Plaintiff's Motion to Compel Responses to Requests for Production of Documents And Defendant's Opposition

2809466v1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THE FLAG COMPANY, INC., a Georgia Corporation

Plaintiff

v.

STEVEN A. CHAN, LLC (d/b/a FIVE STAR FLAGS and/or VIA5), a California Limited Liability Company, and STEVEN A. CHAN, a California resident,

Defendants.

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CIVIL ACTION FILE NO. 1:09-cv-01880-CAP

PLAINTIFF SMOTION TO COMPEL RESPONSES

TO REQUESTS FOR PRODUCTION OF DOCUMENTS

On March 23, 2010, Plaintiff The Flag Company, Inc. ( Plaintiff ) served

Defendant Steve A. Chan ( Defendant Chan ) with document requests. Defendant

Chan failed to serve timely responses. In addition to being late, Defendant Chan s

discovery responses were woefully deficient. Specifically, in response to each and

every document request (and each and every interrogatory and request for

admission), Defendant Chan asserted the following identical recitation of

objections:

2809466v1 -2-

Chan objects on the following grounds: compound, ambiguous, oppressive and burdensome, relevance, privacy, trade secret, attorney/client communication, attorney work product, work product.

Plaintiff informed Defendant Chan that his objections had been waived and

requested full and complete responses to its document requests, without objection.

Defendant Chan then served a second set of responses, again asserting identical

objections to patently reasonable requests.

For the reasons set forth in this Motion and in Plaintiff s accompanying

Memorandum of Law, Plaintiff requests that the Court grant its Motion and award

it attorney s fees and expenses.

I hereby certify that I have at conferred about the issues involved in the

foregoing Motion with Defendant Chan in a good faith effort to resolve them, but

that this effort has been unsuccessful.

Dated this 18th day of May, 2010.

Respectfully submitted,

ARNALL GOLDEN GREGORY, LLP

/s/ J. Tucker Barr ________________________________ Scott E. Taylor Georgia Bar No. 785596 J. Tucker Barr Georgia Bar No. 140868

2809466v1 -3-

Suite 2100 171 17th Street, N.W. Atlanta, Georgia 30363 (404) 873-8624 (404) 873-8625 (facsimile)

2809466v1 -4-

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

THE FLAG COMPANY, INC., a Georgia Corporation

Plaintiff

v.

STEVEN A. CHAN, LLC (d/b/a FIVE STAR FLAGS and/or VIA5), a California Limited Liability Company, and STEVEN A. CHAN, a California resident,

Defendants.

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CIVIL ACTION FILE NO. 1:09-cv-01880-CAP

CERTIFICATE OF SERVICE

This is to certify that I have this day electronically filed the foregoing

PLAINTIFF S MOTION TO COMPEL RESPONSES TO REQUESTS FOR

PRODUCTION OF DOCUMENTS with the Clerk of Court using the CM/ECF

system, and further certify that I have this day served Defendants with same by

placing a copy in the United States mail, first class, addressed to:

Steven A. Chan, LLC Attn: Steven A. Chan, Registered Agent 720A Center Street Costa Mesa, California 92627

2809466v1 -5-

Steven A. Chan 720A Center Street Costa Mesa, California 92627

Dated this 18th day of May, 2010.

/s/ J. Tucker Barr ________________________________ J. Tucker Barr Georgia Bar No. 140868

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A

THE FLAG COMPANY, INC . a

Georgia Corporation,

Plaintiff,CIVIL ACTION NO :

1 :09-CV-1880

OPPOSITION TO MOTION TOCOMPEL PRODUCTION

RESPONSES; DECLARATION OFSTEVEN CHAN

Defendant

OPPOSITION TO MOTION TO COMPEL RESPONSES ; DECLARATION OF

STEVEN A. CHAN ~ Page 1 of 13

IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

FILED IN CL.ERK~ O FF ICEl~ .S.D.C . - A~~ to

JUN a 7 z ~ 1 a

V .

STEVEN A CHAN, LLC (d/b/a FIVE

STAR FLAGS and/or VIA5), a

California Limited Liability Company,

and STEVEN A. CHAN, a California

resident,

OPPOSITION TO MOTION TO COMPEL REPSONSES; DECLARATION

OF STEVEN A. CHAN

This is the Defendant Steven A Chan's Opposition to Plaintiffs Motion to

Compel Responses to the Production Demand Set #1 .

