Page 1

1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11 12 13

James Alan Bush,

Case No. 08-cv-01354 LHK

14

Plaintiff,

15

v.

NOTICE OF MOTION FOR PRODUCTION OF PRIOR STATEMENTS

16

Sunnyvale Department of Public Safety, et al.,

17 18

Defendants.

Hearing Date: Hearing Time: Courtroom: Judge:

March 13th, 2012 10:00 A.M. 2 Howard R. Lloyd

NOTICE OF MOTION FOR PRODUCTION OF PRIOR STATEMENTS

19 20

TO THE HONORABLE HOWARD R. LLOYD, DISTRICT JUDGE, UNITED STATES DISTRICT

21

COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION:

22

PLEASE TAKE NOTICE that on Tuesday, March 13th, 2012, at 10:00 A.M., in

23

Courtroom 2 of the above-stated court, located at 280 South First Street,

24

on the 5th Floor, in San Jose, Plaintiff, James Alan Bush, will, and hereby

25

does, move for an order requiring Defendant Santa Clara County Public

26

Defender’s Office to produce any and all statements made by the aforesaid

27

defendant concerning this action, and in regards to this matter as pending NOTICE

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08-cv-01354 LHK


1

against the defendant and the service of process to the defendant by the

2

plaintiff, as representative counsel in another matter heard in a state

3

court, for the purposes of an upcoming hearing in the instant matter, in

4

which the requested information is crucial to the plaintiff’s argument.

5

This motion will be made on the ground that, in spite of the

6

plaintiff’s diligent effort to obtain the requested information without

7

court intervention, which included phone calls, e-mails, a letter, and a

8

Rule 26(b)(3)(C) formal request, the defendant not only failed to provide

9

the requested discovery, but failed to even discuss the request; in

10

addition, although the defendant was required to serve a written response

11

to the request no later than 30 days after the date that the plaintiff’s

12

request was received, at least indicating their intent to comply with it

13

[see Rule 34(b)], the defendant failed to even acknowledge that a request

14

was received.

15

Dated: February 17th, 2012

16

By: X

17

James Alan Bush Plaintiff in pro per

18

//

19

//

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

// NOTICE

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08-cv-01354 LHK


1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11 12 13

James Alan Bush,

Case No. 08-cv-01354 LHK

14

Plaintiff,

15

v.

MOTION FOR PRODUCTION OF PRIOR STATEMENT

16

Sunnyvale Department of Public Safety, et al.,

17 18

Defendants.

Hearing Date: Hearing Time: Courtroom: Judge:

[date] [time] [#] Howard R. Lloyd

RELIEF REQUESTED

19 20

Plaintiff moves this Court for an order, pursuant to Rule 26(b)(3)

21

(C) of the Federal Rules of Civil Procedure, directing Defendant, Santa

22

Clara County Public Defender’s Office to produce any and all statements

23

made by the aforesaid defendant concerning this action, and in regards

24

to this matter as pending against the defendant and the service of

25

summons to the defendant by the plaintiff that were made by the defendant

26

as representative counsel for the plaintiff in case number CC828198

27

on or around July 15th, 2010, which was heard in the Superior Court of MOTION

PAGE 1 OF 3

08-cv-01354 LHK


1

California, County of Santa Clara, Criminal Division. GROUNDS FOR RELIEF

2 3

1. On January 11th, 2012, Plaintiff served the Santa Clara County Office

4

of the County Counsel, counsel for the defendants, a formal request to

5

produce any and all prior statements made by its officers and employees

6

concerning this action or its subject matter that are within the

7

possession and control of the defendant.

8

2. A true and correct copy of Plaintiff’s Formal Request for Production

9

is attached to the supporting declaration of the plaintiff, which

10

specifically informed the defendant and counsel of their obligations to

11

produce these statements under the provisions of Rule 26(b)(3)(C) of the

12

Federal Rules of Civil Procedure.

