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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.                                                )


DEFENDANT’S MOTION TO COMPEL DISCOVERY
FROM INSULATED WALL SYSTEMS, INC.

Defendant hereby moves, pursuant to OCGA 9-11-37 and Superior Court Rule 6.4 for an Order Compelling Plaintiff, Insulated Wall Systems, Inc. to (1) produce the documents requested (2) respond under oath to the 28 interrogatories and (3) produce the video and photographs taken at the inspection of July 5, 2006.

Background Facts
On or about August 31, 2005 Defendant propounded his First Request for Interrogatories, Admissions, and Production of Documents to Plaintiff.  On or about November 29, 2005 Defendant propounded his Second Request for Production of Documents and Second Interrogatories.  On or about December 5, 2005 Defendant propounded his Second Request for Admissions. On or about January 3, 2006 Defendant propounded his Third Request for Production of Documents. All of these Discovery requests have been met with objections or with evasive and non-responsive answers. Each of these requests and Plaintiff’s responses have been previously filed with court.

On February 6, 2007 a deposition of Plaintiff was taken. John J. Tabor appeared as Plaintiff's representative. A Notice to Produce Documents at the Deposition was served on Plaintiff (Aff. of R. McKinney, P 20-22, Exh. “N”)

Beginning on or about October 1, 2005 Defendant began his attempts to resolve many discovery disputes concerning Plaintiff’s evasive Interrogatory responses and the lack of production of documents requested. To this date even though many attempts were made to get Plaintiff to cooperate and resolve the disputes throughout the last year of discovery, Defendant has been unsuccessful. (Aff. of R. McKinney, P2-9, and P17-19, Exh. “A”-“E” and Exh. “K”-“M”)

The Defendant respectfully reminds this Honorable Court that it is Plaintiff who began this litigation. It is Defendant’s position that Plaintiff has failed to produce the evidence that all work was completed in accordance with the contract. With such a level of evasiveness in Plaintiff’s discovery responses, the Defendant has no choice now but to seek the courts assistance with this matter.    

Defendant first calls the courts attention to Interrogatory No. 9 and Document Request No. 9 in particular as an example, however Defendant seeks an order regarding all unfulfilled discovery requests.  

Insurance Policies
           Concerning the insurance policies Plaintiff claimed at the time of contracting to carry, (Aff. of R. McKinney, P12, P13, Exh. “F” and Exh. “G”) Plaintiff has given various responses which when taken as a whole clearly indicate an attempt to be evasive and conceal facts as shown by the following:

Interrogatory No. 9
Please identify all insurance policies referred to on your post card, which would have been in effect on August 23, 2004, during the period of work and up to and including the present, identifying the policy number, issuing agent name, telephone number, address, dates of coverage, issue date, expiration date, and summarize the coverage. Identify which if any insurance policies may be liable to satisfy part or all of a judgment that may be entered in this action or to indemnify or reimburse for payments made to satisfy a judgment in this action.

Plaintiff’s response: “In responding to Interrogatory no. 9, Plaintiff states that the insurance referred to on the document referenced in this interrogatory is insurance procured by independent contractors which may perform construction work or other services on a structure owned by customers of the Plaintiff. All work performed on any customer’s property, including Defendant’s, is performed by independent contractors solicited by the Plaintiff. The Plaintiff does not perform any work on any structure, including Defendant’s residence. As such, the Plaintiff has no “insurance” with regard to construction projects.” (Aff.of R. McKinney, P14, P15, Exh. “H” and Exh. “I” and Notice of Filing Discovery dated June 1, 2006)

Document Request No. 9
For each insurance policy identified in Interrogatory No. 9, please produce all documents and other tangible things that support your responses.

Plaintiff’s response: “In responding to Defendant’s Document Request no. 9, Plaintiff states that there are no documents that satisfy this request within the Plaintiff’s possession or control.” (Aff. of R.McKinney, P14, P15, Exh. “H” and Exh. “I” and Notice of Filing Discovery dated June 1, 2006)

2nd Request for Admission No. 20: John Tabor as the representative of Plaintiff and Insulated Wall Systems Inc. carries no such insurance advertised and specifically claimed in the contract.

Plaintiff’s response: “Plaintiff objects to this request to the extent as worded it is nonsensical.” (Notice of Filing Discovery dated August 2, 2006)

2nd Request for Admission No. 18: John Tabor advertises to potential customers and allows customers to believe his company carries insurance against injury to its workers and the public.

Plaintiff’s response: “18. DENIED.”

