DEFENDANTS' EMERGENCY MOTION TO COMPEL

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' EMERGENCY MOTION TO COMPEL

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' EMERGENCY MOTION TO COMPEL

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 Emergency Motion to Compel pursuant to Fed. R. Civ. P. 37 and as grounds therefor 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. Attorney Sapp objected to attending the deposition as noticed, based on, among other things, untimely notice.

3 . 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 "B." The deposition was re-noticed for May 28 and May 29, 1998.

4. On May 12, 1998, Plaintiff filed Plaintiff s Motion for Protective Order, Motion to Quash Subpoena and Objections to Production for Inspection and Copying.

5. On May.28, 1998, this Court issued an Order as to Plaintiff s Motion for Protection of Persons Subject to Subpoena and Motion to Quash Subpoena. The Court ordered the subpoena be quashed, to the extent not moot, but did not reach any issue as to whether any privilege or undue burden had been shown. Defendants were instructed to depose Plaintiff pursuant to Rule 30(b) and request production at deposition by serving said request pursuant to Rule 34.

6. On May 26, 1998, Plaintiff filed a Motion for Protection from Untimely Deposition, a Second Motion for Protection of Persons Subject to Subpoena, Second Motion to Quash Subpoena and Objections to Production for Inspection and Copying.

7. On June 5, 1998, Plaintiff s motions were denied as moot.

8. On May 29, 1998, Defendants re-noticed Plaintiff s deposition for July 7 through July 10, 1998, pursuant to Rule 30(b) as instructed by the Court. A copy of said notice is attached as Exhibit "C."

9. On June 2, 1998, Defendants served Defendants' Second Set of Request for Production of Documents and Things under Rule 34, as instructed by the Court, a copy of said Request is attached hereto as Exhibit "D."

10. On July 6, 1998, counsel received a facsimile from Attorney Sapp informing Defendants that Plaintiff will not appear for the noticed depositions and was filing "the appropriate motions." The facsimile transmission is attached hereto as Exhibit "E." Although the letter states that Attorney Sapp will be available to confer on Monday, July 6, 1998, regarding his refusal to appear, counsel has placed three calls on this date and received no answer. Plaintiff's stated reason for refusing to appear at deposition is that Plaintiff s Motion to Dismiss Defendants' First Amended Counterclaim and Defendants' Motion for Summary Judgment are pending.

11. The pendency of motions is not a basis for refusing to attend a noticed deposition.

12. In accordance with Fed. R. Civ. P. 3.01(g), counsel for Defendants' attempted to contact counsel for Plaintiff on this date to determine whether he had any objections to the relief requested herein, however, counsel for Plaintiff could not be reached.

13. Plaintiff has delayed advising Defendants that he does not intend to appear at the scheduled deposition, even though the basis for his objection has been long apparent. Plaintiff's Motion to Dismiss Defendants' First Amended Counterclaim was served on June 5, 1998. Defendants' Motion for Summary Judgment was served on May 29, 1998. This delay was calculated to prevent Defendants from obtaining timely relief from the Court compelling Plaintiff's attendance as noticed.

14. Attorney Sapp indicates in his letter that he has "been out of the office for better than three weeks." However, Mr. Sapp's absence from the office did not prevent him from serving Plaintiff's Compliance with Magistrate's Order of June 6, 1998, Motion for Certification of Interlocutory Appeal, Plaintiff's Memorandum in Opposition to Motion for Summary Judgment, and Affidavit of Meredith T. Raney, Jr. Surely, this cannot be his excuse for waiting until the last possible moment before objecting to the noticed deposition dates.

15. Plaintiff has no legitimate basis for refusing to attend the scheduled depositions and is attempting to evade discovery in this action.

WHEREFORE, Defendants respectfully request this Court to grant Defendants' Emergency Motion to Compel, and order Plaintiff to appear at the noticed deposition. Alternatively, as time may not allow the granting of this Motion prior to the last date noticed for Plaintiff s deposition, Defendants request Plaintiff be compelled to appear for deposition on July 13 through July 17, 1998, or on other mutually convenient dates.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been fumished by U.S. Mail to Christopher F. Sapp, Esq., P.O. Box 1012, Lehigh Acres, FL 33970, this 6th day of July, 1998.

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