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FIRST JUDICIAL DISTRICT
COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________ Case Type: Civil JOSHUA J. ISRAEL, Plaintiff, Case No. 70-CV-10-29417 vs. NOTICE OF MOTION Motion For A Protective Order, FEDEX GROUND PACKAGE SYSTEMS, INC., Motion For A Discovery Conference. Defendant. _____________________________________________________________________________ TO: the DEFENDANT, FEDEX Ground Package Systems, and Clerk of Court. NOTICE OF MOTION PLEASE TAKE NOTICE that on August 9, 2011, at 9:00 A. M., and being granted the right to proceed In Forma Pauperis, the PLAINTIFF, Joshua J. Israel, has scheduled a hearing for issues pertaining to a Motion For Discovery Conference, and a Motion For A Protective Order. Pursuant to Minnesota Rules of Civil Procedure, Rules 26.02, Rule 26.03, and Rule 26 .06, said Motions are necessary to resolve the issue of privilege before discovery can continue, to resolve issues of confidentiality agreements, and to compel production of documents that Plaintiff has a right to obtain under Minn. Stat. 181.961(1)(2)(a). As a result, this motion is fair to both parties because the court calendar in this action will NOT be disturbed, and neither party will be prejudiced by delay; and, this reply is served and filed in accordance with Minn. Gen. R. Prac. Rule, 115.03.
By: ____________________________________ Joshua J. Israel / Plaintiff-Pro-Se
STATE OF MINNESOTA
FIRST JUDICIAL DISTRICT
COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________ Case Type: Civil JOSHUA J. ISRAEL, Plaintiff, Case No. 70-CV-10-29417 Objection To Oral Deposition vs. Motion For Protective Order Motion For Discovery Conference FEDEX GROUND PACKAGE SYSTEMS INC., Defendant. District Judge, _____________________. _____________________________________________________________________________ MOTION FOR DISCOVERY CONFERENCE MOTION FOR PROTECTIVE ORDER OBJECTION TO SCHEDULE OF ORAL DEPOSITION In response to the Defendant’s, FEDEX GROUND PACKAGING SYSTEMS, issues raised in discovery, the Plaintiff, Joshua J. Israel, moves the Court for a Discovery Conference, moves the Court for a Protective Order, and moves the Court to resolve the confidentiality agreement issue raised by Defendant. In addition, since Defendant has made further discovery a condition that is dependent upon a confidentiality agreement, this Court must examine the agreement and determine its validity before discovery is to continue. Moreover, this Court must additionally resolve the issue of freedom of expression and association protection and privilege afforded by the First Amendment through the Fourteenth Amendment before discovery is to continue, and to set forth a need for a protective order, Plaintiff sets forth the following: FACTUAL BACKGROUND 1. On the 28th day of March, 2011, after hearing the arguments on motions of Plaintiff and the Defendant, Scott County District Judge, Carol A. Hooten, denied the motion to dismiss of the Defendant, and said Judge did deny Plaintiff’s motion to strike prejudicial evidentiary exhibits introduced by the Defendant that are based upon privilege.
2. On the 8th day of April, 2011, the Defendant did serve and file its Answer to the Amended Complaint, the Defendant did deny all (39) detailed allegations of Plaintiff, the Defendant did again bring forth its statute of limitation defense with the doctrine of equitable estoppel, and the Defendant seeks an award of costs and attorney fees. 3. On the 7th day of June, 2011, the Plaintiff engaged in discovery with the Defendant for the production of his employment applications, for production of pre-employment screening records, for production its background investigation records of Plaintiff, and for production of the full and complete human resources personnel file of Plaintiff. 4. On the 10th day of June, 2011, the Defendant served upon Plaintiff its First Set Of Interrogatories and Request For Production of Documents; and, Defendant’s interrogatories focused of matters outside the scope of claims, pleadings, and allegations in the complaint; and in addition, the Defendant’s request for production focused on matters of privilege and pertained to any membership of Plaintiff on internet blogs and social media networking websites where Plaintiff may, could, or did, make any comment, or received any expressed support for this pending lawsuit against this FedEx Ground Defendant. 5. On the 13th day of June, 2011, Plaintiff returned the interrogatories and request for production to counsel for the Defendant; and, Plaintiff did inform counsel for the Defendant that he was in violation of Rule 26.02(a) for pursuing matters outside the scope of discovery and for pursuing matters that are privileged; and, Plaintiff did advise counsel for the Defendant that Plaintiff will participate in a Deposition, by authority of Rule 31.01(a), where written questions and answers are exchanged for trial testimony; and additionally, because of the unavailable money funds, due to the In Forma Pauperis status of Plaintiff, where again,