On February 6, 2007 a deposition of Plaintiff was taken. John J. Tabor appeared as Plaintiff's representative. The transcript of that deposition is not available at the time of this writing yet the question concerning the insurance was asked and the response given was evasive and unresponsive. Plaintiff's attorney responded that Plaintiff did not know what insurance it possessed on August 23, 2004; the date the contract was signed. Plaintiff did not prepare for the deposition. (Aff. of R. McKinney, P20-P22, Exh. “N”)          

Defendant made repeated attempts to resolve these long standing discovery disputes concerning Interrogatory and Document Request responses with Plaintiff by writing letters and by email. A copy of the letters and the email correspondence are attached to this Motion with Defendant’s affidavit. Plaintiff's responses were for the most part "We stand by our initial response." (Aff. of R. McKinney, P3, Exh.“B”)

Arguments and Citation of Authority
Plaintiff’s advertisement sent to Defendant indicates that it is "insured." Plaintiff's advertisement is attached to R. Mckinney Affidavit and marked as Exhibit "F." (Aff. of R. McKinney, P10, Exh. “F”)

Plaintiff's contract states, "We carry adequate insurance to protect our customers against injuries to our workman or the public during the performance of our contract." Plaintiff's Contract is attached to R. McKinney Affidavit and marked as Exhibit "G." (Aff. of R. McKinney, P11, Exh.“G”)

As per Ron McKinney's Affidavit, Defendant testifies that Mr. Tabor indicated that Plaintiff had general liability insurance and workman's compensation at the time of contract signing. (Aff. of R. McKinney, P12, P13, P22, Exh. “F” and Exh “G”)

Defendant's Counterclaim includes a count of "Fraud in the Inducement." Defendant relied on statements made by Mr. Tabor and statements handwritten by Mr. Tabor in Plaintiff's advertisement and the pre-printed statements in the contract to come to a decision to sign said contract. Defendant has every right to know if these statements are in fact truthful. As it relates to the insurance Defendant was relying on statements made by Plaintiff’s representative and would not have signed the contract if Plaintiff had no insurance and would not have damages now. The fact that these statements were made and relied on by Defendant in contracting with Plaintiff makes the existence or nonexistence of insurance policies a material fact. (Aff. of R. McKinney, P13, P22, Exh. “F” and Exh “G”)

O.C.G.A.9-11-26 (b)(2) clearly indicates that insurance policies are within the scope of discovery as follows:
(b) Scope of discovery. Unless otherwise limited by order of the court in accordance with this chapter, the scope of discovery is as follows:
(2) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement;

           WHEREFORE, Defendant moves this court for an order to compel Plaintiff to produce said insurance policies and requested information or be ordered to stop claiming that Plaintiff has any insurance policies if it will not produce them.

28 Interrogatories
To date Defendant has propounded 28 Interrogatories to Plaintiff. They have been filed with the court. Exhibit "H" of R. McKinney’s Affidavit is a transcript prepared from Defendant’s Requests and Plaintiff's responses. Plaintiff’s responses have been filed with the court with a Notice of Filing Discovery dated June 1, 2006. (Aff. of R. McKinney, P14, Exh. “H”)

Plaintiff’s responses to Interrogatory 21 through Interrogatory 28 were as follows:
"In responding to Interrogatory XX Plaintiff objects to it in its entirety to the extent that it exceeds the number of interrogatories allowed pursuant to O.C.G.A.9-11-33."

Defendant is aware that O.C.G.A. 9-11-33 limits the number of interrogatories to 50 to include subparts, however, Defendant cannot see 50 interrogatories up to and including Interrogatory Number 20. In addition, O.C.G.A. 9-11-33 states in pertinent part that  
"...no party may serve interrogatories containing more than 50 interrogatories, including subparts, upon any other party without leave of court upon a showing of complex litigation or undue hardship incurred if such additional interrogatories are not permitted."

Defendant's Counterclaim includes counts of breach of contract, negligence, misrepresentation and fraud in the inducement. It is Defendant's position that these counts more than qualify this litigation as complex. It is also Defendant’s position that due to the evasive responses that were given to all 28 of Defendant’s Interrogatories that at trial the Defendant would incur an undue hardship if Plaintiff is allowed to keep making claims that it has not supported with any evidence during discovery. Plaintiff must be stopped from being evasive regarding the material facts of the complaint and material facts of the counterclaim. (Aff. of R. McKinney, P3, P14, P16, P17, Exh. “B”, Exh. “H”, Exh. “J”, Exh. “K”)

           WHEREFORE, Defendant moves this court for an order compelling Plaintiff to respond to Interrogatory Number 21, 22, 23, 24, 25, 26, 27 and 28. In addition, now that discovery is completed and Defendant has made the request for supplementation of Interrogatories Number 1-20, Defendant asks the Court to look at all the responses given and most particularly for Interrogatory Number 5 and Number 6 and make a determination whether the responses are sufficient. Clearly Defendant does not find the responses sufficient. If the court determines that the responses are not sufficient the Defendant asks for an order compelling Plaintiff to supplement its responses now with complete and non-evasive responses given under oath.

Lack of Oath for Interrogatories
O.C.G.A 9-11-33 (a)(2) states in pertinent part:
"(2) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them."

