privacy rights for lawsuit documents filed with courts, which are in the public record. Defendant knows this because the Court so advised on August 13, 2007, during the conference call to resolve this discovery dispute. Interrogatory No. 6 was more narrowly drawn than the initial request in May, and currently is limited to sources of earned income during 2005. This request is based on Plaintiffs presumption that some of Defendants injurious actions were due, in part, to lack of other earned income during that time period. F.R. Evidence Rule 301 addresses Presumptions in General in Civil Actions and Proceedings: A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. Interrogatory No. 7 asks the basis for denial of any responses to Requests for Admissions. Defendant responds as if the Plaintiff was clairvoyant, insisting that she should have known in advance that he would deny Request Nos. 9, 14, 15, 20, 21, 22, 24, 31, 33, 34, 35. This response is the epitome of evasiveness. In some instances a denial is contradicted by other responsesa lack of consistency that might be cured if Defendant set forth the basis for his denial responses. Numerous objections include not likely to lead to admissible evidence. That is not for the Defendant to determine. The Fed.R.Civ. P. 26(b)(1) provides that the parties may obtain discovery
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-7-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 9 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

regarding any matter, not privileged, that is relevant to the claim or defense of any party... . Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence... ." Defendants objections to No. 8 (which requests information about research conducted for the underlying lawsuit) include the usual litany but also speculation. It would be speculative if the question asked, What might have resulted if you did such-and-such? The refusal to respond implies that Defendant did much less research than the amount for which he billed. That is what the Plaintiff wants to find out, and she has a right to a truthful answer. The liberal rules of federal discovery are designed to enable the parties to obtain the fullest possible knowledge of the issues and facts before trial. (citations) Harner v. Greyhound Lines, No. 02-0088, U.S.D.C. E.Pa. January 2003. Responses to interrogatory Nos. 10, 11, 12, 13 are evasive. Not only does he fail to answer the questions, he rambles on and on with unrelated excuses. Interrogatories are designed to permit discovery of all facts presently known to a defendant upon which it predicates its defenses (citation), and no reason appears why such an interrogatory should not be permitted under this principle where, as here, the answer consists solely of a disfavored overbroad general denial which gives the plaintiff no guidance whatsoever regarding what specific matters legitimately are at issue and warrant discovery. Burke v. Superior Court, 71 Cal.2d. 276 (1969). It is vital that Defendant be compelled to respond to interrogatories fully, truthfully, and nonevasively. Interrogatories expedite the resolution of lawsuits in a variety of ways. Deyo v. Kilbourne, 84 Cal.App.3d, 771 (1978). If a claim or defense is sham, or there is no triable issue as to a particular fact, answers to interrogatories may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy. Deyo, Id. Interrogatory Nos. 14, 15, 16, 17 ask about documentsemail and pleadingswhich are in Defendants files. Defendants responses rely on memory, and he offers to amend his responses
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-8-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 10 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

at some future date if recalls what he refers to as representations. Five months have passed since he first attempted to recall. To date, he has made no effort to supplement the original unresponsive answers. Moreover, he seems to be ignorant of the requirement to respond to interrogatories by checking his records, not his memory. "The answers should reveal all information then available to the party. If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control." Deyo, supra, 782. When he cannot resort to evasiveness, Defendant turns to litigation privilege (Nos. 15, 16, 17). Litigation privilege is intended as protection from derivative lawsuits, primarily defamation lawsuits. It is not a shield for all misconduct by an attorney. It will not immunize Defendant Green from responsibility for intentionally misleading a tribunal, which is a violation of California Rules of Professional Conduct Rule 5-200(B). The Kimmel courts opinion that attorney R. Richard Farrell was not immunized by litigation privilege concludes with these words: The profession of the law possesses extraordinary powers. Lawyers can make the arrogant humble and the weak strong. In control of the course of litigation and armed with the knowledge of right and wrong, they are most able to abjure illegal or tortious conduct; it is their duty to do so. As occupants of a high public trust and officers of the court, they are expected to conform their behavior in legal affairs to a higher standard of rectitude and spirit of obedience than those who are willing to endure the dust of transgression. Guided by oath, duty and obligation, the lawyer's path avoids the vices from which the virtuous abstain. Thus, it ill suits the profession to seek immunity for injuries inflicted while engaged in legal warfare under the protective tarpaulin of the privilege for judicial proceedings." Kimmell v. Goland, 51 Cal.3d 202 (1990). Defendants use of every possible objection includes, for nearly every response, potentially subject to attorney work product or attorney-client privilege. What is meant by potentially?
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-9-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 11 of 21