Plaintiff cannot afford travel expenses and the cost of duplicating numerous documents for discovery. 6. To resolve this poor-destitute-person limitation herewith, Plaintiff did advise counsel for the Defendant that an in-camera view of Plaintiff’s documentary evidence is available at the first Pre-Trial Conference where this Court will direct the clerk of court to copy the documentary evidence that Defendant desires. 7. On the 8th day of July, 2011, the Plaintiff received a 2nd request for discovery demanding production of matters privileged and protected by the First Amendment; and, Defendant ignored Plaintiff’s arrangement for the less costly method of Deposition upon written questions; and additionally, the Defendant refused to consider the available option of Telephonic Depositions; and then, the Defendant scheduled an oral Deposition to be taken of Plaintiff on the 26th day of July, 2011. In addition, the Defendant did refuse discovery of the Human Resources employment personnel record file of Plaintiff, which Minn. Stat. 181.961 mandates that Plaintiff is to have access to. By withholding said personnel file, the intent of the Defendant is to withhold substantive evidence that would prove the Complaint allegations, and impeach the Defendant, and prove pretext for discrimination; and, the additional intent of Defendant is to seek after-the fact negative evidence concerning an expression of ideas, and a disclosure of freedom of association so as to invent after-the-fact evidence to sustain false statements Pope v. Federal Express Corp., (8th Cir. 1992) 974 F.2d 982, 984. 8. Moreover, on the 13th day of July, 2011, Plaintiff received 40% of his discovery request from the Defendant, and the Defendant has demanded of Plaintiff to sign a confidentially agreement, first, before the Defendant will comply with additional discovery requests.
9. As a result of all aforesaid correspondence that is current to this day, Plaintiff has made a good-faith reasonable effort to resolve the privilege issue with counsel and to reach an agreement before resorting to a Discovery Conference; however, issues of Defendant’s confidentially agreement and the First Amendment protections and privileges of Plaintiff must be resolved first, before discovery is to continue. MOTION FOR DISCOVERY CONFERENCE 10. As a result of current matters and events set forth above, the Plaintiff moves the Court for a Discovery Conference so that counsel for Defendant can examine the documentary evidence of Plaintiff, and determine if copies are necessary for his possession; and, so that the Court may direct the clerk of court to copy documents and provide counsel with what it requires. Moreover, said discovery conference is additionally necessary to resolve the issue of privilege that Plaintiff has asserted before discovery is to continue herewith; and, so that this Court can determine the merits of privilege based upon First Amendment protections of freedom of expression and association; and additionally, so that this Court can place limitations on discovery of matters privileged and issue an order as necessary under the authority of following discovery rule:
Rule 26.06 Discovery Conference. At any time after service of summons, the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes: (a) A statement of the issues as they then appear; (d) Any issue relating to claims of privilege; (e) Any limitations proposed to be placed on discovery; (f) Any other proposed orders with respect to discovery (g) A statement showing that the attorney making the motion has made a reasonable effort to reach an agreement with opposing attorneys on the matter set forth in the motion.
11. As such, pursuant to MRCP, Rule 26.02, the Plaintiff is entitled to discovery of any matter not privileged that is relevant to the complaint and the claims and allegations of Plaintiff; and
as such, Plaintiff did request relevant discovery of matters pertaining to his own preemployment background screening and investigation, his own employment and training records, his own employment discharge records; and, since counsel for the Defendant seeks an award of costs and attorney fees, Plaintiff did request the production of any and all guidance and instruction from any president or senior vice president of the Defendant, concerning how counsel is to proceed with this instant case, and whether any settlement option has been approved White v. Graceland College Center, (U. S. Dist. Kan. 2008) 586 F.Supp.2d 1250, 1258-1261, 1265-1271. 12. In the first instance, individual employment records are relevant and/or are reasonably calculated to lead to discovery of admissible evidence, if the individual (1) is the victim of retaliation or discrimination, (2) is alleged to have engaged in the retaliation or discrimination at issue, (3) is alleged to have played an important role in the decision or incident that gives rise to the lawsuit, or (4) is a key witness to the events giving rise to the lawsuit White v. Graceland College Center, (U. S. Dist. Kan. 2008) 586 F.Supp.2d 1250, 1258-1261, 1265-1271. As a result therefore, the Defendant is without cause to deny
Plaintiff access to, or the anticipated discovery of, substantive or impeachment evidence because employment personnel records are not available from any other source; and because, the Defendant is in violation of Minn. Stat, 181.961(1)(2)(a) for failing in its own burden of proof to demonstrate that this request is not made in good faith. Therefore, this Court must compel the aforesaid discovery so that Plaintiff can prove the factual allegations of his case; pursuant to Minn. Evidence Rule 401, so that Plaintiff can impeach the Defendant; pursuant to Minn. Evidence Rule 607, and so that Plaintiff can demonstrate pretext for discrimination.
