POINTS & AUTHORITIES IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER FROM PLAINTIFFS vs. DEFENDANT'S SPECIALLY PREPARED INTERROGATORIES
Introduction
It has been a hard fight with plaintiffs' counsel in trying to get this case ready for trial, primarily because of their failure to accurately, much less fairly, state the facts. Even the federal judge was exasperated by plaintiffs' counsel's conduct, so much so that he commented upon plaintiffs' counsel lack of directness in one of his last Orders 1. "[T]he court is troubled by the extent to which plaintiffs' attorneys embellish the facts before the court" ó Judge Ronald Whyte. Plaintiffs' counsel now has a new court, and a new judge, upon which to perfect the art of embellishment, and as will be discussed herein, continue their pattern of misdirection, embellishment and obscuration.
ARGUMENT
Plaintiffs have based their motion for protective order upon two grounds: (1) that it is needed to protect plaintiffs from unwarranted annoyance, embarrassment, oppression, undue burden, and expense; and (2) that the number of interrogatories is unwarranted. They have failed to provide the court with any facts has to how these 97 interrogatories are unduly burdensome, or unduly expensive (effectively waiving those claims; although, we guess that they will embellish upon those claims for the first time in their reply brief).
As will be briefly discussed, plaintiffs' motion is simply unwarranted and made strictly as a subterfuge in an effort to deny this defendant with the facts, witnesses and documents which plaintiffs will seek to introduce at trial upon their 3rd Amended Complaint and SLAPP (Strategic Lawsuit Against Public Participation) lawsuit. Plaintiffs' have only just recently filed their 4th complaint (their 3rd Amended) in this protracted action, but now they do not wish to reveal to this defendant the facts that support their amended theories, or to disclose the facts which required such amendments and deletions. Bear in mind that plaintiffs have NEVER provided this defendant with even one single answer to any of the previous 25 interrogatories pertaining to the 2nd Amended Complaint submitted to them in Federal Court, and have never had to answer a single interrogatory issued by this defendant in this state court action.
MOTION IS NOW MOOT
Since writing the above paragraph, plaintiff served their respective "Responses" to the present set of defendant's specially prepared interrogatories (a specimen copy [George Zdasiuk's] of which is attached to Glynn Falcon's Declaration as Exhibit D). By responding, plaintiffs have mooted the need for their present motion, apparently wanting to retrench to fight another day in the form of opposing the anticipated motion to compel to be brought by this defendant. As predicted, plaintiffs objected to each and every question; failing to provided even one factual response to even one interrogatory. This has been their pattern of abusive discovery practice all along (deny, delay, and dispute), forcing needless time delays through "meet and confer," followed by a motion to compel when plaintiffs stonewall any meaningful discovery answers. They did the same thing in federal court. There they objected because the questions were "compound" (i.e., called for facts, witnesses, and documents in just one question). Now, when defendant asked separate questions for facts, witnesses and documents, plaintiffs' objected because there were too many interrogatories. Plaintiff will play either side in order to frustrate discovery. Plaintiffs are never going to reveal their evidence until this court gets tough on them. Defendant has enjoyed enough of their gamesmanship from these plaintiffs.
Plaintiffs' motion for protective order should be overruled.
THE 97 INTERROGATORIES ARE NECESSARY, SPECIFIC, & TAILORED TO THE PRESENT CLAIMS
Plaintiff are very content to have a trial by surprise, in fact they had been pushing for an early trial date (hence, the reason for serving one large set of interrogatories upon them ñ to save time in case Judge Rushing granted them an early trial date. However at the CMC on September 5, plaintiffs' counsel announced that plaintiffs would not be ready for trial before February of next year!). Now there is no immediate trial pressure, and no reason that plaintiffs could not provide factual responses to each interrogatory, especially if they needed some additional time to do so.
