Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 1 of 15 Page ID #:11935

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Philip J. Berg, Esquire (PA I.D. 9867) E-mail: philjberg@gmail.com LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 Fax: (610) 834-7659 Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION : : : : Plaintiffs, : : : : : : : : Defendants. : : : :

LISA LIBERI, et al,

CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS MEMORANDUM BRIEF IN OPPOSITION TO THE REED DEFENDANTS EX PARTE MOTION FOR A CONTINUANCE Date of Hearing: None Time of Hearing: 10:00 a.m. Location: Courtroom 10D

vs. ORLY TAITZ, et al,

I. 1.

INTRODUCTION: Plaintiffs Lisa Liberi [“Liberi”], Lisa Ostella [“Ostella”], Go Excel

Global [“GEG”], Philip J. Berg, Esquire [“Berg”] and the Law Offices of Philip J. Berg [“LOPJB”] by and through their undersigned Counsel hereby submit their Memorandum in Opposition to Defendants, Reed Elsevier, Inc.; LexisNexis Group; LexisNexis Risk Solutions, Inc.; LexisNexis; ChoicePoint, Inc.; Accurint; LexisNexis Risk and Information Analytics Group, Inc.; [“Reed Defendants”] Ex

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

1

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 2 of 15 Page ID #:11936

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Parte Motion for a Continuance.

Plaintiffs vehemently oppose the Ex Parte

Application and any further Continuances. 2. The Reed Defendants failed to seek Leave of Court as required by this

Court’s June 14, 2011 Order, Docket Number [“DN”] 227. Therefore, the Reed Defendants Ex Parte Motion for A Continuance must be Stricken and not considered by the Court. 3. The Reed Defendants also failed to file a Memorandum of Points and

Authorities as required by this Court’s Local Rule 7-19; and The Reed Defendants failed to adhere to this Court’s Local Rule 7-19.1 and give any type of notice of the Reed Defendants intent to file an Ex Parte Application and the grounds for the requested relief. See the Declaration of Philip J. Berg [“Berg Decl.”] filed

concurrently herewith, at pages 7-8, ¶23. 4. The Reed Defendants filed a Motion to Dismiss on September 16,

2011, DN 377, which was heard on October 17, 2011. During this time, the Reed Defendants informed the Court they would be filing a Motion for Summary Judgment. In the Order of October 17, 2011, Granting in part and Denying in Part the Reed Defendants Motion to Dismiss, the Court “strongly urged” Intelius and Reed to file a Joint Summary Judgment Motion with Intelius. See DN 414 at page 22.

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

2

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 3 of 15 Page ID #:11937

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

5.

The Reed Defendants met and conferred with Plaintiffs’ Counsel,

Philip J. Berg, Esquire on January 30, 2012, regarding their intention to file a Motion for Summary Judgment. There is no reason to grant the Reed Defendants a continuance on an Ex Parte basis. The Reed Defendants had ample opportunity to file their Motion for Summary Judgment within the time limits outlined by the Federal Rules of Civil Procedure [“Fed. R. Civ. P.”] 56(b). 6. Good Cause does not exist for the Reed Defendants Ex Parte

Application; or the Reed Defendants Request for a Continuance. II. 7. STATEMENT OF FACTS: Each of the Reed Defendants were served with Plaintiffs First

Amended Complaint; Summons; and this Court’s June 14, 2011 Order, DN 227 which outlined the scheduling dates; and the Court’s Order that all parties must first seek Leave of Court prior to filing any motions or papers. See DN’s 252 through 257 on June 28, 2011, Berg Decl., pp. 1-2, ¶1. 8. The Reed Defendants have been granted two (2) continuances by the

Court for Answering Plaintiffs Complaint. See DN’s 294 and 350 and Berg Decl., p. 2, ¶2. 9. On November 30, 2011, Plaintiffs served the Reed Defendants with On December 12, 2012, Plaintiffs’ Counsel sent a

their Initial Disclosures.

settlement demand to James McCabe, Esquire, Attorney for the Reed Defendants.

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

3

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 4 of 15 Page ID #:11938

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In said demand, Mr. Berg stated he had not received the Reed Defendants Initial Disclosures and if the Reed Defendants did not intend to settle, then they needed to serve their Initial Disclosures, Berg Decl., p. 2, ¶3. 10. Mr. McCabe never responded to Mr. Berg. On January 3, 2012, Mr.

Berg sent a demand letter to all Defendants stating if he did not receive their Initial Disclosures by January 10, 2012, then he would be seeking Leave to file Motions to Compel. In this letter, Mr. Berg reminded the Reed Defendants that trial was fast approaching in June 2012, Berg Decl., p. 2, ¶4. 11. On January 10, 2012, Michael B. Miller, Esquire, Attorney for the

Reed Defendants sent a letter to Plaintiffs’ counsel stating they would not supply Initial Disclosures until January 24, 2012, that he was treating his letter as a Meet and Confer pursuant to Fed. R. Civ. P. 26. Mr. Berg responded to Mr. Miller granting him until January 24, 2012 and informing him that he would be propounding Plaintiffs Discovery upon each of the Reed Defendants, Berg Decl., pp. 2-3, ¶5. 12. Plaintiffs served each of the Reed Defendants with Discovery on

January 13, 2012, by way of Interrogatories; Request for Admissions; and Request for Production of Documents, Berg Decl., p. 3, ¶6. 13. On January 26, 2012, not receiving the Reed Defendants Initial

