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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA


ATLANTA DIVISION

THE FLAG COMPANY, INC., a


Georgia Corporation

Plaintiff

v.

CIVIL ACTION FILE NO.
STEVEN A. CHAN, LLC (d/b/a FIVE
1:09-cv-01880-CAP
STAR FLAGS and/or VIA5), a
California Limited Liability Company,
and STEVEN A. CHAN, a California
resident,

Defendants.

PLAINTIFF SMOTION TO COMPEL RESPONSES


TO REQUESTS FOR PRODUCTION OF DOCUMENTS

On March 23, 2010, Plaintiff The Flag Company, Inc. ( Plaintiff ) served

Defendant Steve A. Chan ( Defendant Chan ) with document requests. Defendant

Chan failed to serve timely responses. In addition to being late, Defendant Chan s

discovery responses were woefully deficient. Specifically, in response to each and

every document request (and each and every interrogatory and request for

admission), Defendant Chan asserted the following identical recitation of

objections:

2809466v1
Chan objects on the following grounds: compound, ambiguous,
oppressive and burdensome, relevance, privacy, trade secret,
attorney/client communication, attorney work product, work product.

Plaintiff informed Defendant Chan that his objections had been waived and

requested full and complete responses to its document requests, without objection.

Defendant Chan then served a second set of responses, again asserting identical

objections to patently reasonable requests.

For the reasons set forth in this Motion and in Plaintiff s accompanying

Memorandum of Law, Plaintiff requests that the Court grant its Motion and award

it attorney s fees and expenses.

I hereby certify that I have at conferred about the issues involved in the

foregoing Motion with Defendant Chan in a good faith effort to resolve them, but

that this effort has been unsuccessful.

Dated this 18th day of May, 2010.

Respectfully submitted,

ARNALL GOLDEN GREGORY, LLP

/s/ J. Tucker Barr


________________________________
Scott E. Taylor
Georgia Bar No. 785596
J. Tucker Barr
Georgia Bar No. 140868

2809466v1
-2-
Suite 2100
171 17th Street, N.W.
Atlanta, Georgia 30363
(404) 873-8624
(404) 873-8625 (facsimile)

2809466v1
-3-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE FLAG COMPANY, INC., a


Georgia Corporation

Plaintiff

v.

CIVIL ACTION FILE NO.
STEVEN A. CHAN, LLC (d/b/a FIVE
1:09-cv-01880-CAP
STAR FLAGS and/or VIA5), a
California Limited Liability Company,
and STEVEN A. CHAN, a California
resident,

Defendants.

CERTIFICATE OF SERVICE

This is to certify that I have this day electronically filed the foregoing

PLAINTIFF S MOTION TO COMPEL RESPONSES TO REQUESTS FOR

PRODUCTION OF DOCUMENTS with the Clerk of Court using the CM/ECF

system, and further certify that I have this day served Defendants with same by

placing a copy in the United States mail, first class, addressed to:

Steven A. Chan, LLC


Attn: Steven A. Chan, Registered Agent
720A Center Street
Costa Mesa, California 92627

2809466v1
-4-
Steven A. Chan
720A Center Street
Costa Mesa, California 92627

Dated this 18th day of May, 2010.

/s/ J. Tucker Barr


________________________________
J. Tucker Barr
Georgia Bar No. 140868

2809466v1
-5-
IN THE UNITED STATES DISTRICT COURT FILED IN CL. E R K ~ O F F I CE
l~ .S.D.C . - A~~ to
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
2
JUN a 7 z~ 1 a
3 A

THE FLAG COMPANY, INC . a


5 Georgia Corporation,
6! Plaintiff,
CIVIL ACTION NO :
V. 1 :09-CV-1880
8 STEVEN A CHAN, LLC (d/b/a FIVE OPPOSITION TO MOTION TO
COMPEL PRODUCTION
9 STAR FLAGS and/or VIA5), a RESPONSES ; DECLARATION OF
STEVEN CHAN
10 California Limited Liability Company,