13

3. Rule 26(b)(3)(C) of the Federal Rules of Civil Procedure confers an

14

absolute right to obtain these types of statements from both parties

15

and non-party witnesses. The rule carefully defines the scope of what

16

constitutes “statements” in this context, and the request specifically

17

excludes any claim of work product privilege for these types of

18

statements, expressly providing that they may be obtained by the party

19

or witness making them on a mere request, without the type of showing

20

that would normally apply if the work product protection applied.

21

4. Defendant has failed and refused to comply with its duties to provide

22

these statements. Not only does Rule 26(b)(3)(C) eliminate almost all

23

objection to compliance, failure to file a written response within the

24

time prescribed by Rule 34 amounts to a waiver of any privileges and

25

objections that could conceivably have been asserted in response.

26 27

5. Rule 26(b)(3)(C) states that if a request for prior statements is refused, “the person [making the request] may move for a court order” MOTION

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08-cv-01354 LHK


1

compelling compliance. Rule 26(b)(3) specifically states that the

2

sanction provisions of Rule 37(a)(5) apply to and authorize an award of

3

expenses to the person making the motion.

4

CERTIFICATE OF ATTEMPT TO RESOLVE ISSUE WITHOUT COURT MOTION

5

Pursuant to Rule 37(a)(3)(B) of the Federal Rules of Civil Procedure,

6

I certify by signing this motion that, prior to filing of this motion to

7

compel discovery, I made several attempts to confer with counsel for the

8

defendant, in order to secure the statement without court action. All of

9

my attempts, more fully documented in the supporting declaration of the

10

plaintiff, were unsuccessful.

11

SUPPORTING PAPERS

12

This motion is based on this document, on the supporting declaration

13

of the plaintiff, on the certificate of service of this motion, on all of

14

the pleadings and papers already on file in this action, and on whatever

15

evidence and argument may be allowed at a hearing on this motion.

16

Dated: February 17th, 2012

17

By: X

18

James Alan Bush Plaintiff in pro per

19

//

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

// MOTION

PAGE 3 OF 3

08-cv-01354 LHK


1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11 12 13

James Alan Bush,

Case No. 08-cv-01354 LHK

14

Plaintiff,

15

v.

DECLARATION IN SUPPORT OF MOTION FOR PRODUCTION OF PRIOR STATEMENTS

16

Sunnyvale Department of Public Safety, et al.,

17 18 19

Defendants.

Judge Howard R. Lloyd

I, James Alan Bush, in support of the attached motion for production of

20

prior statements, declare the following:

21

1. I am the plaintiff in the above-captioned matter, which seeks redress

22

for multiple and ongoing civil rights violations under Title 42 U.S.C.A.

23

ยง 1983 and for other torts as defined by California state law.

24

2. I am fully competent to make this declaration, and I have personal

25

knowledge of the facts stated herein. If so called, I would be able to

26

testify to these facts truthfully.

27

3. The discovery requested of Defendant Santa Clara County Public DECLARATION

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08-cv-01354 LHK


1

Defender’s Office is for the production of prior statements, and,

2

in particular, any and all statements made by the defendant as

3

representative counsel in case number CC828198, which was heard in

4

the Superior Court of California, County of Santa Clara, in regards

5

to their receipt of a copy of the complaint in this matter, notice of

6

these proceedings, and a request for a waiver of service of summons.

7

4. On April 4th, 2012, a hearing will be held in which the Court will

8

consider whether to vacate its order of dismissal against the

9

defendant, which was issued for the failure to file proof of service of

10

summons, and evidence must be presented to demonstrate that service of

11

summons was sufficient in accordance with the provisions of Rule 4(d)(1)

12

of the Federal Rules of Civil Procedure. The requested discovery will

13

show that the defendant has not only previously acknowledged receipt

14

of a request for a waiver of summons, a notice of lawsuit, and a copy

15

of the complaint at a hearing in another matter in the Superior Court,

16

but based its request to be relieved of counsel in the aforementioned

17

matter on the ground that this action was pending against them and,

18

consequently, a conflict of interest existed.

