FILED Sheryl Guy Ani 13th Circuit Court STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF ANTRIM WILLIAM BAILEY Plaintiff v ANTRIM COUNTY Defendant, SECRETARY OF STATE JOCELYN BENSON Intervenor-Defendant, Case No. 20-9238-CZ HON. KEVIN A. ELSENHEIMER Matthew S. DePerno (P5262) DEPERNO LAW OFFICE, PLLC Attomey for Plaintiff 951 W. Milham Avenue PO Box 1595 Portage, MI 49081 (269) 321-5064 Haider A. Kazim (P66146) CUMMINGS, MCCLOREY, DAVIS & ACHO, PLC Attomey for Defendant 319 West Front Street Suite 221 Traverse City, MI 49684 (231) 922-1888 Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attomeys for Proposed Intervenor-Defendant Benson PO Box 30736 Lansing, MI 48909 (517) 335-7659 PLAINTIFF'S MOTION and BRIEF TO COMPEL DISCOVERY AGAINST INTERVENOR-DEFENDANT BENSON NOW COMES Plaintiff, WILLIAM BAILEY, by and through his attorneys, DePERNO LAW OFFICE, PLLC, and brings this motion to compel discovery pursuant to the rules and case Jaw set forth herein.On December 16, 2020, Plaintiff sent discovery requests to Intervenor-Defendant Benson [Exhibit 1]. On December 23, 2020, Intervenor-Defendant Benson served responses [Exhibit 2}. B. Case La Rule 2.302 permits parties to obtain discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending actions, whether it related to the claims or defense of the party seeking discovery or to the claim or defenses of another party. MCR 2.302(B)(1). A requesting party need only show that the information sought is relevant. Yates v Keane, 184 Mich App 80, 82, 457 NW 2d 693 (1990). A moving party is even entitled to inadmissible evidence if good cause for discovery is shown. Good cause is established where the moving party shows that the information "is, or might lead to, admissible evidence, is material to the moving party's trial preparation, or is for some other reason necessary to promote the ends of justice." Yates, supra at 82, citing Haglund v Van Dorn Co., 169 Mich App 524, 528; 426 NW 2d 690 (1988). Relevant evidence is evidence "having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Michigan courts have recognized that the court rules implement "an open, broad discovery policy . . .." Reed Dairy Farm v Consumers Powers Co., 227 Mich App 614, 616; 576 NW2d 709 (1998); Daniels v Allen Industries, Inc., 391 Mich 398, 403; 216 NW2d 762 (1974). Discovery rules are to be liberally construed in order to further the ends of justice. Daniels, supra, at 403. The modem tendency is to broaden the scope of discovery when necessary to facilitate preparation, to guard against surprise, and to expedite justice. Fassihi v St, Mary's Hospital, 121 Mich Ap 11, 15; 328 NW2d 132 (1982), emphasis added. 2C. Specific overy Issues Requests to Produce #4 and 8 Intervenor-Defendant Benson has refused to produce any information regarding money spent by the State of Michigan (including Secretary of State Benson or her office) or money spent on ballot drop boxes (i. -. Zucker-Boxes). This issue is relevant to the elections conducted in 2020; not just the November election, but all elections in 2020. Intervenor-Defendant Benson had funds available to her to spend on training counties on how to use the Dominion Voting System, It is Plaintiff's understanding that Intervenor-Defendant Benson chose to spend zero dollars on trai ing. Instead, she spent money and resources installing so-called Zucker-Boxes throughout Michigan, including Wayne County, Ann Arbor, Fling, Lansing, Muskegon, Pontiac, and Saginaw, in conjunction with Facebook, Dominion, Center for Tech and Civie Life ("CTCL Google, Amazon, and Apple. On December 14, 2020, ASOG produced its Antrim Michigan Forensics Report, Revised Preliminary Summary v2 [Exhibit 3]. This report states: We conclude that the Dominion Voting System is intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results. The system intentionally generates an enormously high number of ballot errors. The electronic ballots are then transferred for adjudication. The intentional errors lead to bulk adjudication of ballots with no oversight, no transparency, and no audit trail. This leads to voter or election fraud. Based on our study, we conclude that The Dominion Voting System should not be used in Michigan. We further conclude that the results of Antrim County should not have been certified. dd.Intervenor-Defendant Benson disputes the forensic conclusions set forth in the ASOG report. Instead, she has claimed this was the most secure election in history [Exhibit 4]. She made the following public statements: “Clerks did an absolutely extraordinary job rising to the challenges brought on this year,” Benson said. “The fact is: This was an incredibly successful election. Clerks dealt with at least twice as many ballots as they’ve dealt with before and despite the anticipation that results would be finalized on Friday, they were efficient, secure and got the job done in record time on Wednesday.” "I want to emphasize my appreciation for all of the election workers under enormous scrutiny who worked through the disruption from observers and. challengers." "Clerks need enough support and resource to avoid such errors,” Benson said. "Voters should be confident in this election, because it was handled so well under unprecedented circumstances.” Id, At the same time, she blamed all of the problems with the vote count on “human error.” There were human errors made, Benson said, like in Antrim County, where election officials forgot to update counting software, resulting in inaccurate results favoring Biden being posted to the county website. But the mistake was caught early on election night and the ballots were recounted by hand. Instances like that “led to conspiracies when it was just simple human error,” according to Benson. She said all other Michigan counties updated their software. 