Go To Photographic Evidence
To put this case all on the Record, all Discovery, both Requests and Responses were filed with the Clerk of the Court by the Defendant Pro Se, not just the Certificates of Service.
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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,               )
Plaintiff,                                                         )
                                                                     )    Civil Action File No.:  
v.                                                                   )     05A06942-9
                                                                     )
RON MCKINNEY,                                           )
Defendant.                                                     )

PLAINTIFF'S MOTION TO COMPEL

Plaintiff Insulated Wall Systems, Inc. ("IWS") hereby moves, pursuant to OCGA 9-11-37 and Superior Court Rule 6.4 for an Order Compelling Production of Photographs from Defendant Ron McKinney. On or about August 3, 2005 IWS propounded its First Request for Production of Documents to Defendant. Request No. 5 stated:

Any and all photographs, drawings, diagrams, illustrations of any place or thing related to the incident which gives rise to the present lawsuit, including but not limited to any photographs of the Residence taken before and after the Original Construction of same, any and all photographs, drawings, etc. of the various stages of repairs, if any and at the present, any and all photographs of the damage alleged by you in your Counterclaim.

The original discovery requests have been filed contemporaneously herewith. In response, the Defendant stated, in part:

Defendant objects to this request on the grounds that it is vague, overly broad and seeks irrelevant information not calculated to lead to the discovery of evidence admissible in this case. Notwithstanding these objections, Defendant will continue to make available and has already made available documents in his possession, custody or control that otherwise responsive to this request ...
(Aff. of J. Tabor, Exh. "A").  Defendant also attached to his response a contact sheet with images of the photographs in question. Id. at Exh. "B".

The images produced were so small that they could not be seen.  Therefore, on September 21, 2005, undersigned counsel wrote to Defendant and requested that he make copies of the photographs in a manner so that the images could be seen. Id at Exh. "C". Undersigned counsel stated that Plaintiff would bear all costs for such reproduction as is customary. Id. Defendant did not respond to this request.

Prior to the home inspection on July 5, 2006, undersigned counsel again requested via email that the Defendant have available at the time of the inspection of the Defendant's residence those photographs. Id at p4.  Again, they were not produced and undersigned counsel verbally requested during the home inspection that the photographs be sent to her and that the Defendant would be reimbursed for costs. Id.  When the photographs were not received by July 25, 2006, in accordance with Court Rule 6.4 undersigned counsel sent a letter to the Defendant in an effort to resolve this discovery response. Id. at Exh. "D".  On August 2, 2006, Defendant responded and stated he would not produce the photographs because the request was "burdensome, annoying, and wasteful use of [his] resources. Id at Exh. "E".

Defendant's position is unique. While he initially agreed to the production, he now attempts to reverse that position and deny production solely because it "wastes his resources." Plaintiff has made it clear at each successive request that Plaintiff will bear the financial burden of these photographs. Reproducing these photographs, which Plaintiff presumes are digital, requires nothing more than uploading them via the internet to a third party and directing Plaintiff where to go to pick them up and pay for them at the time they are received.

The photographs are relevant and material to Plaintiff's case.  They illustrate that the work in question was performed in a reasonable and correct manner.  What's more, Defendant keeps notifying the Plaintiff of his intention to remove from the residence all of the work done by the Plaintiff and ultimately those photographs may be the only representation of the work as performed by the Plaintiff available for the jury to review.

The photographs exist and are in Defendant's possession.  Plaintiff is entitled to the production of said photographs as they are clearly relevant and perhaps some of the best evidence of the state of the work at the time actually performed.  Defendant has no reasonable defense to their production. Therefore, the Motion to Compel should be granted.

Dated August 16, 2006

Notice of Filing
Plaintiff's First Request for Production of Documents
Affidavit of Jana B. Tabor
Exhibit "A"  Defendant's Response to Plaintiff's First Request for Production of Documents
Exhibit "B" 11 pages of the initial photographs showing dates between 10/6/2004, 4/5/2005 and 8/24/2005
Exhibit "C" September 21, 2005 letter, offering to pay the expense of obtaining copies of the images in color photograph form.
Exhibit "D" July 25, 2006 letter, states claimed effort to resolve discovery dispute, claims in accordance with rule 6.4, gave date of August 10, 2006 to be due, threatened Motion to Compel
Exhibit "E" August 2, 2006 letter