19

5. In spite of a good faith attempt to confer with counsel for the

20

defendant, namely, Neysa Fligor, Deputy Counsel, Santa Clara County

21

Counsel, the defendant has failed to make a disclosure required by

22

Rules 26(b)(3)(C) and 34 of the Federal Rules of Civil Procedure.

23

6. These specific actions were taken in order to obtain the requested

24

discovery without court intervention:

25

a. On December 20th, 2011, counsel for the defendant was requested

26

by e-mail to stipulate to the fact that the notice of lawsuit

27

and request for a waiver of service of summons was received by DECLARATION

PAGE 2 OF 4

08-cv-01354 LHK


1

the defendant [see Exhibit “A”]. The e-mail was followed by two

2

unreturned calls to said counsel.

3

b. On January 10th, 2012, a letter was mailed, first-class, to

4

counsel for the defendant [see Exhibit “B”], which requested

5

the aforedescribed stipulation, specifically, that the defendant

6

acknowledged in a state court that service of process was made in

7

this case, and which advised the defendant of the time-sensitive

8

nature of the information, specifically, that a hearing in which

9

the information was required was pending, their obligation under

10

Rule 26(b)(3)(C) to provide the requested information. Two calls made

11

to said counsel were not returned.

12

c. On January 12th, 2012, a formal request for the production of

13

prior statements per Rule 26(b)(3)(C) and Rule 34 was served on the

14

defendant through its counsel, which also advised the defendant

15

that a response was required within 30 days of the request per Rule

16

34. A copy of the request, which was filed with the clerk on that

17

same day, is attached as Exhibit “C”.

18

7. The aforedescribed are the requisites steps mandated by Rule 37 prior

19

to bringing a motion to compel discovery, which also conform to the

20

requirements of the standing order re: civil discovery disputes, in

21

that attempts were made via telephone, e-mail, and correspondence, to

22

try to obtain the requested information without court intervention.

23

8. Additional phone calls and e-mails to counsel for the defendant have

24

not brought any response to the request for the productdion of any

25

prior statements.

26

9. In spite of the actions taken to obtain the requested discovery, the

27

defendant and their counsel have failed to provide the requested DECLARATION

PAGE 3 OF 4

08-cv-01354 LHK


1

discovery or to even at least arrange a meeting to discuss the

2

request.

3 4 5

10. Phone calls and e-mails to counsel for the defendant has not brought any response to the request nor the production of any prior statements. 11. Accordingly, the Court is hereby requested to issue an order to the

6

defendant as follows:

7

a. that the defendant respond to the formal request of the plaintiff

8

at least 15 days prior to the hearing scheduled on April 4th, 2012;

9

and,

10

b. that the failure of the defendant to respond to the formal request

11

for discovery in the manner requested and within the time allotted

12

will result in sanctions and/or an entry of an order in favor of

13

the plaintiff.

14

I declare under penalty of perjury under the laws of the State

15

of California that the foregoing is true and correct, and that this

16

declaration was executed on February 17th, 2012, in San Jose, California.

17

Dated: February 17th, 2012

18

By: X

19

James Alan Bush Plaintiff in pro per

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

// DECLARATION

PAGE 4 OF 4

08-cv-01354 LHK


1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11 12 13

James Alan Bush,

Case No. 08-cv-01354 LHK

14

Plaintiff,

15

v.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRODUCTION OF PRIOR STATEMENTS

16

Sunnyvale Department of Public Safety, et al.,

17 18 19

Defendants.

Judge Howard R. Lloyd

In support of the attached Motion for Production of Prior Statements,

20

Plaintiff proffers the following argument and points of law:

21

I. ARGUMENT

22

A. THE RELIEF SOUGHT BY THE MOTION IS APPROPRIATE

23

If a party fails to respond to a discovery request made pursuant

24

to Rule 26(b)(3)(C), the party making the request may move to compel

25

disclosure per Rule 37(a)(3)(A), provided reasonable notice was given

26

to the dilatory party, which expressely authorizes the court to issue

27

such an order [see Fed R Civ P 37(a); see also Patelco Credit Union v. MEMORANDA

PAGE 1 OF 4

08-cv-01354 LHK


1

Shani (9th Cir. 2001) 262 F3d 897, 913 (Rule 37(a)(3)(A) is the proper

2

vehicle to address instances in which the responding party fails to

3

make or cooperate in providing the requested discovery)].