Defendant has asked each plaintiff an almost identical set of 97 interrogatories. Plaintiffs flat out lie to this court (but I will politely call it "embellishment") when they claim each plaintiff was served with 388 interrogatories. There are four separate plaintiffs. Each has his, her, or its own set of claims and facts supporting such claims. It is not defendant's fault that their counsel (Orrick, Herrington & Sutcliffe) does not see a potential conflict of interest in its joint representation and has decided to represent all four plaintiffs. But since they do represent all four, as to Orrick, they will effectively have to answer 388 questions (97 each in the best perspective of each of their clients). The set of 97 questions is basically a three-pronged, systematic, investigation into plaintiffs' current claims. They could not have been presented earlier, as plaintiffs' counsel had advised in May of this year that they would be seeking to amend their complaint. It would not have been good lawyering to ask questions knowing that the pleading would shortly be superceded. In any event, the first question asks for facts supporting specific allegations contained in the latest complaint, the next asks for witnesses to those facts, and the third seeks documents supporting such facts.
As this court is well aware, there are a significant reasons for using specially prepared interrogatories to obtain information. The most significant factor here is that an interrogatory is useful in obtaining the collective knowledge that is available to the responding party, including knowledge of the responding partyís agents and attorneys. (see CCP ß2017, incorporated in CCP ß2030(a); Pantzalas v. Sup. Ct. (1969) 272 CA2d 499, 77 CR 354.) This is especially necessary with, as here, corporate plaintiffs, which knowledge can be neatly hidden in various department head pigeonholes unless ìcollectiveî knowledge discovery is utilized. Depositions are useless in obtaining "collective knowledge" when they are defended by a party unwilling, in the spirit of open discovery, to divulge information.
Almost an equally important factor is that interrogatories are relatively inexpensive to propound and respond to. While plaintiffs' claim this set is unduly expensive, they have provided no factual support for such a claim. Plaintiffs' objection is quite amazing, especially when plaintiffs are going to have to present at the trial the same information as requested in the interrogatories. Moreover, plaintiffs' claimed in August of 1999 at a federal settlement conference that they had spent over a quarter million dollars on this case, and discovery had not even gotten underway. A quarter million here, a quarter million there, and pretty soon you are talking some pretty serious money. But in light of plaintiffs' earlier claimed expenses, answering 97 interrogatories is not going to significantly add to plaintiffs' financial output on this case. At least not if they are actually planning on bringing this case to trial. Because the same information requested in the 97 interrogatories in the same information they will have to prove up at trial.
The use of interrogatories to reduce litigation expenses is especially significant to this defendant, who was fired by Plaintiff Varian, and has been out of work since October of 1998. Of course, keeping this litigation expensive is precisely what Plaintiffs are seeking, as they have the resources and they know defendant's are limited. It is typical in these type of SLAPP cases that plaintiffs use the financial burden to squash meaningful opposition from the defendants. That is what plaintiffs are trying to do to this defendant, and it doesnít take a weatherman to see it.
NO PRIOR INTERROGATORIES HAVE BEEN ANSWERED BY THESE PLAINTIFFS
Previously while in federal court, defendant had asked each plaintiff 25 interrogatories, but had included facts, witnesses and documents in each question. Instead of answering any of the 25 questions, each plaintiff stonewalled by objecting to each and every question on the basis that asking for facts, witnesses and documents in each question, it made each question compound, claiming that the set thereby should be multiplied by 3 (for facts, witnesses and documents) causing it to exceed the 25 question limit in federal court 2.
PLAINTIFFS CLAIM DAYS DISCOVERY SHOULD BE SUFFICIENT FOR DELFINO
Next, plaintiff claim that since they answered interrogatories for Mary Day, that should suffice for Dr. Delfino. They ignore many issues. First, the scope of their allegations against Dr. Delfino encompass a much larger period of time, dating back 5 or 6 years. Mary Day was only brought into the case within the last year, and the allegations against her stem from her appearance on a May 1999 Kinko's store surveillance video tape. Second, Dayís interrogatories were tailored to only those issues and facts which pertain to the allegations against her, and her defenses thereto. Day and Delfino are not joined at the hip, and their interests are not identical. Hence, the need for separate counsel (unlike Plaintiffs). Shortly, Mary Day will receive summary judgment in her favor and she will be out of this case. Her defense is not the same as that of Dr. Delfino.
