DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER, ETC.

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER, ETC.

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

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER, MOTION TO QUASH SUBPOENA AND OBJECTIONS TO PRODUCTION FOR INSPECTION AND COPYING AND MOTION TO ENFORCE DEPOSITION AND SUBPOENA

COMES NOW Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR and PATRICIA B. WINDLE, by and thru their undersigned attorneys, and file their response in opposition to Plaintiff's Motion for Protective Order, Motion to Quash Subpoena and Objections to Production for Inspection and Copying, and move to enforce deposition and subpoena, 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 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. Attorney Sapp would not stipulate to a shortened notice period.

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 "C." The deposition is now noticed for May 28 and May 29, 1998.

5. 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 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.

6. The documents requested are relevant to allegations contained in Plaintiff's 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 "D" 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.

7. Plaintiff has moved to quash based, in part, on the possibility that production of the documents would require disclosure of privileged or protected matters. See paragraph 6 of Plaintiffs Motion. 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).

8. Plaintiff also moves to quash based upon 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.

9. 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 require Plaintiff 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 PlaintEs 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 Plaintiffs Answers to Defendants' Second Set of Interrogatories is attached hereto as Exhibit "E." 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.

10. 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 recent e-mail containing promotional information authored and transmitted by RANEY is attached hereto as Exhibit "F." 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.

11. 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.

12. Counsel conferred with opposing counsel on May 11, 1998 regarding the subpoena issued May 4, 1998, and left word with Mr. Sapp later that morning that the deposition would be rescheduled. Since then counsel has attempted to reach Mr. Sapp on May 19, 20, and 21, 1998 to confer on a variety of matters, most recently this Motion to Enforce. None of the phone calls have been returned, even though requests for contact by Mr. Sapp have been repeatedly expressed. Rather than return my calls, Mr. Sapp has sent a letter dated May 19, 1998, and received on this date, demanding an apology. A copy of the letter is attached hereto as Exhibit "G" if the Court finds that counsel has not complied with Local Rule 3.01(g), counsel begs this Court to describe a method for compliance under these circumstances.

WHEREFORE, Defendants request this Court deny Plaintiff's Motion for Protective Order and Motion to Quash Subpoena, overrule Plaintiff's objections and grant Defendants' Motion for Enforcement of Deposition and Subpoena or, alternatively, Defendants request this Court order the deposition proceed as noticed and to set a time it deems appropriate for production of the requested documents.

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 day May 21st, 1998.

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