Affidavit of Mike Entinger Personally appeared before the undersigned officer duly authorized by law to administer oaths, Mike Entinger (Affiant), who on oath deposes and says as follows: 1 My name is Mike Entinger. I am over the age of eighteen years and otherwise competent to provide this Affidavit. 2 I am employed as a Branch Manager for Lansing Building Products. Lansing Building Products is a distributor of vinyl siding products as well as windows. 3 I have been retained by the Plaintiff in this matter as an expert for purposes of the vinyl siding and window installation which is at issue in this case.  In that regard, I attended a home inspection of the Defendant's residence on July 5, 2006. 4 On or about July 7, 2006 I was contacted by Lynn Whyte, Vice President of Lansing Building Products.  He forwarded to me an e-mail dated July 6, 2006 directed to him by Robyn McKinney concerning my conduct at the home inspection.  A true and correct copy of that e-mail is attached hereto as Exhibit "A". FURTHER AFFIANT SAYETH NOT. Signed Mike Entinger Sworn to and subscribed before me this 13 day of July, 2006 Stamped Edward M. Copenhaver Forsyth County My commission expires 03/04/2008 Michael Stephen Entinger produced drivers license as id.

Affidavit of Scott Berlyoung Personally appeared before the undersigned officer duly authorized by law to administer oaths, Scott Berlyoung (Affiant), who on oath deposes and says as follows: 1 My name is Scott Berlyoung. I am over the age of eighteen years and otherwise competent to provide this Affidavit. 2 I am employed by Champia Corporation.  I am a certified home inspector.  I have been retained by the Plaintiff in this matter to be an expert regarding the renovation work performed by the Plaintiff on Defendant's residence. 3 In that regard I attended a home inspection on July 5, 2006 at the Defendant's residence. 4 On July 5, 2006, after returning to my office from the home inspection, I received an e-mail from Robyn McKinney whom I had met at the inspection.  A true and correct copy of that e-mail is attached hereto as Exhibit "A". FURTHER AFFIANT SAYETH NOT. signed: Scott Berlyoung Sworn to and subscribed before me this 19th day of July, 2006.  

Original Does Not Show it was Notarized by anyone
Exhibit "A" shows the evidence of the inspection report being sent to John Tabor on July 10, 2006


Affidavit of Jana B. Tabor Personally appeared before the undersigned officer duly authorized by law to administer oaths, Jana B. Tabor (Affiant), who on oath deposes and says as follows: 1 My name is Jana B. Tabor. I am over the age of eighteen years and otherwise competent to provide this affidavit. 2 I am counsel of record for Plaintiff Insulated Wall Systems, Inc. Attached hereto as Exhibit "A" is a true and correct copy of a letter I sent to the McKinneys in September, 2005 regarding Mrs. McKinney's representation of the Defendant's interest in this lawsuit. 3 In accordance with the Court's order from the bench during a hearing on June 19, 2006, I contacted Mr. McKinney in an effort to set up home inspection within 20 days of that hearing.  All correspondence with Mr. McKinney regarding the inspection occurred in writing and by email. 4 It was mutually agreed that the inspection would take place on July 5, 2006.  Also, in accordance with the Court's verbal order, in the notice of the home inspection I listed the names of two individuals who would be attending the inspection as my experts.  Those individuals were Mike Entinger and Scott Berlyoung. 5 The inspection went forward on July 5, 2006.  When I arrived at the McKinney residence I was met by Robyn McKinney and Nathan Gooch.  Mrs. McKinney stated that Mr. Gooch was "their expert". 6 We were at the McKinney residence for approximately one hour and thirty minutes.  During the time Mr. McKinney never presented himself.  Therefore, I had no choice but to discuss matters concerning the case and the house with Mrs. McKinney. 7 At the conclusion of the inspection I told Mrs. McKinney to inform Mr. McKinney that these men would be our experts and as such, if he wanted to initiate any contact with either individual or either individual's employer, he was to contact me and not them directly. 8 Within days after the inspection, I was informed by Mike Entinger that the day after the inspection Mr. McKinney contacted his employer about his conduct at the inspection.  Mr. Berlyoung also forwarded an email that he had received from Robyn Mckinney after the inspection. 9 Within days after the inspection, Mr. McKinney emailed me and let me know that he found it quite entertaining to watch the inspection from a hidden location.  A true and correct copy of that email is attached hereto as Exhibit "B". Further Affiant Sayeth not. Jana B. Tabor Sworn to and subscribed before me this 25th day of July, 2006 Lori A. Conner, Notary Public My commission expires May 7, 2007 Fulton County Georgia

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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,         )
Plaintiff,                                                   )            
                                                               )            Civil Action File No.:  
v.                                                             )                       05A06942-9
                                                               )
RON MCKINNEY,                                     )
Defendant.                                                )