4

Requiring the defendant to respond to the request for discovery

5

fully and without objection is proper because any objections have

6

been waived by virtue of the defendant’s failure to provide a response

7

within the time allowed by Rule 26(b)(3)(C) [see Fed R Civ P 33(b)(4)

8

(“Any ground not stated in a timely objection is waived...”)].

9

B. PLAINTIFF GAVE REASONABLE NOTICE TO THE DEFENDANT PRIOR TO

10

BRINGING THIS MOTION

11

Requiring Defendant Santa Clara County Public Defender’s Office to

12

respond to the plaintiff’s formal request for discovery not only

13

establishes a definite date for measuring compliance, it provides

14

the defendant with a time to comply that is reasonable, given the

15

time that has already passed since the first request was made,

16

i.e., December 20th, 2011.

17

C. PLAINTIFF MADE A GOOD-FAITH ATTEMPT TO OBTAIN THE REQUESTED

18

DISCOVERY WITHOUT COURT INTERVENTION

19

Plaintiff included in this motion a certification that he has

20

attempted to confer with the defendant in good faith, and in

21

an effort to secure the disclosure without court action within

22

the meaning of Rule 37(a)(3)(B), in that the plaintiff informed

23

the defendant in letters and phone calls and e-mails that they

24

must provide a response within the time period allotted by

25

Rule 26(b)(3)(C).

26

//

27

// MEMORANDA

PAGE 2 OF 4

08-cv-01354 LHK


1

D. PLAINTIFF IN GOOD FAITH EMPHASIZED THE IMPORTANCE OF THE

2

INFORMATION REQUESTED TO THE DEFENDANT

3

The plaintiff’s request for discovery was served in good faith

4

for the purposes of securing information that is important to

5

the plaintiff in the investigation and preparation for a hearing

6

on a motion to vacate the order of dismissal of this case

7

against the defendant. In his correspondence to the defendant

8

[see Exhibits “A” and “B”], the plaintiff emphasized the urgency

9

and relevance of the information requested, which is more fully

10 11

explained in the attached declaration. E. DEFENDANT HAS NO EXCUSES AVAILABLE FOR FAILING TO RESPOND

12

As noted above, the formal request for discovery in this case

13

was served in good faith for legitimate purposes. In any event,

14

Rule 37(d)(2) expressely states that the failure to serve a

15

response “is not excused on the ground that the discovery sought

16

was objectionable, unless the party failing to act has a pending

17

motion for a protective order under Rule 26(c).”

18

F. DEFENDANT CANNOT CLAIM ANY PRIVILEGE OR WORK PRODUCT PROTECTION

19

FOR THE REQUESTED DISCOVERY

20

Under Rule 26(b)(3)(C), no privilege or work product protection may

21

be claimed for any prior statement of the defendant concerning

22

this action or its subject matter.

23

G. THE MEET-AND-CONFER REQUIREMENT SHOULD BE WAIVED BECAUSE THE

24

DEFENDANT HAS REFUSED TO CONFER WITH THE PLAINTIFF

25

Per ND Cal Civ LR 37-1(a), the court at the San Jose Division in

26

the Northern District of California will not entertain a motion

27

to resolve a discovery dispute unless counsel has previously MEMORANDA

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08-cv-01354 LHK


1

conferred for the purpose of attempting to resolve said dispute;

2

however, in this case, because the dispute is caused by the

3

refusal and/or failure of the defendant to confer, the same rule

4

allows this Court to issue an order compelling discovery, and

5

even to impose sanctions.

6

H. THIS MOTION IS TIMELY MADE BECAUSE IT WAS FILED SEVEN COURT DAYS

7

AFTER DISCOVERY CUTOFF

8

In the Northern District of California, no motions to compel

9

discovery may be filed more than seven days after the discovery

10

cutoff for fact discovery. A “discovery cutoff� is the date

11

by which all responses to discovery are due and by which all

12

responses to discovery requests are due [ND Cal Civ LR 26-2].