11 and STEVEN A. CHAN, a California

12 resident,

13 Defendant
14

15 OPPO S ITIO N T O MOTIO N TO COMPE L REPSONSES ; DECLARATION


16 OF STEVEN A. CHAN
17 This is the Defendant Steven A Chan's Opposition to Plaintiffs Motion to
18 Compel Responses to the Production Demand Set #1 .
19

20
MEMORANDOM OF POINTS AND AUTHORITIES

21
I . Introduction

22
Plaintiff Flag Company's Motion is fatally flawed procedurally and

23
substantively meritless . Like the rest of this litigation, it is abusive and
overreaching : It is the product of the haughtiness of the Flag Company exploiting
24

the vulnerability of an individual who is trying to navigate on his own through a


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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A. CHAN ~ Page 1 o f 13
complex and unfamiliar legal proceeding without the benefit of counsel, which he

cannot afford. Flag Company is using its economic advantage in this court like a
2
bully would push around a weaker child in a schoolyard . If this court values
3

~ j ustice, it should allow this defendant , Mr. Chan , a li ttle room for procedural error .
4

The Flag Company claims to have valid and enforceable intellectual property
5

rights to the phrase "farming flag ." It claims to have invented the term , just like Al
6

Gore invented the Internet. They have brought this act i on alleging that its

compet itor, Mr. Chan and his company, which is now a d i ssolved entity, violated
s
its property r i ghts.
9
Farming is a term used in the real estate industry . It refers to prospecting in
(usually a geographic) area for buyers and sellers of residential real estate . Real
estate professionals are trained in "Farming" techniques and methods using a wide
12
~ array of `farming tools' . It is a `famous' word in the consuming public, is a generic
13
~ term, and has been pre sent in real-estate dict ionaries for at lea st 10 years prior to
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the Plaintiff' s registration of the term ` farming flag ' . "Farming" with the American
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flag is a famous activ ity within the consuming public . It is well-documented
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activity done nationw i de since the early 1980 ' s by the US residential brokerage
17
industry . It is a generic term . Plaintiff's proprietary right claim is as spurious as Al
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Gore's claim that he invented the Internet . The license issued to plaintiff in
19
recognition of that claim is based on plaintiff's fraud and is a nullity . Plaintiff's
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action is not an effort to enforce a proper property right, but an abusive effort to
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use the processes of the court to close down its competitor, wh ich in large part it
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I already has succeeded .
23
Discovery was opened on this matter on December 28, 2009 . By order of this
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A. CHAN ~ Page 2 of 13
court, it closed in April 28, 2010 . The scope of discovery as defined by the court's
order was plaintiff's claims and defendant's defense .
2

Sitting on its dilatory hands until almost the last speck of sand dropped
3

through the hourglass, plaintiff served Mr . Chan on March 23, 2010 discovery that
4

was in its scope overwhelming, much of it invasive and/or a fishing expedition


s
beyond the scope of court authorized discovery . In one fell swoop, plaintiff
6
bundled together all of its discovery demands . On this last minute service of

discovery, plaintiff served a request for admissions with a set of interrogatories,


8
and a production of documents demand . Plaintiffs purpose in serving such
9
burdensome discovery all at once and at the last minute was to overwhelm Mr .
10
Chan. As it admits in its April 29, 201 0 so-called meet & confer letter (exhibit B,
11
to the motion, without foundation testimony, its service at the last minute was
12
purposefully designed such that he could not grant any extensions, no matter how
13
modest . In spite of the scope and breadth of its burdensome discovery, it now had
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schedule, which precluded the simple civility of an extension . ("Even if you
I5
request an extension in a timely fashion, however, The Flag Company would not
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have been able to agree to such a request . The discover period in this lawsuit
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closed on April 28 .. . In addition, summary judgment motions are due within thirty
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(30) days of the close of discovery .")
19
Mr . Chan, who is in pro per and has no federal court experience,
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misunderstood the response dates required . Working hard to run his business, he
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also worked hard on responding to plaintiff s discovery . However, because of the
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breadth of the discovery that was served, he could not fully prepare his response .
23
In order to preserve his objections, he served responses on April 27, 2010 with
24
objections only . Plaintiff acknowledges that the responses were only one day late .
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CHAN ~ Page 3 of 13
Plaintiff claims in its motion that it met and conferred with Mr . Chan by
correspondence dated April 29 , 2010 . See Plaintiff s Exhibit B . As noted above ,
2