MEMORANDOM OF POINTS AND AUTHORITIES

I. Introduction

Plaintiff Flag Company's Motion is fatally flawed procedurally and

substantively meritless . Like the rest of this litigation, it is abusive and

overreaching : It is the product of the haughtiness of the Flag Company exploiting

the vulnerability of an individual who is trying to navigate on his own through a

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complex and unfamiliar legal proceeding without the benefit of counsel, which he

cannot afford. Flag Company is using its economic advantage in this court like a

bully would push around a weaker child in a schoolyard . If this court values

~ j ustice, it should allow this defendant , Mr. Chan , a l i ttle room for procedural error .

The Flag Company claims to have valid and enforceable intellectual property

rights to the phrase "farming flag ." It claims to have invented the term , just like Al

Gore invented the Internet. They have brought this act i on alleging that its

competitor, Mr. Chan and his company, which is now a d i ssolved entity, violated

its property r i ghts .

Farming is a term used in the real estate industry . It refers to prospecting in

(usually a geographic) area for buyers and sellers of residential real estate . Real

estate professionals are trained in "Farming" techniques and methods using a wide

~ array of `farming tools' . It is a `famous' word in the consuming public, is a generic

~ term, and has been pre sent in real-estate dict ionaries for at least 10 years prior to

the Plaintiff' s registration of the term ` farming flag ' . "Farming" with the American

flag is a famous activ ity within the consuming public . It is well-documented

activity done nationw i de since the early 1980 ' s by the US residential brokerage

industry. It is a generic term . Plaintiff's proprietary right claim is as spurious as Al

Gore's claim that he invented the Internet . The license issued to plaintiff in

recognition of that claim is based on plaintiff's fraud and is a nullity . Plaintiff's

action is not an effort to enforce a proper property right, but an abusive effort to

use the processes of the court to close down its competitor, wh ich in large part it

I already has succeeded .

Discovery was opened on this matter on December 28, 2009 . By order of this

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court, it closed in April 28, 2010 . The scope of discovery as defined by the court's

order was plaintiff's claims and defendant's defense .

Sitting on its dilatory hands until almost the last speck of sand dropped

through the hourglass, plaintiff served Mr . Chan on March 23, 2010 discovery that

was in its scope overwhelming, much of it invasive and/or a fishing expedition

beyond the scope of court authorized discovery. In one fell swoop, plaintiff

bundled together all of its discovery demands . On this last minute service of

discovery, plaintiff served a request for admissions with a set of interrogatories,

and a production of documents demand . Plaintiffs purpose in serving such

burdensome discovery all at once and at the last minute was to overwhelm Mr .

Chan. As it admits in its April 29, 201 0 so-called meet & confer letter (exhibit B,

to the motion, without foundation testimony, its service at the last minute was

purposefully designed such that he could not grant any extensions, no matter how

modest. In spite of the scope and breadth of its burdensome discovery, it now had

schedule, which precluded the simple civility of an extension . ("Even if you

request an extension in a timely fashion, however, The Flag Company would not

have been able to agree to such a request . The discover period in this lawsuit

closed on April 28 . . . In addition, summary judgment motions are due within thirty

(30) days of the close of discovery .")

Mr. Chan, who is in pro per and has no federal court experience,

misunderstood the response dates required . Working hard to run his business, he

also worked hard on responding to plaintiff s discovery . However, because of the

breadth of the discovery that was served, he could not fully prepare his response .

In order to preserve his objections, he served responses on April 27, 2010 with

objections only. Plaintiff acknowledges that the responses were only one day late .

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OPPOSITION TO MOTION TO COMPEL RESPONSES; DECLARATION OF

STEVEN A. CHAN ~ Page 4 of 13 -

Plaintiff claims in its motion that it met and conferred with Mr. Chan by

correspondence dated April 29 , 2010. See Plaintiff s Exhibit B . As noted above ,

this exhibit is inadmissible . There is no foundat ion testimony for it . It is hearsay.

Notwithstanding, assuming for the sake of an argument that it i s admissible , the

April 29, 2010 letter is a meet & confer letter regard ing the all-objections

discovery responses served on April 27, 20 10. However, on May 4, 2010, Mr.

Chan served further responses . Accompanying those responses was a series of e-

mail's attachments . Those attachments were responsive documents . In total , 3 , 016

pages of documents in PDF and other digital form were sent to Plaintiff, which is

never acknowledged in plaintiff's Motion . Additionally, Mr . Chan established ~

electronic access to over 6 m i llion pages, with his only request that this access be

arranged. Attached to this Opposit ion as Exhibit A, is a CD containing the

documents that Mr . Chan submitted in response to plaintiff's discovery. It is rather

self-explanatory, but responses that require this many documents without an

extension is a burdensome and oppressive, yet they were produced .