13

II. CONCLUSION

14

Based on the importance of the issue at stake in the upcoming hearing

15

on the motion to vacate the order of dismissal against the defendant,

16

and on the importance of the requested discovery in resolving the

17

issues presented therein the motion [see Declaration of Plaintiff,

18

attached], this Court should grant the relief sought by this motion.

19

Dated: February 17th, 2012

20

By: X

21

James Alan Bush Plaintiff in pro per

22

//

23

//

24

//

25

//

26

//

27

// MEMORANDA

PAGE 4 OF 4

08-cv-01354 LHK


1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11 12 13

James Alan Bush,

Case No. 08-cv-01354 LHK

14

Plaintiff,

EXHIBIT “A”

15

v.

16

Sunnyvale Department of Public Safety, et al.,

E-MAIL TO NEYSA FLIGOR, DEPUTY COUNSEL, SANTA CLARA COUNTY COUNSEL, COUNSEL FOR DEFENDANTS SANTA CLARA COUNTY PUBLIC DEFENDER’S OFFICE, DATED DECEMBER 20TH, 2011

17 18

Defendants.

EXHIBIT “A”

19 20

Plaintiff hereby incorporates Exhibit “A”, in support of the attached

21

Motion for Production of Prior Statements, which requests by e-mail

22

a stipulation to the fact that Defendant Santa Clara County Public

23

Defender’s Office acknowledged in a state court that they were notified of

24

the lawsuit pending against them, and that they received a copy of the

25

summons and complaint, as well as a request for a waiver of service of

26

summons; it also emphasizes the relevance and time-sensitive nature of the

27

requested information. EXHIBIT A

PAGE 1 OF 2

08-cv-01354 LHK


1 2 3 4 5 6 7

From: Subject: Date: To:

James Bush <theoknock@yahoo.com> C 08-01354 - Acknowledgment of Receipt of Waiver of Service of Summons December 20, 2011 9:34:16 PM PST neysa.ďŹ&#x201A;igor@cco.sccgov.org

Dear Ms. Fligor: If you are not the counsel-of-record for the above-referenced case, kindly forward this e-mail to such; otherwise, I would like you to stipulate to the fact that you received a waiver of service of summons on behalf of the defendants you represent. This is needed as soon as possible, as this fact will determine whether an attempt was made by me to serve the county defendants, and whether the court will vacate its order of dismissal against these defendants for failure to serve summons on them. This fact was presented in another case by the Public Defender's Office (one of the defendants you represent), in order to justify relief as the appointed counsel in that case. At that time, the public defender representing me stated to the presiding judge that you were contacted by them in order to verify that a pending civil matter existed against them, which you confirmed by stating that you had received a notice of the suit and a waiver of service. The judge in that case used that fact to make the determination that a conflict of interest existed between me and the public defender's office, and, consequently, he relieved the public defender's office as counsel, and appointed an alternate defender in their stead. I hope this refreshes your memory of the past, and that I can get an identical admission of fact from you for my present needs. Please contact me with your decision within three (3) days. Thanks! James Alan Bush (408) 791-4866 471 East Julian Street San Jose, CA 95112

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A

PAGE 2 OF 2

08-cv-01354 LHK


1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11 12 13

James Alan Bush,

Case No. 08-cv-01354 LHK

14

Plaintiff,

EXHIBIT “B”

15

v.

16

Sunnyvale Department of Public Safety, et al.,

17 18

Defendants.

