Defendants Harry A. (“Harry Harrison”) and Dottie Harrison (collectively “defendants”) file this Amended Motion to Compel Discovery, and respectfully request this Court to order plaintiffs Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A. in the above titled cause to produce the discovery due defendants pursuant to Rules 191.3 and 194.2 of the Texas Rules of Civil Procedure.
BACKGROUND
1. Plaintiffs have sued defendants claiming that certain remarks of defendants are “slanderous, libelous, and defamatory,” but plaintiffs refuse to state any specific remarks by defendants that plaintiffs allege are “slanderous, libelous, and defamatory.” Plaintiffs complain of “business disparagement,” but refuse to specify with any particularity what kind of “disparagement” they claim. Further, plaintiffs have consistently and repeatedly refused to provide discovery to defendants that will allow defendants to refute plaintiffs’ unspecified claims and will further allow defendants to prove that no “business disparagement” has occurred to plaintiffs – from whatever cause.
2. Plaintiffs consistently pull selected statements from cases they cite, presumably to give weight to their objections. Yet, if the Honorable Court reads the entire case, His Honor will see that the cited cases actually give support to defendants’ requests, not to the refusal of plaintiffs. In Colonial Pipeline Co , 968 S.W. 2d 938, that plaintiffs are so fond of citing, it states, “Both the plaintiffs and the defendants are entitled to full, fair discovery within a reasonable period of time.”
3. Defendants are entitled, but have not received, full fair discovery, first requested by defendants on November 22, 2003, and because of refusal of plaintiffs to provide full, fair discovery, defendants have been forced to file motions to compel. Said motions were considered by this Court on January 6, 2003 and January 27, 2003.
4. In
Loftin v. Martin, 776 S.W. 2d 145, which plaintiffs are also fond of
citing, it states:
“Any party who seeks to exclude documents from discovery must specifically plead particular privilege or immunity claimed and provide evidence supporting such claim; trial court must then determine whether in camera inspection is necessary and, if so, party seeking protection must segregate and produce documents for court. Vernon's Ann.Texas Rules Civ.Proc., Rule 166b, subd. 4.” Plaintiffs have not pleaded any particular privilege or immunity.
5. Plaintiffs’ claim that they fear defendants will post plaintiffs’ tax returns on the internet is beyond ridiculous and is simply further attempt at obfuscation. Defendant Dottie Harrison devotes a portion of her web site to this lawsuit with the purpose of helping other potential pro se litigants. URL of said web site is http://dottie.clickhere2.net/lawsuit.html. The only documents that defendant Dottie Harrison has or will post to the internet are documents of public record, such as pleadings and motions. Defendants are well aware that tax returns and/or financial information are not public documents.
A. FINANCIAL DISCLOSURE
6. Plaintiffs claim that defendants have been provided ample information for their defense through discovery and depositions. Just as defendant Dottie Harrison was preparing this amended motion, certified mail was received by defendants from plaintiffs that finally reveal facts alleged to be about “Christina,” that defendants have been requesting since November 22, 2002. However, defendants have been unable to find any information about “Christina” from the information given by plaintiffs and defendants question whether the information given is accurate. Plaintiffs are clearly afraid to furnish any information about “Christina.” Plaintiffs’ intentional delay in furnishing this information has allowed ample time for the witness to have moved or otherwise been compromised.
7. As for “depositions,” defendant Dottie Harrison has faxed counsel for plaintiffs three times asking for dates that would be convenient to depose plaintiffs. Said faxes were on January 14, 2002, January 18, 2003 and January 22, 2003. Counsel for plaintiffs did not respond in any way to defendants’ first two requests. In response to defendants’ last request, counsel for plaintiffs replied, “When we have dates available for the deposition, we will notify you.”
8. Pursuant to THE TEXAS LAWYER'S CREED--A MANDATE FOR PROFESSIONALISM § III(14) (Nov. 7, 1989): “The Dallas Code of Professionalism, as well as the United States District Courts for the Northern District of Texas (see Dondi Properties Corp. v. Commerce Sav. & Loan Ass'n, 121 F.R.D. 284, 293 (N.D.Tex.1988)), provide that when one party attempts to communicate a proposed date for a deposition or a hearing, the other party should respond within 48 hours.”
9. Defendants are not assured when and/or if they will be able to depose plaintiffs before discovery period ends because of the established pattern by plaintiffs of stonewalling and intentional attempts to delay.
10. Plaintiffs state they will “not rely on tax returns” to prove their damages. Defendants state that tax returns and monthly financial statements are the most “believable” means of proving damages instead of relying on non-substantiated documents plaintiffs are allowed to produce at their whim.
11. Defendants Harry and Dottie Harrison again respectfully request this Court to compel plaintiffs to produce (1) the most recent tax returns of plaintiffs Dr. Mark Nichols and that of his Professional Association, titled in this cause as “Mark Lynn Nichols, M.D., P.A.”, but which is, according to the State of Texas, “Mark L. Nichols, M.D., P.A.” and (2) monthly financial statements of plaintiffs subsequent to their most recent tax returns. Regarding said tax returns, defendants herein amend their request from asking for tax returns “certified as to their accuracy by an independent CPA” to ask this Court to compel plaintiffs to send Form 4506 to the IRS, requesting that the IRS send said tax returns direct to defendants; and that said request shall be sent via certified mail, return receipt requested, with return receipt being sent to defendants to prove that such request was actually sent. Said Form 4506 is incorporated herein by reference as Exhibit A. Further, defendants again request, in addition to said tax returns, monthly financial statements of plaintiffs subsequent to their most recent tax returns.
B. SIGNED DISCOVERY REQUESTS
12. Rule 191.3(a) of the Texas Rules of Civil Procedure states that every disclosure, discovery request, notice, response, and objection must be signed (1) by an attorney or (2) by the party. Rule 191.3 states that the response must be signed. It does not state that a letter which accompanies the response, and which is signed by an attorney, constitutes a signature on the response itself. While this may or may not be an important distinction, plaintiffs are quick to call to attention any alleged errors in procedure by defendants, and defendants simply ask that plaintiffs operate by the same rules. Defendants have requested three times that counsel for plaintiffs provide signed copies of plaintiffs’ responses to Requests for Admission, Requests for Production, and Requests for Disclosure. Said requests by defendants were on December 26, 2002, January 8, 2003 and January 15, 2003.
13. Therefore, defendants request that this Court compel plaintiffs to provide signed copies of plaintiffs’ responses to Requests for Discovery, Requests for Production, and Requests for Disclosure.
Respectfully submitted,
Harry A. Harrison, defendant pro se
Dottie Harrison, defendant pro se
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