Lawyering up
Sun 2.2.20
On last week’s post, concerning the matter of Lorraine Saint Pierre v. Management X, Petitioner seeks the return of her gazebo and a preliminary injunction preventing X from taking down the gazebo should she choose to reinstall it. If granted, the preliminary injunction stays in place until the trial is heard and a decision is made. I had filed 3 documents, an order show cause (the open sesame of immediate (well almost) court action, the injunctive motion and an affidavit.
X response was not quite appropriate. This was created by an executive of the company, and as I’ve said, X was not taking me seriously yet. Next in line on one’s case comes the discovery phase in which one seeks documents or interviews to get information from Respondent that will help clarify the issues. Below is my request for production of documents (heading omitted:)
Petitioner Lorraine Saint Pierre requests that Respondent Management X. contracted client of Landlord Y produce the following documents, agreements, in connection with this matter. If objection is made please state the reason for the objection. If denying the matter, please set forth in detail the reasons why the answering party cannot produce such documentation.
For the purpose of this request, the following definitions shall apply:
“Agreement” shall refer to the terms and conditions calling for the assignment of duties, responsibilities, emoluments between Respondent and property owner, Y.
“Document” includes any written, recorded, electronic missives, or graphic matter, any and all non-privileged correspondence and photographs, recordings, audio and/or video, however produced or reproduced, that is or was ever in the possession, custody, or control of Respondent. “Document” includes the originals and all drafts and copies which differ in any respect from the original. “Document” includes all of the above materials, whether privileged or not. If any of the documents designated below are withheld on the grounds of privilege or work product, such document should be identified by author, recipient, date, and nature of the document.
If the document is responsive to more than one request, it need be produced only once, but the written response should identify all the requests to which it is responsive.
CATEGORY OF DOCUMENTS OR THINGS TO BE PRODUCED:
1. Any and all non-privileged correspondence and other documents, electronic missives, photographs, recordings, audio and/or video, relevant to the case in all possible formats, in your possession or control exchanged by Respondent and Petitioner in year Petitioner’s residence was established, namely February 2019 to present.
2. Any and all correspondence, notes and other documents Management X Coordinator and management authorizing permission for the gazebo.
3. A list of witnesses to be produced at trial.
4. Any and all correspondence and other documents, electronic missives, photographs, recordings, audio and/or video, relevant to the case in all possible formats which will be presented at trial.
5. Any and all correspondence, documents and agreements, written permission and contractual agreements and obligations between Management X and Landlord Y, electronic missives, photographs, recordings, audio and/or video, in all possible formats relevant to operation and management of property including the length of their association, all accounts, ledgers, records or other documents including payment receipts, notes, and memoranda in which Respondent has recorded the debits and credits made to its account by NFG Housing Partnership LP.
a) Management X’s responsibilities to Landlord Y and the services Landlord demands of its maintenance company to sustain its property.
b) Landlord agreements, obligations, assigned rights, manner and measure of compensation to Management X for the production and services provided
by the above named maintenance company.
6. Any and all correspondence, agreements, documents, electronic missives, photographs, recordings, audio and/or video, between Management X and Landlord Y relevant to the above named case in all possible formats.
7. A copy of Petitioner’s file with documents, electronic missives, notes, photographs, recordings, audio and/or video maintained by Management X.
8. Any and all reports or statements of potential witnesses that petitioner violated the terms of any agreement with Management X and its contractor Landlord Y.
9. Any and all documents, statements, reports, notes, or any other documents that support or dispute the substance of the evidence Petitioner intends to offer at trial.
10. Production may be satisfied by serving by U.S. post mail or messengered accompanied by a written affidavit stating that they are true copies no more than 30 days after service of this request.