Defendant has received 2 so-called "verifications" from Plaintiff concerning the Interrogatories. They are attached to R. McKinney Affidavit and marked as Exhibit "J." As is obvious neither one is notarized so the answers given cannot be under oath. In addition, the only signatures attached to the initial responses, are those of Plaintiff’s attorneys, and one who has already withdrawn from this case. It is Defendant’s position that without a signature under oath of the one making the responses, Defendant has not been afforded proper due process under the Civil Practice Act.  (Aff. of R. McKinney, P16, Exh. “J”)

           WHEREFORE, Defendant moves this court for an order compelling Plaintiff to follow O.C.G.A.9-11-33 and provide complete answers to the Defendant’s Interrogatories under oath signed by the person making them.

Video and Photographs
Defendant has made 2 document requests for photographs made by Plaintiff or Plaintiff's agents over the course of this litigation. The requests and Plaintiff's responses and Plaintiff's supplemental responses are as follows:

Document Request No. 3 Please produce all photographs of Defendant’s residence, including but not limited to those showing the residence before, during or after work on the siding, gutters, windows, slab or decks Plaintiff attempted to installed on Defendant’s residence.  

Plaintiff’s response: “In responding to Defendant’s Document Request no. 3,Plaintiff states that there are no photographs or documents in Plaintiff’s possession or control (other than images of digital photographs taken by the Defendant or on the Defendant’s behalf) which satisfy this request. Because Defendant is already in possession of said digital images, Plaintiff will not reproduce the same.”  

Plaintiff’s Amended response to Document Request No. 3,dated September 11, 2006: “Plaintiff withdraws its original response and replaces it as follows: In responding to Defendant’s Document Request no. 3, Plaintiff objects to the extent that certain photographs and a video tape in the Plaintiff’s possession or control constitute and are protected by the work product doctrine as they were produced at the direction of undersigned counsel and during the course of litigation. The remainder of images in Plaintiff’s possession are images of photographs produced by the Defendant and as Defendant is already in possession of such images, Plaintiff will not reproduce them.” (Aff. of R.McKinney, P15, Exh. “I”)

Document Request No. 5 Please produce all correspondences, photographs, notes, phone records, calendar records, payroll records and other tangible things relating to or referring to Defendant’s complaints about the quality or workmanship of Plaintiff’s installation of home improvements on Defendant’s residence and which support any claims of repeated attempts to satisfy Defendant.

Plaintiff’s response: “In responding to Defendant’s Document Request no. 5,Plaintiff will produce all documents in its possession or control which satisfy this request.”

Plaintiff’s Amended response to Document Request No. 5,dated September 11, 2006: “Plaintiff withdraws its original response and replaces it as follows: In responding to Defendant’s Document Request no. 5, Plaintiff objects to the extent that certain photographs and a video tape in the Plaintiff’s possession or control constitute and are protected by the work product doctrine as they were produced at the direction of undersigned counsel and during the course of litigation. Plaintiff has produced all other documents in its possession or control which satisfy this request.” (Aff. of R. McKinney, P15, Exh. “I”)

In addition, on August 1, 2006, August 22, 2006 and again on August 28, 2006 Defendant requested all photographs and videos taken of Defendant's residence. These letters are attached to Defendant’s Affidavit and marked as Exhibit "K" and Exhibit “L” and Exhibit “M”. Defendant did not receive a response to these letters; however, Defendant did receive Plaintiff's supplemental responses to the requests on September 11, 2006 as noted above. (Aff. of R. McKinney, P17-P19, Exh. “K”-“M”)

Mr. John J. Tabor made the video and some still photographs at issue here personally during the inspection of Defendant's residence on July 5, 2006. It was Mr. Tabor's eye on the eyepiece of the camera and it was Mr. Tabor's mind that directed what would be photographed, therefore with this video and still photographs Defendant can conclusively demonstrate that Mr. Tabor actually saw what he videotaped and photographed. With the aid of this videotape and photographs Mr. Tabor will not be able to testify that he did not see whatever particular work problem that Defendant may focus on and is on the video tape and photographs. Principally Defendant wants this video and photographs for the purposes of impeachment and substantiation of his claim.  

Defendant is aware of the "work product doctrine" and he is also aware that the video may contain an audio file made concurrently with the video that could very well contain communication between attorney and client that could be considered a part of the work product doctrine. However, the raw footage of the video and still photographs made in and around Defendant's residence, in Defendant's opinion, could not possibly contain mental impressions, conclusions, opinions or legal theories that would place the video or photographs under the rubric of the "work product doctrine."

