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Old October 5th 09, 08:16 PM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess
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Default Polgar Response to Motion to Compet

PLAINTIFF SUSAN POLGAR’S RESPONSE TO DEFENDANTS’ MOTION TO
COMPEL PLAINTIFF AND BRIEF IN SUPPORT THEREOF

TO THE HONORABLE UNITED STATES DISTRICT JUDGE SAM R. CUMMINGS:

COMES NOW, SUSAN POLGAR, Plaintiff, files this her Response to
Defendants’ Motion to Compel Plaintiff, and in support would
respectfully show the Court as follows:

1. 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, Plaintiff has already submitted herself to a grueling fourteen
hour deposition in which counsel for all Defendants banned together and
tag-teamed back and forth asking Plaintiff every question which could
ever be remotely related to claims and causes of action forming the
basis of this suit. Plaintiff spent a total of twenty-two (22) hours
over two days giving her deposition which produced fourteen hours of
testimony on the record. Defendants’ request for an additional
twenty-one hours is entirely unreasonable. Accordingly, Plaintiff
respectfully requests this Court wholly deny Defendants’ Motion to
Compel Plaintiff.
ARGUMENTS AND AUTHORITIES

2. Plaintiff has properly responded to discovery, and each part of
Defendants’ Motion to Compel is without merit. Plaintiff has shown more
than enough evidence of her damages, has properly responded or objected
to all interrogatories and admissions, has left only one set of requests
for production unanswered for the reason that it simply contributed to
an already unnecessary and unreasonable number of requests, and has
submitted herself to a lengthy enough deposition to allow Defendants
sufficient time to ask all necessary questions.
A. Plaintiff Has Presented 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. 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 which she need not here reproduce,
as 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 as
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. Plaintiff Has Properly Responded or Objected to All Requests for
Interrogatories

6. Plaintiff properly responded or objected to all of Defendants’
requests for interrogatories, despite Defendants’ contention that
referencing documents produced is an improper response. Rule 3 3(d) of
the Federal Rules of Civil Procedure allows a party to produce business
records in lieu of a narrative answer if the answer to the interrogatory
may be determined by examining the records and the burden of examination
would be the same on either party. Fed. R. Civ. P. 33(d). Plaintiff
takes great care to keep track of her public reputation, as it is such
an important part of her business as a major chess personality.
Accordingly, she regularly checks the internet for any mentioning of her
name and keeps records of any significant statements. Because of the
voluminous amount of Defendants’ defamatory statements appearing on the
internet, Plaintiff has an extensive collection of records evidencing
such statements, which she has already produced to Defendants. Due to
the facts that the records are so extensive, that Defendants made all
the defamatory statements contained therein, and that counsel for
Defendants are equally apprised of the elements of all torts alleged in
this case, the burden of Defendants to examine such records is no
different than the burden that would be imposed on Plaintiff to do so.
Unless Defendants can show otherwise, which they have failed to do,
Defendants are not entitled to a narrative answer to those interrogatories.

7. Further, to provide a narrative answer to each of Defendants’
interrogatories would be more than unduly burdensome, given the sheer
amount of requests that Defendants have served. Defendants, as of June
this year, had served Plaintiff with 1,232 individual requests for
discovery, 71% of which were repetitive and unnecessary. Attached hereto
as Exhibits A, B and C are charts which show how many times Defendants,
through their Houston counsel, have collectively served on Plaintiff
repetitive discovery requests. To provide narrative answers to each
interrogatory contained in that discovery would require Plaintiff to
spend nearly every waking hour writing answers to interrogatories, an
absurd proposition given that Defendants have access to and possession
of the records that contain such answers.

C. Plaintiff Has Provided Complete Responses or Objections to Requests
for Production

8. Plaintiff has provided full and complete responses to all of
Defendants’ requests for production that are not objectionable, and
Defendants’ attempt to compel additional discovery is groundless. As
reason for compelling additional production, Defendants cite first the
fact that they have produced 13,000 pages of documents, while Plaintiff
has only produced 1,500. This argument makes little sense. First, if one
were to strictly adhere to a certain number of documents a party ought
to produce as a measure of the completeness of discovery, it is notable
that Defendants would have produced only about 1,000 documents per party
compared to Plaintiff’s 1,500. Secondly, to equate volume of discovery
with quality and completeness would result in absurd consequences. Under
such a rule, a party who could support all of their claims and defenses
adequately and completely in 100 pages would be required to meet some
sort of page minimum and bury relevant discovery within 900 pages of
irrelevant documents. For this reason, Defendants’ contention that
Plaintiff’s production has been inadequate is baseless.

9. Defendants specifically reference several of Plaintiff’s objections
and attempt to refute them with equally ridiculous arguments. Given the
number of such arguments, Plaintiff will not here reproduce and refute
each, but will show several examples of said arguments in support of her
request that this Court deny Defendants’ Motion to Compel.