PLAINTIFF'S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO COMPEL

COMES NOW Plaintiff Insulated Wall Systems, Inc. and as additional support for its Motion to Compel the Production for the Defendant of certain photographs of his residence, states as follows:

This Motion presents a quite unusual set of circumstances for the Court in the arena of discovery dispute.  In this case, a party who has indicated that he will produce certain discovery, without objection, then refuses to do so citing the waste of his resources.  As Plaintiff pointed out to the Defendant on several occasions prior to filing this motion, and as was noted for the Court in the Motion, Plaintiff offered to reimburse the Defendant for the expenses associated with the reproduction of the photographs.  Plaintiff indicated that production was as easy as uploading the images to a third party developer.  Two that come to mind are retailers Target and Wal-Mart.  A review of these retailers' websites indicates that production of photographs costs from 12c to 20c per photographs. *1 See Exhibit "A".  There was no request that the photographs be reproduced by the Defendant himself.

*1  Since no size photo has been specifically requested, and although every image of the photos previously produced is small, Plaintiff is only asking for 4x6 prints.  No doubt, Defendant would produce 11x17 if he thought Plaintiff would incur great expense to get them.

On August 18, 2006, Plaintiff filed this motion due to the Defendant's refusal to produce the photographs as specifically requested in Request No. 5. On August 31, 2006, Defendant produced a purported supplementation of discovery request No. 2 *2  See Exhibit "B".  That production was not the photographs but a color composite copy of those photographs.

*2  The photographs at issue would correspond to either request.

On September 17, 2006, undersigned Counsel received Defendant's "invoice" for the production of those "photographs".  See Exhibit "C".  The Court will note that Mrs. McKinney, who is the subject of Plaintiff's Motion for Sanctions, now seeks $907.00 from Plaintiff for forwarding these photocopies of photographs.

Obviously, once the Plaintiff was forced to file a motion to compel to get the photographs, and make no mistake still does not have a copy of the photographs, the only party entitled to recover expenses will be the Plaintiff as the Defendant has waived any right to object to the production.  OCGA 9-11-37(a)(4)(A) Serwitz v. Gen Elec. Credit Corp.  Further, the absolute absurdity of this invoice is just further evidence of the unreasonableness of the Defendant from start of construction project through litigation.  The offer to reimburse expenses for the copying of the photographs expired when a Motion to Compel was necessitated. Even at this point if the Court considers the Defendant entitled to be reimbursed for his expenses associated with their production, this "invoice" necessitates the request of the Plaintiff that the Court instruct the Defendant that he cannot recover anymore than what is obviously a reasonable hard cost of producing the images as photographs, clearly illustrated by the two retailers' price sheets attached as Exhibit "A".  The legislature saw a need to dictate to medical providers that they could not gouge for copies of medical records.  OCGA 31-11-3.  Apparently, this Defendant must be instructed by this Court that he too cannot gouge for producing evidence.  It is for these reasons, in addition to those in the original motion to Compel that Plaintiff requests that its Motion be GRANTED.

DATE   September 18, 2006

Exhibit "A"  Walmart photo developing price list
Exhibit "B"  Defendant's Supplemental Response to Plaintiff's Request for Production of Documents  Black & White copies of the Color Photographs Supplied on August 31, 2006
Exhibit "C" Invoice for Color Photography and Printing Services $907 Robyn McKinney


PLAINTIFF'S SECOND SUPPLEMENT IN SUPPORT OF MOTION TO COMPEL

COMES NOW Plaintiff Insulated Wall Systems, Inc. and as additional support for its Motion to Compel the Production for the Defendant of certain photographs of his residence, and after receiving Defendant's brief in opposition, states as follows:

1.  The only "explanation" for why production of the photos "wasted" resources came after the motion to compel was filed and therefore offers nothing against the validity of the motion.

2.  A digital camera collects data on a so called "memory stick".  Take the stick to a retailer and have a copy of the photos made if internet facilities are too slow to accommodate a download.  There has to be a way to download those photos separate from Defendant's home printer.

3.  The Defendant admits copies of the photos exist.  In the alternative, if downloading from the camera is too complicated, Take the copies to a retailer and have a second set made.

September 20, 2006

REQUEST FOR HEARING

COMES NOW, Plaintiff Insulated Wall Systems, Inc. and in accordance with Court Rule 6.3, hereby respectfully requests that the pending Motion to Compel, Motion for Protective Order and Sanctions, Defendant's Motion for Severe Sanctions and Motion to Extend Discovery be set down for hearing.

Dated September 19, 2006









































































 

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