this exhibit is inadmissible . There is no foundat ion testimony for it . It is hearsay.


3

Notwithstanding, assuming for the sake of an argument that it i s admissible , the


4

April 29, 2010 letter is a meet & confer letter regard ing the all-objections
5

discovery responses served on April 27, 20 10. However, on May 4, 2010, Mr.
6

Chan served further responses . Accompanying those responses was a series of e-

mail's attachments . Those attachments were responsive documents . In total , 3, 016


8

pages of documents in PDF and other digital form were sent to Plaintiff, which is
9

never acknowledged in plaintiff's Motion . Additionally, Mr . Chan established ~


10
electronic access to over 6 m i llion pages, with his only request that this access be
11
arranged. Attached to this Opposit ion as Exhibit A, is a CD containing the
12
documents that Mr . Chan submitted in response to plaintiff's d iscovery. It is rather
13
self-explanatory, but responses that require this many documents without an
14
extension is a burdensome and oppressive, yet they were produced .
15
Plaintiff did not meet and confer after the second responses with
16
documentation were served .
17
Plaintiff now moves to compel further responses, presumably to demands 9-
is
12, 19-25, 28, 26, 30-34, 38-40, 46, and 49-51 . These are the only responses
19
specifically described in its Motion .
20
Plaintiff seeks to compel responses because he takes issue with the
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objections set forth in the written responses . Yet these are the same objections set
22
forth in the original response . And yet, even though 3,016 pages were since
23
produced, plaint i ff never met and conferred to discuss why the second response
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with thousands of documents were insufficient . -
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CHAN ~ Page 4 of 13 -
Mr . Chan acknowledges some mistakes in his second response. In his rush
and with the handling of all those documents, by oversight, he, by mistake, left
2

some of the written responses incomplete . Regarding many items, he intended the
3

writing to show that he had no documents to produce . Regarding the others, he


may have inadvertently failed to refer to them to the items produced . If plaintiff
had met & conferred, Mr . Chan would have realized his mistakes and corrected
6
them. But plaintiff did not meet & confer .
Presumably, Plaintiff will argue that its inadmissible exhibit which it
a
purports to be a meet and confer letter regarding the first response satisfies the
9
meet and confer requirement because the objections in both responses are the
same. But it is not . A further meet and confer was required . The second response
with expanded written responses and a deluge of documents is much different than
12
the first responses with objections only .
13
Both Local Rules and the Federal Rules of Civ . Pro. require a good faith
14
effort to meet and confer as a prerequisite for a discovery motion . Plaintiff has no
15
admissible evidence of any meet and confers . Moreover, assuming that it presented
16
evidence of any meet and confer, it is inapplicable because there was no meet and
17
confer regarding the second response .
18
I The Local Rules also has a disjunctive time deadline for fil ing a motion to
19
compel either by the discovery cut-off date or within 14 days after service of the
20
response upon which the objection at issue is based . If the inadmissible meet and
21
confer letter responsive to the first discovery response qualifies as a proper meet
22
and confer for purposes of this motion, then the response upon which the objection
23
is based is the first response served on April 27, 2010 . If that is the case, then
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A. CHAN E Page 5 of 13
1 plaintiff s motion is untimely because it was filed more than 14 days after the

response .
2

The court should also deny plaintiffs Motion because it is not in proper
3

and because Mr. Chan's objection is proper .


