Wolk v. Green Legal Malpractice Plaintiff's Memo Compel

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065025 BZ Pl’s Memorandum in Support of Mo. Compel Discovery Responses

Gloria Grening Wolk MSW4558-B Capital Blvd. #168Raleigh, NC 27604Ph: (919) 875-8627 Fx: (815) 572-9707E-mail [email protected]

Plaintiff Pro Se

UNITED STATE DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

GLORIA GRENING WOLK Case No.: 065025 BZ

Plaintiff,

vs.

PHILIP R. GREEN,

Defendant.

_____________________________________

MOTION TO COMPEL AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Plaintiff Gloria Grening Wolk respectfully moves this Court pursuant to Federal Rules of

Civil Procedure 26, 33, 34, and 37 and Civil L.R. 33-1 through 36-2 to order defendant Philip R.

Green to provide a complete initial disclosure and full, unevasive responses to interrogatories,

requests for admission, and document requests for Set One Revised.

As set out more fully in the accompanying declaration, the Plaintiff has in good faith

conferred and attempted to confer with defense counsel in an effort to secure the disclosures

without court action, then with court intervention, then after the conference call with the Court.

Defendant has not provided any documents in response to the requests served by Plaintiff,

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

Case 3:06-cv-05025-BZ Document 89 Filed 10/05/2007 of 21

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065025 BZ Pl’s Memorandum in Support of Mo. Compel Discovery Responses i

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 Plaintiff’s 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 Court’s 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. That any privileged, withheld documents be sufficiently described in a privilege log.

5. That Defendant respond to the documents produced with Set 2, either admitting or

denying that he authored the attached copies of email.

6. That Defendant comply with the requirement to produce a copy of the entire liability


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28065025 BZ Pl’s Memorandum in Support of Mo. Compel Discovery Responses ii

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 Court’s

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


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28065025 BZ Pl’s Memorandum in Support of Mo. Compel Discovery Responses -3-

TABLE OF CONTENTS

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

I. INTERROGATORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

II. REQUESTS FOR ADMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

III REQUESTS FOR DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

IV. INITIAL DISCLOSURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-

V REQUESTS FOR ADMISSION SET 2–GENUINESS . . . . . . . . . . . . . . . . . . . . -15-

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

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


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TABLE OF AUTHORITIES

FEDERAL CASES

Computer Task Group v. Brotby, 364 F.3d 1112 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . -18-

Dorf & Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 922 (Fed.Cir. 1996. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Harner v. Greyhound Lines, No. 02-0088, U.S.D.C. E.Pa. January 2003 . . . . . . . . . . . -9-, -14-

Henry v. Gill Industries, 983 F.2d 943, 948 (9th Cir.1993) . . . . . . . . . . . . . . . . . . . . . . . . . -17-

Hickman v. Taylor, 329 U.S. 495 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

Moore v. Hartman, No. 92-2288 (D.D.C. March 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Nobles v. Jacobs/IMC, Jacobs Engineering et al. No. 02-0026, U.S.D.C. V.I. (2003) . . . . -14-

OneBeacon Amer. Insur. Co. v. Jaco Airfield Const., No. 04-2432 (W.D. Tenn. 2007) . . . -14-

Virtual Vision Inc. v. Praegitzer Industries Inc., 124 F.3d 1140 (9th Cir. 1997) . . . . . . . . . . -18-

FEDERAL RULES

Fed. R. Civ. P. Rule 33(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-

Fed. R. Civ. P. 33(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

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

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


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

CALIFORNIA STATE CASES

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

Deyo v. Kilbourne, 84 Cal.App.3d, 771 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-, -10-, -14-

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

Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 376-377 (1961) . . . . . . . . . . . . . . . . -18-

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

Lieb v. Superior Court, 199 Cal.App.2 364 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-, -18-

Obregon v. Superior Court, 67 Cal.App.4th 424 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-

Olmstead v. Arthur J. Gallagher, 104 Cal.App.4th 858; 128 Cal.Rptr.2d 573 (2002) . . . . . . -11-

CALIFORNIA STATUTES

California Evidence Code § 1152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-

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

OTHER AUTHORITIES

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


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INTRODUCTION

This Motion addresses Plaintiff’s 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 Defendant’s

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


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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 Defendant’s 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 Plaintiff’s

presumption that some of Defendant’s 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 responses–a

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


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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... ."