And finally, photographs were made at the time of the inspection by Mr. Mike Entinger, and Mr. Scott Berlyoung, Plaintiff's consultants during the inspection on July 5, 2006 who have since been designated Plaintiff’s experts. These photographs are necessary to Defendant at trial for purposes of questioning these individuals about what was seen. In fact Plaintiff was requested to produce all photographs and videos for use at the deposition of Plaintiff on February 6, 2007. Plaintiff failed to produce them. The photographs and video are in Plaintiff’s possession and control. Defendant can only obtain them from Plaintiff. (Aff. of R. McKinney, P20, Exh. “N”)  

           WHEREFORE, Defendant moves this court for an order for Plaintiff to produce the complete video including the audio to this court for review to determine which parts, if any, fall under the rubric of "work product doctrine" and if it is found that any portion does fall under the doctrine, Defendant moves this court for an order compelling Plaintiff to redact only those portions and produce to Defendant those portions of the video that does not in the court's opinion fall under the work product doctrine. Furthermore Defendant moves this Court for an Order compelling Plaintiff to produce all still photographs made by John Tabor on July 5, 2006.

           WHEREFORE, Defendant moves this court for an order compelling Plaintiff to produce all the photographs made by Mr. Mike Entinger and Mr. Scott Berlyoung during the inspection of Defendant's residence on July 5, 2006.

For the reasons stated herein, and supported by the attached Affidavit, Defendant respectfully requests that this Honorable Court GRANT the Defendant’s Motion To Compel Discovery from Plaintiff and further grant to the Defendant whatever other relief the court deems just and fit under the circumstances.

This _16th_ day of February 2007.
Respectfully submitted,


_____________________________
Ron McKinney, Defendant
4083 Red Laurel Way
Snellville, GA  30039
770-972-2576


Copy Sent to:
Mrs. Jana Tabor, Attorney for Plaintiff
450 Arborshade Trace,
Duluth, GA 30097  770-814-8134

Includes Defendant’s Affidavit and Exhibits listed below  
Exhibit “A”  Defendant’s letter dated October 1, 2005
Exhibit “B”   Jana Tabor’s email dated October 12, 2005
Exhibit “C”  Defendant’s letter dated October 14, 2005
Exhibit “D”  Defendant’s letter dated October 29, 2005
Exhibit “E”  Defendant’s letter dated November 4, 2005
Exhibit “F”   Plaintiff’s post card advertisement
Exhibit “G”  Plaintiff’s contract
Exhibit “H”  Defendant’s Interrogatory transcript
Exhibit “I”   Defendant’s Document Request transcript
Exhibit “J”   Plaintiff’s documents labeled verifications
Exhibit “K”   Defendant’s letter dated August 1, 2006
Exhibit “L”  Defendant’s letter dated August 22, 2006
Exhibit “M” Defendant’s letter dated August 28, 2006
Exhibit “N”   Notice to Produce Documents


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.                                                     )

CERTIFICATE OF SERVICE

UNDER PENALTY OF PERJURY, I CERTIFY that a true and exact copy of  

DEFENDANT’S MOTION TO COMPEL DISCOVERY
FROM INSULATED WALL SYSTEMS, INC.

was provided to Plaintiffs Attorney at the address listed below by depositing the same in the United States Mails, with sufficient postage thereon



this _16th_ day of February 2007.


_____________________________
Ron McKinney, Defendant
4083 Red Laurel Way
Snellville, GA  30039
770-972-2576


Sent to:
Mrs. Jana Tabor, Attorney for Plaintiff
450 Arborshade Trace,
Duluth, GA 30097  
770-814-8134


AFFIDAVIT OF RON MCKINNEY  

STATE OF GEORGIA
COUNTY OF GWINNETT
Personally appeared before the undersigned officer authorized to administer oaths, comes Ron McKinney, who after having been duly sworn, deposes and states:


1.
My name is Ron McKinney. I am the Defendant in this action. I am over the age of eighteen years. I have personal knowledge of the matters stated below and I am competent to provide this affidavit.


2.
Attached hereto as Exhibit A is a true and correct copy of a letter dated October 1, 2005 that I wrote to Plaintiff’s attorney attempting to resolve many discovery disputes with regard to responses given to Interrogatories and Document Requests.


3.
Attached hereto as Exhibit B is a true and correct copy of an email dated October 12, 2005 that I received from Plaintiff’s attorney in response to my attempts to resolve the many discovery disputes with regard to Plaintiff’s responses given to Interrogatories and Document Requests.


4.
Interrogatory Number 5 and Number 6 key off from Plaintiff’s complaint paragraphs number 5 and 6. Plaintiff has not addressed the request with any supporting facts. The response only restates the allegations from the complaint.


5.
On page 4 of the email under Interrogatory 5 and 6, I explain in detail what facts I was seeking. On page 1 of the email under Interrogatory 5, 6, and 9 Plaintiff states it stands on its initial response. I have denied the complaint allegations and demanded strict proof with my answer. The responses given have not been given under oath signed by the person giving them. I made it known that this is unacceptable with my letter dated October 14, 2005.
6.
Attached hereto as Exhibit C is a true and correct copy of a letter dated October 14, 2005 that I wrote to Plaintiff’s attorney attempting to resolve this continuing discovery dispute. Plaintiff did not respond to this letter.

