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TABLE OF CONTENTS Pages TABLE OF CONTENTS……………………………………………………….......i TABLE OF AUTHORITIES…..……………………………………………......ii-iii I. II. STATEMENT OF FACTS ……………………………………………….1-3 PLAINTIFFS ARE ENTITLED TO OBJECT AND REQUEST THE STRIKING OF INADMISSABLE EVIDENCE………………………………………………………………..3-8 PLAINTIFFS PROPERLY PROPOUDED DISCOVERY on the REED DEFENDANTS JAN. 13, 2012…………………………...8-10 NEIL SANKEY’S DECLARATION, AND EXHIBITS “A” AND “B”………………………………………….…..10-13 CONCLUSION……,……………………………………………...……….13

III. IV. V.

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TABLE OF AUTHORITIES Cases Page(s)

Beyene v. Coleman Security Servs, Inc., 854 F.2d 1170, 1182 (9th Cir. 1988)……………………………………………….12 Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F. 2d 665, 667 (9th Cir. 1980)…………….…………………………………...12 Cambridge Electronics Corp. v. MGA Electronics, Inc., 227 F.R.D. 313, 321 (C.D. Cal. 2004)…………...…………………………………7 Orr v. Bank of America, NT & SA, 285 F.3d 765, 778-779 (9th Cir. 2002)………………………...…………………..12 Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001)…………………….8 Self-Ins. Inst. of America, Inc. v. Software and Info.Indus. Ass'n., 208 F.Supp.2d 1058, 1066 (C.D. Cal. 2000)…………………………………….....7 Torres v. City of L.A., 548 F.3d 1197, 1212-13 (9th Cir. 2008)………………….....3 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001)………………………………………….3, 7, 8

FEDERAL RULES OF CIVIL PROCEDURE Page(s) Rule 26(a)(1)(D)……………………………………………………………………5 Rule 26(a)(1)………………………………………………………………………..9 Rule 26(e)(1)………………………………………………………………………..7 Rule 34……………………………………………………………………………...9
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TABLE OF AUTHORITIES – Continued FEDERAL RULES OF CIVIL PROCEDURE Page(s) Rule 37………………………………………………………………………...4, 7, 8 Rule 37(c)(1)…………………………………………………………………..3, 4, 7 Rule 56(c)(2)………………………………………………………………………..3 FEDERAL RULES OF EVIDENCE Page(s) Fed. R. Evid. §602………………………………………………………………....13 Fed. R. Evid. §801(c)................................................................................................13 Fed. R. Evid. §802....................................................................................................13 Fed. R. Evid. §901(a)...............................................................................................13

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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 LISA LIBERI, et al, : : : : Plaintiffs, : : : : : : : : Defendants. : : : : : : : : : : : : : : CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS REPLY TO THE REED DEFENDANTS OPPOSITION TO PLAINTIFFS OBJECTIONS AND REQUEST TO STRIKE THE DECLARATIONS OF LISA SIMMONS AND THE ATTACHED EXHIBITS; LISA POLICASTRO; AND PORTIONS OF NEIL SANKEY’S DECLARATIONS AND ALL ACCOMPANYING EXHIBITS THERETO Date of Hearing: May 21, 2012 Time of Hearing: 10:00 a.m. Location: Courtroom 10D

vs. ORLY TAITZ, et al,

I.

STATEMENT OF FACTS: On April 4, 2012, Reed Elsevier, Inc., LexisNexis Risk and Information

Analytics Group, Inc., ChoicePoint, Inc., LexisNexis, LexisNexis Group,

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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LexisNexis Risk Solutions, Inc., and Seisint, Inc. d/b/a Accurint [“Reed Defendants”] filed their Motion for Summary Judgment, see Docket Number [“DN”] 491 and the Declaration of Lisa Simmons with three Exhibits, see DN 492; the Declaration of Lisa Policastro, see DN 493 and the Declaration of Neil Sankey with two [2] Exhibits, see DN 494-1. On April 20, 2012, Plaintiffs responded in Opposition to the Reed Defendants Motion for Summary Judgment; Disputed Facts; and Objections and Request to Strike the Declarations of Lisa Simmons and Exhibits “A” through “C”; Lisa Policastro; and portions of Neil Sankey’s Declaration and Exhibits “A” and “B” attached thereto. The Reed Defendants filed an opposition claiming they worked endlessly with Plaintiffs regarding discovery disputes and the Plaintiffs refused to comply and work with them [Reed Opp. pp. 1-2, ¶I]. This is completely untrue, see the Declaration of Philip J. Berg, Esquire filed concurrently herewith [“Berg Decl.”] at pp. 1-25, Exbs. “1 through “64”, pp. 26-420. The Reed Defendants claim that Plaintiffs did not meet and confer prior to filing their Objections and Request to Strike. However, Plaintiffs were not