Disclosures, Mr. Berg sent another letter to Mr. McCabe and Mr. Miller again

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

4

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 5 of 15 Page ID #:11939

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

demanding the Reed Defendants Initial Disclosures. Mr. Miller responded stating he had sent the Reed Defendants Initial Disclosures, but once he returns to his office he would Email them, which he did. Of course, the Reed Defendants failed to provide anything but objections claiming Mr. Berg and counsel for the Reed Defendants never conducted a “Meet and Confer” pursuant to Rule 26, which was contrary to Mr. Miller’s letter of January 10, 2012, Berg Decl., p. 3, ¶7. 14. On January 30, 2012, Mr. Berg called and spoke to Mr. Miller

regarding the incomplete Initial Disclosures received from the Reed Defendants. Mr. Miller treated the call as a “Meet and Confer” as to the Reed Defendants intentions of filing a Motion for Summary Judgment. Mr. Berg followed up his call with an Email confirming the conversation. Mr. Berg also sent an Email regarding a “Meet and Confer” regarding the incomplete and improper Initial Disclosures and Mr. Berg’s intent on seeking Leave to file a Motion to Compel. Mr. Miller again responded stating Mr. Berg had not complied with the “Meet and Confer” Requirements and he was unsure as to how the information supplied by me pertained to his intentions of filing a Motion for Summary Judgment, Berg Decl., pp. 3-4, ¶8, and Exhibits “1” and “2”, pages 10-15. 15. On January 30, 2012, Mr. Berg again contacted Mr. Miller and

attempted to set a telephonic “Meet and Confer” for any time after 1:00 p.m. on

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

5

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 6 of 15 Page ID #:11940

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

January 31, 2012. Mr. Miller responded setting 2:00 p.m. on January 31, 2012 for the “Meet and Confer” conversation, Berg Decl., p. 4, ¶9. 16. At 5:15 a.m. on January 31, 2012, Mr. Berg received an Email from

Mr. Miller cancelling their 2:00 p.m. appointment and rescheduling it for the following day. Mr. Miller stated he had another client matter that had come up, Berg Decl., p. 4, ¶10. 17. The “Meet and Confer” was rescheduled for Wednesday, February 1,

2012 at 3:00 p.m. During this “Meet and Confer”, Mr. Miller wanted the Reed Defendants Discovery re-served, which extended the date due for another month; and Mr. Miller stated he would be filing for a Protective Order, which Mr. Berg agreed to. Mr. Miller also stated he would be setting depositions, but the dates could be discussed and he did not intend the specific dates to go forward; and that he would be sending Plaintiffs the Reed Defendants Supplemental Disclosures, Berg Decl., p. 4, ¶11. 18. On February 2, 2012, Mr. Berg re-served the Reed Defendants The Reed

Discovery on Mr. Miller via Email as requested by Mr. Miller.

Defendants Answers were due March 5, 2012. The Reed Defendants again failed to comply, Berg Decl., p. 5, ¶12. 19. On February 3, 2012, Plaintiffs received the Reed Defendants

Discovery propounded on them and set depositions of Lisa Ostella; Lisa Liberi;

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

6

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 7 of 15 Page ID #:11941

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and Philip J. Berg, Esquire in California on February 28, 2012; March 1, 2012, and March 2, 2012, not even giving thirty [30] days’ notice and prior to the date discovery was due, Berg Decl., p. 5, ¶13. 20. On February 22, 2012, Mr. Berg sent another Email to Mr. Miller

informing him that he had not received the requested Protective Order; had not received the Supplemental Initial Disclosures as promised; nor had he received any communications regarding the depositions dates set by Mr. Miller. Mr. Berg asked that Mr. Miller please provide him with dates of availability so Mr. Berg could check his available dates to coordinate the dates for Depositions. Mr. Berg never received any dates from Mr. Miller, Berg Decl., p. 5, ¶14. 21. Mr. Miller responded stating the deposition dates were deemed

“opened and adjourned”; and Plaintiffs would receive supplemental Initial Disclosures the following week, Berg Decl., p. 5, ¶15. 22. February 27, 2012, Mr. Miller sent Mr. Berg another Email stating he

was fine with conducting Depositions after Discovery responses had been served, Berg Decl., pp. 5-6, ¶16. 23. On March 1, 2012, Mr. Miller Emailed Mr. Berg asking for yet

another extension of time until March 12, 2012, to respond to the Plaintiffs Discovery propounded on each of the Reed Defendants. Mr. Miller also called Mr. Berg, Berg Decl., p. 6, ¶17.

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

7

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 8 of 15 Page ID #:11942

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

24.

Mr. Berg then received an Email from Mr. Miller stating Mr. Berg

had agreed to extend the Reed Defendants until March 12, 2012 to respond to Plaintiffs Discovery, which was not true. Mr. Berg immediately responded stating he must receive the Reed Defendants responses to Discovery by 5:00 p.m. EST on Thursday, March 8, 2012, Berg Decl., p. 6, ¶18. 25. On March 2, 2012, Plaintiffs finally received what the Reed

Defendants called their Initial Disclosures. The Initial Disclosures again were wholly deficient and lacked the required information as outlined in Rule 26. Mr. Miller stated he would not supply certain information until after the Protective Order was filed, Berg Decl., p. 6, ¶19. 26. On March 6, 2012, Mr. Miller sought Leave of Court to file a Motion

for Summary Judgment. On this same date, Mr. Miller sent an Email to Mr. Berg stating he would call Mr. Berg on Friday of the week of the 12th of March to discuss deposition dates. Of course, this never happened, Berg Decl., p. 6, ¶20. 27. Plaintiffs finally received responses to their Discovery requests from The Reed Defendants Answers were wholly deficient.

the Reed Defendants.

Every request did not provide any of the requested information, but instead only contained boilerplate objections, including Plaintiffs Request for Admissions, Berg Decl., p. 6, ¶21. As this Court is aware, Requests for Admissions are to be either admitted or denied. "Parties may not view requests for admission as a mere

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

8

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 9 of 15 Page ID #:11943

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

procedural exercise requiring minimally acceptable conduct." Marchand v. Mercy Medical Center, 22 F.3d 933, 936 (9th Cir. 1994). The goal of the Federal Rules "is full and efficient discovery, not evasion and word play." Id. "The grounds for objecting to a request must be stated." FED. R. CIV. P. 36(a)(5). Answers to Requests for Admissions must admit or deny the admission, be specific, must fairly respond to the substance of the matter, and must be made in good faith. See FED. R.CIV. P. 36(a)(4), Marchand 22 F.3d at 936 [Emphasis added]. Thus, each of the Requests for Admissions served upon each of the Reed Defendants are deemed “admitted”. 28. On March 25, 2012 (Sunday), Mr. Berg sent a letter dated March 26,

2012 (Monday, so the Reed Defendants would have the letter first thing Monday Morning, and because Mr. Berg was going to be out of the Office Monday morning) to Mr. Miller and Mr. McCabe outlining the deficiencies in what they called Responses to Plaintiffs Discovery as to each of the Reed Defendants. Mr. Berg informed Mr. Miller and Mr. McCabe that if they wished to conduct the “Meet and Confer” telephonically, to please provides dates within the next fortyeight [48] hours that they are available. Mr. Berg stated otherwise, if he does not receive Supplemental Responses to the Reed Defendants responses within seven [7] days, he would be seeking Leave of Court to file A Motion to Compel. Mr. Berg also informed counsel for the Reed Defendants that all Requests for

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

9

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 10 of 15 Page ID #:11944

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Admissions served upon the Reed Defendants had been deemed “admitted”, Berg Decl., p. 7, ¶22 and Exhibit “3”, pp. 17-19. 29. Mr. Berg had been out of the office most of the week of March 26th.

