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STEINBUCH v. CUTLER - Document No. 59

STEINBUCH v. CUTLER - Document No. 59

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Published by Justia.com
Memorandum in opposition to re 56 MOTION for Leave to File Excess Pages for Leave to File Forty Nine Page Motion to Deem Rule 36 Requests Admitted, Motion to Compel Discovery, and Alternative Motion to Preclude Evidence and Incorporated Memorandum of Law filed by ROBERT STEINBUCH. (Rosen, Jonathan) 1:2005cv00970 District Of Columbia District Court
Memorandum in opposition to re 56 MOTION for Leave to File Excess Pages for Leave to File Forty Nine Page Motion to Deem Rule 36 Requests Admitted, Motion to Compel Discovery, and Alternative Motion to Preclude Evidence and Incorporated Memorandum of Law filed by ROBERT STEINBUCH. (Rosen, Jonathan) 1:2005cv00970 District Of Columbia District Court

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Published by: Justia.com on Apr 30, 2008
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10/14/2013

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
--------------------------------------------------------------
Steinbuch
:
1:05-CV-970 (PLF) (JMF)
Plaintiff,
:
:
-v-
::
:
Cutler
:
Defendant. :
--------------------------------------------------------------
PLAINTIFF\u2019S OPPOSITION AND
RESPONSE TO DEFENDANT\u2019S DISCOVERY MOTION

After having received Plaintiff\u2019s responses to Defendant\u2019s discovery, Defendant
sought a telephone conference with me. I happily obliged. During that conversation I
explained that it was apparent that much of Defendant\u2019s discovery was designed to harass
(much like Defendant\u2019s served yet still not filed frivolous Rule 11 motion). During this
conversation, Counsel for Defendant agreed to modify certain of his requests, and, as a
consequence, I agreed to supplement Plaintiff\u2019s responses. Defendant\u2019s counsel and I
agreed that I would do so in a week\u2019s time, particularly given that I was traveling when I
spoke to Defendant\u2019s counsel. Instead of complying with this agreement, however,
Defendant\u2019s counsel filed his motion to compel. Accordingly, we again find ourselves
before this Court. Plaintiff has properly responded to Defendant\u2019s discovery responses.
Defendant has sought discovery in excess of what is permitted, that is designed to harass,
and that is overbroad. Defendant\u2019s motion should be denied in its entirety.

A.
\u201cSexual Relationship\u201d
In Defendant\u2019s first grouping of Requests to Admit, Defendant seeks to have
Plaintiff admit that he disclosed the he was having a \u201csexual relationship\u201d with Defendant
Case 1:05-cv-00970-PLF-JMF Document 59
Filed 11/07/2006 Page 1 of 9
STEINBUCH v. CUTLER
Doc. 59
Dockets.Justia.com
2

to variously listed parties. I explained to Defendant\u2019s counsel that by leading each of his
questions with the term \u201csexual relationship,\u201d his questions transparently sought to trick
Plaintiff into admitting that every time he discussed his relationship, that he was
discussing a \u201csexual relationship.\u201d Plaintiff would not succumb to such an obvious ploy,
and I so informed Defendant\u2019s counsel. Moreover, the very premise of Defendant\u2019s
questions is without basis.

First, Defendant has always contended that a disclosure to a small number of
people could not constitute an invasion of privacy. In fact, pursuant to this argument,
Defendant has unsuccessfully tried to claim that by putting Plaintiff\u2019s private material on
the internet, she was only communicating with a few people. Plaintiff has demonstrated
that by putting material on the internet, Defendant has satisfied the publicity element of
the tort of invasion of privacy. Indeed, in this Court\u2019s first denial of Defendant\u2019s series of
motions to dismiss, the Court explicitly contrasted disclosures to one or two friends from
disclosures that constitute publicity, such as distribution over an internet website. See
Transcript of Court\u2019s Ruling Denying Defendant\u2019s First Motion to Dismiss. Thus, even
if Defendant\u2019s assertions that Plaintiff had discussions with people in his office about his
relationship (sexual or otherwise) with Defendant was true, this would have no bearing
on Defendant\u2019s invasion of privacy caused by Defendant publicizing Plaintiff\u2019s private
facts on the internet.

Second, Defendant continues its rejected argument that Plaintiff\u2019s reference to
Defendant\u2019s previous disclosure of spanking to address the growing discussion initiated
by Defendant somehow prejudices Plaintiff. Indeed, Defendant admitted that Plaintiff
heard that \u201cI've [Defendant] been spreading the spanking rumor around the office! . . . It

Case 1:05-cv-00970-PLF-JMF Document 59
Filed 11/07/2006 Page 2 of 9
3
got around and now EVERYBODY knows.\u201d (Emphasis added.) If everyone in the
office knows, how could Plaintiff\u2019s comments in the office be relevant?

Finally, Defendant says in its brief that \u201cPlaintiff had commented on the fact that
their relationship had become public knowledge within the office.\u201d Defendant\u2019s use of
the passive voice is illuminating. As demonstrated above, \u201ctheir relationship had become
public knowledge\u201d because of Defendant\u2019s actions. Is Defendant suggesting that had
Plaintiff commented on their relationship after Defendant made it public knowledge that
this could in any way prejudice Plaintiff?

Defendant\u2019s arguments on this subject are wholly frivolous and done, yet again, to
obfuscate the true issue in this case \u2013 Defendant\u2019s internet invasion of privacy. Any
office discussion of Plaintiff and Defendant\u2019s relationship simply has no bearing on
Defendant\u2019s invasion of privacy by Defendant putting Plaintiff\u2019s private information (and
name!) on the internet for all to read. As such, this whole line of inquiry should be
rejected.

B.
Dates Defendant Wrote, Edited, and Modified the Blog

Defendant next asks a series of questions seeking to have Plaintiff admit that
Defendant wrote certain portions of her blog at specific times, desperately hoping to
revive its failed statute of limitations argument. As Plaintiff has previously stated,
Defendant admitted to altering portions of her blog after initially drafting those portions.
Additionally, Defendant continues its unsuccessful attempts to parse the whole blog into
separate parts. The very caselaw that Defendant cited previously shows that additional
entries on a internet cite alter the whole content of that webpage \u2013 creating a completely
new webpage. Oja v. Army Corps of Engineers, 440 F.3d 1122, 1132 n.14 (2006) (\u201cOf

Case 1:05-cv-00970-PLF-JMF Document 59
Filed 11/07/2006 Page 3 of 9

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