American Freedom Defense Initiative et al v. Suburban Mobility Authority For Regional Transportation (SMART) et al

Filing 50

MOTION to Compel Discovery by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1--Declaration of Robert J. Muise, # 3 Exhibit A--Plaintiffs' First Request for Production of Documents, # 4 Exhibit B--Defendants' response to Plaintiffs' First Request for Production of Documents and Certificate of Service, # 5 Exhibit C--Sample of emails produced by Defendants in response to Plaintiffs' First Request for Production of Documents, # 6 Exhibit D--Excerpts of the Deposition of SMART, # 7 Exhibit E--Email correspondence between and among counsel for the parties, # 8 Exhibit F--Privilege log produced by Defendants on June 5, 2013, # 9 Exhibit G--Revised privilege log produced by Defendants on June 11, 2013) (Muise, Robert)

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM
INITIATIVE; et al.,

DEFENSE
No. 2:10-cv-12134-DPH-MJH

Plaintiffs,

DECLARATION OF ROBERT
J. MUISE

v.
Hon. Denise Page Hood

SUBURBAN MOBILITY AUTHORITY
for REGIONAL TRANSPORTATION
(“SMART”), et al.,

Magistrate Judge Hluchaniuk

Defendants.
AMERICAN FREEDOM LAW CENTER
Robert J. Muise, Esq. (P62849)
P.O. Box 131098
Ann Arbor, Michigan 48113
[e-mail]
[phone]

SMART
Avery E. Gordon, Esq. (P41194)
Anthony Chubb, Esq. (P72608)
535 Griswold Street, Suite 600
Detroit, MI 48226
[e-mail]
[e-mail]
[phone]
Fax: [phone]
Co-Counsel for Defendants

David Yerushalmi, Esq. (Ariz. Bar No.
009616; DC Bar No. 978179; Cal. Bar No.
132011; NY Bar No. 4632568)
1901 Pennsylvania Avenue NW
Suite 201
Washington, D.C. 20006
[e-mail]
[phone]
Counsel for Plaintiffs

VANDEVEER GARZIA, P.C.
John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
1450 W. Long Lake Road, Suite 100
Troy, MI 48098
[e-mail]
[e-mail]
[phone]
Fax: [phone]
Co-Counsel for Defendants

THOMAS MORE LAW CENTER
Erin Mersino, Esq. (P70866)
24 Frank Lloyd Wright Dr.
P.O. Box 393
Ann Arbor, MI 48106
[e-mail]
[phone]
Counsel for Plaintiffs
______________________________________________________________________________
I, Robert J. Muise, make this declaration pursuant to 28 U.S.C. § 1746 and based on my
personal knowledge.

1

1.

I am an adult citizen of the United States and co-lead counsel for Plaintiffs in the

above-captioned case. I have personal knowledge of the matters set forth in this declaration.
2.

Attached to this declaration as Exhibit A is a true and correct copy of Plaintiffs’

First Request for Production of Documents pursuant to Rule 34 of the Federal Rules of Civil
procedure that was served on Defendants on February 11, 2013.
3.

Attached to this declaration as Exhibit B are true and correct copies of

Defendants’ response to Plaintiffs’ First Request for Production of Documents and certificate of
service indicating that Defendants served their responsive documents on March 15, 2013.
4.

Attached to this declaration as Exhibit C are true and correct copies of some of

the documents produced by Defendants in response to Plaintiffs’ First Request for Production of
Documents.
5.

Attached to this declaration as Exhibit D are true and correct copies of excerpts of

the deposition of Defendant SMART taken pursuant to Rule 30(b)(6) of the Federal Rules of
Civil Procedure. The designated witness for this deposition was Anthony Chubb, SMART’s
Assistant General Counsel.
6.

Attached to this declaration as Exhibit E are true and correct copies of relevant

emails between and amongst counsel for the parties, the contents of which are referenced in
Plaintiffs’ brief filed in support of their motion to compel.
7.

Attached to this declaration as Exhibit F is a true and correct copy of the first

privilege log produced by Defendants on June 5, 2013.
8.

Attached to this declaration as Exhibit G is a true and correct copy of the revised

privilege log produced by Defendants on June 11, 2013.

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9.

A “meet-and-confer” conference call to discuss the issues presented in Plaintiffs’

motion to compel was held on Monday, June 17, 2013.

The conference commenced at

approximately 1 p.m. and concluded at approximately 2 p.m. During this conference, the parties
were unable to resolve the discovery dispute. At the conclusion of the call, however, Plaintiffs’
counsel, Mr. David Yerushalmi, suggested that the parties file a joint motion requesting an in
camera review of the documents at issue by the magistrate judge. Defendants’ counsel, Mr.
Christian Hildebrandt, requested 48 hours (until Wednesday, June 19, 2013) to consider this
option. When Plaintiffs’ counsel reached out to Defendants’ counsel at approximately 5 p.m. on
June 19, 2013 (3 hours past the deadline) by email, noting that Defendants had asked for 48
hours and asking for Defendants’ position on the matter, Defendants’ counsel responded by
email as follows: “You’re right. My oversight. We do not want to participate in a joint motion.
We believe our privilege has been preserved and that our log complies with the Court Rules.” A
true and correct copy of the email exchange referenced in this paragraph is included in Exhibit E
to this declaration.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct.
Executed on the 21st day of June, 2013.
/s/ Robert J. Muise
Robert J. Muise, Esq.

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