Mr. Berg checked his caller ID and for messages from Irene Pertsovsky, however, he did not have any messages and Ms. Pertsovsky office number did not appear on any of his caller ID’s for his Office or Cell phones. Mr. Berg did receive a stipulated agreement from Mr. McCabe, and Email communications between Ms. Pertsovsky and this Court’s Clerk, but nothing regarding the intent to file an Ex Parte Application for a Continuance. Mr. Berg received a call from Mr. Miller on March 28, 2012, that only stated, I’m following up with the McCabe Email, nothing about an Ex Parte Application for a Continuance, Berg Decl., p. 7, ¶22. 30. As can be seen, Plaintiffs have attempted to cooperate with the Reed

Defendants, but instead of following through with what they state they are going to do, they instead have played games. 31. Plaintiffs have not received the Discovery from the Reed Defendants,

which is extremely prejudicial. The Reed Defendants have failed to comply with any date set, which has also been prejudicial to the Plaintiffs. Plaintiffs have complied with every date and provided what is due timely. Plaintiffs are

attempting to prepare their case, which has been and is continually hampered by the Reed Defendants.

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

10

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 11 of 15 Page ID #:11945

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

32.

The Reed Defendants have failed to comply with anything they have

stated; and have failed to conduct Discovery on Neil Sankey; Sankey Investigations, Inc.; The Sankey Firm; Todd Sankey, collectively “The Sankey Defendants”; and Plaintiffs were not served with the Reed Defendants Ex Parte Motion for a Continuance until 6:41 p.m. E.D.T. on Thursday, March 29, 2012. 33. The Reed Defendants were aware of the dates set for Discovery cut-

off and Trial since June 28, 2011, when all the Reed Defendants were served. There is absolutely no excuse for all these delays. III. THE REED DEFENDANTS have “NOT” STATED any GROUNDS for the GRANTING of EX PARTE RELIEF: As this Court held in Mission Power Eng’g Co. v. Continental Cas.

34.

Co., 883 F. Supp. 488 (C.D. Cal. 1995) at 492, Ex Parte Relief should only be granted if “the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.” The Reed Defendants failed to cite to any prejudice whatsoever. 35. As this Court has held, “Ex Parte motions are rarely justified . . . .”

Mission Power Eng’g Co. v. Cont’l Cas. Co. 883 F. Supp. 488, 490 (C.D. Cal. 1995). “To justify ex parte relief,” “First, the evidence must show that the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures. Second, it must be established that
Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

11

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 12 of 15 Page ID #:11946

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” 36. See this Court’s Ruling appearing as DN 183 at pp. 1-2 filed May 2,

2011. This Court further stated “Ex parte relief should be granted only if the evidence shows “that the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures” quoting Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). “Such relief has serious due process implications”, quoting Fuentes v. Shevin, 407 U.S. 67, 80-82 (1972) “(due process requires that affected parties “are entitled to be heard” following “meaningful” notice, except in “extraordinary situations”); Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 339-40 (1969) (“the right to be heard ‘has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest’”).” See DN 183 at p. 2. 37. The Reed Defendants are not without fault. Mr. Miller, attorney for

the Reed Defendants, raised the issue of the Reed Defendants intentions of filing a Motion for Summary Judgment during their Motion to Dismiss on or about October 17, 2011 and on January 30, 2012, Berg Decl., pp. 3-4, ¶8 and Exhibits “1” and “2”, pp. 10-15. Mr. Miller could have sought Leave of Court at that time

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

12

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 13 of 15 Page ID #:11947

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and timely filed their Motion. There is no excuse for the Reed Defendants delay in defending this case. 38. For the reasons outlined herein, the Reed Defendants Ex Parte Motion

for a Continuance must be Denied. IV. GOOD CAUSE does “NOT” EXIST to GRANT the REED DEFENDANTS a CONTINUANCE or EXTENSION of TIME: The Reed Defendants have known the Trial date in this case since

39.

June 28, 2011; and met and conferred with Plaintiffs’ Counsel regarding the Reed Defendants intentions of filing a Motion for Summary Judgment on January 30, 2012. The Reed Defendants have not stated any cause whatsoever as to their delay in bringing forth their Motion for Summary Judgment. 40. Court’s As this Court has outlined in its “Frequently Asked Questions” on the website under Judges Procedures and Schedules located at

http://www.cacd.uscourts.gov/CACD/JudgeReq.nsf/2fb080863c88ab47882567c90 07fa070/8327207e72b71258882571a400788007?OpenDocument at number “6”: “What is the policy on continuances? Continuances are granted only on a showing of good cause.” 41. The Reed Defendants misinformed this Court regarding whether

Plaintiffs’ Counsel agreed or not. Mr. Berg was out of the office in Court and at medical appointments. Only one message was left by Mr. Miller on March 28,

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

13

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 14 of 15 Page ID #:11948

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2012, and the message did not contain anything about an Ex Parte Application, Berg Decl., pp. 7-8, ¶23. 42. The decision to grant or deny a continuance lies within the District

Judge's discretion. Rios-Berrios v. I.N.S., 776 F.2d 859, 862-63 (9th Cir.1985); United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.), amended, 764 F.2d 675 (9th Cir. 1985). The requesting party must meet a four-part test, the fourth [4th] (and mandatory) element of which requires a demonstration of prejudice. Flynt, 756 F.2d at 1359; United States v. 2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir. 1985). 43. Fed. R. Civ. P. 56(b) states:

“Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” [emphasis added]. 44. The Reed Defendants admit in their Ex Parte Motion for an Extension

of Time that they were aware of what Rule 56(b) states. Despite this, they failed to timely bring their Motion. 45. The Reed Defendants have not cited to any prejudice they will suffer

should the Court deny their requested relief. As stated above, the Reed Defendants were aware they were going to file a Motion for Summary Judgment as far back as

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

14

Case 8:11-cv-00485-AG-AJW Document 487 Filed 03/30/12 Page 15 of 15 Page ID #:11949