1 2 3 4 5 6 7 8 9 10 11

Certainly if there was such a possibility in May, five months later this should no longer be in doubt. By now, Defendant should realize that attorney-client privilege is not applicable to these interrogatories. Not one interrogatory asked about Defendants communications with his attorneys. "[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different [449 U.S. 383, 396] thing. The client cannot be compelled to answer the question, `What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communications to his attorney. (citation). See also (citations) (the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer). Upjohn Co. v. United States, 449 U.S. 383, 295 (1981). The claim of attorney work product is another attempt to evade answering or to dilute the

12 responses. Attorney work product protects documents prepared in anticipation of litigation. None 13 of the interrogatories nor any other discovery includes a request that could be construed as 14 attorney impressions or work done in anticipation of this lawsuit. These interrogatories and the 15 other discovery are specific to the performance of the Defendant in the underlying lawsuit. Section 16 2030, subdivision (f)(1) requires interrogatory responses to be as complete and straightforward as 17 the information reasonably available to the responding party permits. [citation] Olmstead v. Arthur 18 J. Gallagher, 104 Cal.App.4th 858; 128 Cal.Rptr.2d 573 (2002). Defendants refusal to disclose 19 facts defeats the goal of the legal system: to obtain justice. Mutual knowledge of all the relevant 20 facts gathered by both parties is essential to proper litigation. To that end, either party may compel 21 the other to disgorge whatever facts he has in his possession Hickman v. Taylor, 329 U.S. 495 22 (1947). 23 24 II. REQUESTS FOR ADMISSION

Simple responses of Admit or Deny would suffice, but only four of the thirty-five requests

25 have a short answer. See Exhibit B. The remaining thirty-one concludes with cannot admit or 26 deny based on unable to recall, after filling paper with the usual objections, vague and 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-10-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 12 of 21

1 ambiguous and overbroad and misleading. Objections coupled with admit or deny render the 2 admission or denial unreliable for the purpose of setting at rest a triable issue. Requests for 3 admissions [ ] are primarily aimed at setting at rest a triable issue so that it will not have to be tried. 4 Thus, such requests, in a most definite manner, are aimed at expediting the trial. For this reason, 5 the fact that the request is for the admission of a controversial matter, or one involving complex 6 facts, or calls for an opinion, is of no moment. If the litigant is able to make the admission, the time 7 for making it is during discovery procedures, and not at the trial. . . . Lieb v. Superior Court, 199 8 Cal.App.2 364 (1962) 9 Some responses contradict other responses. For example, Defendant admits to No. 3that

10 on May 2, 2005 he instructed the Plaintiff to overnight a retainer for $10 thousand. But he objects 11 to related Requests (Nos. 1, 2, 4, 5, 6) claiming, among the litany of objections, that these requests 12 are misleading and, following a paragraph of unrelated information, states he is unable to admit or 13 deny (Response Nos. 2 and 4) . 14 One of the occasional objections added to the litany is calls for speculation. No. 28 is a

15 good example of its misuse. The request was, Admit that documents you subpoenaed for the 16 deposition of Plaintiffs adversary were of paramount importance if the case went to trial. After the 17 usual boilerplate, plus calls for speculation, Defendant adds another objection that implies he 18 conducted more than one deposition and that the Plaintiff had more than one adversary in the 19 underlying lawsuit: It is unclear which deposition is even being referred to without reference. 20 Relevance is another pet objection. Federal Rule 26(b)(1) authorizes discovery regarding

21 any matter, not privileged, that is relevant to the claim or defense of any party. Plaintiff believes all 22 these requests are relevant. Otherwise, why waste time on this since, as a pro se litigant, she is 23 not entitled to be compensated for her for time or effort. But Defendant repeatedly objects on the 24 basis of relevance (Nos. 16, 23, 26, 27). Here, and in response to a number of Requests for 25 Production of Documents, the objection is thrown out but there is no explanation to support this 26 objection. Perhaps he is aware that the term relevance is broadly construed and [r]elevant 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-11-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 13 of 21