4

11. Plaintiff Failed To Meet & Confer


6
FRCP 37(a)(l) requires a moving party in a discovery motion to certify that

the party met and conferred in good faith in an attempt to resolve the discovery
B
dispute. As the statute provides in pertinent part :

"The [discovery] motion must include a certification that the


10
movant has in good faith conferred or attempted to confer with
11
the person of party failing to make disclosure or discovery in an
12
effort to obtain it with court action."
13
LR 37.1(A)(1) also requires a meet and confer certification for a discovery
14
motion .
15
Plaintiffs evidence of a meet and confer is the April 29, 201 0 letter . The
16
letter is hearsay and inadmissible . It lacks admissible evidence of a meet and
17
confer .
is
Assuming for the sake of argument that the April 29th letter is admissible, it
19
is a meet and confer relative to the Responses served on April 27th . But, Mr. Chan
20
served a further response on May 4th and produced thousands of pages of
21
documents . Plaintiff never met and conferred regarding the second response and
22
the several thousand pages of documents .
23
Mr. Chan responded and responded extensively . He acted in good faith . If
24
there is a deficiency with his responses, there is every reason to believe that he
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CHAN ~ Page 6 of 13
would have corrected them if plaintiff met and conferred as required . Further,
during and after transmitting 500 megabytes of data to Plaintiff, Mr . Chan made
2

repeated requests for confirmation of receipt of the 25 separate emails containing

discovery documents delivery . Plaintiff refused to acknowledge or reply .


4

III. Plaintiffs Motion is Untim ely


6

Local Rule 37 .113 sets forth the time limits to file a discovery motion . They

~ are 1) the discovery cutoff, or 2) 14 days "after service of the d isclosure or


8

discovery response upon which the objection is based ."


9

If plaintiff argues that the April 29th letter constitutes the required meet and
', confer, then its motion is too late. The April 29th letter, if admissible, relates to the
response served on April 27th .
12
The objections at issue are those set forth in the April 27th responses . If its
13
meet and confer letter is adequate, then the dispute at issue relates to the objections
14
' at issue . But, plaintiff did not file its discovery motion within 14 days of that
15
response . It filed it on May 18th, which is untimely.
16

17
~ IV. Plaintiff's Motion Is Not In Proper Form
18
LR37 . lA dictates the form required for a discovery motion . It requires the
19
moving party : 1) To quote, verbatim, the request for inspection at issue ; 2) State
20
the objection; 3) State the grounds assigned for the objection, and 4) Cite and
21
discuss authority in support of your motion . The Rule specifically provides that :
22 ~
"The motion shall be arranged so that the objection, grounds,
23
authority, and supporting reasons follow the verbatim statement
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CHAN ~ Page 7 of 13
of each specific . . . . request for inspection to which and objection
is raised ."
2

Plaintiffs Motion is not arranged as required . The objection, grounds,


3

authority, and supporting reasons do not follow a verbatim statement of each


4
specific request .
5

V. Mr. Chan's Objection Are Meritorious


Plaintiff served by mail its awesome and burdensome load of discovery
s
Georgia on March 23rd . Mr . Chan is in California. Mr. Chan represents himself in
9
pro per. He is pro per not by choice . He recognizes that he needs a lawyer . He is in
xo
pro per because he cannot afford counsel . In his inexperience, Mr. Chan

miscalculated the deadline date . By mistake, he was late one day .