Plaintiff did not meet and confer after the second responses with

documentation were served .

Plaintiff now moves to compel further responses, presumably to demands 9-

12, 19-25, 28, 26, 30-34, 38-40, 46, and 49-51 . These are the only responses

specifically described in its Motion .

Plaintiff seeks to compel responses because he takes issue with the

objections set forth in the written responses . Yet these are the same objections set

forth in the original response. And yet, even though 3,016 pages were since

produced, plainti ff never met and conferred to discuss why the second response

with thousands of documents were insufficient . -

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STEVEN A. CHAN E Page 5 of 13

Mr. Chan acknowledges some mistakes in his second response. In his rush

and with the handling of all those documents, by oversight, he, by mistake, left

some of the written responses incomplete. Regarding many items, he intended the

writing to show that he had no documents to produce . Regarding the others, he

may have inadvertently failed to refer to them to the items produced . If plaintiff

had met & conferred, Mr . Chan would have realized his mistakes and corrected

them. But plaintiff did not meet & confer .

Presumably, Plaintiff will argue that its inadmissible exhibit which it

purports to be a meet and confer letter regarding the first response satisfies the

meet and confer requirement because the objections in both responses are the

same. But it is not . A further meet and confer was required . The second response

with expanded written responses and a deluge of documents is much different than

the first responses with objections only .

Both Local Rules and the Federal Rules of Civ . Pro. require a good faith

effort to meet and confer as a prerequisite for a discovery motion . Plaintiff has no

admissible evidence of any meet and confers . Moreover, assuming that it presented

evidence of any meet and confer, it is inapplicable because there was no meet and

confer regarding the second response .

I The Local Rules also has a disjunctive time deadline for fil ing a motion to

compel either by the discovery cut-off date or within 14 days after service of the

response upon which the objection at issue is based . If the inadmissible meet and

confer letter responsive to the first discovery response qualifies as a proper meet

and confer for purposes of this motion, then the response upon which the objection

is based is the first response served on April 27, 2010 . If that is the case, then

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1 plaintiff s motion is untimely because it was filed more than 14 days after the



response .

The court should also deny plaintiffs Motion because it is not in proper

and because Mr. Chan's objection is proper .

11. Plaintiff Failed To Meet & Confer

FRCP 37(a)(l) requires a moving party in a discovery motion to certify that

the party met and conferred in good faith in an attempt to resolve the discovery

dispute. As the statute provides in pertinent part :

"The [discovery] motion must include a certification that the

movant has in good faith conferred or attempted to confer with

the person of party failing to make disclosure or discovery in an

effort to obtain it with court action."

LR 37.1(A)(1) also requires a meet and confer certification for a discovery

motion.

Plaintiffs evidence of a meet and confer is the April 29, 201 0 letter. The

letter is hearsay and inadmissible . It lacks admissible evidence of a meet and

confer .

Assuming for the sake of argument that the April 29th letter is admissible, it

is a meet and confer relative to the Responses served on April 27th . But, Mr. Chan

served a further response on May 4th and produced thousands of pages of

documents . Plaintiff never met and conferred regarding the second response and

the several thousand pages of documents .

Mr. Chan responded and responded extensively. He acted in good faith . If

there is a deficiency with his responses, there is every reason to believe that he

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would have corrected them if plaintiff met and conferred as required. Further,

during and after transmitting 500 megabytes of data to Plaintiff, Mr . Chan made

repeated requests for confirmation of receipt of the 25 separate emails containing

discovery documents delivery . Plaintiff refused to acknowledge or reply .

III. Plaintiffs Motion is Untimely

Local Rule 37 .113 sets forth the time limits to file a discovery motion . They

~ are 1) the discovery cutoff, or 2) 14 days "after service of the d isclosure or

discovery response upon which the objection is based ."

If plaintiff argues that the April 29th letter constitutes the required meet and

', confer, then its motion is too late. The April 29th letter, if admissible , relates to the

response served on April 27th .

The objections at issue are those set forth in the April 27th responses . If its

meet and confer letter is adequate, then the dispute at issue relates to the objections

' at issue . But, plaintiff did not file its discovery motion within 14 days of that

response. It filed it on May 18th, which is untimely .