1 information need not be admissible at the trial if the discovery appears reasonably calculated to 2 lead to the discovery of admissible evidence. [citations] Moore v. Hartman, No. 92-2288 (D.D.C. 3 March 2007). In the context of discovery, evidence is relevant if it might reasonably assist a party 4 in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and 5 it is sufficient if the information sought might reasonably lead to other, admissible evidence. 6 (citation) Glenfed v. Superior Court, 53 Cal.App.4th 1113 (1997). 7 Defendant also objects on the basis calls for a legal conclusion (Nos. 12, 20, 21, 22, 25

8 26, 27). Well, yes, because Fed. R. Civ. P. 33(c) permits discovery that requires relating facts to 9 the application of law and application of law to fact. Request No. 27 is a good example of how 10 Defendants denials fly in the face of facts and evidence, in this case the evidence being court 11 records: Admit that when you deposed Wolks adversary you were not yet attorney of record. 12 Defendant should be compelled to check his files and then respond fully and truthfully,

13 without objections, to Request Nos. 1, 2, 5, 6, 8, 9, 11, 12, 13, 14, 16, 17, 18, 19, 23, 24, 25, 26, 14 27, 28, 29, 33. All other requests should be admitted or denied without objections. 15 16 III. REQUESTS FOR DOCUMENTS

Defendant has improperly refused to produce any document. See Exhibit C. Common to all

17 responses is the paragraph for Request No. 1: Objection, this demand category calls for 18 documents potentially subject to attorney client and work product privileges. Objection, oppressive 19 and burdensome. Documents responsive to this demand category not subject to privilege have 20 already been produced and are in propounding parties custody and control. Without waiving the 21 foregoing all non-privileged documents containing information responsive to this category have 22 been previously produced when Plaintiff was provided with the entire file from the handling of the 23 underlying litigation on which this suit is based. 24 These objections are without merit. First, Defendant made no effort t establish privilege. The

25 party asserting a privilege has the burden of establishing the privilege. Dorf & Stanton 26 Communications, Inc. v. Molson Breweries, 100 F.3d 919, 922 (Fed.Cir. 1996). Secondly the 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-12-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 14 of 21

1 Federal Rules of Civil Procedure require that a party's claim of privilege be made expressly and 2 "supported by a description of the nature of documents . . . that is sufficient to enable the 3 demanding party to contest the claim." Fed. R. Civ. Pro. 45(d)(2). 4 After five months of sitting on these requests, Defendant continues to assert the same

5 objections and yet made no effort to provide a privilege log. Dorf, supra. After five months of sitting 6 on these requests, Defendant should know that the requested documents are not subject to any 7 privilege or protection. Other than documents related to lawsuits litigated on behalf of other clients, 8 all requests are for documents prepared in 2005, in regard to the underlying lawsuit. Therefore, 9 none is related to defense strategy. Requested information becomes work product when it may 10 reveal the defenses strategy. Harner, supra, citing Plant Genetic Systems, N.V. v. Northrup King 11 Co., 174 F.R.D.D. 330, 331-332 (D. Del. 1997). 12 All responses refer in a generalized way to the total files returned to the Plaintiff. That is like

13 saying, Heres the haystackgo look for the needle, or, The word is on the tip of my tongue; look 14 it up in the dictionary. Not once does Defendant make an effort to identify the responsive 15 document. [ ] An adequate response must include a description of the document. (Deyo v. 16 Kilbourne (1978) 84 Cal.App.3d 771, 783 [149 Cal.Rptr. 499].) Hernandez v. Superior Court, 17 supra. Because not one response identifies a single document in any manner, Plaintiff cannot 18 determine if she received all the relevant documents. 19 Although F.R.C.P. Rule 33(d) allows the responding party the option of specifying the

20 document from which the answer may be derived or ascertained, it requires that specification shall 21 be in sufficient detail to permit the interrogating party to locate and to identify as readily as can the 22 party served, the records from which the answer may be ascertained. OneBeacon Amer. Insur. 23 Co. v. Jaco Airfield Construction, No. 04-2432 (W.D. Tenn. 2007). The responding party may not 24 simply refer to a mass of records . . .. Nobles v. Jacobs/IMC, Jacobs Engineering et al. No. 0225 0026, U.S.D.C. V.I. (2003). 26 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-13-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 15 of 21

Again using the litany of boilerplate objections for all responses, Defendant added to Nos.

