DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
Defendants.

CASE NO.: 97-1197-CV-ORL-19B

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PROTECTION FROM UNTIMELY DEPOSITIONS, SECOND MOTION FOR PROTECTION OF PERSONS SUBJECT TO SUBPOENA, SECOND MOTION TO OUASH SUBPOENA, AND OBJECTIONS TO PRODUCTION FOR INSPECTION AND COPYING

COME NOW Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR. and PATRICIA B. WINDLE, by and through their undersigned attorneys, and file this their Response in Opposition to Plaintiff's Motion for Protection from Untimely Depositions, Second Motion for Protection of Persons Subject to Subpoena, Second Motion to Quash Subpoena, and Objections to Production for Inspection and Copying, and state as follows:

1. On May 4, 1998, Defendants issued a subpoena for deposition duces tecum, a copy of which is attached hereto as Exhibit "A." The deposition was noticed for May 13, 1998.

2. Prior to noticing the deposition, this office tried to coordinate the deposition dates with opposing counsel, but Mr. Sapp could not be reached. On April 23, 1998, this office left a message requesting Mr. Sapp contact us regarding the dates of May 12, 13 or 15, 1998, for the taking of his client's deposition. This office did not hear back from Mr. Sapp regarding his client's availability on those dates. This office did receive, however, a letter dated April 24, 1998, a day after we attempted to coordinate dates with Mr. Sapp, questioning why we were holding depositions in May, as he believed there was an agreement that Interrogatories, Requests for Production and Requests for Admissions would be resolved at least thirty (30) days before the start of oral depositions. A copy of the letter dated April 24, 1998 is attached hereto as Exhibit "B." The Case Management Report filed in this action states that oral depositions will start within thirty (30) days after completion of all previous discovery efforts, not after.

3. Thereafter, on May 11, 1998, counsel received a letter from attorney Sapp dated May 8, 1998, requesting we cancel the depositions because the notices did not comply with notice requirements of the Local Rules. A copy of the letter is attached hereto as Exhibit "C". Counsel contacted Attorney Sapp in the a.m., as requested, to confer on the matter. After hearing Mr. Sapp's objection, counsel attempted to solicit from Attorney Sapp what dates would be agreeable for the holding of the subject depositions. Attorney Sapp refused to respond to this question until counsel confirmed that the depositions as noticed would be cancelled. Counsel requested that she be given an opportunity to call back later that morning to confirm that the depositions would be cancelled. However, Attorney Sapp refused to discuss prospective dates for depositions until counsel confirmed that the depositions would be cancelled. This refusal on Attorney Sapp's part appears to be for no other purpose than to delay and evade Defendant's taking of Plaintiff's deposition. Counsel attempted to contact Attorney Sapp about one hour later to confirm that the depositions would be re-noticed, and to inquire as to dates of availability. However, Attorney Sapp either was not in the office or was not answering his phone, and counsel left a message regarding the re-noticing of the depositions. After Attorney Sapp was advised that the depositions were being re-noticed (by recorded message), he failed to contact counsel and provide dates of availability for the re-noticed depositions. Attorney Sapp never indicated that his request for cancellation of the deposition was due to his or his client's unavailability or inconvenience. Attorney Sapp was basing his objection solely on an alleged technical violation of the rules regarding notice.

4. On May 11, 1998, at Plaintiffs request, Defendants re-noticed the deposition of Plaintiff and issued another subpoena for deposition duces tecum, a copy of which is attached hereto as Exhibit "D." The deposition is now noticed for May 28 and May 29, 1998.

