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Act 63: I'm Represented!

Although I've been having a good time (in a perverse kind of way) representing myself, I haven't been especially successful (which is a kind way of saying "I've lost every one of my motions and my opponents have won every one of theirs").

I've been receiving some advice (and drafts of letters and motions) from Paul Levy of Public Citizen, which has been extremely helpful. (Paul's also been representing me in the Court of Appeals.) But now the case is becoming more technical, what with Taubman wanting to depose me and seeking documents from me and my girlfriend, and with Taubman virtually stonewalling my discovery requests. And I've been concerned about my ability to withstand (and respond to) the arrogant, cynical, and blatantly unfair tactics that have been increasingly evidenced (so to speak) by Taubman's attorney, Julie Greenberg.

And so it is with a pronounced sense of relief that I'm announcing that Paul Levy filed an "Entry of Appearance" form with the court today (February 5, 2002) – which means that he's officially representing me in the "main" case in the District Court. (Whew!) Paul will be discussing discovery issues with Ms. Greenberg, he'll be trying to see if we can settle out of court (although I've told Paul that, as Ms. Greenberg has already refused to honor one settlement agreement, I'm more than a little uneasy about making another deal with her), and he'll be flying into Dallas to represent me at the deposition (two days from now).

As his first "official" act as my attorney in this case, Paul sent this letter to Ms. Greenberg to address some issues concerning my upcoming deposition.

February 5, 2002

Dear Ms. Greenberg:

I am writing for two purposes. The first is to advise you that we have been retained to represent Henry Mishkoff (and his sole proprietorship, although as you know Webfeats does not have any separate legal existence) in the district court proceedings in this case. Our appearance will be entered today.

Second, as a courtesy to aid your preparation for questioning on February 7, I wanted to let you know that Mishkoff will not be bringing any documents with him when he appears at the deposition that you have noticed for him. Although Rule 30(b)(5) of the Federal Rules of Civil Procedure allows you to attach a demand for documents to a notice of deposition, it expressly provides that, when the deposition is that of a party, the procedures of Rule 34 apply. And, under Rule 34(b), no documents can be demanded on less than 30 days notice (plus three days for mail service).

I might add that, wholly apart from the very tardy transmission of the document request, which gave Mishkoff only a few days to cull through his files and produce documents going back twenty years, there are many respects in which the requests seek information that has no relevance to this case and are extremely abusive. For example, there is no way in which a personal letter that Mishkoff sent in 1984 to his girlfriend, Donna Hartley, would be relevant to this case, yet your request would plainly comprehend such materials. Nor, for that matter, do you have any entitlement to rummage through all of Mishkoff's business records in the hope of finding something that might be interesting, however embarrassing it might be to Mishkoff's clients to have these matters reviewed (and we have consulted with counsel for one of Mishkoff's major clients, who has indicated that his client would oppose such production). Yet several of your requests purport to require that. Your requests also seem to relate to claims that I cannot find in your complaint, including one which your client lacks standing to bring, although your firm could do so if it chooses to become a plaintiff.

Judge Zatkoff's scheduling order required you to send any document request in time to have it answered before the discovery cutoff, and we would be justified in standing on our rights in that regard, especially given the way in which you took advantage of a variety of technical rules while Mishkoff was proceeding pro se. See Wright, Miller & Marcus, 8A Federal Prac. and Proc: Civil § 2213 (although parties can agree to extend time for responding to a document request, that extension cannot go past the discovery cut-off). In this regard, I understand that, when Judge Zatkoff held the scheduling conference in this case, you told him that you would only need thirty days for discovery, Mishkoff asked for sixty days, and Judge Zatkoff set the deadline for ninety days after the conference. Yet it was not until nearly eighty days after the conference that you got around to sending out a document request. Despite this lack of diligence, however, we are willing to consider any detailed, written justifications that you are able to provide showing each and every one of your document requests how is relevant to the claims and defenses in this case, to weigh them against the burdens that would be imposed by responding (and any privileges that may apply), and to respond with the courtesy that lawyers owe each other. In this regard, I assume that I will receive prompt and good faith responses to the discovery that Mishkoff has previously served on your client, pursuant to the same principles of courtesy between opposing counsel.

I look forward to hearing from you.

Sincerely yours,

Paul Alan Levy