2 8, 10, 11, 14 that they also are unintelligible. Most outrageous is that he throws these objections 3 at No. 8. That request is for All documents written or prepared related to attorney Keith Wisbaum, 4 the Laguna Beach elder fraud attorney. Defendant had at least one telephone conversation with 5 attorney Wisbaum. If he has any notes from that conversation, he is required to produce that 6 document. And then he goes completely berserk: Objection on the basis of evidence code section 7 1152. 8 What relevance does California Evidence Code 1152 have to this case, let alone this

9 request? It reads, Evidence that a person has, in compromise or from humanitarian motives, 10 furnished or offered or promised to furnish money or any other thing, act, or service to another who 11 has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, 12 as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or 13 her liability for the loss or damage or any part of it. 14 Defendant knows that the Plaintiff was not acquainted with attorney Wisbaum, prior to

15 seeking his help, and he knows that she paid for his time. Attorney Wisbaums fees, which were 16 incurred because of Defendants acts, are included in the damages listed on the Plaintiffs initial 17 disclosures. 18 As to Number 9, it is true there was a previous attorney-client relationship between Plaintiff

19 and First Amendment Project (FAP). That is why Defendant was able to acquire information from 20 the latter organization that would have assisted him in trial preparation. Two attorneys associated 21 with FAP were listed on Defendants initial disclosures as possible witness he would call to trial. 22 Despite this, he refuses to produce anything. 23 Number 10 refers to discussions about the underlying lawsuit between Defendant and at

24 least two other attorneys not yet namedas related by Defendant to the Plaintiff in 2005. Yet he 25 refuses to produce anything. 26 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-14-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 16 of 21

Numbers 9 and 14 also include the objection, It is not believed any documents responsive

2 to this demand exist to be produced. Again, he relies on memory, rather than checking his files. 3 [A]n evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, 4 answer, or respond. Fed. R. Civ. P. 37(a)(3). 5 The response for No. 11, to which he objects as unintelligible, suggests that Defendant

6 never did any work for a motion for protective orders. Since he refuses to check his files, he clearly 7 has no recollection that he billed nearly $7 thousand dollars for preparation of this motion, starting 8 on May 20, 2005, then failed to file it until after discovery cut-off. 9 Response No. 16, Objection, calls for speculation, refers to documents related to research

10 Defendant claimed to have performed for the underlying lawsuitand billed for such. If this is a 11 truthful response, then Defendant considered doing the research but did none or did far less the 12 amount billed. 13 Response No. 18 claims that no invoices exist. Plaintiff wants invoices or canceled checks

14 to explain why Defendant charged for service of his substitute attorney form on June 28 2005 when 15 he neither filed nor served the form until July 12. This is but one example. Plaintiff suspects other 16 expenses were not incurred or were billed in excessive amounts. 17 REQUEST No. 23 was rephrased from the original sent in May so as to make it impossible

18 for Defendant to have a legitimate objection. The refusal to respond to All documents referencing 19 the initial reservation date or any changes of that date for your 2005 trip to England, implies that 20 Defendant will not disclose when he made airline reservations because they were made after he 21 knew he would receive the $10 thousand retainer from Plaintiff. Defendants objections include 22 compound; vague and ambiguous; calls for documents protected by privilege and privacy 23 rights; oppressive and burdensome, and, finally, outright refusal: Without waiving the foregoing, 24 no documents exist to be produced. As to the objection on the basis of privacy, Defendant need 25 only produces the credit card statement that shows the date of his airline reservation, and redact 26 all other details. If he deducted this expense from his business tax return, he surely has a receipt. 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-15-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 17 of 21