7.
Attached hereto as Exhibit D is a true and correct copy of two letters dated October 29, 2005 that I wrote to Plaintiff’s attorney as a final attempt to resolve this continuing discovery dispute. Plaintiff did not respond to these letters.

8.
Attached hereto as Exhibit E is a true and correct copy of the letter dated November 4, 2005 that I wrote to Plaintiff’s attorney regarding the duty to supplement its responses under O.C.G.A 9-11-26 and 9-11-37. Plaintiff did not respond to this letter.

9.
Interrogatory Number 9 and Document Request Number 9 deal with the insurance Plaintiff led me to believe existed. I have made it known that I do not accept the evasive responses given.

10.
Attached hereto as Exhibit F is a true and correct copy of the post card advertisement sent by Plaintiff to my residence, which contains the words “Insured”.

11.
Attached hereto as Exhibit G is a true and correct copy of Plaintiff’s contract that states “We carry adequate insurance to protect our customers against injuries to our workman or the public during the performance of our contract.”

12.
On August 23, 2004 during discussions with Mr. Tabor prior to me signing the contract Mr. Tabor indicated to me that his company possessed a general liability policy and he indicated that his workers were covered by workman's compensation. Mr. Tabor had a piece of paper that appeared to show there was a general liability policy.

13.
I relied on Plaintiff's hand written advertisement and the pre-printed item in the contract along with Mr. Tabor’s claims of being insured when making my decision to sign the contract. I would not have signed a contract with Mr. Tabor had he informed me that there was no insurance covering liability for the project or covering his workers while on the job.

14.
Attached hereto as Exhibit H is a true and correct copy of a transcript I had prepared from the 28 Interrogatory requests propounded to Plaintiff and the responses.

15.
Attached hereto as Exhibit I is a true and correct copy of a transcript I had prepared from the Document requests propounded to Plaintiff and the responses. At the end of the transcript is the list of documents Plaintiff has produced. There are no insurance documents that have been produced.

16.
Attached hereto as Exhibit J is a true and correct copy of the two documents labeled verifications for Plaintiff’s Supplemental Interrogatory responses. I have made it known that these are not acceptable to me as they are not notarized to show they are given under oath.

17.
Attached hereto as Exhibit K is a true and correct copy of the letter dated August 1, 2006 that I wrote to Plaintiff requesting a proper verification. The letter asks for production of documents, supplementation of Interrogatories, and production of the photographs and the video. Plaintiff did not respond to this request.

18.
Attached hereto as Exhibit L is a true and correct copy of the letter dated August 22, 2006 that I wrote to Plaintiff requesting production of the photographs and video taken at the inspection on July 5, 2006. Plaintiff did not respond to this request.

19.
Attached hereto as Exhibit M is a true and correct copy of the letter dated August 28, 2006 that I wrote to Plaintiff requesting production of the photographs and video taken at the inspection on July 5, 2006. Plaintiff did not respond to this request.

20.
On February 6, 2007 pursuant to notice I personally took the deposition of Plaintiff. John J. Tabor represented Plaintiff at the deposition. A Notice to Produce Documents at the deposition was sent by certified mail to Plaintiff’s attorney.

21.
Attached hereto as Exhibit N is a true and correct copy of the Notice to Produce Documents dated January 17, 2007. Plaintiff did not produce at the deposition the insurance documents previously requested. Plaintiff did not produce at the deposition the photographs and video previously requested.

22.
At that deposition I asked Mr. Tabor to state what insurance policies Plaintiff would have had in effect on August 23, 2004, during the construction period and presently. Mr. Tabor’s attorney directed him not to answer the questions. As the deposition went on Mr. Tabor did respond to some questions concerning insurance indicating there was a general liability policy. I asked him to produce it and he did not. Plaintiff’s attorney later stated that Plaintiff does not know what insurance it had at the time of the contract.


_____________________________
Ron McKinney, Defendant
4083 Red Laurel Way
Snellville, GA  30039
770-972-2576


State of Georgia,
County of Gwinnett

BEFORE ME personally appeared, Ron McKinney who, being by me first duly sworn and identified in accordance with Georgia law, did execute the foregoing in my presence
This ____ day of ____________ 2007,

__________________________ Notary Public  
My commission expires:




NOTICE OF FILING DISCOVERY





Pursuant to Section 29.1 of the Georgia Civil Practice Act (O.C.G.A 9-11-29.1), Defendant, Ron McKinney, hereby files with the Court the following items of discovery identified below:
A.     Affidavit Ron McKinney dated February 16, 2007

Defendant is filing these items of discovery for use and consideration in any hearings, for Defendant’s Motion To Compel Discovery, and the pending jury trial.  
This _16th_ day of February, 2007.


