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Act 62: I Object to Taubman's "Responses"

Since Taubman had not made much an effort to respond to my discovery requests, I decided to send them a few objections. (Actually, attorney Paul Levy created the first draft of this letter for me; I edited it and submitted it to Taubman's attorney, Julie Greenberg, on February 4, 2002.)

Dear Julie:

On January 2, I sent you a set of interrogatories and requests for production of documents. In today's mail, I received what purported to be a response to these requests. For most of the interrogatories, you have provided no useful information. For most of the document requests, you have either claimed to have no documents, claimed that the requests are irrelevant, or told me that the documents "will be produced."

It did not take you 30 days to prepare these responses. However, you have deliberately waited until now, ten days before the expiration of discovery, to send me these non-answers, in the cynical recognition that there may well be too short a time before the expiration of discovery before I can get relief from the Court and then proceed to take the depositions that I need to prepare for trial. And you have set my deposition for Thursday, on barely a week's notice, making it especially difficult for me to move to compel in sufficient time under the Court's standing order. I am quite concerned about losing my ability to identify potential deponents as well as to map a deposition strategy within the next ten days, which is all that is left of the discovery period. Although I could move for summary judgment on the ground that you have failed to make discovery, I would prefer to be able to have this case decided on its merits.

Speaking first of the interrogatories, you have included in your responses the assertion that you do make the contentions described in the interrogatories (or similar contentions), but that you are not going to supply supporting information until your discovery is complete. If, in fact, you do not intend to introduce any evidence save that which you obtain from my deposition and the subpoena that you have directed to Donna Hartley, then I am prepared to go to trial on that basis and need not worry about a motion to compel. But if, on the other hand, you intend to introduce any evidence other than my deposition and documents produced by me and Ms. Hartley - and I assume that you do have that intention because your witness list identifies two witnesses from your client - I am entitled to know what your information is so that I can pursue discovery and plan depositions.

With respect to the interrogatories 13,17, and 18, you have answered that some are irrelevant, and you have refused to give specifics concerning the rest. These interrogatories request the evidentiary basis for certain statements that you made in your motion for an expanded preliminary injunction. I am entitled to this information. The mere statement that you have a general recollection that some items were false is not sufficient.

With respect to interrogatory 14, if you have no information other than what you may obtain in my deposition or through your subpoena to Ms. Hartley, I am entitled to know that. If you do have such information, I am entitled to receive it immediately.

With respect to interrogatories 15 and 16 regarding "hits," I am entitled to this information, which is just as relevant as the "hits" information that you have sought from me. I assume that you are not conceding that your document request contains irrelevant matter. Because you contend that my websites are confusing, and because the judge has referenced some aspects of my site which he believes support the contention of trademark violation, I believe I am entitled to identify the persons who design your pages so that I can ask them about the reasons behind various design and content decisions compared to my site.

With respect to interrogatory 19, your complaint alleged that I engaged in actions in Michigan that confer personal jurisdiction over me. I denied those allegations. I am entitled to any information you have that supports your complaint. If you cannot supply any information, I am entitled to have that allegation stricken.

Finally, your response makes reference to alleged subparts to the interrogatories. The fact that your responses created artificial segments, turning three questions into 18 (and then refusing to provide any information in response to any of the 18), does not make it so. I am entitled to answers to the final six interrogatories, and will move to compel and to deny you the right to introduce any evidence should you refuse to do so.

Turning now to the question of documents, your responses to many of the requests state that documents "will be produced." My requests sought the production of documents, not a simple request for a promise of later production. Obviously, I need those documents now so that I can plan further discovery in the short time that remains to me. I cannot do that based on a promise of future production.

You object to certain document requests as allegedly "overly broad" and vague. If you concede that I am entitled to some of the documents within the requests but think that others are outside the scope of discovery, you are required to send me those documents which you do consider to be within the proper scope of discovery. As for the claim of vagueness, I completely disagree, but perhaps a further conference is required to clarify matters for you.

Accordingly, I shall expect to receive complete responses by fax no later than noon on Tuesday, February 5, 2002 (please fax a copy to Paul Levy as well), and all of the documents no later than noon on Wednesday, February 6, 2002. Absent compliance, or an assurance that the only evidence that you plan to introduce at trial is from the presently scheduled deposition and your subpoena to Ms. Hartley, I shall be compelled to move for an order compelling discovery, as well as asking the Court to invoke the sanction of precluding you from introducing evidence that has been withheld from me until after it was to late to follow-up with depositions.

I might add that the only reason I know about your subpoena to Ms. Hartley under Rule 45 is that she has told me about it. The rules plainly require you to serve all demands and other papers related to the case on me. However, I have not received any notice from you of this subpoena, and this makes me concerned that you may have other subpoenas outstanding to which I might want to interpose some objections, or seeking production in which I might want to participate. Accordingly, I request that you promptly notify me of each and every subpoena that you have served in this case.

Hank Mishkoff

Next: I'm Represented!

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