IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF
GEORGIA
DEZSO BENEDEK and ANN
BENEDEK,
Plaintiffs,
vs.
MICHAEL F. ADAMS, NOEL
FALLOWS, JUDITH SHAW, JANE
GATEWOOD, KASEE LASTER, JOHN
DOES, THE BOARD OF REGENTS of
the UNIVERSITY SYSTEM OF
GEORGIA, SUSAN E. EDLEIN, and
SAM OLENS in his individual capacity
and as THE ATTORNEY GENERAL OF
GEORGIA

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CIVIL ACTION NO.
16-CV-1803
JURY TRIAL DEMANDED

Defendants.
MOTION TO EXPEDITE DISCOVERY and
BRIEF IN SUPPORT
Come now Plaintiffs Dezso and Ann Benedek pursuant to Rule
26(d)(1) of the Federal Rules of Civil Procedure (FRCP), and move this
honorable Court for an order allowing immediate preliminary discovery to
preserve critical evidence related to issues raised by Defendants’ motions for
a stay of discovery and dismissal, and show the Court as follows:

1.
Plaintiffs seek the Court’s permission, prior to the Rule 26(f)
discovery conference, to depose non-party witnesses who can confirm that
the Attorney General advised witnesses called to testify against Plaintiff
Dezso Benedek, in the failed attempt to revoke Benedek’s tenure as a
professor at UGA, that they could knowingly give false testimony based on
manufactured evidence and be protected--even for perjury, evidence
tampering, and other criminal actions--by sovereign immunity.
2.
This raises a question of first impression in the courts of Georgia,
whether the doctrine of sovereign immunity may shield the actions of state
employees who employ the doctrine in a premeditated fashion as an integral
component of a criminal scheme. Moreover, prior decisions have addressed
sovereign immunity solely in the context of negligence claims brought under
the Georgia Tort Claims Act—never for criminal predicate acts such as wire
fraud, perjury, evidence tampering, and obstruction of justice under the state
and federal RICO Acts, OCGA 16-14-1 et seq & 18 USC 1961 et seq.
3.

 

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The evidence proffered in the requested deposition testimony also
highlights legal and ethical issues related to the Attorney General’s inability
to investigate and defense of claims of wrongdoing in his own office—and
thus is highly germane to the Attorney General’s conduct in defending this
action, both by claiming sovereign immunity for himself and by seeking to
bar Plaintiff’s counsel from pursuing further claims against the Attorney
General in the state and federal courts of Georgia.
4.
FRCP 26(d)(1) specifically authorizes the Court to enter an order
requiring or allowing discovery at any time, including prior to the Rule 26(f)
conference.
5.
This litigation was pending in the state courts of Georgia from
February 2013 to December 2015 without any discovery being allowed,
despite an absolute limit of 90 days pursuant to OCGA 9-11-12 for a stay of
discovery in case of a motion to dismiss.
6.
Upon Plaintiffs’ voluntary dismissal of the state court actions and refiling in federal court, defendants have once again moved to dismiss the
action, and stay discovery, in part on the basis of sovereign immunity.

 

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7.
The evidence Plaintiffs seek to preserve through deposition testimony
of non-party witnesses is related both to a key legal issue in the case,
whether Defendants enjoy sovereign immunity from a civil RICO action,
and the material factual issue, whether Defendants committed criminal
RICO predicate acts in specific reliance on such sovereign immunity
protection.
8.
These matters are critical to the decision of the issues before the
Court—as there is no prior decision addressing the inclusion of sovereign
immunity protection as an essential, premeditated component of a pattern of
criminal RICO predicate acts.
9.
It is documented and undisputed, for example, that the Attorney
General brought tenure revocation charges against Benedek for terminating
UGA’s program at Jilin University in China despite the existence of a memo
showing that Defendant Judith Shaw, not Benedek, made the decision to
terminate the Jilin program. See Jilin Memo, Humphreys Aff., Exh. R.
10.