12
A waiver is a voluntary relinquishment of a known right . Mr. Chan did not
13
voluntarily waive his objections . His first response was to preserve his objections
14
while still working diligently to respond to a quite burdensome discovery demands .
15
Mr. Chan, who served his response one day late, did not waive his obligations .
16
Plaintiff s purpose in waiting until the last minute and then deluge Mr . Chan with
17
discovery is rather obvious . The goal was to overwhelm Mr . Chan, and then to
is
complain that an extension was not possible because of the discovery cutoff .
19
Mr . Chars produced over 3,000 pages of documents in response to Plaintiffs
20
discovery demands, and arranged for electronic access to over 6 million more
21
pages . To contend that his objection that the discovery demands served on him
22
were oppressive and burdensome, is meritless . The demands were oppressive and
23
burdensome . Mr . Chan's objections were meritorious . His objections should be
24
sustained . Plaintiffs Motion must be denied .
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CHAN ~ Page 8 of 13
Declar ati on of S t even Chan In Opposition to Plaintiffs Discoverv Motion

Steven Chan declares :


2

1 . 1 am one of two defendants in the above entitled action . My testimony in


3

this declaration is based on personal knowledge .


4

2 . I represent myself in this matter. I would much prefer to be represented


5

counsel, but cannot afford it . Also, I reside in California . I am now forced to


6

defend myself in a faraway jurisdiction, and without benefit of counsel . I am at


considerable disadvantage .
e
3. In an abundance of good faith, beginning two weeks prior to the close of
9
discovery, I initiated, and pursued contact with plaintiff to discuss the coming
10
~ deadline as well as settlement .
11
4. By the end of the business week one week prior to the discovery close,
12
substantive discussions had taken place . Plaintiff's counsel agreed to confer with
13
their clients regarding terms, and Mr . Chan expected to have serious and good fai
14
closure discussions by the opening of business on the week discovery is to close .
15
5 . 1 understands discovery to close April 28, in this matter. That is a
16
'~ Wednesday .
17
6 . Prior to the close of business East Coast Time, Monday, April 26, 2010,
18
when I had not heard from Plaintiff despite the import of discussions the week
19
prior, as well as the looming end of discovery, I attempted to contact Plaintiff, I
20
PM Pacific Time, and well before the close-of-business on the east coast .
21
7 . Plaintiff was unavailable, so I left voicemail for Plaintiff .
22
8 . Prior to the close of business East Coast Time, Tuesday, April 27, 2010,
23
when I still had not received any acknowledgement or reply from Plaintiff, I
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CLAN ~ Page 10 of 13
attempted to again contact Plaintiff, lpm Pacific Time, and well before the close-
1 ,
of-business on the east coast .
2
9 . Plaintiff was unavailable, so I left voicemail for Plaintiff .
3

10 . 1 was immediately alarmed by the sudden stonewalling, so also sent an


4

electronic message by email to Plaintiff, with specificity as to delivery of


5
documents .
6
11 . The Plaintiff's Request for Production of Documents set I was
vo luminous.
8
12. Knowing if I were to have to produce Plaintiff's requested materials in
9
paper, the page count would exceed at minimum 6 million pages .
Za
13 . Much of Plaintiff's requested materials can be accessed electronically,
from production web servers . I made repeated attempts to reach Plaintiff to arrange
12
sensible delivery .
13
14. Immediately upon Plaintiff's stipulation that he would accept electronic
14
copies, as well as representative documents, we began transmissions of documents .
15
15. On May 4, 2010, 1 served on Plaintiff further discovery responses .
16
During a three day per i od beginning on May 4th, I also , sen# emails to plaintiffs
17
counsel with attachments containing 3016 pages of responsive documents . Within
18
the discovery responses, we made ava ilable electronic resources to download over
19
7 million pages . Attached as exhibit A is a CD . Written on the CD are the
20
documents I sent plaintiff s counsel .
21
16. Counsel for plaintiff never contacted me after the May 4th responses and
22
document production to meet and confer
23
I declare under penalty of perjury under the laws of the United States that
24
the foregoing. is true and correct .
25

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OPPOSITION TO MOTION TO COMPEL . RESPONSES ; DECLARATION OF


STEVEN A . CHAN ~ Page. 11 of 13
Exhibit A

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"CD" Attached
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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CHAN 1 Page 13 of 13
949-650-6698
2viavr ggmaii.com
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EVIDENCE O BJECTIONS
: Page 2 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE FLAG COMPANY, INC . a