Plaintiffs' motion for protective order should be overruled
THERE HAS NEVER BEEN A TRIAL DATE SET IN THE STATE COURT
Contrary to plaintiffs' assertions, there is no pending trial date in the Superior Court. Amazingly, plaintiffs recently announced to Judge Rushing that they, themselves, would not be ready for trial until February, 2001. While it is true that there were two trial dates set in the federal court, one for December 13, 1999 (moved because plaintiffs amended their complaint to add Mary Day as co-defendant) and another for February 14, 2000 (unilaterally vacated by Judge Whyte in light of the numerous dispositive motions he had under submission), there is no authority that those dates are procedurally binding upon the Superior Court. In fact, it is hornbook law that another jurisdiction's procedural orders are not binding upon California courts. In ruling on part of those submitted, dispositive matters, the federal court found that there was no factual substance to any of plaintiffís federal claims, and held that federal court was, therefore, without federal question jurisdiction in the case ó remanding this matter back to state court.
The federal court found that it had no jurisdiction in the first place, because plaintiffs had no facts to support any of their federal question claims. The federal court remanded the matter back to state court. A new trial date was never assigned in the federal court before it remanded.
There is currently a dispute between the parties over whether the prior rulings and orders of the federal court are a nullity and are void, or whether they survive and may have some application in the superior court. The issue is currently before the Ninth Circuit Court of Appeals, and the 9th Circuit has been fully briefed by the parties on this issue. It was raised by defendants as an appeal issue in the context of whether the federal preliminary injunction is void for lack of jurisdiction in as much as the district court judge ruled that there was no federal question jurisdiction. Precisely on point on this issue is the case of W.H. Avitts v. AMOCO Production Co. (5th Cir. 1995) 53 F3d 690, wherein the Circuit Court of Appeals held that the injunction and other orders of the district court were void since the district court lacked subject matter jurisdiction. In Avitts, the district court had also granted a preliminary injunction as well as an order requiring appellants to pay $650,000 in interim costs. As here, appellees had originally filed in state court, but the matter was removed to federal court on the basis (as here) of federal question jurisdiction since the complaint had alleged violation of federal law. On appeal, the 5th Circuit found that appellees had failed to state a federal question, and therefore, the district court lacked subject matter jurisdiction. After finding for appellants that the injunction and other orders made by the district court were, therefore, void, the Court went on to hold that: "The district court lacked subject matter jurisdiction over this action and was therefore without authority to enter its orders. The orders of the district court are vacated, and this matter is remanded to the district court with instructions to remand this action to the state court from which it was removed in accordance with 28 U.S.C. ß1447c)." We believe that this will be the same outcome when the federal appeal in this case is eventually decided. If true, the federal Case Management Orders (setting trial dates) are also void and a nullity. It is as if they had never happened. Hence, plaintiffs' reliance on a discovery cut-off date based on a [vacated] federal court trial date would also be a but a whiff of gossamer smoke. If defendant is correct in his view of the applicable decisional law on the invalidity of the federal court orders, then all of the orders of the federal court, and specifically those pertaining to setting of a trial date, are void and of no force and effect due to the lack of subject matter jurisdiction by the federal court in the first place.
Assume, for a moment, that this court were inclined to agree that a setting of a federal trial date acted as a discovery cut-off date in the Superior Court. If the Ninth Circuit subsequently holds there was no jurisdiction for the federal court to render such orders, where would it leave this case hanging in the Superior Court if the Superior Court bases its decision on what supposedly happened in the federal District Court. Basing Superior court rulings upon void federal court orders is probably a bad idea for another reason also ó it fails to preserve an adequate record for any future appeal. How does one appeal a federal ruling in the Superior Court? And since remand, there is no right to an appeal in the federal court. Twilight Zone resurrected!
