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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEAST DIVISION

JORDAN BLAIR	Case No. 1:02CV88CAS	PLAINTIFF
vs.
BOB WILLS, AKA BOBBY RAY WILLS, AKA W. B. WILLS, BETTY SUE WILLS, SAM GERHARDT, DEBORAH GERHARDT, BO GERHARDT, JULIE GERHARDT, DREW PARRISH, ROBERT O’BRIENT, ROBERT KENNEDY, DBA "MOUNTAIN PARK BOARDING ACADEMY," and PALM LANE BAPTIST CHURCH, INC.
		DEFENDANTS

PLAINTIFFS’ MOTION TO COMPEL COMPLIANCE WITH DISCOVERY, AND MOTION TO COMPEL PAYMENT OF MILEAGE FOR TERRI YOUNG

Comes now Plaintiff Jordan Blair for his motion to compel compliance with discovery, as to the conduct of depositions, the answering of interrogatories, and the compliance with requests for documents, and states:

Depositions and witness fees

1. Plaintiff has repeatedly requested dates for depositions. As of this date, not one of the Defendants have made themselves available for deposition at any time.

2. Defendants sought the deposition of Plaintiff and another witness, Terri Young, a resident of the State of Arkansas. Both made themselves available on June 4, 2003, the date requested by the Defendants in Cape Girardeau, Missouri, in the offices of John Oliver.

3. Mr. Oliver stated in an June 12, 2003 email that "... Terri is not entitled to mileage; we wanted to take her depo in Ft Smith and you offered to produce her here -- sorry but no cigar."

4. Terri Young was offered only $47.70 as a witness fee, despite her travel of approximately 882 miles round trip, same being the distance from Fort Smith, Arkansas and Cape Girardeau, according to Map-quest, an online map service.

5. According to 28 U.S.C. § 1821, as Plaintiff understands and interprets that section and referenced material, Terri Young was entitled to:

$40 per day per diem for two days. She drove back from depositions into the wee hours of the 5^th, but only claims for the full day of the 3^rd and the deposition day of the 4^th.

$0.36 per mile for 882 miles, totaling $317.52.

$55.00 lodging allowance for one night, plus $30 for each of two days for meals and incidentals.

The total of all these allowances is $512.52, certainly much less than the cost of transportation of two attorneys to Fort Smith for depositions.

6. Plaintiff counsel, upon being served with notices of deposition for Jordan Blair and Terri Young, served his own notices of deposition for the same day, with the understanding that Defendants could complete their depositions first, and that the Plaintiff would be allowed to depose some or all of the Defendants thereafter.

7. Plaintiff has been seeking dates for depositions at least since March 20, 2003. Plaintiff counsel sent an email requesting suitable dates. A true and correct copy of three email messages of that date is attached hereto as Exhibit "1" and incorporated herein as if set forth word for word.

8. In the email from Mr. Oliver, he suggested that Plaintiff Jordan Blair be deposed at his offices. The depositions were held at Mr. Oliver’s office as he suggested, with only Plaintiff Jordan Blair, and Ms. Young, both from Arkansas, being deposed, even though the Defendants stated in their Separate Answer to Plaintiff’s First Amended Complaint, Paragraph 9, Page 2:

"Defendants Sam Gerhardt, Deborah Gerhardt, Bo Gerhardt, Julie Gerhardt, and Robert O’Brient, admit that they live in Wayne County, Missouri."

9. On May 29, a notice of deposition was sent via email in pdf format to counsel for the Defendants, hard copy to follow. A true and correct copy of same is attached hereto as Exhibit "2" and incorporated herein as if set forth word for word.

10. In order to change the place of deposition from the offices of Mr. Briggs to the offices of Mr. Oliver, an amended notice of deposition was sent via email, in pdf, hard copy to follow. A true and correct copy of same is attached hereto as Exhibit "3" and incorporated herein as if set forth word for word.

11. Based upon conversations with defense counsel indicating that none of the Defendants would be available on the dates proposed by Defendants for depositions, a letter was sent with the same transmission, and also mailed, stating that if the Defendants would provide reasonable later dates for depositions, no motion to compel or request for costs would be filed with the Court. A true and correct copy of same is attached hereto as Exhibit "4" and incorporated herein as if set forth word for word.

