PLAINTIFF'S MEMORANDUM

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S MEMORANDUM

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

PLAINTIFF'S MEMORANDUM IN SUPPORT OF SECOND MOTION TO QUASH SUBPOENA, MOTION FOR PROTECTION FROM UNTIMELY DEPOSITIONS, SECOND MOTION FOR PRODUCTION OF PERSON SUBJECT TO SUBPOENA, and OBJECTIONS TO PRODUCTION FOR INSPECTION AND COPYING

Comes now the Plaintiff, Meredith T. Raney, Jr., by and through his undersigned attorney, saying:

1. The Local Rules require that moving counsel seek to resolve the matters referred to in motions such as these with opposing counsel before bringing the matter formally to the Court for resolution. This has been attempted, without success.

2. This Memorandum is filed with the Second Motion To Quash Subpoena, Motion For Protection From Untimely Depositions, Second Motion For Protection Of Person Subject To Subpoena, and Objections To Production For Inspection And Copying.

3. Copies of the subpoena in question and the notices for deposition have been attached to the appropriate motions for reference.

UNTIMELY NOTICES

4. Local Rule 3.02(a) requires that a party desiring to take the deposition of any person upon oral examination shall give at least ten (10) days notice in writing to every other party.

5. Rule 5 of the Federal Rules of Civil Procedure requires that every paper relating to discovery shall be served upon every party and where such party is represented by an attorney, the service shall be made upon the attorney, unless otherwise ordered by the Court.

6. Service upon the attorney for the party may be made by mailing it to the attorney in accord with said Rule 5.

7. Rule 6 of the Federal Rules of Civil Procedure provides that when the time period prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. One of the legal holidays specifically mentioned is Memorial Day, which this year falls on May 25. Also, said Rule 6 provides that in the event that a paper is served by mail, three (3) days shall be added to the prescribed period.

8. The earliest day for taking depositions when written notice is mailed on May 11, 1998 is thus June 1, 1998, a later date than is specified in the notices.

9. Rule 26(c) of the Federal Rules of Civil Procedure provides for protection from annoyance, embarrassment, oppression, and undue burden and expense in matters relating to depositions, which is occurring in this cause.

QUASHING SUBPOENA

10. Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure provides for the quashing of subpoenas which fail to allow reasonable time for compliance and also where such a subpoena subjects a person to undue burden.

11. As shown above, the deposition for which the subpoena has been issued is untimely; thus there being no deposition to be held, the subpoena is therefore burdensome and untimely.

12. Rule 34 of the Federal Rules of Civil Procedure provides for the procedure and timing for the production of documents and things from other parties and specifically allows objections to be made within thirty (30) days after service of the request.

13. Rule 34 of the Federal Rules of Civil Procedure further specifies that the appropriate rule to be used in dealing with persons who are not parties is Rule 45 when compelling production of things and documents.

14. Meredith T. Raney, Jr. is a party hereto and is entitled to the protection and procedure afforded by Rule 34 and the other rules of procedure.

15. Defendants have already received all discovery which they sought from Plaintiff under Rule 34 and have no lawful reason to proceed under Rule 45 by use of a subpoena duces tecum.

OBJECTIONS TO PRODUCTION FOR INSPECTION AND COPYING

16. Plaintiff objects to the production of things and documents because of the untimeliness of the request in addition to the manner in which it is made, both of which violate Local Rules and the Federal Rules of Civil Procedure.

17. Given a reasonable amount of time, specific objections may be framed to each and every one of the requested items.

18. In addition, Plaintiff, Meredith T. Raney, Jr., has complied with the Defendants' Rule 34 request for production of February 12, 1998, and the entire list attached to the latest subpoena duces tecum is thus unreasonable and unduly burdensome.

19. Plaintiff has supplemented his previous response to the Defendants' past discovery request and will continue to do so when appropriate.

PROTECTION FROM SUBPOENA

20. The Federal Rules of Civil Procedure provide in Rule 5 that service of papers relating to discovery be served upon a party who is represented by an attorney be made by delivery to the attorney.

21. Defendants have violated this rule by delivering papers directly to Meredith T. Raney, Jr. whom they knew to be a party represented by an attorney.

22. The subpoena used in this instance is a device whereby Defendants sought to evade the procedures required by Rule 34 as cited above and to engage in repetitious requests for production of things and documents.

23. In addition Local Rule 1.07(a) requires that counsel present all process to the Clerk for certification; in this instance opposing counsel had the subpoena issued by an associate in his law office.

24. For all of the reasons stated in this Memorandum and the related Motions, the Plaintiff deserves the protection from undue burden and expense provided by Rule 45(c) of the Federal Rules of Civil Procedure.

WHEREFORE, all of the relief requested in the above-stated Motions should be granted.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 3397
(941) 368-3922
Florida Bar Number 0097823
Attorney for Meredith T. Raney, Jr.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Vincent G. Torpy, Jr., Esquire 930 S. Harbor City Blvd., Suite 505, Melbourne, Florida 32901 this 22nd day of May, 1998.

Christopher F. Sapp <signed>
Attorney