Polgar Response to Motion to Compel Production
MrVidmar
PLAINTIFF SUSAN POLGAR�S RESPONSE TO DEFENDANTS� MOTION TO
COMPEL PLAINTIFF�S RESPONSES TO DEFENDANTS� THIRD REQUEST FOR
PRODUCTION AND BRIEF IN SUPPORT THEREOF
TO THE HONORABLE UNITED STATES DISTRICT JUDGE SAM R. CUMMINGS:
1. COMES NOW, SUSAN POLGAR, Plaintiff, files this her Response to
Defendants� Motion to Compel Plaintiff�s Responses to Defendants� Third
Request for Production, and in support would respectfully show the Court
as follows:
2. Plaintiff has made every effort to respond to the overwhelming number
of requests for various types of discovery from Defendants and to do so
in a manner consistent with the purposes of discovery and in accordance
with the Federal Rules of Civil Procedure. Defendants� Motion to Compel
is groundless and unreasonable in all respects. Plaintiff and her
counsel have expended countless hours preparing and serving responses to
Defendants� discovery requests which could have and should have been
condensed and edited to remove the multiple repeat requests served on
Plaintiff. Given the unnecessarily voluminous discovery served on
Plaintiff, she has done everything in her power to respond properly.
Further, Defendants, in their motion, repeatedly make absurd and
nonsensical arguments and wholly fail to allege that any of the
documents they demand actually exist. Accordingly, Plaintiff
respectfully requests this Court deny Defendants� Motion to Compel
Plaintiff�s Responses to Defendants� Third Request for Production.
ARGUMENTS AND AUTHORITIES
A. Plaintiff has Produced Evidence of Her Damages
3. Plaintiff, in responding to various requests for production,
interrogatories, admissions, and deposition questions, provided
Defendants with more than ample evidence of her damages, despite their
contentions to the contrary. Defendants complain most vehemently about
the fact that Plaintiff has not produced copies of her income tax
returns. However, these documents are not the evidentiary gold mine
Defendants contend. [We should just take Estrella's word and not demand
to see these returns??!! She gets to decide when enough evidence of her
damages have been produced and decide what defendants will be allowed to
see to refute her claims--that is, her tax returns??!!] An enormous
portion of the damages alleged in Plaintiff�s case result from the
damage and harm suffered to her name and reputation as well as from the
loss of potential contracts and business relationships that, because
they were never realized, would not even be reflected in tax returns.
Plaintiff has repeatedly, in responding to interrogatories and requests
for production, provided more than ample evidence of these damages, and
Defendants have this evidence in their possession.
4. Defendants also make much of the fact that Plaintiff has not produced
a written contract showing that she was to appear in a major studio
movie, an entirely frivolous argument Defendants believe obviates any
showing that Plaintiff lost a potential movie deal. In no situation is
interest, even of the greatest sort, in entering an enterprise so
lucrative as producing a movie evidenced by a written contract, as this
occurs only once all parties are staunchly certain and committed to the
endeavor and prepared to begin the necessary work. Thus, even though no
written contract exists between Plaintiff and a movie studio, this in no
way precludes a showing that Plaintiff was denied a reasonably certain
opportunity to appear in a movie because of Defendants� tortious conduct.
5. Defendants� arguments that Plaintiff has not presented evidence of
her damages and ought to be compelled to do so are absurd and without
merit. Accordingly, Plaintiff respectfully requests the Court deny
Defendants� Motion to Compel in this respect.
B. Defendants� Arguments Against Plaintiff�s Objections are Vague and
Nonsensical
6. Defendants, throughout their motion, make ridiculous arguments
against nearly all of Plaintiff�s objections. Plaintiff will not here
reproduce each of these arguments and refute them one by one, as most
fail to merit the same. However, to demonstrate Defendants� absurdity,
Plaintiff will reproduce examples below.
7. Plaintiff objects to Defendants� twenty-fifth request for production
because it is vague. In that request, Defendants alternately refer to
two separate, unaffiliated entities, the Susan Polgar Foundation and
SPICE, a part of Texas Tech . In paragraph 11 of their Motion to Compel,
wherein they attempt to refute Plaintiff�s objections, they make no
attempt to address or clarify the problem, but simply argue that
Plaintiff must produce documents.
8. In attempting to refute Plaintiff�s objections to Requests 38, 39,
and 40, Defendants write only the following: �With regard to Request for
Production Nos. 38, 39, and 40, the requests are clear and seek
discoverable information. Plaintiff chose to file this lawsuit and
should provide the responsive requested documents.� See Document 208, p.
6, �14. Plaintiff is aware of no authority stating that filing suit
relates in any way whatsoever to what must and must not be produced, and
Defendants cite none. Statements like these barely qualify as arguments,
much less valid ones that merit overruling any of Plaintiff�s
objections. Given that Defendants� motion is rife with such nonsensical,
ridiculous arguments, Plaintiff respectfully requests this Court deny
Defendants� Motion to Compel.
9. Throughout Defendants� various complaints about Plaintiff�s alleged
failure to provide full and complete answers to requests for production,
Defendants wholly fail to show that Plaintiff is in possession of any of
the documents of which they request production. The District of Columbia
has adopted the rule, based on sound policy, that any party moving to
compel production of documents must show that such documents actually
exist and are in fact being withheld. Alexander v. FBI, 194 F.R.D. 305,
311 (D.D.C. 2000); Hubbard v. Potter, 247 F.R.D. 305, 311 (D.D.C. 2008).
Without such a rule, parties could simply bombard opposing parties with
motions to compel the production of documents of any type relevant,
without any concern for the existence of the documents, and thereby
waste time and money while still obeying the rules of discovery.
Plaintiff has produced all relevant, non-objectionable documents
requested of her, and Defendants have offered no proof that any
additional documents they seek actually exist and are being withheld.
Plaintiff�s counsel has communicated to defense counsel numerous times
in meetings at various depositions and on the telephone, that with the
exception of tax returns, Plaintiff has already produced to Defendants
all documents in her possession responsive to their requests.
Accordingly, Plaintiff would respectfully request this Court not allow
Defendants to engage in such conduct and attempt to compel discovery of
imaginary documents.[And nothing produced thus far has proved any of
Polgar's claims against any of the defendants]
PRAYER
10. WHEREFORE, premises considered, Plaintiff respectfully requests this
Court deny
Defendants� Motion to compel Plaintiff�s Responses to Defendants� Third
Request for Production, and grant Plaintiff such other and further
relief to which she may be justly entitled, at law or in equity.
Respectfully submitted,
KILLION LAW FIRM 2521 74th Street
Post Office Box 64670 Lubbock, Texas 79424-4670 (806) 748-5500 Telephone
(806) 748-5505 Facsimile
/s/ Samantha Peabody Estrello
James L. Killion SBN: 11409100 Samantha Peabody Estrello
SBN: 24056112
Attorneys for Plaintiff Susan Polgar