10. Defendants complain about Plaintiff’s response to Request for
Production No. 76, stating that one Defendant cannot be held liable for
the actions of another. See Defendants’ Motion to Compel Plaintiff,
Document 176, p. 12. This statement is false, as Plaintiff has alleged
civil conspiracy, and she can and does intend to hold Defendants liable
for each other’s actions in furtherance of that conspiracy. Defendants
also take issue with Plaintiff’s refusal to answer Request No. 77, which
asks for communications between board members and other Defendants
obtained by Plaintiff. See Id. Defendants here, if Plaintiff produced
any documents, would surely claim that by so doing, Plaintiff has
admitted that she improperly obtained these communications as opposed to
being privy to them. If Defendants wish such an admission, the proper
form for such a request is a request for admission, not a subtle attempt
to insinuate an admission from the production of documents.

11. As a final example of the irrational nature of the contentions in
Defendants’ Motion to Compel, Plaintiff would point the Court to page 13
of Defendants’ motion, wherein Defendants contend that Plaintiff ought
to be compelled to produce copies of her web sites, forums, and other
databases, simply because “Plaintiff requests this exact same
information from Defendants.. .How can Plaintiff refuse to provide
information when Plaintiff is seeking similar or even identical
information from Defendants?” See Id at

13. Such a question is not a standard for relevance and propriety of
discovery. If a pedestrian struck by a car sued the offending driver and
subsequently requested the defendant’s driving records, that would in no
way entitle the driver to request the pedestrian’s driving record, as it
is completely irrelevant. The fact that a piece of discovery is relevant
to one side does not mean that it is relevant to both, as Defendants
contend.

12. Throughout Defendants’ various complaints about Plaintiff’s alleged
failure to provide full and complete answers to requests for production,
and in addition to making such nonsensical arguments, 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. Accordingly, Plaintiff would
respectfully request this Court not allow Defendants to engage in such
conduct and attempt to compel discovery of documents not even certain to
exist.

D. Plaintiff Has Provided Ample Time to Obtain Deposition Testimony

13. Plaintiff willingly subjected herself to a two-day deposition which
consumed twenty-two hours
of Plaintiff’s and of her attorneys’ time and produced fourteen hours of
testimony on the record, time more than ample for two defense attorneys
to question her fully. The Federal Rules of Civil Procedure limit the
maximum length of a deposition to seven (7) hours. FED. R. CIV. P.
30(d). Plaintiff graciously and willingly agreed to extend the time to
allow Defendants all of the necessary time to ask questions relevant to
claims or defenses in this case. Assuming similar time is consumed by
the parties, one would expect an additional twenty-one hours of
testimony on the record will take thirty-three to thirty-four hours, or
nearly a week to complete. Plaintiff has made every reasonable effort to
accommodate Defendants’ questioning, and would respectfully request this
Court deny Defendants’ motion for an entirely unreasonable extension of
the deposition for an additional twenty one hours.

14. Defendants cite, among other reasons for their request for extended
deposition time, the fact that Plaintiff wasted time reading documents.
However, Defendants failed to request, nor should Plaintiff have been
required to arrive at the deposition having committed to memory every
page of every document produced, and to do so would be entirely
unreasonable. Accordingly, when presented with long documents, Plaintiff
must be allowed time to examine the document. Further, Plaintiff allowed
eight hours of such examination to take place off the record to allow
Defendants even more time for questioning.

15. Defendants also unreasonably complain that 14 hours is not enough
time to examine Plaintiff about every document she has produced. While
this may or may not be true, one cannot believe that Defendants need
every single page of production explained to them. One ought to be
confident that the questioning attorneys know who the parties are to
this litigation and know the elements of each tort alleged. Accordingly,
it is ludicrous that every page of every document should be explained by
Plaintiff word for word. Further, if Plaintiff applied this logic to
Defendants and the amount of production they have provided to Plaintiff,
Plaintiff’s attorney’s would need approximately 121 hours of time on the
record per defendant to examine each Defendant about the 13,000 pages
Defendants have produced. This would amount to, by defense counsel’s use
of time for reviewing documents, approximately 188 hours, or sixteen
days of twelve hours each, of total deposition time per defendant. This
shows that Defendants’ proposition of relating number of documents to
deposition time is preposterous.

16. Defendants finally complain that they were unable to ask questions
regarding each Defendant. However, not only was every defendant
discussed, but whatever questions went unasked were solely a result of
Defendants’ wasting of time. Plaintiff would direct the court to the
deposition testimony
beginning on page 246 of the deposition, attached to Defendants’ motion.
Beginning at page 246,
counsel for the defense begins questioning Plaintiff about her husband,
someone not a party to this
suit, and continues over numerous objections for fifteen pages.
Plaintiff does not have the
responsibility to organize Defendants’ questioning in the most efficient
and effective manner possible,
and thus she should not be held responsible for Defendants’ inability to
ask meaningful questions.
In fact, if one reads the entire deposition, one will find only two
places, where defense counsel states
that they will discuss a particular defendant exclusively and in detail,
on pages 34 for Goichberg and
page 62 for Hall. Plaintiff has made every effort to facilitate ample
deposition testimony, and thus
should not be subjected to an additional twenty-one hours of
disorganized and pointless deposition
time because Defendants, through no fault of Plaintiff, have more
questions they would like to ask.

PRAYER

17. WHEREFORE, premises considered, Plaintiff respectfully requests this
Court deny
Defendants’ Motion to compel Plaintiff, 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
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