5. Although these most recently filed motions certify that Attorney Sapp has conferred with opposing counsel in order to resolve these issues and has complied with Local Rule 3.01(g), counsel has not conferred or attempted to confer with counsel on these matters. Defendants' counsel was never notified that Plaintiff was filing a Second Motion to Quash Subpoena, a Second Motion for Protection of Person Subject to Subpoena, a Motion for Protection from Untimely Deposition or Objections to Production for Inspection and Copying. The only indication that Attorney Sapp was unhappy regarding the subpoena and re-notice of depositions is a letter dated May 19, 1998, which was received by counsel on May 21, 1998, a copy of which is attached hereto as Exhibit "I." That letter makes no mention of an intent to file any motions, but merely contains a demand that the subpoena be cancelled. In the letter, Attorney Sapp refers counsel to "the time schedules and computations of time which render your scheduled depositions untimely." Counsel understood this reference to be a reiteration of Attorney Sapp's comments contained in his letter dated April 24, 1998, not the objections contained in his motions. See Exhibit "B." On May 19, 1998, the same day that Attorney Sapp wrote his letter demanding the re-noticed depositions be cancelled, counsel was attempting to contact Attorney Sapp by phone to reschedule the deposition of Officer Pryce, but only Attorney Sapp's answering machine could be reached. Defendants' counsel was in her office and available to take phone calls most of that day. Questioning of counsel's secretary, reveals that Attorney Sapp never attempted to return the phone call.

6. Counsel's secretary attempted to call Attorney Sapp again on May 20 and May 21, 1998, leaving detailed messages regarding dates of availability for the re-noticing of Officer Pryce's deposition, our Motion to Compel, and our Response to Plaintiffs prior Motions to Quash and for Protection and our Motion to Enforce. In all the messages left by my secretary, it was requested that Attorney Sapp return the call. However, Attorney Sapp filed his motions, which are the subject of this response, on May 22, 1998, without returning any of counsel's calls or requests for contact. Defendants and counsel believe that his failure to personally return phone calls or to otherwise comply with Local Rule 3. 01 (g), was an attempt to delay discovery in this matter. Further, it is believed that Attorney Sapp did not want to provide counsel with an opportunity to again request Attorney Sapp provide dates of availability for the depositions to which he objected. Local Rule 3.01(g) provides that before filing certain motions, the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. See Local Rule 3.01(g). Attorney Sapp's failure to notify counsel that he intended to file the motions which are the subject of this response, and his continuing failure to return phone calls regarding any matter connected with this case, demonstrates that Attorney Sapp has not made a good faith effort to resolve the issues raised by the motions. Motions should be denied where counsel for the moving party fails to make a good faith effort to confer with opposing counsel prior to filing motions with the Court. See Taylor v. Florida Atlantic University, 132 F.R.D. 304 (S.D. Fla. 1990).

7. Plaintiff is attempting to use the rules to evade discovery in this action. Plaintiff has set forth no reason why the scheduled depositions cannot be held other than allegations of technical violations of the rules. Plaintiff has not alleged that neither he nor his attorney are available or inconvenienced on the dates of these scheduled depositions.

8. Rule 6 of the Fed. R. Civ. P. provides for additional time after service by mail for computations relating to time prescribed or allowed by the rules. See Fed. R. Civ. P.6(e). This subsection only applies when the party is served by mail. The subpoena. duces tecum, setting forth the date of the deposition, was served on Plaintiff on May 12, 1998. Attached hereto as Exhibit "E," is a copy of the Affidavit of Service. Plaintiff was not served by mail, therefore, the three additional days provided in the rule does not apply.

9. The documents listed in the subpoena's Exhibit "A", is substantially the same as the request attached to the subpoena for deposition duces tecum issued on May 4, 1998. The documents requested seek information regarding the following general categories, all of which are reasonable, relevant, and discoverable: (1) educational and employment documents, (2) counseling, licensing and certification documents, (3) documents related to clinic activity and which establish RANEY's association with other anti- abortion extremists.

10. Plaintiff moves for protection of persons subject to subpoena claiming that Plaintiff has already complied with Defendants' Request for Production of Documents and Things, attaching said request to its motion. That request was made on February 12, 1998, and does not encompass the counter-claims now pending in this action. Further, the request was merely for a copy or description by category and location of all documents, data compilations and tangible things in the possession, custody or control of the Plaintiff that are relevant to disputed facts alleged in the pleadings. Further, the rules do not limit the number of requests for production.