Responses to Nos. 24, 25, 26, 27, which relate to documents from lawsuits for which

2 Defendant may have been lead attorney are disingenuous, at best. He claims these documents are 3 equally available to propounding party. How is that possible, when he refuses to identify any of 4 these casesif they exist? It is true that these requests are duplicative of other discovery 5 propounded, and for an obvious reason: Defendant consistently refuses to identify the cases. 6 These documents are the ones to which the Court referred and approved for production,

7 during the conference call on August 13. They do not qualify for privacy protection because, if they 8 exist, they in the public record. It is well established in this circuit that disobedient conduct not 9 shown to be outside the control of the litigant' is all that is required to demonstrate willfulness, bad 10 faith, or fault." Henry v. Gill Industries, 983 F.2d 943, 948 (9th Cir.1993) (quoting Fjelstad v. 11 American Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985). 12 13 IV. Initial Disclosures

Although they were not mailed to the Plaintiff until August 25, 2007, Defendant failed to

14 comply with Fed. R.Civ. P. Rule 26( D). Instead of providing a copy of the insurance policy, the 15 response was: The declarations page of this policy is available for inspection and copying by 16 contacting [attorney]. On October 3, another request from the Plaintiff was responded to with the 17 promise of providing the declarations page, not the entire policy. See Exhibit D. 18 19 V. Set Two, Request for AdmissionsGenuiness of Documents

Although the parties conducted Meet and Confer during the time that Defendant was

20 preparing his responses to this request, Plaintiff was not informed that Defendant would refuse to 21 respond to any part of this discovery. The documents were copies of email Defendant had sent to 22 the Plaintiff in 2005. Defendants responses were limited to admitting that the documents appeared 23 to be email. See Exhibit E. 24 Defendant claimed to be reluctant to admit to the genuiness of his email because several

25 of the pages indicated page 1" and there was no page two. Had this issue been raised through 26 Meet and Confer, it could have been clarified. First, Plaintiffs email server notes page one even 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-16-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 18 of 21

1 if there is no other page. Secondly, when a second page was blank when printed, the blank page 2 was not provided. Third, when a second page had nothing more than the message that the email 3 was virus-free, that page was not provided. 4 After reading these responses the Plaintiff sent email to defense counsel, explaining the

5 above and asking if she should re-send the email with the blank or virus-fee second pages. There 6 was no response. The procedure provided in Code of Civil Procedure, section 2033, for obtaining 7 admissions as to facts and genuineness of documents is not really a discovery procedure. It is 8 designed to enable a litigant who is aware of certain facts relevant to the issues to be tried to obtain 9 admissions from his adversary and thus avoid the necessity of proving the facts at the trial. Lieb, 10 supra. 11 12 LEGAL IMPLICATIONS Defendants unyielding refusal to cooperate, if allowed to continue, will severely impede the

13 Plaintiffs ability to prepare for trial. One of the principal purposes of discovery was to do away 14 with the sporting theory of litigation--namely, surprise at the trial. (Chronicle Pub. Co. v. Superior 15 Court, supra, 54 Cal.2d 548, 561. See also page 572 of the same opinion wherein we adopted from 16 United States v. Proctor & Gamble Co., 356 U.S. 677 [78 S.Ct. 983, 2 L.Ed.2d 1077], the phrase 17 that discovery tends to make a trial less a game of blindman's buff and more a fair contest with the 18 basic issues and facts disclosed to the fullest practicable extent. Greyhound Corp. v. Superior 19 Court, 56 Cal.2d 355, 376-377 (1961). 20 Defendants conduct is a consistent, intentional, and prejudicial practice of obstructing

21 discovery. Computer Task Group v. Brotby, 364 F.3d 1112 (9th Cir. 2004). His conduct is so 22 egregious that it cannot and should not be taken with equanimity. It is well established in this 23 circuit that disobedient conduct not shown to be outside the control of the litigant' is all that is 24 required to demonstrate willfulness, bad faith, or fault. Henry v. Gill Industries, 983 F.2d 943, 948 25 (9th Cir.1993) (quoting Fjelstad v. American Honda Motor Co., 762F.2d 1334, 1341 (9th Cir. 26 1985)). Virtual Vision Inc. v. Praegitzer Industries Inc., 124 F.3d 1140 (9th Cir. 1997). 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-17-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 19 of 21

