Professional Documents
Culture Documents
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Defendants refused to produce home contact information for their witnesses; at the same time,
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they refused to negotiate a written stipulation with Plaintiff. Plaintiff was left no choice but to bring this
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motion to compel seeking fees and costs.
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Proving their bad faith, Defendants later reversed their position and proposed their own
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written stipulation to Plaintiff on October 9, 2007 – more than two weeks after Plaintiff had already
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filed this Motion. (Lee Decl., ¶¶ 15, 16). That meet and confer process ended after Plaintiff sent
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Defendants a revised version of Defendants’ proposed stipulation, which elicited this response from
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Defendants:
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Your proposed stipulation is not acceptable [. . . .] Whether our protective order is filed
10 is a matter of timing. It has to be on file by Monday and we will file it Friday in the
absence of an agreement [. . . .]
11 (Lee Decl., ¶ 18).
12 This Motion (and Defendants’ motion for protective order) could have been averted had
13 Defendants been willing to negotiate a written stipulation with Plaintiff before Plaintiff filed their
14 Motion. Instead, Defendants refused to do so based on an unreasonable, principled stand against written
15 stipulations, stating “perhaps we should litigate that.” Then, after Plaintiff had already filed this Motion,
16 Defendants proposed their own written stipulation to Plaintiff, revealing their bad faith.
17 This is bad faith conduct, designed to frustrate Plaintiff and obstruct and delay this action.
18 Defendants have exhibited this conduct since the beginning of this action. Plaintiff also seeks sanctions
19 because of the numerous times Defendants’ counsel insisted on engaging in personal attacks on
20 Plaintiff’s counsel during the meet and confer process, despite being asked on several occasions to
21 refrain. (Lee Decl., ¶ 19).
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II. IT IS WELL-SETTLED THAT PLAINTIFF IS ENTITLED TO THE HOME CONTACT
23 INFORMATION OF DEFENDANTS’ WITNESSES
24 It is well-settled that FRCP Rule 26(a)(1)(A) entitles Plaintiff to the home contact information of
25 Defendants’ disclosed witnesses. Plaintiff has already cited Moore’s Federal Practice (“Furthermore, if
26 some or all of the identified individuals are employees of the disclosing party, their home addresses and
27 telephone numbers must be disclosed. The disclosing party does not satisfy its initial disclosure
28 obligation by providing only its business address and telephone number” and Dixon v. CertainTeed
1 Corp., 164 F.R.D. 685, 688 - 689 (D. Kan. 1996) (“CertainTeed shall disclose the addresses and
2 telephone numbers of all the identified employees. It may not satisfy this obligation by disclosing its
3 business address and phone number, unless it knows of no other address and number”). (Doc. 50).
4 Defendants disagree with Moore’s Federal Practice in its interpretation of Dixon v. CertainTeed
5 Corp. They state: “Interestingly, the CertainTeed court did not actually order disclosure of ‘home’
6 addresses.” (Doc. 54, 3:1-3). However, the Opposition contains not a single legal citation in support of
7 its contention, other than FRCP Rule 26(a)(1)(A) and Dixon v CertainTeed itself. (Doc. 54).
8 But the requirement to disclose home addresses of witnesses again came before the U.S. District
9 Court for the District of Kansas in 1999. Not surprisingly, the court sided with Moore’s Federal
10 Practice’s interpretation of CertainTeed. In Folsom v. Heartland Bank, the court ruled that defendants
11 have a duty to disclose the home contact information for witnesses under FRCP 26(a)(1) and cited
12 CertainTeed in support:
13 The identified former and current employees directly worked on the loan between
plaintiffs and Heartland which is the subject of this litigation [. . . .] Such individuals
14 appear likely to have discoverable information relevant to disputed facts alleged with
particularity. Fed. R. Civ. P. 26(a)(1)(A) thus requires Heartland to disclose their known
15 addresses and telephone numbers, without awaiting a discovery request. ‘It may not
satisfy this obligation by disclosing its business address and phone number, unless it
16 knows of no other address and number.’ Dixon v. Certainteed Corp., 164 F.R.D. 685,
689 (D. Kan. 1996). Rule 26(a)(1)(A) contemplates disclosure of the personal
17 address and telephone number of identified individuals.
1999 U.S. Dist. LEXIS 7814 (D. Kan. 1999) (emphasis added).
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Defendants had posed the following question in their Opposition: “One might ask, ‘Why did
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Plaintiff file his motion?’”. (Doc. 54, 3:21). The answer is that the great weight of legal authority
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recognizes Plaintiff’s need for and right to home contact information for Defendants’ witnesses. The
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more germane question is, “why did Defendants refuse to comply with their obligations under Rule
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26(a)(1)(A)?”, particularly given that Plaintiff had cited the foregoing legal authorities (including
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Folsom) extensively to Defendants during meet and confers. (Lee Decl., ¶ 14).
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25 III. PLAINTIFF OBJECTS TO THE DECLARATIONS CITED IN SUPPORT OF
DEFENDANTS’ OPPOSITION
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Defendants submit five declarations in support of their Opposition. Putting aside the fact that one
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declarant, Dr. Abraham, is a named defendant in this action, Plaintiff objects that two of the declarations
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