required to do so. Regardless, Plaintiffs had sent numerous letters to the Reed Defendants and conducted a meet and confer regarding the discovery disputes. Instead of complying with discovery, the Reed Defendants filed their Motion for

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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Summary Judgment. Berg Decl. at pp. 5-17, 21 , ¶¶ 9, 11-12, 14-19, 23-25; 29 32, 44, Exb. “3”, pp. 60-63; Exbs. “6-8”, pp. 70-83; Exb. “13”, pp. 121-126; Exbs. “17”-“21”, pp. 148-159; Exbs. “29”-“30”, pp. 207-215; Exb. “32”, pp. 219222; Exbs. “36”-“37”, pp. 233-236; Exbs. “40”-“43”, pp. 273-284; and Exb. “57”, p. 388. Instead of addressing the substantive issues outlined in Plaintiffs Objections and Request to Strike, the Reed Defendants litigate the objections as a Motion to Compel. A Motion to Compel is not before this Court, as the Court has not granted Plaintiffs leave to file their Motion to Compel the Reed Defendants as of this date, and therefore the Plaintiffs have not been afforded the opportunity to file said Motion. II. PLAINTIFFS ARE ENTITLED TO OBJECT AND REQUEST THE STRIKING OF INADMISSABLE EVIDENCE

Federal Rules of Civil Procedure [“Fed. R. Civ. P.”] 56(c)(2) states in pertinent part: “Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Rule 37 “gives teeth” to Rule 26’s disclosure requirements by forbidding the use at a hearing or trial of any information that is not properly disclosed. Torres v. City of L.A., 548 F.3d 1197, 1212-13 (9th Cir. 2008) (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). Rule 37(c)(1) is a
Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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“self-executing,” “automatic” sanction designed to provide a strong inducement for disclosure. Id. (quoting Fed. R. Civ. P. 37 advisory committee’s note (1993)). The only exceptions to Rule 37(c)(1)’s exclusion sanction apply if the failure to disclose is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). Plaintiffs met and conferred with Michael B. Miller, Esquire and Irene Pertsovsky on April 4, 2012 over the discovery issues, but contrary to Mr. Miller’s statement, no agreement was met, see Berg’s Decl. at pp. 22-24, ¶¶47-50, Exbs. “59” –“62”, pp. 395-410. Attached to the Declaration of Michael B. Miller, Esquire is Accurint’s responses to Plaintiffs Interrogatories. Accurint response to Interrogatories “1” and “2” regarding individuals that may have discoverable information only refer to Kevin Folely, Jennifer Jung and Linda Clark. There is absolutely no mention of Lisa Simmons, Exhibits “A”, “B”, “C” attached to Lisa Simmons Declaration or Lisa Policastro, and no documents were provided in response to Plaintiffs Request for Production of Documents. The balance of the Reed Defendants did not respond or answer one Interrogatory, Admission or Request for Production of Documents and instead asserted boilerplate objections. Likewise, in the Reed Defendants Initial Disclosures, the only individuals named were again Kevin Foley, Jennifer Jung, and Linda Clark. The Reed