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

January 30, 2012, Berg Decl., pp. 3-4, ¶8 and Exhibits “1” and “2”, pp. 10-15. There is no reason they could not comply with the timelines. 46. For these reasons, the Reed Defendants Ex Parte Motion for a

Continuance must be Denied. V. 44. CONCLUSION: The Reed Defendants failed to seek Leave of Court prior to filing their

Motion; failed to cite to any prejudice; failed to cite to any reason for their delay; failed to file a Memorandum of Points and Authorities; and have failed to cite to Good Cause why their Requested Relief should be granted. For these reasons, the Reed Defendants Ex Parte Motion for a Continuance must be Denied. Respectfully submitted, Dated: March 30, 2012 /s/ Philip J. Berg Philip J. Berg, Esquire Attorney for Plaintiffs

Liberi, et al, Plaintiffs Memorandum in Opp. To the Reed Defendants Ex Parte Motion for a Continuance

15

Case 8:11-cv-00485-AG-AJW Document 487-1 Filed 03/30/12 Page 1 of 3 Page ID #:11950

TABLE OF CONTENTS Pages TABLE OF CONTENTS……………………………………………………….......i TABLE OF AUTHORITIES…..……………………………………………...ii-iii I. II. III. INTRODUCTION……………………………………………………….1-3 STATEMENT OF FACTS………………………………………………3-11 THE REED DEFENDANTS have “NOT” STATED any GROUNDS for the GRANTING of EX PARTE RELIEF…………………………………………………………………11-12 GOOD CAUSE does “NOT” EXIST to GRANT the REED DEFENDANTS a CONTINUANCE or EXTENSION of TIME…………………………………………………12-15 CONCLUSION……,……………………………………………...……….15

IV.

V.

i

Case 8:11-cv-00485-AG-AJW Document 487-1 Filed 03/30/12 Page 2 of 3 Page ID #:11951

TABLE OF AUTHORITIES Cases Page(s)

Fuentes v. Shevin, 407 U.S. 67, 80-82 (1972)…………………………………….12 Marchand v. Mercy Medical Center, 22 F.3d 933, 936 (9th Cir. 1994)…………………………………………………...9 Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488 (C.D. Cal. 1995)……………………………………………11, 12 Rios-Berrios v. I.N.S., 776 F.2d 859, 862-63 (9th Cir.1985)…………………..…14 Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 339-40 (1969)……………………………………………………...12 United States v. 2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir. 1985)………………………………………………...14 United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.), amended, 764 F.2d 675 (9th Cir. 1985)…………………………………………...14

FEDERAL RULES OF CIVIL PROCEDURE Page(s) Rule 26……………………………………………………………………………...4 Rule 36(a)(4)……………………………………………………………………….9 Rule 36(a)(5)……………………………………………………………………….9 Rule 56(b)………………………………………………………………………3, 14

ii

Case 8:11-cv-00485-AG-AJW Document 487-1 Filed 03/30/12 Page 3 of 3 Page ID #:11952

TABLE OF AUTHORITIES - Continued

THE COURT’S LOCAL RULES Page(s) Rule 7-19…………………………………………………………………………...2 Rule 7-19.1…………………………………………………………………………2

iii

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 1 of 19 Page ID #:11953

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Philip J. Berg, Esquire (PA I.D. 9867) E-mail: philjberg@gmail.com LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 Fax: (610) 834-7659 Attorney in pro se and for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION LISA LIBERI, et al, : : : : Plaintiffs, : : : : : : : : Defendants. : : :

CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) DECLARATION OF PHILIP J. BERG, ESQUIRE Date of Hearing: None Time of Hearing: 10:00 a.m. Location: Courtroom 10D

vs. ORLY TAITZ, et al,

DECLARATION of PHILIP J. BERG, ESQUIRE I, Philip J. Berg, Esquire, am over the age of 18 and am a party to the within action. I have personal knowledge of the facts herein, and if called to do, I could and would competently testify. I am making this Declaration under the penalty of perjury of the Laws of the United States pursuant to 28 U.S.C. §1746. 1. Each of the Reed Defendants were served with Plaintiffs First

Amended Complaint; Summons; and this Court’s June 14, 2011 Order, DN 227 which outlined the scheduling dates; and the Court’s Order that all parties must
1

Declaration of Philip J. Berg, Esquire

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 2 of 19 Page ID #:11954

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

first seek Leave of Court prior to filing any motions or papers. See DN’s 252 through 257 on June 28, 2011. 2. The Reed Defendants have been granted two (2) continuances by the

Court for Answering Plaintiffs Complaint. See DN’s 294 and 350. 3. On November 30, 2011, I served on behalf of Plaintiffs the Reed On December 12, 2012, I sent a

Defendants with their Initial Disclosures.

settlement demand to James McCabe, Esquire Attorney for the Reed Defendants. In said demand, I stated I had not received the Reed Defendants Initial Disclosures and if the Reed Defendants did not intend to settle then they needed to serve their Initial Disclosures. 4. Mr. McCabe never responded to me. On January 3, 2012, I sent a

demand letter to all Defendants stating if I did not receive their Initial Disclosures by January 10, 2012, then I would be seeking Leave to file Motions to Compel. In this letter, I reminded the Reed Defendants that Trial was fast approaching in June 2012. 5. On January 10, 2012, Michael B. Miller, Esquire, Attorney for the

Reed Defendants sent me a letter stating they would not supply Initial Disclosures until January 24, 2012, that he was treating his letter as a “Meet and Confer” pursuant to Fed. R. Civ. P. 26. I responded to Mr. Miller granting him until

Declaration of Philip J. Berg, Esquire

2

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 3 of 19 Page ID #:11955

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

January 24, 2012 and informing him that I would be propounding Plaintiffs Discovery upon each of the Reed Defendants. 6. I served each of the Reed Defendants with Plaintiffs Discovery on

January 13, 2012, by way of Interrogatories; Request for Admissions; and Request for Production of Documents. 7. On January 26, 2012, not receiving the Reed Defendants Initial