Respectfully submitted,
_____________________________
Ron McKinney, Defendant
4083 Red Laurel Way
Snellville, GA  30039
  770-972-2576


Sent to:
Mrs. Jana Tabor, Attorney for Plaintiff
450 Arborshade Trace,
Duluth, GA 30097  
770-814-8134
                            
)




CERTIFICATE OF SERVICE



UNDER PENALTY OF PERJURY, I CERTIFY that a true and exact copy of the foregoing Notice of Filing Discovery was provided to Plaintiff’s Attorneys at the address listed below by depositing the same in the United States Mails, with sufficient postage thereon
this _16th_ day of February 2007.


_____________________________
Ron McKinney, Defendant
4083 Red Laurel Way
Snellville, GA  30039
770-972-2576


Sent to:
Mrs. Jana Tabor, Attorney for Plaintiff
450 Arborshade Trace,
Duluth, GA 30097  
770-814-813










































































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 RESPONSE TO DEFENDANT'S MOTION TO COMPEL

COMES NOW PLAINTIFF INSULATED WALL SYSTEMS, INC., by counsel and for its response to Defendant's Motion to Compel, states as follows:

General Objection

Defendant has not complied with Uniform Superior Court Rule 6.4 in drafting his Motion.  Although he quotes Interrogatories, Request for Production of Documents and Requests for Admissions to which he takes issue with the response(s), he does not state specifically with regard to each what his objection is, nor does he ever cite any legal authority for his objections.  For these procedural reasons, his motion should be denied in its entirety.

Nonetheless, anticipating that the Court will require a response, Plaintiff has attempted to respond to his "objections".

Argument and Citation of Authority

Insurance Policies
With regard to Plaintiff's response to Interrogatory No. 9, what more could Plaintiff say?  It has admitted that the insurance in question and the insurance referred to in the Interrogatory was insurance procured by independent subcontractors.  As is the case with most general contractors, Plaintiff does not have "insurance" for its own work.

See e.g. Glens Falls Ins. Co. v. Donmac Golf Shaping, 203 Ga. App. 508, 417 S.E. 2d 197 (1992); Gary L. Shaw Builders v. State Auto Mut. Ins. Co., 182 Ga App. 220, 355 S.E.2d 130 (1987) (Commercial General Liability Policies have no provisions for insuring a contractor's work.)  Further as Plaintiff explained in its response, Plaintiff performed no work on the premises and therefore any insurance it may have had for other risks would be inapplicable to Defendant's counterclaims.  It is also for this reason why the Defendant's citation to OCGA 9-11-26(b)(2) has no bearing.  Perhaps all that could have been added to the response is that Plaintiff has no insurance policy to which any claim Defendant is making vis-a-vis his counterclaim would potentially have coverage. As such, Plaintiff has amended its answer to that effect.

With that said, there is nothing that Plaintiff could add to its Response to Document Request No. 9. Plaintiff has no documents in its possession or control that satisfy this request.  Any insurance policy referenced by Interrogatory No. 9 would be those procured by subcontractors.  Plaintiff does not have those policies.

Second Request for Admissions No. 20 is somewhat related to this "insurance" issue.  Defendant offers nothing as an objection to the response. Nonetheless, if an explanation is required, Plaintiff objected to the request because as worded it quite frankly makes no sense.  Defendant seems to want Plaintiff to admit or deny that John Tabor [a non-party] personally carries no "such" insurance advertised and specifically claimed in the contract.

The purpose of Request for Admissions is to conclusively establish a statement of fact or the application of law to fact, including the genuineness of a document related to the litigation at hand.  OCGA 9-11-36.  This particulate "request" muttles issues concerning non-parties.  Further, what is meant by the phrase "and Insulated Wall Systems, Inc." after John Tabor as the representative of Plaintiff" and followed by a singular verb "carries"? It's bad english and for that reason, Plaintiff has objected to it and stands by that objection.

Finally, Plaintiff has denied Defendant's Second Request for Admission No. 18.  This is not the proper forum to dispute that denial.  If Defendant thinks Plaintiff has contradicted that denial he should show that contradiction to the jury.

In sum, Plaintiff has adequately explained what insurance was applicable to Defendant's project, who procured it, and the fact that Plaintiff does not have possession or control over any such policies.  In addition, it should be noted that no injuries occurred on this job which would have subjected the Defendant to potential liability.  If there is any relevance, that is why contractors advertise they are "bonded" or "insured".  The subcontractors had worker's compensation insurance but it was not needed and is a non-issue in this case.  This is simply not a case where insurance coverage comes into play and any attempt by the Defendant to cite it as justification for a fraud claim or anything else is nothing but a red herring.  Therefore, for the reasons set forth herein, Defendant's Motion as to the above-referenced four discovery requests must be DENIED.

