American Freedom Defense Initiative et al v. Suburban Mobility Authority For Regional Transportation (SMART) et al
Filing
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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 A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM DEFENSE
INITIATIVE; PAMELA GELLER; and
ROBERT SPENCER,
2:10-cv-12134-DPH-MJH
Plaintiffs,
PLAINTIFFS’ FIRST
REQUEST FOR PRODUCTION
OF DOCUMENTS
v.
SUBURBAN MOBILITY AUTHORITY
for REGIONAL TRANSPORTATION
(“SMART”); GARY L. HENDRICKSON,
individually and in his official capacity as
Chief Executive of SMART; JOHN
HERTEL, individually and in his official
capacity as General Manager of SMART;
and BETH GIBBONS, individually and in
her official capacity as Marketing Program
Manager of SMART,
Hon. Denise Page Hood
Magistrate Judge Hluchaniuk
Defendants.
Plaintiffs American Freedom Defense Initiative (“FDI”), Pamela Geller, and Robert
Spencer (collectively “Plaintiffs”) request that Defendant Suburban Mobility Authority for
Regional Transportation (“Defendant” or “SMART”), pursuant to Fed. R. Civ. P. 34, produce
and permit inspection and copying at an agreeable and convenient time and place of the
following documents and records within thirty (30) days from the date of this request.
INSTRUCTIONS
1.
In responding to this request, furnish all documents, however obtained, that are
available to or in possession or control of yourself, your agents, and your attorneys.
2.
Please produce documents in reasonably useable form.
3.
Identify any documents responsive to this request that have been destroyed and
state the circumstances of their destruction.
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4.
If you cannot respond to this request in full after exercising due diligence to
secure the documents, so state and respond to the extent possible, specifying your inability to
provide the remaining documents, stating whatever information or knowledge you have
concerning the remaining documents, and detailing what you did in attempting to secure the
documents.
5.
If you object to a request on the grounds of privilege or work product, provide
documents or portions of documents with such non-privileged information as is responsive,
identify the nature of the information withheld as privileged, and specify the basis for your claim
of privilege. List all documents or other information withheld pursuant to the claim of privilege,
provide a general description of the information withheld pursuant to the claim of privilege, and
identify the specific privilege(s) which provide(s) the basis for nondisclosure of each piece of
responsive information.
6.
This request shall be deemed to be continuing until and during the course of trial.
Information sought by these requests and that you obtain after you respond to these requests
must be disclosed to Defendants by supplementary responses.
DEFINITIONS
1.
The term “Plaintiffs” refers to any one or all of the Plaintiffs in this matter.
2.
The terms “you,” “yourself,” or “your,” as used herein, refer to the individual or
entity to whom these requests are addressed, or any person acting expressly as your employee,
agent, and/or representative in connection with the matters at issue in this litigation and in
connection with the specific documents or other non-privileged items, requested.
3.
The term “document,” as used herein, is synonymous in meaning and equal in
scope to the usage of this term in Federal Rule of Civil Procedure 34(a), including, without
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limitation, electronic or computerized data compilations, videos, recordings, emails, text
messages, and photographs. A draft or non-identical copy is a separate document within the
meaning of this term.
4.
The words “and” and “or,” as used herein, shall be construed either conjunctively
or disjunctively, as required by the context, to bring within the scope of these requests any
information that might be deemed outside their scope by any other construction.
5.
As used herein, the terms “any” and “all” shall both mean “any and all” as
appropriate to bring within the scope of these discovery requests information and documents that
might otherwise be considered to be beyond the scope.
6.
The following grammatical considerations shall be applicable in reading and
responding to the following requests:
a.
the singular form of a noun or pronoun shall be considered to include
within its meaning the plural form of the noun or pronoun so used, and
vice versa;
b.
the use of the masculine form of a pronoun shall also be considered to
include within its meaning the feminine form of the pronoun so used, and
vice versa; and
c.
the use of any tense of any verb shall also be considered to include within
its meaning all other tenses of the verb so used, and the disjunctive
includes the conjunctive, and vice versa.
7.
The term “Plaintiffs’ Advertisement,” as used herein, refers to the advertisement
which is at issue in this litigation and as reproduced as Exhibit B to the Declaration of Pamela
Geller filed in support of Plaintiffs’ motion for temporary restraining order and/or preliminary
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injunction (Doc. No. 8-4).
8.
The term “Advertisement Agreement,” as used herein, refers to the agreement
reflected in the documents reproduced as Exhibit E to the Declaration of Pamela Geller filed in
support of Plaintiffs’ motion for temporary restraining order and/or preliminary injunction (Doc.
No. 8-7).
9.
The term “Plaintiffs’ Emails,” as used herein, refers to the emails reflected in the
documents reproduced as Exhibits F, I, and J to the Declaration of Pamela Geller filed in support
of Plaintiffs’ motion for temporary restraining order and/or preliminary injunction (respectively,
Doc. Nos. 8-8, 8-11, and 8-12).
10.
