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 B

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN FREEDOM DEFENSE
INITIATIVE, PAMELA GELLER, and
ROBERT SPENCER,
Plaintiffs,
Case 2: 1O-cv-12134
HON. DENISE PAGE HOOD

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,
Defendants.

Robert J. Muise (P62849)
David Yerushalmi, Esq. (Arz. 009616; DC
978179, Cal. 132011; NY 4632568)
Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]
[e-mail]

Avery
Gordon (P41194)
Anthony Chubb (P72608)
Co-Counsel for Defendants SMART, Hertel
and Gibbons
535 Griswold Street, Suite 600
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone] [e-mail]

John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
Co-Counsel for Defendants SMART, Hertel
and Gibbons
1450 W. Long Lake Road, Suite 100
Troy, MI 48098
[phone]
[e-mail]
[e-mail]

DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUEST FOR
PRODUCTION OF DOCUMENTS
NOW COMES the Defendants, SMART, BETH GIBBONS and JOHN HERTEL, by and
through their attorneys, and for their responses to Plaintiffs' requests for production of
documents, state as follows:
1. A copy of any and all documents evidencing or relating to SMART's Advertising
Guidelines.
Response to Request: SMART's advertising guidelines are contained within its contract
with CBS Outdoor, Inc., and has been previously quoted and provided in conjunction
with the Motion for Preliminary Injunction and with the appeal to the Sixth Circuit. In
further response, please see attached.
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: Objection, this Request seeks information that is irrelevant to the
extent it seeks advertising policies other than the policy in effect when Plaintiffs
submitted their proposed advertisement. For the policy in effect at the time of that
submission, please see Defendants' answer to Request No.1 above.
3. A copy of any and all documents evidencing or relating to SMART's Written
Advertisement Guidelines.
Response to Request: Objection, this Request is vague, overly broad, unduly
burdensome, irrelevant, and not reasonably calculated to lead to the discovery of
admissible evidence. Specifically, this request is not specific enough to give Defendants
notice of the kind of information being requested. It appears to be of identical scope to

Request #1 above, and therefore, for documents "evidencing" the guidelines, please see
Defendants' answer to Request #1 above.
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: Objection, this Request seeks information that is irrelevant to the
extent it seeks advertising policies other than the policy in effect when Plaintiffs
submitted their proposed advertisement. For the policy in effect at the time of that
submission, please see Defendants' answer to Request No.1 above.
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: Objection, this Request seeks information that is protected by the
attorney-client and/or work-product privilege. Such information is not discoverable. For
non-privileged information responsive to this request, please see attached.
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: Objection, this Request seeks information that is protected by the
attorney-client and/or work-product privilege. Such information is not discoverable. For
non-privileged information responsive to this request, please see attached.
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: The decision to accept advertisements, except in close cases, is
made by CBS Outdoor, Inc., in accordance with the guidelines published. Defendants
have requested the information from CBS Outdoor, Inc., and have received the attached
examples. To the extent SMART has been called upon to approve of certain advertising
that CBS sought guidance for, please also see attached.

8. A copy of all documents evidencing or relating to the Pro-Atheism
Advertisement.
Response to Request: Objection, this Request seeks information that is protected by the
attorney-client and/or work-product privilege. Such information is not discoverable.
Further, Defendants object to the characterization of the DetroitCOR advertisement as
"Pro-Atheism" as that characterization is misleading and intended to be inflammatory.
For non-privileged information responsive to this request, please see attached.

9. A copy of any and all documents relating to Plaintiffs' Emails.
Response to Request: Objection, this Request is vague, overly broad, unduly
burdensome, irrelevant, and not reasonably calculated to lead to the discovery of
admissible evidence. Defendants do not have access to all of Plaintiffs' emails and
therefore cannot respond appropriately in this regard. To the extent that Defendants
have responded to emails from the Plaintiffs, the particular threads would already be in
Plaintiffs' possession. Further, see attached.

10. A copy of any and all documents evidencing or relating to the Advertisement
Agreement.
Response to Request: To Defendants' knowledge, no "Advertisement Agreement" was
entered into between Plaintiffs and Defendants.

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: Objection, this Request seeks information that is protected by the
attorney-client and/or work-product privilege. Such information is not discoverable. For
non-privileged information responsive to this request, please see attached.

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: Objection, this Request is vague, overly broad, unduly
burdensome, irrelevant, and not reasonably calculated to lead to the discovery of
admissible evidence. The receipt of revenues from advertising is not relevant to any
issue of liability or damages in this case. In the spirit of discovery, please find a
schedule of payments received from May 2009 through June 2010, the relevant period in
this matter as attached.

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: Objection, this Request seeks information that is protected by the
work-product and attorney-client privileges. To the extent that Defendants sought
counsel on an issue, or whether Defendants sought counsel on an issue, is not
discoverable. To the extent this Request seeks information not protected by the abovementioned privileges, Defendants respond: None.

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 11.
Response to Request: Objection, this Request seeks information that is protected by the
attorney-client and/or work-product privilege. To the extent that Defendants sought
counsel on an issue, or whether Defendants sought counsel on an issue, is not

discoverable. To the extent this Request seeks information not protected by the abovementioned privileges, Defendants respond: None.
VANDEVEER GARZIA, P.C

By:
CHRISTIAN E. HILDEBRANDT P46989
Attorney for Hertel, Gibbons and SMART
1450 W. Long Lake Rd., Ste. 100
Troy, MI 48098-6330
[phone]
Avery E. Gordon (P41194)
Anthony Chubb (P72608)
Co-Counsel for Hertel, Gibbons and
535 Griswold Street, Suite 600
Detroit, MI 48226
Dated: March 9, 2013

SMART

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN FREEDOM DEFENSE
INITIATIVE, PAMELA GELLER, and
ROBERT SPENCER,
Plaintiffs,
Case 2:10-cv-12134
HON. DENISE PAGE HOOD

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,
Defendants.
Robert J. Muise (P62849)
David Yerushalmi, Esq. (Arz. 009616; DC
978179, Cal. 132011; NY 4632568)
Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]
dyerushalmi@americanfreedomlawcenter.
org

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

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone]
[e-mail]

John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
Co-Counsel for Defendants SMART,
Hertel and Gibbons
1450 W. Long Lake Road, Suite 100
Troy, MI 48098
[phone]
[e-mail]
[e-mail]

PROOF OF SERVICE
Andrea Gordon, says that she is associated with the law firm of VANDEVEER
GARZIA, and that on the 15th day of March 2013, she served a copy of Defendants'
Responses to Plaintiff's Requests for Production of Documents, along with this Proof of
Service upon the following individual(s):

Robert J. Muise (P62849)
David Yerushalmi, Esq. (Arz. 009616; DC
978179, Cal. 132011; NY 4632568)
Counsel for Plaintiffs
3000 Green Rd., #131098
Ann Arbor, MI 48113
[phone]
[e-mail]
dyerushalmi@americanfreedomlawcenter.
org

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

Erin Elizabeth Mersino (P70886)
Co-Counsel for Plaintiffs
24 Frank Lloyd Wright Drive
P.O. Box 393
Ann Arbor, MI 48106
[phone]
[e-mail]

by regular mail by placing same in a sealed envelope plainly addressed to the abovementioned individual(s) and by depositing same in the United States Mail in Troy,
Michigan, with postage fully prepaid.
"I declare that the statements above are true to
the best of my information, knowledge and
belief."