11. The documents requested are relevant to allegations contained in Plaintiffs Complaint, specifically, the claim that he is a reproductive health services provider. The request is also relevant to show RANEY'S anti-abortion activities which would contradict his claim that he is a reproductive health services provider for the AWARE WOMAN CENTER FOR CHOICE, INC. This request is also relevant to contradict RANEY's denial that his objective in demonstrating in the vicinity of AWARE WOMAN is, and was, to prevent abortions. This denial is found in RANEY's Response to Defendants' Request for Admissions No. 5, which is attached hereto as Exhibit "F," along with Defendants' Request for Admissions The requested documents are also relevant to Defendants' Counterclaims seeking injunctive relief and FACE and RICO violations. These requests are within the scope of discovery provided in Federal Rule of Civil Procedure 26. See Fed.R.Civ.P.26(b)(1). The request was not made to harass or annoy Plaintiff, or for any reason other than to obtain discovery relevant to Defendants' defense of this action and their Counterclaims. See Fed.R.Civ.P. 34.

12. Plaintiffs Second Motion to Quash Subpoena and Objections to Production for Inspection and Copying are based, in part, on the possibility that production of the documents would require disclosure of privileged or protected matters. See paragraph 3 of Plainfiff's Motion and Objections. Plaintiff has failed to comply with Rules 45 and 26 of the Federal Rules of Civil Procedure by claiming a privilege without providing a description of the nature of the documents, communications, or things not produced that is sufficient to enable Defendants to contest the claim. See Fed.R.Civ.P. 45(b)(2) and 26(b)(5).

13. Plaintiffs Second Motion to Quash and Objections to Production are also based on the unreasonable time for compliance. Rule 30 provides that notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. See Fed.R.Civ.P. 30(b)(5). The procedures of Rule 34 shall apply to the request. Id. Rule 34 provides that a party upon whom a request for production of documents and things is served shall serve a written response within thirty (30) days after the service of the request. See Fed.R.Civ.P. 34(b). However, a shorter or longer time may be directed by the Courts or stipulated by the parties. Id.

14.Compliance with the subpoena issued May 4, 1998 is no longer required due, to the re-notice of deposition to a later date and service of a subsequent subpoena duces tecum. Compliance with the subpoena issued May 11, 1998, would required to produce the documents twenty-four (24) days after service of the first subpoena. Twenty-four (24) days is ample time for Plaintiff to gather the requested documents. According to Plaintiff's own Interrogatory answers, he is presently unemployed and, therefore, available to comply with the discovery requests in a shorter time than provided in the Rules. A copy of Plaintiff's Answers to Defendants' Second Set of Interrogatories is attached hereto as Exhibit "G." The Court is directed to Plaintiff's answer to Interrogatory No 3 where he lists his employment history for the past five (5) years, including self-employment as employment from October, 1994 to June, 1995 for Wireless Broadcasting Systems of Melbourne, and does not indicate any other employment or self-employment in the past five (5) years. The only reason Plaintiff may not have time to produce the documents requested is that he has devoted himself full-time to the anti-abortion movement.

15. Defendants have information that RANEY is actively organizing and promoting, anti-abortion protests at Orlando Clinics, Barnes and Noble Bookstores and Disney World. A copy of resent e-mail containing promotional information authored and transmitted by RANEY is attached hereto as Exhibit "H." A party bringing a FACE claim against a clinic and individuals providing reproductive health services therein should not be granted a protective order and order to quash subpoena, complaining of undue burden and untimeliness, when that party is occupying his time exclusively for anti-abortion activities and related protests. It was RANEY who initiated this action, and he should, therefore, be called to the task of providing to Defendants the necessary relevant discovery.

16. Plaintiff has alleged undue burden in producing the requested documents, but has not supported this claim with any evidence whatsoever. Plaintiff has not alleged or demonstrated that the production would involve voluminous documents. Further, Plaintiff is computer literate as evidence by his e-mail Internet access and postings. Much of the production requested is likely retrievable from computer files. Documents requested which relate to RANEY's anti-abortion activities should be in his possession or control and easily accessible.

WHEREFORE, Defendants request this Court deny Plaintiffs Motion for Protection from Untimely Depositions, Second Motion for Protection of Persons Subject to Subpoena, and Second Motion to Quash Subpoena, and overrule Plaintiffs Objections to Production for Inspection and Copying.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Christopher F. Sapp, Esq., P. 0. Box 1012, Lehigh Acres, Florida 33970, this 26th day of May, 1998.

FRESE, NASH & TORPY, P.A.
By: LISA L. HOGREVE <signed>
Florida Bar No. 0104840
930 S. Harbor City Blvd., Suite 505
Melbourne, FL 32901
(407) 984-3300