MOTION FOR A PROTECTIVE ORDER 13. In addition to being in violation of Minn. Stat. 181.961(1)(2)(a), MRCP Rule 26.03 sets forth the following provisions for a protective order:
Minnesota Rules of Civil Procedure, Rule 26.03(c)(d). Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden and expense, including one or more of the following: (c) that discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (d) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.
As for matters immune due to privilege, Rule 26.02(a) is interpreted and clarified by many Appellate Courts and Supreme Courts; and, Rule 26.02 sets forth that the scope and limits of discovery is that which is limited to the actual claims and defenses raised in the pleadings ORDER PROMULGATING AMENDMENTS TO RULES OF CIVIL PROCEDURE, (MINN. SUPREME COURT 2005) Rule 26, Discovery Scope and Limits. Therefore, in this instant action, there is nothing within the scope of the pleadings and defenses that pertains to internet activity, or the use of the Defendant’s computer to access the internet and engage in chat room activity; therefore, the Defendant has failed to demonstrate a nexus between its request for Plaintiff First Amendment protected activity on the internet and its articulated reason for retaliatory discharge. Furthermore, since the Defendant has specifically requested the
identity of all social media networking sites and internet blogs from 10/07 to present; and additionally, since Defendant did request whether Plaintiff has ever discussed this instant FedEx Lawsuit with any other person on any internet chat room or blog (1st Interrogatory ¶18), the Defendant’s request is in violation of the freedom of expression, the exchange of ideas, and the freedom of association protected by the First Amendment to the U. S.
Constitution, and applicable to this State District Court through the Fourteenth Amendment, and all such activity is privileged from discovery in this case In Re GlaxcoSmithKline PLC, (MN S. Ct. 2005) 699 N.W.2d 749, 753; In Re GlaxcoSmithKline PLC, (MN App. 2006) 713 N.W.2d 48, 56-57. Moreover, the U. S. District Court for the district of Minnesota has previously taken exception to similar claims of a Defendant when the Court declared that litigation is a form of expression and association protected by the First Amendment, and when disclosure of such expression and activity is sought in discovery, such information relating to support of Plaintiff’s lawsuit is privileged Eilers v. Palmer, (U. S. Dist. MN 1984) 575 F.Supp. 1259, 1261, fn 1. As a result of aforesaid privileged under the First Amendment, Plaintiff moves the Court to declare that all previous litigation expression and association by Plaintiff on the internet is protected by the First Amendment and is applicable to the State through the Fourteenth Amendment. In addition, once Plaintiff asserts his First Amendment right of privilege in matters affecting the expression and association over the internet, discovery should not be allowed until the privilege issue is determined on its merits Seigert v. Gilley, (S. Ct. 1991) 500 U. S. 226, 231; Adelman v. Elk River Lumber Co., (MN S. Ct. 1954) 242 Minn. 388, 395. 14. To address the discovery request of Defendant on matters pertaining to Mitigation of Damages, the Defendant is engaged in an inconsistent and contradictory position where this Court must exercise judicial estoppel to protect the integrity of the judicial process State v. Pendleton, (MN S. Ct. 2005) 706 N.W.2d 500, 507-508. In its Answer filed and served herewith, the Defendant has pleaded with specificity that Plaintiff was not its employee (Answer, Affirmative Defenses, ¶3); however, to make-out a claim for mitigation of damage defense, the burden of proof must be placed squarely, entirely, and completely upon the
Defendant to establish a Prima Facie showing that Defendant is entitled to a mitigation of damages Zeller v. Prior Lake Public Schools, (MN S. Ct. 1961) 108 N.W.2d 602, 259 Minn. 487, 494. A Prima Facie showing means that the Defendant must admit that Plaintiff was an employee of Defendant in the first instance, that Defendant did terminate the employment of Plaintiff, and that the Defendant is entitled to a reduction in the damage claim; and then, the Defendant bears the burden to establish that Plaintiff could have earned or did earn compensation. Therefore, mitigation of damages rests solely upon the party whose wrongful actions caused the claim for damages, and who’s claim for mitigation of damages is a defense in an action based upon such claim for damages Zeller v. Prior Lake Public Schools, (MN S. Ct. 1961) 108 N.W.2d 602, 259 Minn. 487, 494. Since the Defendant claims Plaintiff was not its employee, and since the burden of proof is completely upon the Defendant to establish mitigation of damages, it is an abuse of discovery and an inconsistent and contradictory position for Defendant to seek discovery from Plaintiff for mitigation of damages or to place the Defendant’s burden of proof upon the Plaintiff. In addition, the claim of Plaintiff is from the 17th day of October, 2007 to the 23rd day of December, 2007; therefore, the scope of damages is limited to said (8) week period of time. 15. Before seeking a protective order, the Plaintiff specifically informed the Defendant that any future Deposition of Plaintiff must be by Deposition upon written interrogatories, and by the written question standards under MRCP, Rule 31.01, which sets for the following usable mechanisms for reducing the cost of litigation:
Rule 31.01(a) Serving Questions; Notice. (a) A party may take the testimony of any person, including a party, by deposition upon written questions without leave of court except as provided in paragraph (2).