The term “Pro-Atheism Advertisement,” as used herein, refers to the
advertisement approved by SMART and reproduced as Exhibit G to the Declaration of Pamela
Geller filed in support of Plaintiffs’ motion for temporary restraining order and/or preliminary
injunction (Doc. No. 8-9).
11.
The term “Advertisement Guidelines,” as used herein, refers to the advertisement
guidelines, policies, and procedures in use by SMART and applied to deny Plaintiffs’
Advertisement at the time relevant to this litigation.
12.
The term “Written Advertisement Guidelines,” as used herein, refers to the
written advertisement guidelines reflected in the documents reproduced as Exhibit H to the
Declaration of Pamela Geller filed in support of Plaintiffs’ motion for temporary restraining
order and/or preliminary injunction (Doc. No. 8-10).
13.
As used herein, the term “relating to” means and includes “constituting,”
“referring to,” “pertaining to,” “evidencing,” “reflecting,” “describing,” or “has anything to do
with,” and in each instance, directly or indirectly. These terms mean, without limitation, any
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reference or relationship that either (1) provides information with respect to the subject of
inquiry, or (2) might lead to individuals who or documents that might possess or contain
information with respect to the subject of inquiry. Additionally, the terms “pertaining to,”
“relating to,” “related,” “related to,” “relates to,” “regarding,” “referring to,” or “concerning” are
used in the broadest sense to mean in any way, whether directly or indirectly, involving,
concerning, relating to, referring to, being appropriate for, considering, underlying, modifying,
amending, confirming, endorsing, evidencing, representing, supporting, qualifying, terminating,
revoking, canceling, or negating.
14.
The terms “plaintiffs” and “defendant(s),” as used herein, as well as a party’s full
or abbreviated name or a pronoun referring to a party means the party and, where applicable, its
officers, board members, directors, employees, agents, partners, corporate parent, subsidiaries, or
affiliates. This definition is not intended to impose a discovery obligation on any person who is
not a party to the litigation.
PRODUCTION REQUESTS
1.
A copy of any and all documents evidencing or relating to SMART’s Advertising
Guidelines.
Response to Request:
2.
A copy of any and all documents evidencing or relating to any advertising
guidelines, policies, and procedures utilized by SMART at any time up to and including the
rejection of Plaintiffs’ Advertisement not otherwise included in request for production No. 1
above.
Response to Request:
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3.
A copy of any and all documents evidencing or relating to SMART’s Written
Advertisement Guidelines.
Response to Request:
4.
A copy of any and all documents evidencing or relating to SMART’s written
advertisement guidelines, policies, and procedures utilized by SMART at any time up to and
including the rejection of Plaintiffs’ Advertisement not otherwise included in request for
production No. 3 above.
Response to Request:
5.
A copy of any and all documents evidencing or relating to Defendants’ decision
to adopt the advertisement guidelines, policies, and/or procedures utilized by SMART to deny
Plaintiffs’ advertisement.
Response to Request:
6.
A copy of any and all documents evidencing or relating to communications, notes,
and/or memoranda related to or referencing Plaintiffs’ Advertisement, including correspondence
related to the decision to deny Plaintiffs’ Advertisement.
Response to Request:
7.
A copy of all documents evidencing or relating to advertisements to date that
were accepted by SMART under the Advertisement Guidelines, including all correspondence
related to the decisions to accept such advertisements.
Response to Request:
8.
A copy of all documents evidencing or relating to the Pro-Atheism
Advertisement.
Response to Request:
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9.
A copy of any and all documents relating to Plaintiffs’ Emails.
Response to Request:
10.
A copy of any and all documents evidencing or relating to the Advertisement
Agreement.
Response to Request:
11.
A copy of all documents evidencing or relating to advertisements to date that
were rejected by SMART under the Advertisement Guidelines, including all correspondence
related to the decisions to reject such advertisements.
Response to Request:
12.
A copy of any and all documents evidencing or relating to the revenues earned by
SMART for advertisements from 2005 to the present.
Response to Request:
13.
A copy of any and all documents evidencing or relating to communications from
persons not affiliated directly with Defendants expressing opinions about the content or propriety
of Plaintiffs’ Advertisement.
Response to Request:
14.
A copy of any and all documents evidencing or relating to communications from
persons not affiliated directly with Defendants expressing opinions about the content or propriety
of advertisements reflected in the documents responsive to request for productions Nos. 8 and
12.
Response to Request:
[Signature page follows.]
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Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq. (Mich. Bar No. P62849)
P.O. Box 131098
Ann Arbor, Michigan 48113
Tel (734) 635-3756 / Fax (801) 760-3901
rmuise@americanfreedomlawcenter.org
Co-Counsel for Plaintiffs
/s/ David Yerushalmi
David Yerushalmi, Esq. (DC Bar No. 978179)
1901 Pennsylvania Avenue NW, Suite 201
Washington, D.C. 20001
david.yerushalmi@verizon.net
Tel: (646) 262-0500; Fax: (801) 760-3901
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CERTIFICATE OF SERVICE
I hereby certify that on February 11, 2013, a copy of the foregoing was served upon all
counsel of record by email service per prior written agreement.
/s/ David Yerushalmi
David Yerushalmi
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