Defendant’s 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 non-

evasively. “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 documents–email and pleadings–which are in

Defendant’s files. Defendant’s responses rely on memory, and he offers to amend his responses


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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 court’s 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).

Defendant’s 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”?


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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 Defendant’s 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

responses. Attorney work product protects documents prepared in anticipation of litigation. None

of the interrogatories nor any other discovery includes a request that could be construed as

attorney impressions or work done in anticipation of this lawsuit. These interrogatories and the

other discovery are specific to the performance of the Defendant in the underlying lawsuit. “Section

2030, subdivision (f)(1) requires interrogatory responses to be ‘as complete and straightforward as

the information reasonably available to the responding party permits.’ [citation]” Olmstead v. Arthur

J. Gallagher, 104 Cal.App.4th 858; 128 Cal.Rptr.2d 573 (2002). Defendant’s refusal to disclose

facts defeats the goal of the legal system: to obtain justice. “Mutual knowledge of all the relevant

facts gathered by both parties is essential to proper litigation. To that end, either party may compel

the other to disgorge whatever facts he has in his possession” Hickman v. Taylor, 329 U.S. 495

(1947).

II. REQUESTS FOR ADMISSION

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

have a short answer. See Exhibit B. The remaining thirty-one concludes with “cannot admit or

deny” based on “unable to recall,” after filling paper with the usual objections, “vague and


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ambiguous” and “overbroad and misleading.” Objections coupled with admit or deny render the

admission or denial unreliable for the purpose of setting at rest a triable issue. “Requests for

admissions [ ] are primarily aimed at setting at rest a triable issue so that it will not have to be tried.

Thus, such requests, in a most definite manner, are aimed at expediting the trial. For this reason,

the fact that the request is for the admission of a controversial matter, or one involving complex

facts, or calls for an opinion, is of no moment. If the litigant is able to make the admission, the time

for making it is during discovery procedures, and not at the trial. . . .” Lieb v. Superior Court, 199

Cal.App.2 364 (1962)

Some responses contradict other responses. For example, Defendant admits to No. 3–that

on May 2, 2005 he instructed the Plaintiff to overnight a retainer for $10 thousand. But he objects

to related Requests (Nos. 1, 2, 4, 5, 6) claiming, among the litany of objections, that these requests

are misleading and, following a paragraph of unrelated information, states he is unable to admit or

deny (Response Nos. 2 and 4) .

One of the occasional objections added to the litany is “calls for speculation.” No. 28 is a

good example of its misuse. The request was, ”Admit that documents you subpoenaed for the

deposition of Plaintiff’s adversary were of paramount importance if the case went to trial.” After the

usual boilerplate, plus “calls for speculation,” Defendant adds another objection that implies he

conducted more than one deposition and that the Plaintiff had more than one adversary in the

underlying lawsuit: “It is unclear which deposition is even being referred to without reference.”

“Relevance” is another pet objection. Federal Rule 26(b)(1) authorizes discovery “regarding

any matter, not privileged, that is relevant to the claim or defense of any party. Plaintiff believes all

these requests are relevant. Otherwise, why waste time on this since, as a pro se litigant, she is

not entitled to be compensated for her for time or effort. But Defendant repeatedly objects on the

basis of “relevance” (Nos. 16, 23, 26, 27). Here, and in response to a number of Requests for

Production of Documents, the objection is thrown out but there is no explanation to support this

objection. Perhaps he is aware that the term relevance “is broadly construed and ‘[r]elevant


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information need not be admissible at the trial if the discovery appears reasonably calculated to

lead to the discovery of admissible evidence.’ [citations]” Moore v. Hartman, No. 92-2288 (D.D.C.

March 2007). “In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party

in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and

it is sufficient if the information sought might reasonably lead to other, admissible evidence.

(citation)” Glenfed v. Superior Court, 53 Cal.App.4th 1113 (1997).

Defendant also objects on the basis “calls for a legal conclusion” (Nos. 12, 20, 21, 22, 25

26, 27). Well, yes, because Fed. R. Civ. P. 33(c) permits discovery that requires relating facts to

the application of law and application of law to fact. Request No. 27 is a good example of how

Defendant’s denials fly in the face of facts and evidence, in this case the evidence being court

records: “Admit that when you deposed Wolk’s adversary you were not yet attorney of record.”