Disclosures, I sent another letter to Mr. McCabe and Mr. Miller again demanding the Reed Defendants Initial Disclosures. Mr. Miller responded stating he had sent the Reed Defendants Initial Disclosures, but once he returns to his office he would Email them to me, which he did. Of course, the Reed Defendants failed to provide anything but objections claiming I never met and conferred with counsel for the Reed Defendants pursuant to Rule 26, which was contrary to Mr. Miller’s letter of January 10, 2012. 8. On January 30, 2012, I called and spoke to Mr. Miller regarding the

incomplete Initial Disclosures received from the Reed Defendants. Mr. Miller treated the call as a “Meet and Confer” as to the Reed Defendants intentions of filing a Motion for Summary Judgment. I followed up his call with an Email confirming the conversation. I also sent an Email regarding a “Meet and Confer” regarding the incomplete and improper Initial Disclosures and Mr. Berg’s intent on seeking Leave to file a Motion to Compel. See EXHIBIT “1”. Mr. Miller again

Declaration of Philip J. Berg, Esquire

3

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 4 of 19 Page ID #:11956

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

responded stating Mr. Berg had not complied with the Meet and Confer Requirements and he was unsure as to how the information supplied by me pertained to his intentions of filing a Motion for Summary Judgment. See EXHIBIT “2”. 9. On January 30, 2012, I contacted Mr. Miller and attempted to set a

telephonic “Meet and Confer” for any time after 1:00 p.m. on January 31, 2012. Mr. Miller responded setting 2:00 p.m. on January 31, 2012 for the “Meet and Confer” conversation. 10. At 5:15 a.m. on January 31, 2012, I received an Email from Mr.

Miller cancelling our 2:00 p.m. appointment and rescheduling it for the following day. Mr. Miller stated he had another client matter that had come up. 11. The “Meet and Confer” was rescheduled for Wednesday, February 1,

2012 at 3:00 p.m. During this “Meet and Confer”, Mr. Miller wanted the Reed Defendants Discovery re-served, which extended the date due for another month; and Mr. Miller stated he would be filing for a Protective Order, which I agreed to stipulate to. Mr. Miller also stated he would be setting depositions, but the dates could be discussed and he did not intend the specific dates to go forward; and that he would be sending Plaintiffs the Reed Defendants Supplemental Disclosures.

Declaration of Philip J. Berg, Esquire

4

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 5 of 19 Page ID #:11957

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

12.

On February 2, 2012, I re-served the Reed Defendants Discovery on

Mr. Miller via Email as requested by Mr. Miller. The Reed Defendants Answers were due March 5, 2012. The Reed Defendants again failed to comply. 13. On February 3, 2012, Plaintiffs received the Reed Defendants

Discovery propounded on them and set Depositions of Lisa Ostella; Lisa Liberi; and me in California on February 28, 2012; March 1, 2012, and March 2, 2012, without discussing any dates with me and not even giving thirty [30] days’ notice and prior to the date Discovery was due. 14. On February 22, 2012, I sent another Email to Mr. Miller informing

him that I had not received the requested Protective Order; had not received the Supplemental Initial Disclosures as promised; nor had I received any communications regarding the depositions dates set by Mr. Miller. Mr. Berg asked that Mr. Miller please provide him with dates of availability so I could check my available dates to coordinate the dates for Depositions. I never received any dates from Mr. Miller. 15. Mr. Miller responded stating the Deposition dates were deemed

“opened and adjourned”; and Plaintiffs would receive Supplemental Initial Disclosures the following week. 16. February 27, 2012, Mr. Miller sent me another Email stating he was

fine with conducting Depositions after Discovery responses had been served.

Declaration of Philip J. Berg, Esquire

5

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 6 of 19 Page ID #:11958

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

17.

On March 1, 2012, Mr. Miller Emailed me asking for yet another

extension of time until March 12, 2012, to respond to the Plaintiffs Discovery propounded on each of the Reed Defendants. Mr. Miller also called me. 18. I received an Email from Mr. Miller stating I had agreed to extend the

Reed Defendants until March 12, 2012 to respond to Plaintiffs Discovery, which was not true. I immediately responded stating I must receive the Reed Defendants Responses to Discovery by 5:00 p.m. EST on Thursday, March 8, 2012. 19. On March 2, 2012, I finally received what the Reed Defendants called

their Initial Disclosures. The Initial Disclosures again were wholly deficient and lacked the required information as outlined in Rule 26. Mr. Miller stated he would not supply certain information until after the Protective Order was filed. 20. On March 6, 2012, Mr. Miller sought Leave of Court to file a Motion

for Summary Judgment. On this same date, Mr. Miller sent an Email to me stating he would call me on Friday of the week of the 12th of March to discuss Deposition dates. I never received a call from Mr. Miller regarding Depositions dates. 21. I finally received responses to their Discovery requests from the Reed

Defendants. The Reed Defendants Answers were wholly deficient. Every request did not provide any of the requested information, but instead only contained boilerplate objections, including Plaintiffs Request for Admissions.

Declaration of Philip J. Berg, Esquire

6

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 7 of 19 Page ID #:11959

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

22.

On March 25, 2012, I sent a letter dated March 26, 2012 to Mr. Miller

and Mr. McCabe outlining the deficiencies in what they called Responses to Plaintiffs Discovery as to each of the Reed Defendants. I informed Mr. Miller and Mr. McCabe that if they wished to conduct the “Meet and Confer” telephonically to please provide dates within the next forty-eight [48] hours that they are available. I stated otherwise, if I did not receive Supplemental Responses to the Reed Defendants Responses within seven [7] days, I would be seeking Leave of Court to file A Motion to Compel. I also informed counsel for the Reed

Defendants that all Requests for Admissions served upon the Reed Defendants had been deemed “admitted”. See EXHIBIT “3”. As of this date, I have not received any type of Response from the Reed Defendants. 23. I was out of the office most of the week of March 26th. After reading

the Reed Defendants Ex Parte Motion for a Continuance, I rechecked my caller ID on my Office and Cell phone; and for any messages from Irene Pertsovsky. I did not have any messages and Ms. Pertsovsky office number did not appear on either my Office or Cell phones. I did receive a Stipulated Agreement from Mr. McCabe, and Email communications between Ms. Pertsovsky and this Court’s Clerk, but nothing regarding the intent to file an Ex Parte Application for a Continuance. I received a call from Mr. Miller on March 28, 2012, and the only message left was