Dated: November 19, 2019
That document was taken seriously and Management X got a lawyer, a young woman on a mission to become a super nova in the field. She chose not to answer any of the questions save one, Petitioner’s file which was badly tampered with. Lawyer did not include an affidavit swearing to the truth of the documents presented. I responded thusly (heading omitted):
REPLY TO RESPONDENT’S RESPONSE:
PROPOUNDING PARTY: Petitioner Lorraine Saint Pierre
RESPONDING PARTY: Management X.
PRELIMINARY STATEMENT:
The purpose of discovery rests on the premise that a resolution may be arrived between the parties, and if not, each party comes away from the process with a clearer understanding of how to move forward with their case thus saving the court’s time. Bromidic objections lead to motions that needlessly waste the financial resources of both parties. Trite, hackneyed objections are what the legal profession calls boilerplate discovery tactics without individualized factual analysis. Its purpose is to obfuscate the discovery process. The veracity of an objection depends on the underlying facts of a particular discovery request.
FAILURE TO EXPLAIN:
Respondent has the burden of clarifying, explaining and supporting why discovery should not be allowed. If there is objection that the information is privileged or protected as trial preparatory material, Respondent has to describe the objection with sufficient particularity for Petitioner to assess its claim.
How would Respondent be harmed?
How is the request deficient?
Also a statement respecting how and/or why the request seeks information which is irrelevant or will not likely lead to the discovery of relevant information, or is vague, overbroad, burdensome or interposed for an improper purpose.
Respondent needs to describe the nature of the documents not produced in enough detail without revealing the protected or privileged information that will allow Petitioner to assess Respondent’s claim.
Ω Ω Ω Ω
RESPONDENT’S ANSWER TO PETITIONER’S REQUESTS
GENERAL OBJECT'ION: Defendant objects to all of Plaintiff’s document requests to the extent that they seek information that is protected by the work product privilege or the attorney client privilege, or to the extent that requests are overly broad and unduly burdensome. By responding to these document requests despite this objection, Plaintiff [?] does not waive this general objection.
► Respondent rejoins discovery request with a slew of boilerplate objections followed by the phrase, -notwithstanding the above- or -subject to- or - without waiving the objection,- after which it proceeds to answer the request, or not. This fails to preserve the boilerplate objections and constitutes only a waste of effort and the resources of both the parties and the court.
1. Any and all non-privileged correspondence and other documents, electronic missives, photographs, recordings, audio and/or video, relevant to the case in all possible formats, in your possession or control, exchanged by Respondent and Petitioner in year Petitioner's residence was established, namely February 2019 to present.
OBJECTION: Plaintiff’s request is overly broad and unduly burdensome in that much of Plaintiff’s correspondence with the Defendant has been wholly unrelated to the gazebo at issue or its removal. Plaintiff has likely had correspondence with several PMI employees and a response would require a thorough search of each employee's email. However, correspondence that is requested by this document request and that related to the gazebo or its removal has been produced.
RESPONSE: Documents responsive to this request have been produced. See “Tenant File" and "Correspondence" attached.
► Management X like most organizations is arranged on a hierarchical basis. Thus any contact between Petitioner and extended officials would be filtered through pertinent on site staff. Information related to tenants would be held by its staff, of which there are only two with access to tenants, Manager and Coordinator. Note: gazebo was installed on May 11, 2019.
► Respondent fails to address the “relevant to this case” portion of request. The gazebo rests on ground for which there is much debate by Management X, Landlord Y, tenants and Petitioner, and it is at base the underlying issue of this suit. Many documents have been issued addressing the matter.
►Since documents produced by PMI and sent to Petitioner are missing from Tenant File or Correspondence it cannot be considered an accurate testament.
2. Any and ail correspondence, notes and other documents between Coordinator and management authorizing permission for the gazebo.
RESPONSE: No such documents exist.
► Management X executive in his response to Petitioner’s Complaint exhibits photos taken of gazebo by Coordinator when permission was granted for it. How did he come by them? Would he take a trip to local office to get them or were the photos sent post mail, emailed or faxed to him with accompanying information?