Defendant should be compelled to check his files and then respond fully and truthfully,

without objections, to Request Nos. 1, 2, 5, 6, 8, 9, 11, 12, 13, 14, 16, 17, 18, 19, 23, 24, 25, 26,

27, 28, 29, 33. All other requests should be admitted or denied without objections.

III. REQUESTS FOR DOCUMENTS

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

responses is the paragraph for Request No. 1: “Objection, this demand category calls for

documents potentially subject to attorney client and work product privileges. Objection, oppressive

and burdensome. Documents responsive to this demand category not subject to privilege have

already been produced and are in propounding parties custody and control. Without waiving the

foregoing all non-privileged documents containing information responsive to this category have

been previously produced when Plaintiff was provided with the entire file from the handling of the

underlying litigation on which this suit is based.”

These objections are without merit. First, Defendant made no effort t establish privilege. The

party asserting a privilege has the burden of establishing the privilege. Dorf & Stanton

Communications, Inc. v. Molson Breweries, 100 F.3d 919, 922 (Fed.Cir. 1996). Secondly the


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Federal Rules of Civil Procedure require that a party's claim of privilege be made expressly and

"supported by a description of the nature of documents . . . that is sufficient to enable the

demanding party to contest the claim." Fed. R. Civ. Pro. 45(d)(2).

After five months of sitting on these requests, Defendant continues to assert the same

objections and yet made no effort to provide a privilege log. Dorf, supra. After five months of sitting

on these requests, Defendant should know that the requested documents are not subject to any

privilege or protection. Other than documents related to lawsuits litigated on behalf of other clients,

all requests are for documents prepared in 2005, in regard to the underlying lawsuit. Therefore,

none is related to defense strategy. “‘Requested information becomes work product when it may

reveal the defense’s strategy.’” Harner, supra, citing Plant Genetic Systems, N.V. v. Northrup King

Co., 174 F.R.D.D. 330, 331-332 (D. Del. 1997).

All responses refer in a generalized way to the total files returned to the Plaintiff. That is like

saying, “Here’s the haystack–go look for the needle,” or, “The word is on the tip of my tongue; look

it up in the dictionary.” Not once does Defendant make an effort to identify the responsive

document. “[ ] An adequate response must include a description of the document. (Deyo v.

Kilbourne (1978) 84 Cal.App.3d 771, 783 [149 Cal.Rptr. 499].)” Hernandez v. Superior Court,

supra. Because not one response identifies a single document in any manner, Plaintiff cannot

determine if she received all the relevant documents.

Although F.R.C.P. Rule 33(d) allows the responding party the option of specifying the

document from which the answer may be derived or ascertained, it requires that “specification shall

be in sufficient detail to permit the interrogating party to locate and to identify as readily as can the

party served, the records from which the answer may be ascertained.’” OneBeacon Amer. Insur.

Co. v. Jaco Airfield Construction, No. 04-2432 (W.D. Tenn. 2007). “The responding party may not

simply refer to a mass of records . . .. “ Nobles v. Jacobs/IMC, Jacobs Engineering et al. No. 02-

0026, U.S.D.C. V.I. (2003).


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

8, 10, 11, 14 that they also are “unintelligible.” Most outrageous is that he throws these objections

at No. 8. That request is for “All documents written or prepared related to attorney Keith Wisbaum,

the Laguna Beach elder fraud attorney.” Defendant had at least one telephone conversation with

attorney Wisbaum. If he has any notes from that conversation, he is required to produce that

document. And then he goes completely berserk: “Objection on the basis of evidence code section

1152.”

What relevance does California Evidence Code § 1152 have to this case, let alone this

request? It reads, “Evidence that a person has, in compromise or from humanitarian motives,

furnished or offered or promised to furnish money or any other thing, act, or service to another who

has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage,

as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or

her liability for the loss or damage or any part of it.”

Defendant knows that the Plaintiff was not acquainted with attorney Wisbaum, prior to

seeking his help, and he knows that she paid for his time. Attorney Wisbaum’s fees, which were

incurred because of Defendant’s acts, are included in the damages listed on the Plaintiff’s initial

disclosures.

As to Number 9, it is true there was a previous attorney-client relationship between Plaintiff

and First Amendment Project (FAP). That is why Defendant was able to acquire information from

the latter organization that would have assisted him in trial preparation. Two attorneys associated

with FAP were listed on Defendant’s initial disclosures as possible witness he would call to trial.

Despite this, he refuses to produce anything.

