Response to Motion to Compel

Below is a sample response to a motion to compel. This is one of those cases where if you do the work on the front end, you can often sleep through the oral argument because you have given the judge the ammunition to do your work for you.  This is one of those cases. 


IN THE CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND

ROBERT REED :
Plaintiff, :
v. : Case No.: C-20-CV-17-000001
THE BIG BARN's :
:
Defendant. :

******************

PLAINTIFF'S OPPOSITION TO THE BIG BARN'
MOTION TO QUASH SUBPOENAS AND FOR PROTECTIVE ORDER
AND
REQUEST FOR HEARING

Plaintiff, Robert Reed, by and through the undersigned counsel, submits this Opposition to The Big Barn' Motion to Quash Subpoenas and for Protective Order ("Motion") and in support thereof states as follows:

  1. First, Defendants have established a pattern of disregard for this Court's prior Orders. For a second time, Defendants completely ignored Judge Joseph R. Smith's explicit Order that the Parties "may file no motion longer than ten pages including exhibits. No motion."[1] Despite that Order, Defendant has filed two separate motions which exceeded that page limit. The Motion and accompanying exhibits at issue here total 18 pages. This second violation of Judge Smith's Order demonstrates Defendants' willful disregard of Judge Smith's Order. Redundant violations of an explicit instruction from a Judge of this Court is not trivial, and warrants that the Motion be denied as a sanction.

  2. Second, through the Motion, Defendants continue their pattern of making false and misleading representations to this Court in an effort to win motions, which is a highly unethical practice.

    • Defendant falsely stated that "Plaintiff intends to question the deponents about its investigatory efforts." (Motion at ¶ 2.) However, as the Deposition Notices reveal, the only information Plaintiff seeks from the photographer(s) is information that would authenticate the photographs in question. (Motion, Ex. A at 5 (e.g., "date and time each photograph was taken;" "[w]here on the PREMISES each photograph was taken;" "[w]hether any of the photographs have been tampered with or altered").) These are very obviously rudimentary pieces of information used to authenticate and render photographs admissible, and seek no privileged or secret "investigatory efforts."

    • Lawyer Arguing
    • Defendant intentionally manipulated a citation from the transcript of the hearing of September 26, 2017, and based on that Defendant argued that "Plaintiff's counsel stated that Plaintiff would 'put a moratorium on further interrogatories and request for production of documents.'" (Motion at ¶ 8) (emphasis added). The full and true passage reveals that Plaintiff did not state that he would put a moratorium on further written discovery. Instead, Plaintiff offered that option to the Court, and stated "Let's put a moratorium on further interrogatories and requests for production of documents." (Envelope No. 1186002 at 79-80, File Date 10/26/17.) In response to Plaintiff's offer and Defendants' inquiry as to whether there will "be any parameters on what discovery is permitted in the extension or is it?" Judge Smith explicitly stated that "I'm not, I cannot judge the future." (Id. at 81.) Thus, Plaintiff never said that he would put a moratorium on future discovery, and no such limitation was placed on written discovery by the Court.

    • Defendants' repeated, intentional, false and misleading statements to the Court has caused great tension in this matter between the Parties, and should not continually go unpunished. These improprieties have ranged from blatantly false statements, to incomplete statements, to manipulated quotes, with all such conduct being highly inappropriate for officers of this Court. Plaintiff pleads to the Court to address Defendants' unethical conduct so that it does not continue to persist unchecked.

  3. Third, Rule 2-402(d) supports Plaintiff's request to have the night-time photographs authenticated by the photographer(s). Plaintiff described this basis in his e-mail which responded to Defendants' correspondence on this issue. (Ex. 1.) Defendants' correspondence argued that Plaintiff could authenticate the photographs through requests for admissions, inspection of the property, or deposition of The Big Barn' representatives. After receiving that letter, Plaintiff took the depositions of The Big Barn' representatives. They conceded they were unable to provide any information to assist in authenticating the photographs. Obviously, requests for admissions or an inspection of the property would also fail to authenticate the night-time photographs, because Defendant refuses to identify where on the property is illustrated in the photographs. Lastly, Plaintiff is incapable of replicating the photographs if Defendants continue to conceal where on The Big Barn' property is illustrated in the photographs. To assist the Court in understanding this issue, Plaintiff has attached several of the photographs to this Opposition. (See Exhibit 2.) As the photographs reveal, they are pitch black images. Without knowing where on the property is illustrated in the photographs and what specific date and time they were taken, Plaintiff is handicapped in his ability to create a substantial replica of those night-time photographs. For these reasons, Plaintiff intends to authenticate and utilize Defendants' night-time photographs as evidence at trial. Pursuant to Rule 2-402(d), under these circumstances, having the photographer merely authenticate the photographs is entirely appropriate, would not reveal any investigatory work-product, and, therefore, Defendant's Motion should be denied.

WHEREFORE, for all the foregoing reasons, Plaintiff requests respectfully that the Court deny Defendant's Motion.

Respectfully submitted,
MILLER & ZOIS, LLC
1 South Street, Suite 2450
Baltimore, MD 21202
Phone: 410-553-6000
Fax: 844-712-5151
Attorneys for the Plaintiff

REQUEST FOR HEARING

Clerk: Plaintiff requests a hearing on Defendant's Motion to Quash Subpoenas and for Protective Order.

CERTIFICATE OF COMPLIANCE WITH MD. RULE 20-201(f)(1)(B) AND 1-322.1

I certify this filing is compliant with Rule 1-322.1 and Rule 20-101(f)(1)(B).

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