28 Interrogatories

OCGA 9-11-33 allows a party to propound 50 interrogatories, including subparts.  By undersigned counsel's count in the first 21 Interrogatories, which Plaintiff responded to, Defendant propounded 50 interrogatories.  For example, Interrogatory No. 2 contains 5 requests.  Interrogatory No. 10 contains 6. Likewise, Interrogatory No. 12 contains 7.  The Georgia Legislature has seen fit in somewhat recent years to increase the number of interrogatories from 25 to 50.  However, in doing so it is clear that it intended that 50 be the limit in the course of general litigation.  Copher v. Mackey, 220 Ga. App. 43, 467 S.E.2d 362 (1996).  The Defendant asked more than 50 and as such, Plaintiff is under no legal compulsion to respond via the interrogatory devise.

Perhaps recognizing this error of his ways, at this late hour, Defendant now seeks to have these previously erroneously propounded additional interrogatories "grandfathered in" by attempting to move the court to find this case "complex litigation."  This case could be no further from the "complex".  There is one plaintiff, one defendant, and after summary judgment, common law claims for breach of contract and little else.  Complex litigation involves multiple parties, multiple jurisdictions, conflict of law issues and/or complex state or federal statutes.  The decision as to whether a case is complex is on for the trial courts discretion.  However, if this case is complex, every case save magistrate's court cases is complex!

As for the issue of undue hardship, there is absolutely no hardship presented in this case.  When the Plaintiff objected to the interrogatories in question, all that the Defendant had to do was ask those questions verbally at the Plaintiff's Representative's deposition which was held well after he propounded of the subject interrogatories.   The Defendant acting as his own counsel proceeds at his own peril and should not be rewarded for not understanding the practice of law.  Howell v. Styles, 221 Ga. App. 781, 472 S.E.2d 548 (1996).

Nothing about Defendant's attempt to have the Plaintiff respond to additional interrogatories compels this Court to order those additional responses.  Therefore, Defendant's Motion as to Interrogatories 21 through 28 must be DENIED.1

Footnote 1  Defendant includes within this section reference to having the Court review Plaintiff's responses to Interrogatories No 1-20 and make its own conclusion as to the adequacy of those responses.  To the extent the "adequacy" of the responses in the eyes of the Defendant is the purpose of a Motion to Compel and Plaintiff is not aware of any authority to compel to Court to sua sponte make such determination, Plaintiff offers not response to this "request" as it is legally inadequate.

Verification of Interrogatory Responses

To the extent that any verification of Plaintiff's Responses to Defendant's Interrogatories has heretofore been procedurally inadequate or subject to a debate on its adequacy due to the notary's expired commission, Plaintiff has now amended all responses to Interrogatories with new Verification, incorporating all previous amendments in an attempt to simplify and clarify the responses.

Video and Photographs

As is evidenced by Plaintiff's responses to Document Request No. 3, as amended, the only "photographic" documents in Plaintiff's possession, other than those supplied by the Defendant after Plaintiff filed a Motion to Compel the production, are photographs, numbering less than 10, and a short videotape taken at undersigned counsel's request by Mr. John Tabor at the home inspection on July 5, 2006. (Aff. of Jana Tabor p4, files concurrently herewith).  Plaintiff's response to the Request at issue clear invokes the privilege of attorney work product over those images and Defendant has offered no legal foundation for why such privilege does not apply.  His only reason for needing the materials is impeachment. (Brief in support, p. 11) (emphasis added).  Nonetheless, recognizing the Court will want some response, and despite the fact that the Plaintiff is under no obligation to justify the invocation of the work product privilege, it applies to these images.

By definition the work product doctrine is a privilege afforded to, inter alia, the mental impressions, questions and personal beliefs of an attorney engaged in the representation of his client.  OCGA 9-11-26(b)(3).  This fundamental principle of modern legal practice goes back to decisions of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947) and includes countless tangible and intangible things a lawyer may produce while representing his client as part of the preparation of his case.

In this case, the photographic materials that Defendant is claiming he has a right to discover are materials created in the presence of and at the direction of undersigned counsel.  (aff. of Jana Tabor p4).  Specifically, they are a few photographs and a short videotape of some of the areas of the Defendant's residence that Defendant is claiming that Plaintiff's work is defective therein.  Id. at pp4, 5. The images embody aspects of the work which undersigned counsel had questions about that she wanted to discuss with her client because counsel's legal specialty is insurance coverage, not construction.  Id. These materials were created during the home inspection. Id. They were created solely as a result of questions undersigned counsel had at that time concerning the work in specific areas and were created by John Tabor who is the President and representative of undersigned counsel's client. Id.  They were not created with collaboration of any other person present at the home inspection. Id.  They are the embodiment of mental impression of undersigned counsel both as to what the image is and, with regard to the videotape, contain verbal statements of undersigned counsel to her client regarding questions she had about the work. Id. at p7.  Although the means of memorialization are modern, they are no different than if undersigned counsel had written down on a legal pad areas of the work she would like further information from her client about.  They were created solely because the Defendant refused to produce to Plaintiff copies of over 100 photographs in his possession of the work in question in usable form prior to the inspection. Id. at p3.  If those photographs had been produced in a readable form they could have been referred to and flagged as warranted by undersigned counsel during the inspection to later address her questions.  Id. at p6.  They were created in a less than hospitable environment necessitating that counsel address certain issues later with her client rather than on site and in the presence of the ever watchful Mrs. McKinney.  Id. They were never intended to be used as evidence by the Plaintiff and will not be proffered as such. Id. at p7.