Number 10 refers to discussions about the underlying lawsuit between Defendant and at

least two other attorneys not yet named–as related by Defendant to the Plaintiff in 2005. Yet he

refuses to produce anything.


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

to this demand exist to be produced.” Again, he relies on memory, rather than checking his files.

“[A]n evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose,

answer, or respond.” Fed. R. Civ. P. 37(a)(3).

The response for No. 11, to which he objects as “unintelligible,” suggests that Defendant

never did any work for a motion for protective orders. Since he refuses to check his files, he clearly

has no recollection that he billed nearly $7 thousand dollars for preparation of this motion, starting

on May 20, 2005, then failed to file it until after discovery cut-off.

Response No. 16, “Objection, calls for speculation,” refers to documents related to research

Defendant claimed to have performed for the underlying lawsuit–and billed for such. If this is a

truthful response, then Defendant considered doing the research but did none or did far less the

amount billed.

Response No. 18 claims that no invoices exist. Plaintiff wants invoices or canceled checks

to explain why Defendant charged for service of his substitute attorney form on June 28 2005 when

he neither filed nor served the form until July 12. This is but one example. Plaintiff suspects other

expenses were not incurred or were billed in excessive amounts.

REQUEST No. 23 was rephrased from the original sent in May so as to make it impossible

for Defendant to have a legitimate objection. The refusal to respond to “All documents referencing

the initial reservation date or any changes of that date for your 2005 trip to England,” implies that

Defendant will not disclose when he made airline reservations because they were made after he

knew he would receive the $10 thousand retainer from Plaintiff. Defendant’s objections include

“compound;” “vague and ambiguous;” “calls for documents protected by privilege and privacy

rights;” “oppressive and burdensome,” and, finally, outright refusal: “Without waiving the foregoing,

no documents exist to be produced.” As to the objection on the basis of privacy, Defendant need

only produces the credit card statement that shows the date of his airline reservation, and redact

all other details. If he deducted this expense from his business tax return, he surely has a receipt.


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

Defendant may have been lead attorney are disingenuous, at best. He claims these documents are

“equally available to propounding party.” How is that possible, when he refuses to identify any of

these cases–if they exist? It is true that these requests are “duplicative of other discovery

propounded,” and for an obvious reason: Defendant consistently refuses to identify the cases.

These documents are the ones to which the Court referred and approved for production,

during the conference call on August 13. They do not qualify for privacy protection because, if they

exist, they in the public record. “It is well established in this circuit that ‘disobedient conduct not

shown to be outside the control of the litigant' is all that is required to demonstrate willfulness, bad

faith, or fault." Henry v. Gill Industries, 983 F.2d 943, 948 (9th Cir.1993) (quoting Fjelstad v.

American Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985).

IV. Initial Disclosures

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

comply with Fed. R.Civ. P. Rule 26( D). Instead of providing a copy of the insurance policy, the

response was: “The declarations page of this policy is available for inspection and copying by

contacting [attorney].” On October 3, another request from the Plaintiff was responded to with the

promise of providing the declarations page, not the entire policy. See Exhibit D.

V. Set Two, Request for Admissions–Genuiness of Documents

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

preparing his responses to this request, Plaintiff was not informed that Defendant would refuse to

respond to any part of this discovery. The documents were copies of email Defendant had sent to

the Plaintiff in 2005. Defendant’s responses were limited to admitting that the documents appeared

to be email. See Exhibit E.

Defendant claimed to be reluctant to admit to the genuiness of his email because several

of the pages indicated page “1" and there was no page two. Had this issue been raised through

Meet and Confer, it could have been clarified. First, Plaintiff’s email server notes page one even


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if there is no other page. Secondly, when a second page was blank when printed, the blank page

was not provided. Third, when a second page had nothing more than the message that the email

was virus-free, that page was not provided.

After reading these “responses” the Plaintiff sent email to defense counsel, explaining the

above and asking if she should re-send the email with the blank or virus-fee second pages. There

was no response. “The procedure provided in Code of Civil Procedure, section 2033, for obtaining

admissions as to facts and genuineness of documents is not really a discovery procedure. It is

designed to enable a litigant who is aware of certain facts relevant to the issues to be tried to obtain

admissions from his adversary and thus avoid the necessity of proving the facts at the trial.” Lieb,

supra.