If, on the other hand, this court finds that there has never been a trial date set in the Superior Court, or finds that federal procedural matters are not binding upon state courts, and that in fairness and in equity that plaintiffs should be required, at least once, to provide the facts, witnesses and documents that support their claims that they have just filed in the Superior Court, then neither defendant nor plaintiffs have suffered any legal harm by the court denying plaintiffs' motion for protective order and requiring plaintiffs to provide answers to the specially prepared interrogatories.
But there are even more reasons for permitting discovery. CCP ß2024(a) establishes a statutory right 3 to engage in discovery up to 30 days before the initial trial date. Here, plaintiffs will eventually seek a trial date on their 3rd Amended Complaint, filed on or about August 21, 2000. All previous complaints have been superceded by their most recent amendment. There has never been a trial date set on the Third Amended Complaint, nor has there ever been a trial date set here in the Superior Court. This case is not even at issue! It would neither be fair, just, or right if defendant should be denied his statutory right to conduct discovery upon a complaint that was not even filed in the federal court? Since this case is not at issue, there is no trial date set, the federal trial date was vacated by the federal court, and the federal procedural orders are not only not binding upon the Superior Court, they are null and void under the Avitts case. Plaintiffs' motion for protective order should be overruled
SIMPLE CASE?
Plaintiffs say this is a simple case. That statement is insincere and simple-minded. Their 3rd Amended Complaint contains 39 pages of allegations, plus an additional 156 pages of exhibits from Internet postings. It contains 107 paragraphs of charging allegations, set forth in seven separate causes of action. It alleges conduct spanning a period of well over 6 years, between 1994 (? 14) and July 2000. Many of their charging paragraphs (such as ?? 17, 27, 28, 29, 30, 32, 33, 42, and 43) have numerous subparagraphs which, when added to the 107 numbered paragraphs, results in another 92 additional factual allegations contained in subparagraph form, or a total of 199 paragraphs of factual allegations, which within themselves then incorporate over 156 pages of attached exhibits. The complaint is filed by four separate plaintiff, each having their own separate set of evidence supporting their respective claims. That means that there is, in effect, almost 800 charging allegations in the complaint (199 paragraphs times 4 plaintiffs). Their claims involve cutting-edge technology issues involving free speech, First Amendment rights, cyberlibel, and the use of the Internet. The core of the case (the preliminary injunction) is currently on appeal before the 9th Circuit, and it is expected that a writ of certiori to the US Supreme Court will be sought by the unsuccessful party to that appeal. More than 36 Orders issued from Judge Whyte and Magistrate Trumbull in the federal court. More than two complete filing cabinets are needed just to house the papers filed by the parties in this case. There has been no agreement on any evidentiary dispute, and all matters are still in dispute.
Easily interrogatories could have been propounded that would numbered in the hundreds in order to flesh out each of the four plaintiffís claims. Four interrogatories (one for facts, one for witnesses, one for documents, and one for contention(s)) for each of the 156 exhibits attached to the 3rd amended complaint could easily have been asked. Each of 199 paragraphs or subparagraphs could have been the subject of such a set of interrogatories. What we are trying to point out is this is not a simple case. This is not a judicial council form complaint. It is a complex lawsuit, multiplied times four for each of the respective plaintiffs.
It would be grossly unfair to require defendant to defend himself at trial not knowing what facts, witnesses and documents plaintiffs will try to present at trial. These 97 interrogatories are the most expeditious, inexpensive, and least burden some way for plaintiff to obtain such information.
Plaintiffs' motion for protective order should be overruled.