Defendants did not disclose Lisa Simmons, Exhibits “A”, “B”, “C” attached to

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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Lisa Simmons Declaration or Lisa Policastro. The Reed Defendants arguments regarding the Rule 26(f) conference fail. Because the Reed Defendants were joined in this suit after the Rule 26 Scheduling order, they were to produce their Initial Disclosures within thirty [30] days of being served, see Fed. R. Civ. P. 26(a)(1)(D). At no time, did the Reed Defendants take the required steps to supplement their responses to their Initial Disclosures or their Discovery responses to include the names Lisa Simmons or any of the documents attached to Ms. Simmons Declaration or Lisa Policastro as witnesses, or discoverable information. In fact, Exhibit “A” to Lisa Simmons Declaration is Todd Sankey and the Sankey Firm, Inc.’s application with IRBSearch, LLC. On page 4, Article “F” it states “Certain users (“Authorized Users”) may be able to obtain full (nine digit) social security numbers and rivers license numbers when appropriate (“SSN”) through some IRBSearch Services. Only those users that are within the Authorized User list below, and that use SSN’s for an Authorized Use identified below, qualify as Authorized users. To qualify as an Authorized User, Customer must identify and certify that its business is within the Authorized User List below and its use of SSN’s is within the Authorized User List Below”. Todd Sankey marked “other public or private entity for the purpose of detecting, investigating or preventing fraud – We are Legal Investigators for Attorneys & Insurance Companies in Civil

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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Litigation matters –criminal”, which qualified the Sankey’s to obtain full Social Security numbers, contrary to the Reed Defendants claims. The Reed Defendants claim they did not turn over any of the requested documents because a Protective Order was not in place. The Reed Defendants now claim that it was Plaintiffs responsibility to file the Protective Order being sought by the Reed Defendants. This is ludicrous. The Reed Defendants sent a draft of their proposed Protective Order on February 3, 2012. Mr. Berg approved this draft. After time had gone by, on February 22, 2012 Mr. Berg wrote to the Reed Defendants asking for a status of the Protective Order. The protective order was never filed by the Reed Defendants. Michael B. Miller Responded on March 4, 2012 sending a second copy of the proposed protective order to Mr. Berg and attorneys for all defendants requesting everyone to review it, let him (Mr. Miller) know of any changes and if all parties were in agreement. Mr. Berg again wrote back on March 4, 2012 giving his authorization to input his electronic signature that he did not disagree with the contents of the proposed protective order or with Reed’s Request. Mr. Berg received another Email from Mr. Miller stating he had received responses and agreements to stipulate from Mr. Berg and Mr. Colen, Counsel for the Sankey Defendants, but was awaiting responses from Orly Taitz and her attorney Jeffrey Cunningham. Mr. Miller was asking Ms. Taitz and Mr. Cunningham to please comply with his request. To date, the Reed Defendants

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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never filed their request for the Protective Order. At no time, during discussions with Mr. Miller, did Mr. Miller ever ask Mr. Berg or state it was Mr. Berg’s responsibility to file for a protective order on behalf of the Reed Defendants. Nor would Mr. Berg have agreed to such. See Berg Decl. at pp. 9-14, 17-18, ¶¶ 21, 2430, 34-36, Exb. “23”, pp. 175-193; Exbs. “30”-“35”, pp. 211-232; Exb. “39”, pp. 255-272; and Exbs. “44”-“46”, pp. 285-342. Under Rule 37(c)(1) of the Federal Rules of Civil Procedure, a party is generally precluded from using evidence not disclosed as required under Rule 26(e)(1)1. See Cambridge Electronics Corp. v. MGA Electronics, Inc. 227 F.R.D. 313, 321 (C.D. Cal. 2004); Self-Ins. Inst. of America, Inc. v. Software and Info. Indus. Ass'n., 208 F.Supp.2d 1058, 1066 (C.D. Cal. 2000). Rule 37 provides that “[i]f a party fails to provide information or identify a witness . . . as required by Rule 26(a) or (e), the party is not allowed to use that information or witness . . . to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). The burden of demonstrating that the failure is substantially justified or harmless falls on the offending party. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp. 259 F.3d 1101, 1107 (9th Cir. 2001).
Rule 26(e)(1) of the Federal Rules of Civil Procedure provides that litigants have a continuing duty to supplement or correct all interrogatory responses and requests for production if their prior responses are either incomplete or incorrect. Fed. R. Civ. P. 26(e)(1); see also Cambridge Electronics Corp., 227 F.R.D. at 321.
Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike
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As noted by the Ninth Circuit in Yeti, Rule 37 is intended to provide a strong inducement for disclosure, and a “self-executing” and “automatic” sanction for the failure to produce material during the discovery process. Id. at 1106 (citing Fed. R. Civ. P. 37 advisory committee's note (1993) and noting “particularly wide latitude” given to district courts to exclude evidence under this provision). “Courts have upheld the striking of such evidence even when the litigant’s entire cause of action or defense has been precluded.” Id. (citing Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001)). Nor is it necessary to show willful intent on the part of the offending party; exclusion is an appropriate remedy in the absence of bad faith or an explicit court order. See Yeti, 259 F.3d at 1106. III. PLAINTIFFS PROPERLY PROPOUDED DISCOVERY on the REED DEFENDANTS JAN. 13, 2012:

In accordance with the Court’s scheduling order issued in June 2011, on January 13, 2012, Plaintiffs served discovery by way of Interrogatories, Request for Production of Documents and Request for Admissions, on each of the Reed Defendants, which was shortly after the ruling on the Reed Defendants Motion to Dismiss. Responses were due by the Reed Defendants on or before February 20, 2012. The Reed Defendants were served with the Court’s scheduling order with Plaintiffs First Amended Complaint. Furthermore, the Reed Defendants were

duty to supplement or correct all interrogatory responses and requests for production if their prior
Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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present at the hearing for their and Intelius, Inc.’s Motion to Dismiss, when Intelius, Inc. asked for a stay of Discovery and this Court denied Intelius’ request. At no time, did the Reed Defendants raise the issue regarding a Rule 26(f) conference. It was not until the day the Initial disclosures were due, January 10, 2012, that the Reed Defendants began demanding a Rule 26(f) conference. In fact, Rule 26(a)(1) states: (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to

(ii)

(iii)

(iv)

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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indemnify or reimburse for payments made to satisfy the judgment. . (D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. [emphasis added]. Numerous “meet and confers” were held at the request of Michael B. Miller, Esquire. In fact, instead of picking up a telephone to call Mr. Berg, Mr. Miller waited and expected Mr. Berg to drop everything and call Mr. Miller to conduct the conference in which Miller was demanding. Mr. Berg complied each and every time. During each conference Mr. Miller had excuses for the delays. IV. NEIL SANKEY’S DECLARATION, AND EXHIBITS “A” AND “B”

Plaintiffs objected and requested this Court to Strike the testimony and Exhibits provided by Neil Sankey pertaining to where he obtained Plaintiff Liberi’s Social Security number as the statements and documents were hearsay; that the documents were unauthenticated, that they lacked foundation, and Neil Sankey did not have any personal knowledge of the statements or documents because he obtained the documents from this Court’s docket in 2011, and not in 2009 from where he claimed. Plaintiffs Objections and Request to Strike were further based on the fact that Neil Sankey had obtained the Accurint (Reed Defendants) Reports on Plaintiffs in March and April 2009, and immediately thereafter sent emails

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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containing Plaintiff Liberi and her spouses private data, including Social Security numbers in 2009, thus Neil Sankey obtained Liberi’s Social Security number from the consumer reports sold by the Reed Defendants to Neil Sankey on Plaintiff Lisa Liberi and her spouse, see DN 507 at pp. 7-10, ¶I. In response thereto, Miller at pp. 10-11, ¶¶24-26 argues that Neil Sankey obtained Plaintiff Liberi’s Social Security number from documents filed by Liberi in other Courts, that Mr. Sankey obtained directly from the Courts in which Liberi filed them and not from any of the Reed Defendants. In support thereof, Miller attaches and Exhibits “E” and “F”. Exhibit “F” is a June 14, 2010 letter and Emergency Motion to Strike and seal filings by Orly Taitz on June 10, 2010 to Judge Robreno in Pennsylvania, that Judge Robreno ordered filed, see DN 122. Exhibit “F” is Taitz’s June 10, 2010 filing, see DN 121, which further proves that the earliest date Neil Sankey obtained these unauthenticated documents was June 10, 2010, over a year after he accessed and obtained the Reports on Plaintiff Liberi and her husband from the Reed Defendants and over a year after Neil Sankey sent out his Emails containing Liberi and her husband’s Social Security numbers and other private data, further substantiating Plaintiffs objections and Request to Strike, DN 507. The Reed Defendants claim that the documents attached to Neil Sankey’s Declaration were not offered for the truth of the matters asserted, but instead to