LEGAL IMPLICATIONS

Defendant’s unyielding refusal to cooperate, if allowed to continue, will severely impede the

Plaintiff’s ability to prepare for trial. “‘One of the principal purposes of discovery was to do away

‘with the sporting theory of litigation--namely, surprise at the trial.’ (Chronicle Pub. Co. v. Superior

Court, supra, 54 Cal.2d 548, 561. See also page 572 of the same opinion wherein we adopted from

United States v. Proctor & Gamble Co., 356 U.S. 677 [78 S.Ct. 983, 2 L.Ed.2d 1077], the phrase

that discovery tends to ‘make a trial less a game of blindman's buff and more a fair contest with the

basic issues and facts disclosed to the fullest practicable extent.’” Greyhound Corp. v. Superior

Court, 56 Cal.2d 355, 376-377 (1961).

Defendant’s conduct is “a consistent, intentional, and prejudicial practice of obstructing

discovery.” Computer Task Group v. Brotby, 364 F.3d 1112 (9th Cir. 2004). His conduct is so

egregious that it cannot and should not be taken with equanimity. “It is well established in this

circuit that ‘disobedient conduct not shown to be outside the control of the litigant' is all that is

required to demonstrate willfulness, bad faith, or fault.’ Henry v. Gill Industries, 983 F.2d 943, 948

(9th Cir.1993) (quoting Fjelstad v. American Honda Motor Co., 762F.2d 1334, 1341 (9th Cir.

1985)).” Virtual Vision Inc. v. Praegitzer Industries Inc., 124 F.3d 1140 (9th Cir. 1997).


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

Defendant or his attorneys. The tactics evidence a calculated effort to deny Plaintiff the tools

needed to prepare for settlement negotiations or trial. These tactics, including defense counsel’s

refusal to Meet and Confer, continued refusal to provide the insurance policy, and

misrepresentations to the Court, as more fully detailed in the accompanying declaration, should be

seen by the Court for what they are: an abuse of the discovery process.

“An abuse of discovery procedures in one instance can imply a continuing intent to abuse

in other instances. Any discovery request, even an initial one, can be misused in an attempt to

generate settlement leverage by creating burden, expense, embarrassment, distraction, etc. It is

a judge's responsibility to control such abuse. (Cf. Calcor Space Facility, Inc. v. Superior Court

(1997) 53 Cal.App.4th 216, 221 [61 Cal.Rptr.2d 567] [discovery abuse is a spreading cancer; judges

must be aggressive in curbing abuse; discovery statutes are prone to misuse absent judicial

consideration for burden; courts must insist that discovery be used to facilitate litigation rather than

as a weapon].) Obregon v. Superior Court, 67 Cal.App.4th 424 (1998).

CONCLUSION

Plaintiff respectfully requests that her Motion to Compel be granted, and that the Court enter

an Order compelling Defendant Philip R. Green to provide complete and nonevasive responses

to all interrogatories, requests for admission, initial disclosures, and requests for admissions as to

genuiness of documents. The responses are so deficient that Defendant should be required to start

anew and answer all fully and truthfully.

If Defendant believes he turned over some documents that are responsive to the requests,

he should be compelled to identify each of the responsive documents so that they are readily

located, and produce all nonprivileged documents that were not turned over but are responsive to

Plaintiff’s document requests.


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

Plaintiff herewith requests that the Court order the Defendant to produce these long overdue

responses within 3 calendar days of the Order.

Plaintiff further requests that Defendant be denied the advantage of deposing the Plaintiff

or employing any other form of discovery until Defendant meets his obligations.

Plaintiff also requests reimbursement for the expenses in bringing this motion and for

purchasing two useless telephone recorders (approximately $150.00 for Federal Express and two

recorders). Since these amounts are minimal and since Plaintiff, as a pro se litigant, is not allowed

to be compensated for the many hours required to prepare this motion, she also requests that the

Court order monetary sanctions to be paid by the Defendant to the Court, as a penalty for wasting

the Court’s resources and time.

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


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

PLAINTIFF’S 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

attorneys of record:

Timothy J. Halloran

[email protected]

Summer M. Smith

[email protected]

MURPHY, PEARSON, BRADLEY & FEENEY

88 Kearny Street, 10th Flr.

San Francisco, CA 94108-5530

Attorneys for Philip R. Green

/s/ ____________________________

Gloria Grening Wolk, Plaintiff Pro Se


Wolk v. Green Legal Malpractice Plaintiff's Memo Compel

Documents

Transcript of Wolk v. Green Legal Malpractice Plaintiff's Memo Compel