IF FOR NO OTHER REASON, DEFENDANT SHOULD BE PERMITTED TO DISCOVERY ON PLAINTIFFS' THIRD AMENDED COMPLAINT
This is, of course, the fourth filing of a complaint by plaintiffs. The first amendment did little more than change the names of the corporate plaintiffs and change the caption to state federal court instead of Superior Court. The Second amendment was a major overhaul, adding new claims, new theories, new allegations and a new party defendant. The third amendment unexplicably deletes several theories, claims, allegations, and causes of action, yet reasserts unfair competition claims which had been dismissed by the federal court for plaintiffs' failure to produce evidence of any competition, fair or otherwise. Among the deletions are numerous postings which plaintiffs had previously alleged were defaming and authored by Delfino or his "co-conspirators." While plaintiffs continue to maintain a conspiracy theory against Delfino and 20 DOE defendants, they have not revealed why, or how, the previously alleged, but now deleted, Internet postings and their authors are now not defamatory or not part of the grand conspiracy against them. This defendant wants to get to the truth of this matter, see who were the alleged co-conspirators and whether settlements, statements or documents have been received by these plaintiffs.
Plaintiffs, in federal court, announced and identified that they have 28 witnesses. Besides the two individual plaintiffs (Felch & Zdasiuk), only Hibbs, Crisler, Day, Delfino, Williams, Hennessy have been deposed off of plaintiff's list, leaving as yet undeposed over 20 additional witnesses that plaintiffs have lined up to testify (not counting their experts). Plaintiffs only disclosed their large number of witnesses after first obtaining a federal court order limiting depositions to 10 per side. Defendant has taken 9 depositions; i.e., Felch, Zdasiuk, Crisler, Hibbs, Levy Aurelio, Hennessy, Moro and Henderson. One deposition was reserved by Defendant Day of the corporate spokespersons as to damages. That has yet to take place.
As to Interrogatories, plaintiffs have never provided even just one answer to any one of the 25 specially prepared interrogatories served on them by this defendant. Plaintiffs waited until after to the federal court motion cut-off to serve their discovery objections. The net effect is that plaintiffs have never had to systematically answered any written questions regarding their claims. Statutes setting time limitations on discovery must be construed consistently with the overall purposes of discovery, which are to assist the parties and trier of fact in ascertaining the truth, to encourage settlement by educating the parties as to the strengths (and weaknesses) of their claims and defenses, to expedite and facilitate preparation for trial (and summary judgment motions), to prevent delay, and to safeguard against surprise at trial (Beverly Hospital v. Sup. Ct. (1993) 19 CA4th 1289, 24 CR2d 238). In Beverly, discovery was permitted after a mistrial even though the "initial trial date" had already passed. The court reasoned that the abuse of using additional discovery to delay the start of a trial was not a factor where the parties had already gone to trial. Likewise here, once the trial date was vacated by the federal court, and the case remanded to state court, there was never going to be a full trial in the federal court. The court trial there, occurred when the courtís ruled on the dispositive motions, and granted defendant's summary judgment on plaintiffs' federal claims. The federal court's granting of summary judgment is akin to having the case decided on appeal, and remanded to the trial court (read: state court) for trial. As held in Beverly, a remand for trial following appeal resets the clock on discovery. So it should be here.
Plaintiffs' motion for protective order should be overruled.
THERE IS NO INTENTION TO ANNOY, HARASS, EMBARRASS OPPRESS OR OTHERWISE CAUSE UNDUE BURDEN OR EXPENSE UPON ANY PLAINTIFF OR ATTORNEY
As set forth in Glynn Falcon's declaration, attached to this motion, and in his declaration in support of defendantís need to exceed 35 interrogatories (Exhibit E), there has never been any intent to use discovery for improper purposes. There was only one purpose in propounding this set of 97 interrogatories, and that is to obtain relevant information, or information leading to relevant and admissible evidence, regarding the claims plaintiffs now intend to try.