~ IV. Plaintiff's Motion Is Not In Proper Form

LR37 . lA dictates the form required for a discovery motion . It requires the

moving party: 1) To quote, verbatim, the request for inspection at issue ; 2) State

the objection; 3) State the grounds assigned for the objection, and 4) Cite and

discuss authority in support of your motion . The Rule specifically provides that :

"The motion shall be arranged so that the objection, grounds,

authority, and supporting reasons follow the verbatim statement

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STEVEN A . CHAN ~ Page 8 of 13

of each specific . . . . request for inspection to which and objection

is raised ."

Plaintiffs Motion is not arranged as required . The objection, grounds,

authority, and supporting reasons do not follow a verbatim statement of each

specific request .

V. Mr. Chan's Objection Are Meritorious

Plaintiff served by mail its awesome and burdensome load of discovery

Georgia on March 23rd . Mr. Chan is in California. Mr. Chan represents himself in

pro per. He is pro per not by choice . He recognizes that he needs a lawyer . He is in

pro per because he cannot afford counsel. In his inexperience, Mr. Chan

miscalculated the deadline date . By mistake, he was late one day .

A waiver is a voluntary relinquishment of a known right . Mr. Chan did not

voluntarily waive his objections . His first response was to preserve his objections

while still working diligently to respond to a quite burdensome discovery demands .

Mr. Chan, who served his response one day late, did not waive his obligations .

Plaintiff s purpose in waiting until the last minute and then deluge Mr. Chan with

discovery is rather obvious . The goal was to overwhelm Mr . Chan, and then to

complain that an extension was not possible because of the discovery cutoff .

Mr. Chars produced over 3,000 pages of documents in response to Plaintiffs

discovery demands, and arranged for electronic access to over 6 million more

pages. To contend that his objection that the discovery demands served on him

were oppressive and burdensome, is meritless . The demands were oppressive and

burdensome . Mr. Chan's objections were meritorious . His objections should be

sustained. Plaintiffs Motion must be denied .

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STEVEN A . CLAN ~ Page 10 of 13

Declaration of Steven Chan In Opposition to Plaintiffs Discoverv Motion

Steven Chan declares :

1 . 1 am one of two defendants in the above entitled action . My testimony in

this declaration is based on personal knowledge .

2. I represent myself in this matter. I would much prefer to be represented

counsel, but cannot afford it. Also, I reside in California . I am now forced to

defend myself in a faraway jurisdiction, and without benefit of counsel . I am at

considerable disadvantage .

3. In an abundance of good faith, beginning two weeks prior to the close of

discovery, I initiated, and pursued contact with plaintiff to discuss the coming

~ deadline as well as settlement .

4. By the end of the business week one week prior to the discovery close,

substantive discussions had taken place . Plaintiff's counsel agreed to confer with

their clients regarding terms, and Mr . Chan expected to have serious and good fai

closure discussions by the opening of business on the week discovery is to close .

5 . 1 understands discovery to close April 28, in this matter. That is a

'~ Wednesday .

6 . Prior to the close of business East Coast Time, Monday, April 26, 2010,

when I had not heard from Plaintiff despite the import of discussions the week

prior, as well as the looming end of discovery, I attempted to contact Plaintiff, I

PM Pacific Time, and well before the close-of-business on the east coast .

7 . Plaintiff was unavailable, so I left voicemail for Plaintiff .

8 . Prior to the close of business East Coast Time, Tuesday, April 27, 2010,

when I still had not received any acknowledgement or reply from Plaintiff, I

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I declare under penalty of perjury under the laws of the United States that

the foregoing . is true and correct .

OPPOSITION TO MOTION TO COMPEL . RESPONSES; DECLARATION OF

STEVEN A . CHAN ~ Page. 11 of 13

attempted to again contact Plaintiff, lpm Pacific Time, and well before the close-

of-business on the east coast .

9 . Plaintiff was unavailable, so I left voicemail for Plaintiff .

10 . 1 was immediately alarmed by the sudden stonewalling, so also sent an

electronic message by email to Plaintiff, with specificity as to delivery of

documents .

11 . The Plaintiff's Request for Production of Documents set I was

voluminous.

12. Knowing if I were to have to produce Plaintiff's requested materials in

paper, the page count would exceed at minimum 6 million pages .

13 . Much of Plaintiff's requested materials can be accessed electronically,

from production web servers. I made repeated attempts to reach Plaintiff to arrange

sensible delivery.