19

EXHIBIT “B”

20

Plaintiff hereby incorporates Exhibit “B”, in support of the attached

21

Motion for Production of Prior Statements, which requests by letter that

22

Defendant Santa Clara County Public Defender’s Office stipulate to facts

23

regarding service of process. It also explains the need for the requested

24

information, i.e., that it is a determinative factor in an upcoming hearing

25

on a motion to vacate the order of dismissal against the defendant, and

26

emphasizes the relevance and time-sensitive nature of the requested

27

information. EXHIBIT B

PAGE 1 OF 2

08-cv-01354 LHK


1 2 3 4 5 6 7

Tuesday, January 10th, 2012 James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 County of Santa Clara, Office of the County Counsel ATTN: Ms. Neysa Fligor, Deputy Counsel 70 West Hedding Street, East Wing, 9th Floor San Jose, California 95110 (408) 299-5900

8

In re stipulation to receipt of notice of lawsuit and waiver of service of summons for case no. 08-cv-01354 LHK

9

To Ms. Neysa Fligor, Deputy Counsel, Santa Clara County Counsel:

10 11 12 13 14 15 16

This letter follows several phone calls and e-mails regarding a stipulation to the fact that a waiver of service of summons was received by the Santa Clara County Counsel on behalf of the county defendants it represents in the above-referenced caseâ&#x20AC;&#x201D;a fact that will determine whether service was made on these defendants, and whether the Court will vacate its order of dismissal against them. That a notice and waiver was received by at least one county defendant, specifically, the Santa Clara County Office of the Public Defender, was confirmed by the Santa Clara County Counsel, and is a matter of record in the Superior Court of California for the County of Santa Clara, Criminal Division, Case No. CC828198. In fact, that a pending civil matter existed against that defendant formed the basis for a determination by the presiding judge in that case, namely, the Honorable JesĂşs Valencia, Jr., that a conflict of interest existed, thereby justifying the relief of the defendant as counsel. An identical admission of fact by stipulation is needed for an upcoming hearing on a Motion for Relief from Order, which will be held on April 12th, 2012, at 1:30 pm, in Department 8 of the United States District Court for the Northern District of California, San Jose Division, Judge Lucy H. Koh, presiding. Accordingly, please provide me with the requested stipulation within 15 days of the date of this letter. If it is not received on or before January 25th, 2012, I will seek to obtain said stipulation by means of discovery.

17

Sincerely,

18

James Alan Bush Plaintiff in pro per

19 20 21 22 23 24 25

Page 1 of 1

26 27 EXHIBIT B

PAGE 2 OF 2

08-cv-01354 LHK


1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5 6 7 8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11 12 13

James Alan Bush,

Case No. 08-cv-01354 LHK

14

Plaintiff,

EXHIBIT “C”

15

v.

16

Sunnyvale Department of Public Safety, et al.,

FORMAL REQUEST TO DEFENDANT SANTA CLARA COUNTY PUBLIC DEFENDER’S OFFICE FOR THE PRODUCTION OF PRIOR STATEMENTS

17 18

Defendants.

19

EXHIBIT “C”

20

Plaintiff hereby incorporates Exhibit “C”, in support of the attached

21

Motion for Production of Prior Statements, which formally requests

22

that Defendant Santa Clara County Public Defender’s Office produce “any

23

and all statements made by Defendant Santa Clara County Office of the

24

Public Defender concerning this action or its subject matter”, and which

25

specifically informs the aforesaid defendants of their obligation to

26

produce these statements per Rule 26(b)(3)(C) of the Federal Rules of Civil

27

Procedure. EXHIBIT C

PAGE 1 OF 3

08-cv-01354 LHK


1 2 3 4

1

3

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

4

Plaintiff in pro per

2

5

5

6

6

7

7

8

8

9

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

10

11

SAN JOSE DIVISION

11

12

12 13

13 14

16

15

17

Case No. 08-cv-01354 LHK

Plaintiff,

15

14

16

James Alan Bush,

REQUEST FOR PRODUCTION OF PRIOR STATEMENT

v. Sunnyvale Department of Public Safety, et al.,

[Fed. R. Civ. P. 26(b)(3), 34]

Defendants.

18 19

PROPOUNDING PARTY:

James Alan Bush

18

20

RESPONDING PARTY:

Santa Clara County Counsel

21

SET NO.:

1

19

22

20

23

following request pursuant to Rule 34 of the Federal Rules of Civil

24

Procedure. Under Rule 34(b), you are required to serve, no later than

25

30 days after the date that this request was served on you, a written

26

response to this request, indicating whether you will comply with this

27

request.