Declaration of Philip J. Berg, Esquire

7

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 8 of 19 Page ID #:11960

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

that he was following up with the Email sent to me by James McCabe, nothing about an Ex Parte Application for a Continuance. 24. I have not included every Email discussed above due to the length,

however, will be happy to supply them to the Court at any time, or bring them with me should the Court order a Hearing. 25. I have attempted to work with the Reed Defendants through their

counsel; unfortunately, it has turned into nothing more than delay tactics and games. The Reed Defendants “Meet and Confer” with me regarding their

intentions of filing a Motion for Summary Judgment on January 30, 2012, had the Reed Defendants sought Leave of Court at that time, they could have filed their Motion timely. I declare under the penalty of perjury of the Laws of the United States and California that the foregoing is true and correct. Executed this 30th day of March, 2012 in the Commonwealth of Pennsylvania, County of Montgomery. /s/ Philip J. Berg Philip J. Berg, Esquire, Declarant

Declaration of Philip J. Berg, Esquire

8

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 9 of 19 Page ID #:11961

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

EXHIBIT “1”
Declaration of Philip J. Berg, Esquire

9

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 10 of 19 Page ID #:11962

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

From: Philip Berg <philjberg@gmail.com> Date: Mon, Jan 30, 2012 at 11:04 AM Subject: Liberi, et al v. Taitz, et al, Case No. 8:11-cv-00485 To: MBMiller@mofo.com Cc: "McCabe, Jim" <JMcCabe@mofo.com> January 30, 2012 Michael B. Miller, Esquire Attorney for the Reed Defendants cc: James McCabe, Esquire Re: Liberi, et al v. Taitz, et al - Conversation of Jan. 30, 2012 Dear Mr. Miller, As I stated to you, Judge Andrew J. Guilford cautioned the Reed and Intelius Defendants regarding the filling of a Summary Judgment Motion as to the FCRA claims. On page 21 of Judge Guilford's Order of October 17, 2011 regarding the Reed and Intelius Defendants Motion to dismiss, the Court stated: "The Court cautions the parties that the question of whether the CDA applies to credit reporting agencies operating online, who are regulated by the CCRA and FCRA, is a much closer one involving questions of preemption. If the Reed and Intelius Defendants wish to make this difficult argument in a summary judgment motion against Claims 12-16, they should fully brief the issue." See Judge Guilford's Order of October 17, 2011 attached. Regarding your statement that "Sankey did not use them [Reed] at all" is inaccurate. FYI - We recently obtained reports from The Sankey Defendants. Based on your incorrect statement, it appears your clients did not maintain the searches conducted on the Plaintiffs as required by the FTC Court Orders against the Reed Defendants.

Declaration of Philip J. Berg, Esquire

10

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 11 of 19 Page ID #:11963

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Don't hesitate contacting me should you have any questions or wish to discuss. Respectfully, Philip J. Berg, Esquire LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Ph: (610) 825-3134 Fx: (610) 834-7659 Cell: (610) 662-3005 Email: philjberg@gmail.com

Declaration of Philip J. Berg, Esquire

11

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 12 of 19 Page ID #:11964

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

EXHIBIT “2”
Declaration of Philip J. Berg, Esquire

12

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 13 of 19 Page ID #:11965

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

From: Miller, Michael B. <MBMiller@mofo.com> Date: Mon, Jan 30, 2012 at 11:21 AM Subject: RE: Liberi, et al v. Taitz, et al, Case No. 8:11-cv-00485 To: Philip Berg <philjberg@gmail.com> Cc: "McCabe, Jim" <JMcCabe@mofo.com> Dear Mr. Berg, Thanks for this reference, although I'm not sure what it has to do with our potential summary judgment motion. As for the reports from the Sankey Defendants, I think you may have misunderstood me or I didn't make myself clear -- I had in mind certain of your specific allegations. In any event, as I told you on the phone, this is all for a future discussion. Best regards, M.B.M. Michael B. Miller | Morrison & Foerster LLP | 1290 Avenue of the Americas | New York, New York 10104 | Tel.: (212) 468-8009 | Fax: (212) 468-7900 | Cell: (914) 316-0849 Email: mbmiller@mofo.com

From: Philip Berg [mailto: philjberg@gmail.com] Sent: Monday, January 30, 2012 1:04 PM To: Miller, Michael B. Cc: McCabe, Jim Subject: Liberi, et al v. Taitz, et al, Case No. 8:11-cv-00485 January 30, 2012 Michael B. Miller, Esquire Attorney for the Reed Defendants cc: James McCabe, Esquire Re: Liberi, et al v. Taitz, et al - Conversation of Jan. 30, 2012
Declaration of Philip J. Berg, Esquire

13

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 14 of 19 Page ID #:11966

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dear Mr. Miller, As I stated to you, Judge Andrew J. Guilford cautioned the Reed and Intelius Defendants regarding the filling of a Summary Judgment Motion as to the FCRA claims. On page 21 of Judge Guilford's Order of October 17, 2011 regarding the Reed and Intelius Defendants Motion to dismiss, the Court stated: "The Court cautions the parties that the question of whether the CDA applies to credit reporting agencies operating online, who are regulated by the CCRA and FCRA, is a much closer one involving questions of preemption. If the Reed and Intelius Defendants wish to make this difficult argument in a summary judgment motion against Claims 12-16, they should fully brief the issue." See Judge Guilford's Order of October 17, 2011 attached. Regarding your statement that "Sankey did not use them [Reed] at all" is inaccurate. FYI - We recently obtained reports from The Sankey Defendants. Based on your incorrect statement, it appears your clients did not maintain the searches conducted on the Plaintiffs as required by the FTC Court Orders against the Reed Defendants. Don't hesitate contacting me should you have any questions or wish to discuss. Respectfully, Philip J. Berg, Esquire LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Ph: (610) 825-3134 Fx: (610) 834-7659 Cell: (610) 662-3005 Email: philjberg@gmail.com

Declaration of Philip J. Berg, Esquire

14

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 15 of 19 Page ID #:11967

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
--------------------------------------------------------------------To ensure compliance with requirements imposed by the IRS, Morrison & Foerster LLP informs you that, if any advice concerning one or more U.S. Federal tax issues is contained in this communication (including any attachments), such advice is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. For information about this legend, go to http://www.mofo.com/Circular230/ ============================================================================ This message contains information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender by reply e-mail @mofo.com, and delete the message. ---------------------------------------------------------------------

Declaration of Philip J. Berg, Esquire

15

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 16 of 19 Page ID #:11968

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

EXHIBIT “3”
Declaration of Philip J. Berg, Esquire

16

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 17 of 19 Page ID #:11969 LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531
PHILIP J. BERG ______________ (610) 825-3134 NORMAN B. BERG, Paralegal [Deceased] Fax (610) 834-7659 E-Mail: philjberg@gmail.com