► Coordinator was accompanied by another executive when giving Petitioner notice that she had 24 hours to remove the gazebo. There had to have been correspondence to effect that meeting, its purpose and the gazebo.
5. Any and all correspondence, documents and agreements, written permission and contractual agreements and obligations between Management X and Landlord Y, electronic missives, photographs, recordings, audio and/or video, in all possible formats relevant to operation and management of property including the length of their association. All accounts, ledgers, records or other documents including payment receipts. notes and memoranda in which Respondent has recorded the debits and credits made to its account by Landlord Y.
OBJECTION: Defendant objects to this request because it is not relevant or likely to lead to the discovery of admissible evidence.
► Failure to explain.
► Landlord Y and Petitioner are bound by contractual agreement. Management X is also bound by contractual agreement to Petitioner’s landlord for the maintenance of its property in which Petitioner resides. Questions about the appropriateness of the gazebo would be of interest to all three parties.
5. a) Management X's responsibilities to Landlord Y and the services it demands of its maintenance company to sustain property.
OBJECTION: Defendant objects to this request because it is not relevant or likely to lead to the discovery of admissible evidence.
► Failure to explain.
► What Management X’s contractual responsibilities are that permit the action taken to remove the gazebo, or not, is not irrelevant.
5. b) Landlord Y's agreements, obligations, assigned rights, manner and measure of compensation to Management X for the production and services provided by the above named maintenance company.
OBJECTION: Defendant objects to this request because it is not relevant or likely to lead to the discovery of admissible evidence.
► Failure to explain.
► Who is financially responsible for maintenance of grounds is relevant to decisions made about the property, decisions that affect Petitioner as tenant at said property.
6. Any and all correspondence, agreements. documents, electronic missives, photographs, recordings, audio and/or video, between Management X and Landlord Y relevant to the above named case in all possible formats.
RESPONSE: See "Correspondence.”
► Failure to explain.
► Correspondence file contains communications between Petitioner and various officials, but there are no documents between Management X and Landlord Y in Petitioner’s file, nor would there be. Is one to believe that at no time did Management X communicate with landlord concerning actions taken or avoided concerning rules about tenants’ yards?
7. A copy of Petitioner's file with documents, electronic missives, notes, photographs, recordings, audio and/or video maintained by Management X
RESPONSE: Documents responsive to this request have been produced. See “Tenant File," attached.
► Tenant’s file is missing documents relating to Management X’s harassment for her physical disability, to any number of complaints that increased once this suit was initiated. Hence this leads one to assume other objectionable information has been left out and it cannot be considered an accurate testament.
8. Any and all reports or statements of potential witnesses that petitioner violated the terms of any agreement with Management X and its contractor Landlord Y.
OBJECTION: Defendant objects to this request to the extent that discovery is ongoing..
RESPONSE Without waiving the above objection, documents responsive to this request have been provided. See "Tenant File." attached.
► Failure to explain.
► Note: according to Respondent’s response, aside from uncorroborated hearsay and idle gossip accounts, there are no reports that Petitioner violated the terms of any agreement with Management X and its contractor Landlord Y.
LASTLY, BE MINDFUL OF:
Model Rule of Professional Conduct 3.4 (d) “ . . . fail[ing] to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party;”
Frivolous Advocacy Section 110 (3) “Intentionally fail otherwise to comply with applicable procedural requirements concerning discovery.”
Dated: December 27, 2019
Attorney never responded to my reply. I sent her an email seeking a response and she stood by her refusal to answer. As you can see we are now in full combat mode. We did have a hearing on Tuesday seeking the injunction; I have yet to receive the judge’s response. I chose to hand opposing attorney (who doesn’t look anything like the picture above, but same attitude) my new motion to Compel Further Responses to my discovery request for production of documents at beginning of the hearing.
Next week, the judge’s ruling.
The favorite essay this month has been, Nagual