12. Plaintiff counsel was unable to get dates for deposition of the Defendants. Further emails were sent between counsel on June 11, June 12, and June 23, 2003. A true and correct copy of same is attached hereto as Exhibit "5" and incorporated herein as if set forth word for word.

13. Plaintiff counsel was informed, on Friday, June 27, 2003, that Mr. Briggs was available on Tuesday and Wednesday, July 1 and 2, 2003, of the following week. Plaintiff counsel was willing and able to go on this short notice, and offered so to do. However, Mr. Oliver refused to allow the depositions on the ground that he was unavailable.

14. On June 27, 2003, Plaintiff counsel sent an email and gently reminded counsel that a motion to compel might become necessary unless the Defendants committed to a date certain for the conduct of depositions within a reasonable time. This fact is verified by emails dated June 27, 2003, June 28, 2003, and July 1, 2003. A true and correct copy of same is attached hereto as Exhibit "6" and incorporated herein as if set forth word for word.

15. The July 1, 2003 email made it clear that unless a firm and agreed date for depositions was provided in a written agreement, a motion to compel would likely be forthcoming.

16. On July 3, 2003, Plaintiff counsel sent out an email requesting deposition dates. A true and correct copy of same is attached hereto as Exhibit "7" and incorporated herein as if set forth word for word.

17. As of this date, no firm and agreed date for depositions has been forthcoming. Defense counsel have not contacted Plaintiff counsel since July 3, 2003, to attempt to arrange suitable dates for depositions. Plaintiff counsel believes, based upon the past actions of the Defendants, that oral depositions cannot be obtained without compulsion of the Court.

Interrogatories and requests for documents

18. Plaintiff seeks no compulsion for the answer of written discovery with respect to Mr. Kennedy or Mr. Parrish. Plaintiff seeks compulsion as to the remaining Defendants.

19. Plaintiff has made reasonable attempts to resolve the discovery disputes related to interrogatories and requests for documents. On April 30, 2003, Plaintiff counsel sent a letter requesting a conference at which discussions could be had regarding the dispute over written discovery.

20. Plaintiff counsel called John Briggs on May 5, 2003, and talked about the objections for 17 minutes. Mr. Briggs said he would go over the objections line by line the following day.

21. Pursuant to the conference between John Briggs and Oscar Stilley the following day, undersigned determined the basis for objections to various interrogatories and requests for documents. Plaintiff attempted to negotiate a satisfactory compromise as to each question, but for the most part was told that no compromise would be accepted by the Defendants.

22. Defendants have refused to respond to a number of the interrogatories and requests for documents propounded, upon the basis of objections which Plaintiff contends are legally insufficient.

23. Defendants Bob Wills, Betty Sue Wills, Sam Gerhardt, Deborah Gerhardt, Bo Gerhardt, Julie Gerhardt and Robert O’Briant provided objections and answers to the interrogatories of Plaintiff. A true and correct copy of is attached hereto as Exhibit "8" and incorporated herein as if set forth word for word.

24. Defendants Bob Wills, Betty Sue Wills, Sam Gerhardt, Deborah Gerhardt, Bo Gerhardt, Julie Gerhardt and Robert O’Briant provided objections and answers to the requests for production of documents of Plaintiff. A true and correct copy of is attached hereto as Exhibit "9" and incorporated herein as if set forth word for word.

25. Defendant Palm Lane Baptist Church provided objections and answers to the interrogatories of Plaintiff. A true and correct copy of is attached hereto as Exhibit "10" and incorporated herein as if set forth word for word.

26. Defendant Palm Lane Baptist Church appears not to have served any response to the Plaintiff’s requests for documents. A phone call was placed to Mr. Oliver’s secretary on July 9, 2003, requesting that she fax a copy of same by tomorrow if any such document exists. No such responses have been forthcoming.

27. Plaintiff requests that the Court grant compulsion as to the following interrogatories. For the convenience of the Court, each item is identified by its original number. The objection of Palm Lane Baptist Church, Inc., if any, is set forth in underlined text. The objection of Bob Wills, Betty Sue Wills, Sam Gerhardt, Deborah Gerhardt, Bo Gerhardt, Julie Gerhardt and Robert O’Briant is set forth in bold. Plaintiff has set forth a succinct summary of his notes taken while attempting to reach a compromise, in italics.