March 26, 2012 James F. McCabe, Esquire Morrison & Foerster 425 Market Street San Francisco, CA 94105-2482 Sent via Email to JMcCabe@mofo.com Re: Liberi, et al v. Taitz, et al, Case No. 8:11-cv-00485 AJG

Dear Mr. McCabe: Please treat this letter as a “meet and confer” as Plaintiffs are intending to file a Motion to Compel proper responses to their Discovery requests from each of your clients. I am happy to telephonically discuss the issues outlined below, but request a date and time you are available within the next forty-eight [48] hours. On January 13, 2012, I served Discovery requests upon LexisNexis; ChoicePoint; Accurint; Reed Elsevier, Inc.; LexisNexis Risk and Information Analytics Group, Inc.; LexisNexis Risk Solutions, Inc.; and LexisNexis Group [hereinafter at times the “Reed Defendants”] by way of Interrogatories; Request for Admissions; and Request for Production of Documents. After my meet and confer on February 2, 2012 with Mr. Miller, I re-served all the Discovery requests upon these specific Defendants. Responses thereto were due on or before March 5, 2012. Instead of timely responding, the Reed Defendants through Mr. Miller sought additional time. I agreed to a couple of days and finally received what the Reed Defendants considered as their responses to the entire requested Discovery on March 8, 2012. The Reed Defendants responses to all Discoveries are wholly deficient. Once I received the Reed Defendants “supposed” responses, I reviewed each and every response. The Reed Defendants did not reply to any discovery, including the requests for production of documents. Instead, the Reed Defendants asserted boilerplate objections. Plaintiffs are entitled to full and complete responses so they have the opportunity to properly prepare their case for trial. For instance, Plaintiffs asked for the names, addresses and telephone numbers of all persons who supplied information responsive to these interrogatories, which Plaintiffs are entitled to. In lieu of properly answering the Interrogatories, the

Liberi, et al, Berg letter to Reed Defendants re improper responses to discovery 03.26.2012

17

1

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 18 of 19 Page ID #:11970 James F. McCabe, Esquire Morrison & Foerster Page Two March 26, 2012

Reed Defendants objected as vague and ambiguous; overbroad; unduly burdensome; oppressive; and harassing claiming it seeks information not relevant to the within litigation. The Reed Defendants further objected on the basis it supposedly seeks the identification of in-house or outside legal counsel retained or consulted for litigation. These are improper objections and are wholly unsubstantiated. Plaintiffs are entitled to learn of any party who may have information pertaining to the claims and litigation against the Reed Defendants. A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006); Eureka Fin. Corp. v. Hartford Accident & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Ca. 1991); Flanagan v. Benicia Unified Sch. Dist., 2008 WL 2073952, (E.D. Ca. 2008); Buss v. Western Airlines, Inc. 738 F. 2d 1053, 1053-54 (9th Cir. 1984). The same type of responses were provided by the Reed Defendants for every single Interrogatory; Request for Admissions; and Request for Production of Documents. The Reed Defendants also objected to each and every Request for Admissions, which is completely inappropriate. "Parties may not view requests for admission as a mere procedural exercise requiring minimally acceptable conduct." Marchand v. Mercy Medical Center, 22 F.3d 933, 936 (9th Cir. 1994). The goal of the Federal Rules "is full and efficient discovery, not evasion and word play." Id. "The grounds for objecting to a request must be stated." FED. R. CIV. P.36(a)(5). Answers to Requests for Admissions must admit or deny the admission, be specific, must fairly respond to the substance of the matter, and must be made in good faith. See FED. R.CIV. P. 36(a)(4). [Emphasis added], Marchand 22 F.3d at 936. Each of the Reed Defendants objections are similarly stated. The Reed Defendants never admit or deny the requests, nor does it explain why it is unable to answer. See Fed. R. Civ. P. 36(a)(4). The Reed Defendants boilerplate objections are repeatedly made without reference to any grounds that might support them. The Reed Defendants merely insert the language of the request. The Reed Defendants responses are inadequate and their objections baseless and improper. In every single Request for Admission, the Reed Defendants object as vague, ambiguous, and unintelligible. These objections are improper because they are evasive word play. Marchand, 22 F.3d at 936. Failure to Respond properly to a Request for Admission within the time permitted, deems the admissions “admitted”, Fed. R. Civ. P. 36(a)(3); Fed. R. Civ. P. 36(b); A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006); O’Campo v. Hardisty, 262 F.2d 621, 623 (9th Cir. 1958); Conlon v. U.S., 474 F.3d 616, 621 (9th Cir. 2007); and United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir.1987). Same goes for Plaintiffs Request for Production of Documents. For instance, Plaintiffs Request for Production No. 1, Plaintiffs ask for all documents and electronic data, including front and back end view, concerning each of the named Plaintiffs. The Reed Defendants object on the grounds that it is unintelligible, vague and ambiguous, particularly as to the phrases “front and back end view” and “concerning each of the named plaintiffs;” “and that it is overbroad, unduly burdensome, oppressive and harassing to the extent that it seeks information that is not relevant to this litigation…”. “[O]bjections such as 'overly burdensome and harassing' are improper-especially when a party fails to submit any evidentiary declarations supporting such objections." A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006). Besides labeling them as such, the Reed Defendants

Liberi, et al, Berg letter to Reed Defendants re improper responses to discovery 03.26.2012