In addition, when interpreting and clarifying Rule 31.01, the Minnesota Appellate Court did place the burden upon the [Defendant] to demonstrate ineffectiveness of questioning by
interrogatory or deposition upon written questions Ellington & Associates Inc. v. Keefe, (MN App. 1986) 396 N.W.2d 694, 697. Moreover, when enacting the Rule 31.01, the Advisory Committee determined that deposition upon written questions is a more usable mechanism for exchanging questions and submitting them to witnesses, and also found that deposition upon written questions were a more useful discovery devise that has the potential to reduce the costs of litigation Rule 31.01 Advisory Committee Notes. As such, a protective order is required herewith to limit discovery to relevant evidence under Minn. Rules of Evidence (MRE), Rule 401; a protective order is required to determine that matters privileged and protected by the First Amendment through the Fourteenth Amendment are not a discoverable matter; and, a protective order is required to determine that a telephonic deposition or deposition upon written questions are the available options that Defendant must utilize to comply with MRCP, Rule 1, and Minn. Gen. R. Prac., Rules 111 & 112.
By: ________________________________________ Joshua J. Israel / Plaintiff Pro-Se x. x. xxx xxx xxxxx, xx xxxxx (xxx) xxx-xxxx xxx
CERTIFICATE OF SERVICE The Plaintiff, Joshua J. Israel, certifies that his first Motion for a Discovery Conference and Motion for a Protective Order is serviced to the Defendant’s legal counsel, by first class mail through the U. S. Postal Service, on the 14th day of July, 2011, at the following address: Andre J. Lamere, Attorney at Law Maslon, Edelman, Borman, Grand, LLP 3300 Wells Fargo Center 90 South 7th Street Minneapolis, MN 55402-4140 Personal Hand Delivery To: Clerk of Court Scott County Government Center 200 Fourth Avenue West Shakopee, MN 55379-1220
By: ____________________________________ Joshua J. Israel / Plaintiff-Pro-Se
STATE OF MINNESOTA
FIRST JUDICIAL DISTRICT
COUNTY OF SCOTT DISTRICT COURT _____________________________________________________________________________ Case Type: Civil JOSHUA J. ISRAEL, Plaintiff, Case No. 70-CV-10-29417 vs. ORDER FEDEX GROUND PACKAGE SYSTEMS, INC., Defendant. _____________________________________________________________________________ The above entitled matter having come forward for hearing before the undersigned Judge of the First Judicial District Court, of Scott County, for the Motion of Plaintiff for a discovery conference. The PLAINTIFF, Joshua J. Israel, appeared pro-se, and Andre Lamere and Nadge Souvenir from Maston Edelman Borman & Brand, LLP appeared on behalf of Defendant, FEDEX GROUND PACKAGE SYSTEMS, INC., The Court having read and taking notice of the Motion For A Protective Order, and having heard arguments of Plaintiff and arguments of Defendant’s counsel, and being duly advised on the merits of First Amendment privilege and protection for freedom of expression and litigation and association, the Court hereby Finds and ORDERS: 1. The motion of Plaintiff for a protective order concerning matters privileged and protected by the First Amendment through the Fourth Amendment, which concerns internet activity for freedom of expression, the exchange of ideas, and the freedom of association; and concerning, the litigation expression of Plaintiff and the lawsuit expression of Plaintiff is hereby GRANTED.
2. The motion of Plaintiff to compel production of a copy of Plaintiff’s complete human resources personnel file, Plaintiff’s pre-employment screening and background investigation, Plaintiff’s DAC Report, Plaintiff’s hawk alert information on credit reports, Plaintiff’s medical and workers compensation history report, Plaintiff’s pre-employment interview report, and additionally, the production of the business relationship between FedEx Ground and Kelly Management Services, and the production of guidance and instruction from senior management regarding whether or not to offer settlement in this case, is hereby GRANTED. 3. That Defendant is not to pursue discovery of mitigation of damages claim because the burden of proof is upon Defendant to make a prima facie showing of entitlement to mitigation, and because Defendant has not met its burden. 4. That since the Defendant has not met its burden of proof to demonstrate
ineffectiveness of questioning by interrogatory or deposition upon written questions or telephonic depositions, it is hereby ordered that interrogatories, deposition upon written questions, or a telephonic deposition will be the mechanism for exchanging questions and submissions for trial testimony. JUDGMENT IS HEREBY ENTERED ACCORDINGLY. Dated: ______________________, 2011 BY THE COURT
____________________________________________ The Honorable ________________________________ Judge of First District Court
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