Georgia Corporation,
Plaintiff,
CIVIL ACTION FILE NO .
vs.
1 :09-CV-1880
STEVEN A CHAN, LLC (d/b/a FIVE
STAR FLAGS and/or VIA5), a
California Limited Liability Company,
And STEVEN A . CHAN, a California
resident
Defendant

CERTIFICATE OF SERVICE
This is to certify that I have this day manually filed by placing into a package, sent
by United States Postal Service, the foregoing OPPOSITION TO MOTION TO
COMPEL REPSONSES ; DECLARATION OF STEVEN A. CHAN ;
EVIDENCE OBJECTIONS with the Clerk of Court . The Clerk of Court will use
the CM/ECF system to automatically send e-mail notification of such filing to the
following attorneys of record:
J. Tucker Barr
Arnold Golden Gregory LLP
171 17th Street, N .W., Suite 2100
Atlanta, GA 30363-1031
Tel : (404) 873-8500
Fax : (404) 873-8501
Email: Tucker.barr@agg .com

Page I of 3
IN THE UNITED STATES DJSTRICT COURT
1 NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
2

THE FLAG COMPANY, INC . a


Georgia Corporat ion,
b Plaintiff,
CIVIL ACTION NO :
V. 1 : 09-CV -1 880
8 STEVEN A CI-IAN, LLC (d/b/a FIVE EVIDENCE OBJECTIONS
9 STAR FLAGS and/or VIA5), a
1J California Limited Liability Company,
and STEVEN A . CHAN, a California
12 resident,
13 Defendant
14

15 EVIDENCE OBJECTIONS
16 Defendant Steve Chan obj ects to Exhibits A, B, and C plaint iffs discovery
17 notion . He obj ects to these documents on the grounds that they are hearsay and
18 inadm issible. There is no foundation testimony in support, .. of any of the documents .
19 Mr, Chan moves the court to str ike those exhibits .
20 Dated the 6th of June, 2010
.w
21 --~~- _.~

22
Steven A Chan

23
American Flag Manufacturer
720 Center Street
24
4

25
Costa Mesa, CA 92627

26 r

EVIDENCE OBJECTIONS
Page I of
1 '

2
Further, a copy has been placed in the US Mail, and sent to :
J . Tucker Barr
Arnold Golden Gregory LLP
171 17t" Street, N .W., Suite Z 1. 00
5
Atlanta., GA 30363-10-31
6 Tel : (404) 873-8500
Fax: (404) 873- 8501.
Email : ri`ucker .barr@agg .com
8

Dated the 6`h of June, 20 I 0

10
/

11
Steven A Char
12
American Flag Manufacturer
13
720 Center Street
14
Costa Mesa, CA 92627
15
949-650-669
16
.2 V 1 aVT ~~ 1~"111 j .C q1'il
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P age 2 of 3
1 CERTIFICATE OF COMPLIANCE
2 Pursuant to Civil Local Rule 7 .1D, this is to certify that the foregoing
Opposition to Motion to Compel Responses ; Declaration of Steven A. Chan ;
Evidence Objections complies with the font and point selections approved by the

51 Court in Civil Local Rule 5 .1 C . The foregoing Documents were prepared on

6 computer using New Times Roman font (14 point) .

Dated the 6 " of June, 2010 a


8 ~ .: .-

~ .__ ._u. . .,. .


9

10 Steven A Chan
11 Amer ican F lag Manufacturer

12 720 Center Street

13 Costa Mesa, CA 92627

14 949-650-6698

15
?via r Cq2.grn ai L corn

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Page 3 of 3
Dated the 6'" of June, 201 0
1 ff

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Steven A Chan

5
American Flag Manufacturer
720 Center Street
Costa Mesa, CA 92627
949- 6 50-6 6 9 8
8

ZVIaVi' CL?gma 1 l, .CQIII


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OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF


STEVEN A . CHAN