Plaintiffs take great delight in pointing to purported Internet postings where Dr. Delfino is alleged to have expressed some joy or satisfaction in knowing that plaintiffs might finally have to reveal their evidence, or lack thereof, in responding to the 97 interrogatories, but that is all that is- - - joy and satisfaction. And why shouldn't he be thrilled? He has been financing his defense, trying to pin plaintiffs down as to their hard facts, witnesses and documents, but with little or no factual response from plaintiffs or their counsel. In federal court, plaintiffís lack of evidence resulted in their unfair competition claims being dismissed.
Importantly, the discovery set was issued by defense counsel without the prior knowledge or prior consent of Dr. Delfino. It was prepared and served upon plaintiffs prior to any knowledge of Dr. Delfino that it was being prepared or served. It was prepared and served because of attorney due-diligence requirements, the utter need for this type of discovery and information that should be forthcoming in the responses thereto, and because the plaintiffs had just received permission from the court to file their 3rd Amended Complaint. Until permission to file was granted, the timing of these interrogatories could not have been presented earlier. As such, as soon as permission was granted, the interrogatories were prepared and served.
In any event, Dr. Delfino was not involved in, and had no knowledge of, the process leading up to the preparation and service of these interrogatories, so his alleged motivation, after-the-fact, is completely irrelevant.
No one likes to be the recipient of interrogatories. They require diligent effort to respond to, and require that the responding party and attorney clearly investigate the facts, obtain "collective knowledge" and focus their thinking on what will be the actual claims presented at trial of the case. But hard work, diligent investigation, and focus goes with the territory. They are not grounds for a protective order.
Plaintiffs' motion for protective order should be overruled.
NO WAIVER BY THIS DEFENDANT
As noted above, plaintiffs have each now "responded" to the 97 specially prepared interrogatories, asserting numerous objections to every question, and answering none of them. Defendant does not intend, here, to address any of those objections, other than the 2 grounds (trial date and annoyance, etc.) raised by plaintiffs for their motion for protective order. Arguments against all other of plaintiffs' objections (relevance, form, bold type, compound, disjunctive, conjunctive, etc., etc.) are reserved by defendant and are subject to the meet and confer requirements.
Plaintiffs' motion for protective order should be overruled.
PLAINTIFFS' EMBELLISHMENT
As discussed in the opening statement of this brief, and in Glynn Falcon's attached Declaration (? 6), Plaintiffs' counsel is prone to exaggeration and misstatements. He is factually incorrect about the amount and extent of discovery pursued against this defendant in the federal and state court actions. He canít count (he claims 388 interrogatories, when in fact there is 97). Mr. Poppe claims Delfino didn't take a witness's deposition (Mr. Fair), but he fails to disclose that he would not agree to more than ten depositions in the federal, that he refused to let Defendant Day have a separate right to ten depositions, and therefore dictated that certain witness depositions had to be withdrawn because Delfino had used 9 already, and Day needed at least one.
Then Mr. Poppe argues (Memo P&Aís, page 4, lines 17- 26) that the case of Laguna Village v. Laborerís Int'l stands for his proposition that the procedural orders of the federal court are binding upon state court: ("The federal court's deadline is binding on this court unless expressly set aside.") That is not even close to what that case held, if he'd just read it. In Laguna, plaintiffs tried to take defendantís default in state court after remand, even though defendant had filed papers in the federal court. The appellate court held that in that instance, it would be unfair not to treat defendantís federal filings as an appearance for the purpose of preventing his default in state court. Laguna had nothing to do with making federal procedural rules binding on Superior Court, and there is a total absence of any such case support in California cases. Again, another game played by plaintiffs.
Plaintiffs' motion for protective order should be overruled.
CONCLUSION
It is respectfully requested that plaintiffs' motion for a protective order should be overruled for the reasons stated herein. Sanctions are requested.
September 12, 2000
Glynn P. Falcon, Jr.
Attorney for Defendant, Michelangelo Delfino"
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