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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support Neil Sankey’s testimony that proves where the “so-called ‘personal identifying information regarding Liberi’” came from, which the Reed Defendants claim was not from the LexisNexis Defendants. Documents used to support evidence, is in fact offered for the truth of the matter. Orr v. Bank of America, NT & SA 285 F.3d 765, 778-779 (9th Cir. 2002); Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F. 2d 665, 667 (9th Cir. 1980). The Reed Defendants then attempt to mislead the Court into believing that Neil Sankey, during his radio appearance on May 28, 2009, stated he obtained Plaintiffs private data from the San Bernardino County Court and Bankruptcy Court. This is untrue as shown by the Reed Defendants quote. Nowhere did Neil Sankey ever state he obtained any of the Plaintiffs or their spouses private data from these locations during his radio interview. Neil Sankey’s statements and Exhibits (documents) are inadmissible hearsay and double hearsay offered for the truth of the matters asserted, they lacked foundation and Neil Sankey did not have personal knowledge of the statements and documents. Beyene v. Coleman Security Servs, Inc., 854 F. 2d 1170, 1182 (9th Cir. 1988) (for purposes of Summary Judgment, attaching upon mere assertion that they were “true and correct copies” of exhibits was insufficient to lay a foundation and authenticate the attached documents absent personal knowledge of the facts in the documents); see also Orr, 285 F. 3d at 773-774, 777 (affidavit must lay a

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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foundation to authenticate discovery documents). See Also Fed. R. Evid. §§602, 801(c), 802 and 901(a). V. CONCLUSION:

For the reasons outlined in Plaintiffs Objections and Request to Strike and herein, Plaintiffs Objections and Request to Strike the Declaration of Lisa Simmons and Exhibits “A”, “B” and “C” attached thereto; the Declaration of Lisa Policastro; and portions of the Declaration of Neil Sankey and Exhibits “A” and B”, must be granted. Respectfully submitted, Dated: May 11, 2012 /s/ Philip J. Berg Philip J. Berg, Esquire Attorney for Plaintiffs

Liberi, et al, Plaintiffs Reply in support of their Objections and Request to Strike

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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, vs. ORLY TAITZ, et al, : : : Plaintiffs, : : : : : : Defendants. : : CIVIL ACTION NUMBER: 8:11-cv-00485-AG (AJW) PLAINTIFFS CERTIFICATE OF SERVICE

I, Philip J. Berg, Esquire, hereby certify a true and correct copy of Plaintiffs Reply
to the Reed Defendants Opposition to Plaintiffs Objections and Request to Strike the Declaration of Lisa Simmons and Exhibits “A”, “B”, “C” attached thereto; the Declaration of Lisa Policastro; and Portions of the Declaration of Neil Sankey and Exhibits “A” and “B” attached thereto was served through the ECF filing system this 11th day of May 2012 upon the following:

Marc Steven Colen, Esq. Law Offices of Marc Steven Colen 5737 Kanan Road, Ste. 347 Agoura Hills, CA 91301 Email: mcolen@colenlaw.com Attorney for Defendants: Todd Sankey; and The Sankey Firm, Inc.

Liberi, et al Plaintiffs Cert of Svc re Reply to Reeds Opp

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James F McCabe, Esquire Michael B. Miller, Esquire Morrison & Foerster 425 Market St San Francisco, CA 94105-2482 Email: jmccabe@mofo.com Email: MBMiller@mofo.com Attorney for Defendants: Reed Elsevier, Inc.; LexisNexis Group; LexisNexis; LexisNexis Risk and Information Analytics Group, Inc.; LexisNexis Risk Solutions, Inc.; LexisNexis Seisint, Inc. d/b/a Accurint; Choicepoint, 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 Attorney for Defendant Defend our Freedoms Foundation, Inc. Kim Schumann, Esquire Jeffrey P. Cunningham, Esquire SCHUMANN, RALLO & ROSENBERG, LLP 3100 Bristol Street, Suite 400 Costa Mesa, CA 92626 Email: pcookA@srrlawfirm.com 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 Reply to Reeds Opp

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