14. Immediately upon Plaintiff's stipulation that he would accept electronic

copies, as well as representative documents, we began transmissions of documents .

15. On May 4, 2010, 1 served on Plaintiff further discovery responses .

During a three day per i od beginning on May 4th, I also , sen# emails to plaintiffs

counsel with attachments containing 3016 pages of responsive documents . Within

the discovery responses, we made ava ilable electronic resources to download over

7 million pages . Attached as exhibit A is a CD. Written on the CD are the

documents I sent plaintiff s counsel .

16. Counsel for plaintiff never contacted me after the May 4th responses and

document production to meet and confer

"CD" Attached


STEVEN A. CHAN 1 Page 13 of 13

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Exhibit A

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EVIDENCE OBJECTIONS

:Page 2 of 2

949-650-6698

2viavrggmaii.com

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

1 :09-CV-1880

Defendant

J. Tucker BarrArnold Golden Gregory LLP

171 17th Street, N .W., Suite 2100Atlanta, GA 30363-1031

Tel : (404) 873-8500Fax: (404) 873-8501

Email: [email protected]

Page I of 3

THE FLAG COMPANY, INC. aGeorgia Corporation,

Plaintiff,

vs .

STEVEN A CHAN, LLC (d/b/a FIVESTAR FLAGS and/or VIA5), aCalifornia Limited Liability Company,And STEVEN A. CHAN, a Californiaresident

CIVIL ACTION FILE NO .

CERTIFICATE OF SERVICE

This is to certify that I have this day manually filed by placing into a package, sent

by United States Postal Service, the foregoing OPPOSITION TO MOTION TO

COMPEL REPSONSES; DECLARATION OF STEVEN A. CHAN ;

EVIDENCE OBJECTIONS with the Clerk of Court . The Clerk of Court will use

the CM/ECF system to automatically send e-mail notification of such filing to the

following attorneys of record :

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THE FLAG COMPANY, INC . a

Georgia Corporat ion ,

Plaintiff,CIVIL ACTION NO :

1 : 09-CV-1 880

EVIDENCE OBJECTIONS

Defendant

EVIDENCE OBJECTIONS

Defendant Steve Chan obj ects to Exhibits A, B, and C plaint iffs discovery

notion. He obj ects to these documents on the grounds that they are hearsay and

inadmissible. There is no foundation testimony in support of any of the documents ., ..

Mr, Chan moves the court to str ike those exhibits .

Dated the 6th of June, 2010_.~ .w

--~~-Steven A Chan

American Flag Manufacturer

720 Center Street4 Costa Mesa, CA 92627

r

EVIDENCE OBJECTIONS

Page I of

IN THE UNITED STATES DJSTRICT COURTNORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

V .

STEVEN A CI-IAN, LLC (d/b/a FIVE

STAR FLAGS and/or VIA5), a

California Limited Liability Company,

and STEVEN A. CHAN, a California

resident,

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Further, a copy has been placed in the US Mail, and sent to :

J . Tucker BarrArnold Golden Gregory LLP

171 17t" Street, N .W., Suite Z 1 . 00Atlanta., GA 30363-10-31

Tel : (404) 873-8500Fax: (404) 873- 8501.

Email : ri`ucker .barr@agg .com

/

Steven A Char


720 Center Street

Costa Mesa, CA 92627

949-650-669

.2V1 aVT~~ 1~"111 j .Cq1'il

Dated the 6`h of June, 20 I 0

Page 2 of 3

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CERTIFICATE OF COMPLIANCE

Pursuant to Civil Local Rule 7 .1D, this is to certify that the foregoing

Opposition to Motion to Compel Responses ; Declaration of Steven A. Chan ;

Evidence Objections complies with the font and point selections approved by the

Court in Civil Local Rule 5 .1 C . The foregoing Documents were prepared on

computer using New Times Roman font (14 point) .

Page 3 of 3

Dated the 6" of June, 2010 a .-~ .:

.,. .~ .__ ._u. .

Steven A Chan


720 Center Street


949-650-6698

?via rCq2 .grnai L corn

Dated the 6'" of June, 201 0

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Steven A Chan


720 Center Street


949-650-6698

ZVIaVi' CL?gma 1 l , .CQIII


STEVEN A. CHAN

1 ff

f

Plaintiff's Motion to Compel Responses to Requests for Production of Documents And Defendant's Opposition

Documents

chan defendant chan

defendant steven

2809466v1 chan objects

plaintiff requests

georgia corporation

foregoing plaintiff

set of responses

california resident