17

21 22 23 24

James Alan Bush, Plaintiff in the above-captioned matter, makes the

REQUEST

PAGE 1 OF 2

08-cv-01354 (PR) JF

25 26 27 EXHIBIT C

PAGE 2 OF 3

08-cv-01354 LHK


1 2

1

You are requested to produce any and all statements made by Defendant

2

Santa Clara County Office of the Public Defender concerning this action

3

or its subject matter, regardless of how obtained or maintained, and,

4

in particular, those made in the Superior Court of California, County of

5

5

Santa Clara, Criminal Division, in case number CC828198, and in regards

6

6

to this matter as pending against the aforesaid defendant and the service

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of summons to the defendant by the plaintiff. Under Rule 26(b)(3)(C) of the

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Federal Rules of Civil Procedure, no privilege or work product protection

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may be claimed for any prior statement of the defendant concerning the

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10

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statement previously made that is:

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1. A written statement signed or otherwise adopted or approved by the

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action or its subject matter. Pursuant to Rule 26(b)(3)(C), the term “statement” means and includes any

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person making it; or,

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2. A contemporaneous stenographic, mechanical, electrical, or other

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recording, including a court transcription of it, that recites

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substantially verbatim the person’s oral statement.

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TIME, PLACE, AND MANNER FOR COMPLIANCE

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The production of the requested statements will take place by e-mailing

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James Alan Bush at theoknock@yahoo.com, with the relevant files attached

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to that e-mail in a format readable as PDF. The e-mail and attachments

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should be sent no later than February 11th, 2012, at 5:00 P.M, and an

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acknowledgment of receipt of the e-mail will be supplied as appropriate.

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Dated: January 11th, 2012

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By: X

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James Alan Bush Plaintiff in pro per

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// REQUEST

PAGE 2 OF 2

08-cv-01354 (PR) JF

25 26 27 EXHIBIT C

PAGE 3 OF 3

08-cv-01354 LHK


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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

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Plaintiff in pro per

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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James Alan Bush,

Case No. 08-cv-01354 LHK

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Plaintiff,

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v.

[PROPOSED] ORDER REQUIRING PRODUCTION OF PRIOR STATEMENT

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Sunnyvale Department of Public Safety, et al.,

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Defendants.

Hearing Date: Hearing Time: Courtroom: Judge:

[date] [time] [#] Hon. Howard R. Lloyd

ORDER GRANTING MOTION FOR PRODUCTION OF PRIOR STATEMENTS The Motion of Plaintiff for Production of Prior Statements to compel

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Santa Clara County Public Defenderâ&#x20AC;&#x2122;s Office to produce the statements

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specified by the plaintiff.

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IT IS ORDERED THAT:

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1. The motion is GRANTED;

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2. The statements as made by the defendant concerning this action, and

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in regards to this matter as pending against the defendant and the

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service of summons to the defendant by the plaintiff, which were [PROPOSED] ORDER

PAGE 1 OF 2

08-cv-01354 LHK


1

made in the Superior Court of California, County of Santa Clara,

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Criminal Division, in case number CC828198, on or around July 15th,

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2010.

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3. The Court also finds that the failure of the defendant to produce

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the requested statements was without “substantial justification“

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within the meaning of Rule 37(a)(5)(A)(ii) in that under Rule 34(b),

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the defendant was required to serve, no later than 30 days after the

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date that the plaintiff’s request was served, a written response to

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the request, indicating their intent to comply with it.

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4. Counsel and the defendant are admonished that the failure to

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comply with the terms of this order may result in severe sanctions,

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including a citation for contempt of court.

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Dated: February 17th, 2012

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Signed: X

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Howard R. Lloyd United States District Judge

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//

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//

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//

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//

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//

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//

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//

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//

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//

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//

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//

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// [PROPOSED] ORDER

PAGE 2 OF 2

08-cv-01354 LHK

Motion for Production of Prior Statements  

This motion for the production of prior statements, specifically, an admission by a defendant that they were served by the plaintiff, follow...

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