 

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It is documented and undisputed that the Jilin Memo, memorializing
the decision by Defendant Shaw, was in UGA’s own records, and was in the
Attorney General’s possession at the time he brought the Jilin charge and
called UGA witnesses to falsely testify that Benedek terminated the Jilin
program without authorization. Aff., Exh. R. pp. 3-6 (testimony of
Defendants Shaw and Gatewood).
11.
It is documented and undisputed that, prior to the failed tenure
revocation hearing, the Attorney General reviewed the Jilin Memo with the
UGA witnesses called to testify against Benedek (Id.), but the Attorney
General at the same time withheld the Jilin Memo from Benedek’s counsel
and did not produce it in discovery.
12.
It is documented and undisputed that UGA witnesses gave testimony
during the tenure revocation hearing that was directly contradicted by the
Jilin Memo—prior to learning that Benedek had independently obtained the
a copy of the Jilin Memo.
13.
Non-party witnesses have for the first time come forward who are
willing to testify that even as the Attorney General and UGA Defendants
 

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were attempting to conceal the Jilin Memo--and conspiring to give
testimony completely contradicted by the Jilin Memo--the Attorney General
advised the UGA witnesses that they would all be protected by sovereign
immunity—including for introducing knowingly false testimony and
manufactured evidence in place of the Jilin Memo they were attempting to
conceal.
14.
There are potentially at least three witnesses who can testify that the
Attorney General advised the UGA witnesses adverse to Benedek that,
despite the concealment of the Jilin Memo contradicting both the charge and
the testimony against Benedek, that the Attorney General and UGA
witnesses who were concealing evidence and giving false testimony need
not fear any consequences because they would be protected by sovereign
immunity.
15.
The proffered evidence through deposition testimony supports
allegations already in the Complaint.
16.

 

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The proffered evidence further suggests that the Attorney General
knowingly used sovereign immunity as an integral component in a scheme
to improperly influence witnesses in violation of OCGA 16-10-93.
17.
The Attorney General has superior, ready access to this information
and has obstructed Plaintiffs’ access that might otherwise be obtained
through discovery, internal investigation by the Attorney General’s office,
and independent investigations, both state and federal.
18.
Attorney General Sam Olens, though he already has the evidence in
his possession, has also denied the allegations supported by the proffered
deposition testimony, in both public and private statements. Aff., Exh R, p.
15. These denials will be contradicted by the proffered evidence in the
deposition testimony by state employees.
19.
Plaintiffs have been prejudiced by a more than three-year delay in
discovery overseen and orchestrated by Defendant Edlein, contrary to the
controlling statute, OCGA 9-11-12. This delay has been effected, contrary to
the controlling statute, by improper means such as Defendant Edlein’s ex

 

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parte order barring the deposition of Michael Adams and her repeated orders
denying amendment of the complaint to add claims for criminal RICO
predicate acts such as wire fraud, knowing misrepresentation of matters
under state and federal jurisdiction, and obstruction of justice, contrary to the
controlling statutes, OCGA 9-11-15 & 21. See, e.g., Aff, Exhs. A-D.
20.
The discovery Plaintiffs now seek is of a highly sensitive nature,
calling for adverse testimony by employees of Defendant University System
of Georgia—that should be preserved while it is available.
21.
The discovery Plaintiffs now seek has a direct bearing on the Court’s
decision whether to exempt Defendants from any claims or additional
discovery based on a defense of sovereign immunity.

Wherefore, premises considered, Plaintiffs request the Court to enter an
order allowing them to conduct up to three depositions without further delay,
prior to the Rule 26(f) discovery planning conference, and prior to any ruling
on Defendants’ claims that their actions are protected by sovereign
immunity.

 

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Respectfully submitted this 29th day of August, 2016.

STEPHEN F. HUMPHREYS, P.C.
/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS
Georgia Bar No. 378099

P.O. Box 192
Athens, GA 30603
1671 Meriweather Drive
Bogart, GA 30622
(706) 543-7777 p
(706) 543-1844 f
(706) 207-6982 m

 

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CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing has
been prepared in compliance with Local Rule 5.1(B) in 14-point New Times
Roman type face.

This 29th day of August, 2016.
/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS
Georgia Bar No. 378099

 

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CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies the electronic filing of this Motion for
Expedited Discovery with the Clerk of the Court using the CM/ECF system,
this 29th day of August, 2016, serving opposing counsel as follows:
Samuel S. Olens
Kathleen M. Pacious
Devon Orland
Deborah Nolan Gore
Office of the Attorney General
40 Capitol Square, SW
Atlanta, Georgia 30334-1300

STEPHEN F. HUMPHREYS, P.C.
/s/ Stephen F. Humphreys
___________________________
STEPHEN F. HUMPHREYS
Georgia Bar No. 378099

P.O. Box 192
Athens, GA 30603
1671 Meriweather Drive
Bogart, GA 30622
(706) 543-7777 p
(706) 543-1844 f
(706) 207-6982 m

 

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