18

2

Case 8:11-cv-00485-AG-AJW Document 487-2 Filed 03/30/12 Page 19 of 19 Page ID #:11971 James F. McCabe, Esquire Morrison & Foerster Page Three March 26, 2012

give no support to their claims that Plaintiffs requests are unduly oppressive and burdensome. These objections are completely inadequate and also improperly made. Each of the Reed Defendants are fully aware of who each of the Plaintiffs are and that this litigation stems from the illegal disclosure of Plaintiffs reports to unauthorized third parties. Marchand, 22 F.3d at 936. Excessive evasion or resistance to reasonable discovery requests pose significant problems. Burlington N. & Santa Fe R.R. Co. v. United States Dist. Court for the Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005). Plaintiffs are at a loss as to how such facts could reveal communications between the Reed Defendants and their counsel, and the Reed Defendants have not offered a reasonable theory in support of their objections. Plaintiffs seek information, not documents or tangible things created by Defendants in anticipation of litigation. One of the primary purposes of Discovery is to uncover the facts on which your opponents' claim or defense is based: such facts are clearly discoverable. See, e.g., A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006). The Reed Defendants cannot refuse to disclose facts simply because the Interrogatory requires their attorney to cull through the universe of information to determine what is, and what is not, responsive. If that were the case, the liberal rules of discovery would be ineffective because any selection would arguably reveal the "mental impressions" of counsel. The Federal Rules of Civil Procedure allow for broad discovery in civil actions. "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense . . . ." Fed. R. Civ. P. 26(b)(1). This provision is liberally construed so that parties may conduct the wideranging Discovery necessary to avoid surprise at trial and properly evaluate and resolve their dispute. A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006). With this said, if the Reed Defendants refuse to supplement their Responses to Plaintiffs Interrogatories and Request for Production of Documents within the next seven [7] days, then Plaintiffs will be seeking leave to file and filing a Motion to Compel. Regarding the Reed Defendants failure to properly and adequately respond to Plaintiffs Request for Admissions, as stated above, they are deemed “admitted”. Respectfully,

Philip J. Berg PJB:jb cc: Michael B. Miller, Esquire by Email to MBMiller@mofo.com

Liberi, et al, Berg letter to Reed Defendants re improper responses to discovery 03.26.2012

19

3

Case 8:11-cv-00485-AG-AJW Document 487-3 Filed 03/30/12 Page 1 of 2 Page ID #:11972

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION : : : Plaintiffs, : : : : : : : Defendants. : : : :

LISA LIBERI, et al, vs. ORLY TAITZ, et al,

CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PROPOSED ORDER DENYING THE REED DEFENDANTS EX PARTE MOTION FOR A CONTINUANCE Date of Hearing: Time of Hearing: 10:00 a.m. Location: Courtroom 10D

ORDER On _________, 2012, Defendants Reed Elsevier, Inc., LexisNexis, ChoicePoint, Inc., Accurint, LexisNexis Risk Solutions, Inc., LexisNexis Group, and LexisNexis Risk and Information Analytics Group, Inc.’s [“Reed Defendants”] Ex Parte Motion for a Continuance to file a Motion for Summary Judgment came on for Hearing. The Court having reviewed and considered the moving papers, Plaintiffs Opposition thereto, the records on file with this Court, having heard Oral Argument and for GOOD CAUSE SHOWN, IT IS HEREBY
1

Case 8:11-cv-00485-AG-AJW Document 487-3 Filed 03/30/12 Page 2 of 2 Page ID #:11973

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDERED and DECREED: Defendants Reed Elsevier, Inc., LexisNexis, ChoicePoint, Inc., Accurint, LexisNexis Risk Solutions, Inc., LexisNexis Group, and LexisNexis Risk and Information Analytics Group, Inc.’s Ex Parte Motion for a Continuance is hereby DENIED. IT IS SO ORDERED: Dated: _________, 2012 ______________________________ Hon. Andrew J. Guilford Judge of the United States District Court, Central District of California, Southern Division

Respectfully submitted by: /s/ Philip J. Berg Philip J. Berg, Esquire _

Attorney for Plaintiffs, Lisa Liberi, Lisa Ostella, Go Excel Global, Philip J. Berg, Esquire and Law Offices of Philip J. Berg

2

Case 8:11-cv-00485-AG-AJW Document 487-4 Filed 03/30/12 Page 1 of 2 Page ID #:11974

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Philip J. Berg, Esquire (PA I.D. 9867) E-mail: philjberg@gmail.com LAW OFFICES OF PHILIP J. BERG 555 Andorra Glen Court, Suite 12 Lafayette Hill, PA 19444-2531 Telephone: (610) 825-3134 Fax: (610) 834-7659 Attorney in pro se and for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION : : CIVIL ACTION NUMBER: LISA LIBERI, et al, : : 8:11-cv-00485-AG (AJW) : Plaintiffs, : vs. : PLAINTIFFS CERTIFICATE OF : : SERVICE ORLY TAITZ, et al, : Defendants. : I, Philip J. Berg, Esquire, hereby certify a true and correct copy of Plaintiffs Memorandum (Brief) in Opposition to the Reed Defendants Ex Parte Motion for a Continuance; Declaration of Philip J. Berg, Esquire in support thereof; Proposed Order; and Certificate of Service were served through the ECF filing system this 30th day of March 2012 upon the following: James F McCabe, Esquire Michael B. Miller, Esquire Morrison & Foerster 425 Market St San Francisco, CA 94105-2482 Email: jmccabe@mofo.com Email: mbm@mofo.com Attorney for Defendants: Reed Elsevier, Inc.; LexisNexis Group; LexisNexis; LexisNexis Risk and Information Analytics Group, Inc.; LexisNexis Risk Solutions, Inc.; Accurint; and ChoicePoint, Inc.

Liberi, et al Plaintiffs Cert of Svc re Plaintiffs Opp to the Reed Defs. Ex Parte

1

Case 8:11-cv-00485-AG-AJW Document 487-4 Filed 03/30/12 Page 2 of 2 Page ID #:11975

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Marc Steven Colen, Esq. Law Offices of Marc Steven Colen 5737 Kanan Road, Ste. 347 Agoura Hills, CA 91301 Email: mcolen@colenlaw.com Served via the ECF Filing System Attorney for Defendants: Todd Sankey; and The Sankey Firm, Inc. Orly Taitz 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, CA 92688 Email: orly.taitz@gmail.com and Email: dr_taitz@yahoo.com Served via the ECF Filing System Attorney for Defendant Defend our Freedoms Foundation, Inc. Kim Schumann, Esquire Jeffrey P. Cunningham, Esquire Peter Cook, Esquire SCHUMANN, RALLO & ROSENBERG, LLP 3100 Bristol Street, Suite 400 Costa Mesa, CA 92626 Email: pcookA@srrlawfirm.com Served via the ECF Filing System Attorney for Defendants Orly Taitz; Orly Taitz, Inc.; and Law Offices of Orly Taitz

/s/ Philip J. Berg Philip J. Berg, Esquire

Liberi, et al Plaintiffs Cert of Svc re Plaintiffs Opp to the Reed Defs. Ex Parte

2

Sign up to vote on this title
UsefulNot useful