1d, If "human error" is a defense (as weak as it may be), Plaintiff is entitled to discovery regarding Intervenor-Defendant Benson's claims. Plaintiff seeks verification regarding how Intervenor-Defendant Benson spent resources in the State of Michigan; or if she actually spent no resources training any counties on use of the Dominion voting system or any election protocol " https://wwwmlive.com/politics/2020/1 I/despite-enormous-scrutiny-benson-says-michigan- held-its-most-secure-election.html 4at all, It is an interesting defense to blame election negligence on "human error" while at the same time failing to train the people who conduct the election. It is very convenient; one might say it was planned. Intervenor-Defendant Benson's objection that she is not part of the State of Michigan is without merit and frivolous. Requests to Produce #9, 10, 11, 12 Intervenor-Defendant Benson has refused to produce any correspondence and documents regarding the 2020 election, Her objections are without merit and frivolous. She is clearly hiding something. Her objection that she is not part of the State of Michigan is without merit and frivolous. Her objection that she doesn't understand the term "between" is without merit and frivolous. Her objection that she doesn't understand the term "regarding the 2020 election" is without merit and frivolous. Attomey General Dana Nessel claims to be one of the great legal minds of her time; yet basic definitions puzzle her. Intervenor-Defendant Benson and her counsel must be sanctioned for this conduct. Requests to Produce #13 and 14 Intervenor-Defendant Benson has refused to produce any correspondence and documents regarding the Dominion Voting System and Election Source, which is at the heart of this case. She is clearly hiding something. Her objection that she is not part of the State of Michigan is without merit and frivolous. Her objection that she doesn’t understand the term “regarding the 2020 election" is without merit and frivolous. Attorney General Dana Nessel claims to be one of the great legal minds of her time; yet basic definitions puzzle her. Intervenor-Defendant Benson and her counsel must be sanctioned for this conduct. gjRequests to Produce #16, 17, 18, 19 Intervenor-Defendant Benson has refused to produce any correspondence and documents regarding Google, Amazon, Apple, and Facebook. This request is relevant because these companies helped establish the Zucker-boxes in certain Democrat strong holds in Michigan and diverted money, training, and resources away from Antrim County, which in tum allowed Intervenor-Defendant Benson to claim this election was the safest in history and all negligence was solely the fault of "human error.” She is clearly hiding something. Her objection that she is not part of the State of Michigan is without merit and frivolous. Her objection that she doesn't understand the term "regarding the 2020 election" is without merit and frivolous. Attorney General Dana Nessel claims to be one of the great legal minds of her time; yet basic definitions puzzle her. Intervenor-Defendant Benson and her counsel must be sanctioned for this conduct. Requests to Produce #20 Intervenor-Defendant Benson is directly a party to this case. She intervened. Plaintiff’ didn't ask her to join, She joined entirely on her own, Plaintiff is entitled to her personnel and employee file in order to see if there is any evidence within that file that may impeach her testimony. D. — Sanetions MCR 2.313(B) permits this Court to impose sanctions on Defendants for failure to produce discovery, including judgment. MCR 2.313(B) permits this Court to impose sanctions on Defendants for failure to produce discovery, including judgment. In this case, Defendants have refused to comply with the Court rules, a Court order, and their continuing obligation to produce discovery materials subject to the formal interrogatories and request for production of documents. Likewise, MCR 2.504(B)(I), states that "(1) If party fails to comply with these 6rules or a court order, upon motion by an opposing party, or sua sponte, the court may enter a default against the noncomplying party or a dismissal of the noncomplying party's action or claims." Furthermore, MCR 2.504(B)(3) provides that a dismissal under this subrule "operates as an adjudication on the merits." See Makowski v Towles, 195 Mich App 106, 107-108; 489 NW2d 133 (1992). In LaCourse v Gupta, 181 Mich App 293; 448 NW2d 827 (1989) the court was faced with the same situation as in this case — unseemly tactics by the opposing party in failing to tum over discovery. The court stated "Plaintiff first contends that her failure to provide an answer to the expert witness interrogatory was the result of defendant's neglect to move to compel such answer." Id, at 295. However, the court further stated that "it was plaintiffs responsibility to answer defendant's interrogatory independent of any further action by defendant." Jd. And the same is true here. Intervenor-Defendant Benson has refused to produce information and is hiding information. The court in LaCourse then stated, "Plaintiff next claims MCR 2.313 requires the court to enter an order compelling discovery before dismissing a case for failure to answer an interrogatory.” Id, at 296. The court stated, "we do not dispute this proposition. However, in this case, the sanction imposed by the trial court was based on MCR 2.302(E)(1)(a)(ii) which requires supplementation of answer to discovery" and MCR 2.302(E)(2) states that failure to supplement — even without an order compelling discovery — results in sanctions under MCR 2.13. Jd. Similarly, MCR 2.310(C) requires a party to supplement. D. Conclusion and Relief Requested Plaintiffs respectfully requests that this Court grant Plaintiffs’ motion and order (a) that Intervenor-Defendant Benson to produce the documents requested and discussed herein; (b) direct Intervenor-Defendant Benson to pay all costs and reasonable attomey fees incurred by aPlaintiff in bringing this motion; and (c) grant any further relief and equity as justice may require. DePERNO LAW OFFICE, PLLC Dated: January 4, 2021 (s/ Matthew S. DePerno Matthew S. DePerno (P5262) Attorney for Plaintiff PROOF OF SERVICE On the date set forth below, I caused a copy of the following documents to be served on all attorneys of record at the addresses listed above 1. Plaintiff's Motion and Brief to Compel Discovery Against Intervenor Defendant Benson Service was electronically using the MiFile system which will send notification of such filing of the foregoing document to all attorneys of record. Dated: January 4, 2021 {s/ Matthew S. DePerno. Matthew S. DePerno (P5262) Attorney for Plaintiff 8