Defendant would not follow the rules of discovery.  He failed to supply Plaintiff's counsel with photographs of the residence which would have been ideal for addressing questions concerning the work.  Now he wants to get inside undersigned counsel's head as to her questions and concerns on the day of the home inspection as a result of having to make her own photographic record to refer to when preparing the case for trial. 2

footnote 2  The photographs taken by the Defendant were not made available to Plaintiff's counsel in readable form until a Motion to Compel was filed.  Those photographs had been specifically requested on several occasions prior to the inspection.  The date of service of that production was September 18, 2006, some three months after the home inspections.

As for the videotape, he is asking the court to allow him to be present at conversations held between an attorney and her client.  The work product doctrine protects the adversarial system by allowing an attorney to prepare his case without his work being used against him.  McKesson HBOC v. Adler, 254 Ga. App. 500, 503, 562 S.E.2d 809 (2002).  The documents in question are privileged and Defendant has failed  to show waiver of that privilege or special need for the information.  As such, Defendant's motion must be DENIED.3

Footnote 3  Defendant's brief also makes reference to photographs taken by Plaintiff's expert.  Scott Berlyoung.  The brief states that Defendant has not been provided with photographs taken by Mr. Berlyoung.  However, Mr. Berlyoung's report was provided to the Defendant and contained the images in question.  They are the equivalent of "photos" Plaintiff received in response to a Motion to Compel.  Therefore, Plaintiff has not withheld the information claimed and no further response on this point is warranted.

Conclusion

Defendant's motion is wholly procedurally defective and on that basis alone should be denied in its entirety.  It should also be denied in its entirety as to the substance bases presented herein and it is for these reasons that Plaintiff requests that the Motion to Compel be DENIED.

This 20th day of March 2007
Jana Tabor


Jana B. Tabor, Attorney for Plaintiff
450 Arborshade Trace
Duluth, GA 30097
(770) 814-8134



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. On or about July 5, 2006, I attended a home inspections of the Defendant's residence.  I  took a video recorder and a digital camera to that inspection.
3.
Prior to attending the home inspection, I had requested photographs of the residence via Request of Production of Documents.  Defendant had responded to the request but the images supplied were so small that any detail of the Plaintiff's work or the residence itself was obscured.  I had sent letters to the Defendant after the production and before the inspection to supply me, at my expense, with better copies.  However, that request was not fulfilled prior to the inspection and was only fulfilled after a Motion to Compel their production was filed by the Plaintiff.
4.
Mr. John Tabor was present at the home inspection as a representative of my client Insulated Wall Systems, Inc.  During the inspection I gave him the video recorder and digital camera.  At certain times during the inspection I requested that he take a photograph of certain aspects of the Plaintiff's work which I wanted to consult him about after the inspection.  I requested that he take the images because I am somewhat unfamiliar with how to work the two devises.  I also was in a position of keeping things moving at the inspection and did not feel that the inspection itself would be best served if I stopped to take images rather than requesting that Mr. Tabor do it.  My legal specialty is insurance coverage and I needed to ask him questions concerning the execution of the work.
5.
I also instructed Mr. Tabor to video certain aspects of the work.  There was no significance to the digital image versus the moving image except as to the video, I verbally articulated during the taping questions I had concerning the aspect of the work focused upon.  At no time was anyone else consulted with regard to what was photographed or videotaped.
6.
We were at the McKinney residence for approximately one hour and thirty minutes.  During that time Mrs. McKinney was always in somewhat close proximity to me.  I did not have adequate privacy or time to discuss with my client questions I had about certain aspects of the work during the inspection, other than in cursory fashion.  At the time of the inspection, these images were all that I had to refer to when discussing the case with my client.  These images were all I had to refer to in deciding what, if any, additional discovery needed to be conducted.
7.
The digital images collected at my instruction during the home inspection along with the videotape were taken solely to aid me in my understanding of the work and of the Defendant's complaints.  They were not memorialized in anticipation of using them as evidence in this case.  They have not been supplied to any person or entity by me. They have not been reviewed by any person but me and Mr. John Tabor as President of Insulated Wall Systems, Inc.

Further Affiant sayeth not.

Jana B. Tabor
March 19, 2007






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