It is apparent that without Court intervention discovery will not be taken seriously by

2 Defendant or his attorneys. The tactics evidence a calculated effort to deny Plaintiff the tools 3 needed to prepare for settlement negotiations or trial. These tactics, including defense counsels 4 refusal to Meet and Confer, continued refusal to provide the insurance policy, and 5 misrepresentations to the Court, as more fully detailed in the accompanying declaration, should be 6 seen by the Court for what they are: an abuse of the discovery process. 7 An abuse of discovery procedures in one instance can imply a continuing intent to abuse

8 in other instances. Any discovery request, even an initial one, can be misused in an attempt to 9 generate settlement leverage by creating burden, expense, embarrassment, distraction, etc. It is 10 a judge's responsibility to control such abuse. (Cf. Calcor Space Facility, Inc. v. Superior Court 11 (1997) 53 Cal.App.4th 216, 221 [61 Cal.Rptr.2d 567] [discovery abuse is a spreading cancer; judges 12 must be aggressive in curbing abuse; discovery statutes are prone to misuse absent judicial 13 consideration for burden; courts must insist that discovery be used to facilitate litigation rather than 14 as a weapon].) Obregon v. Superior Court, 67 Cal.App.4th 424 (1998). 15 16 CONCLUSION Plaintiff respectfully requests that her Motion to Compel be granted, and that the Court enter

17 an Order compelling Defendant Philip R. Green to provide complete and nonevasive responses 18 to all interrogatories, requests for admission, initial disclosures, and requests for admissions as to 19 genuiness of documents. The responses are so deficient that Defendant should be required to start 20 anew and answer all fully and truthfully. 21 If Defendant believes he turned over some documents that are responsive to the requests,

22 he should be compelled to identify each of the responsive documents so that they are readily 23 located, and produce all nonprivileged documents that were not turned over but are responsive to 24 Plaintiffs document requests. 25 26 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

-18-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 20 of 21

Given the nature of the impasse between the parties and the dates on the briefing order,

2 Plaintiff herewith requests that the Court order the Defendant to produce these long overdue 3 responses within 3 calendar days of the Order. 4 Plaintiff further requests that Defendant be denied the advantage of deposing the Plaintiff

5 or employing any other form of discovery until Defendant meets his obligations. 6 Plaintiff also requests reimbursement for the expenses in bringing this motion and for

7 purchasing two useless telephone recorders (approximately $150.00 for Federal Express and two 8 recorders). Since these amounts are minimal and since Plaintiff, as a pro se litigant, is not allowed 9 to be compensated for the many hours required to prepare this motion, she also requests that the 10 Court order monetary sanctions to be paid by the Defendant to the Court, as a penalty for wasting 11 the Courts resources and time. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

Plaintiff further requests that the Court grant all other relief as may be appropriate.

Respectfully submitted,

Date: October 5, 2007 /s/___________________________________ Gloria Grening Wolk, Plaintiff Pro Se

-19-

Case 3:06-cv-05025-BZ

Document 89

Filed 10/05/2007

Page 21 of 21

1 2 3 4 5 6 7

I hereby certify that on October 5, 2007, I electronically filed

PLAINTIFFS MOTION TO COMPEL DISCOVERY RESPONSES, MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO COMPEL, DECLARATION IN SUPPORT OF HER MOTION TO COMPEL, AND EXHIBITS ATTACHED THERETO with the Clerk of the Court using the CM/ECF system which will automatically send email notification of such filing to the following

8 attorneys of record: 9 10 11 12 ssmith@mpbf.com 13 14 15 16 MURPHY, PEARSON, BRADLEY & FEENEY 88 Kearny Street, 10th Flr. San Francisco, CA 94108-5530 Timothy J. Halloran thallaron@mpbf.com Summer M. Smith

17 Attorneys for Philip R. Green 18 19 20 21 22 23 24 25 26 27 28

065025 BZ Pls Memorandum in Support of Mo. Compel Discovery Responses

/s/ ____________________________ Gloria Grening Wolk, Plaintiff Pro Se

-20-