Document Request No 1. Please produce copies of your federal and state income tax returns for the years 1997, 1998, 1999, 2000, 2001 and, if available, 2002.

Confidentiality agreement offered by the Plaintiff. Nonnegotiable now.

Document Request No 3. Please produce copies of all complaints or petitions filed in any state or federal court or with any administrative agency, either for or against any of you.

Non-negotiable. However, they asked a similar question for Jordan and obtained answers.

Document Request No 4. Please produce copies of all documents relating to any money judgment ever entered against any of you either in your personal capacity or in any other capacity.

Non-negotiable.

Document Request No 7. Please produce copies of any passports that have been issued to any of you.

Document Request No 13. Please produce a complete copy of Jordan’s file at Mountain Park Boarding Academy or Palm Lane Boarding Academy. Make sure that this includes any medical notes, medical records including records of administration of medications, all records showing the date, amount, and purpose of any payment to or from Mountain Park Boarding Academy or Palm Lane Boarding Academy with respect to Jordan Blair, or the provision of services to Jordan Blair, record of any physical examination, any court records or probation papers pertaining to Jordan Blair, and every sort of academic record maintained by Mountain Park Boarding Academy or Palm Lane Boarding Academy.

Answered as to Mountain Park Boarding Academy: Defendants failed to turn over any financial records whatsoever; they failed to turn over the Medical Escrow Account information – documents showing the account activity, and they failed to turn over the Incidental Account information – showing the account activity, [money was initially deposited that they held and used for Jordan’s benefit]. This request is meant to obtain compulsion as to the withheld documents concerning Mountain Park, as well as to compel production of the documents pertaining to Palm Lane Academy, or in the alternative, a written admission by the Defendants that the requested documents do not exist.

Document Request No 15. Please produce all documents which purport to enroll Plaintiff in Palm Lane Boarding Academy.

Partially answerd as to Mountain Park Boarding Academy: Defendants failed to turn over ANY financial records whatsoever; they failed to turn over the Medical Escrow Account information and they failed to turn over the Incidental Account information [the money initially deposited that they held for Jordan’s benefit]. This request is meant to obtain compulsion as to the withheld documents concerning Mountain Park, as well as to compel production of the documents pertaining to Palm Lane Academy, or in the alternative, a written admission by the Defendants that the requested documents do not exist.

Document Request No 16. Please produce copies of all documents used to request any school or medical records of Jordan Blair at any time, by any of the Defendants.

Answered as to Mountain Park Boarding Academy, this request is meant only to obtain compulsion as to records of Palm Lane Boarding Academy or Palm Lane Baptist Church, Inc.

Document Request No 17. Please provide copies of any and all educational or medical records received by the Defendants or any of them at any time.

Answered as to Mountain Park Boarding Academy, this request is meant only to obtain compulsion as to records of Palm Lane Boarding Academy or Palm Lane Baptist Church, Inc.

28. Plaintiff also seeks compulsion of the following interrogatories, which follow the same pattern as the requests for production.

5. List all students who have attended Mountain Park Boarding Academy at any time within the past 10 years, and for each such student, provide the following:

(a) Name of student;

(b) Last known address of student;

(d) Names, last known addresses, and last known phone numbers for each parent or guardian of said student;

(e) Date of birth of student; and

(f) Reason student was sent to Mountain Park Boarding Academy.

ANSWER: Said Interrogatory is overly broad and unduly burdensome with no limitation as to scope. Said Interrogatory seeks information that is irrelevant and not likely to lead to the discovery of admissible evidence. Moreover, said Interrogatory seeks confidential information related to minor children that cannot be released pursuant to federal and state laws.

ANSWER: Objection: Defendant objects to interrogatory number 5 for the following reasons, to-wit:(

a) That the mountain Park Boarding Academy is a mission of the Mountain Park Baptist Church and the identity of church membership is privileged under the First Amendment to the Constitution of the United States and the plaintiff has made no showing that the information requested is relevant or material or can pass the standard required of discovery, which infringes upon First Amendment rights and protections. Said interrogatory further is overly broad and unduly burdensome in terms of time.

(b) Said request violates the privacy rights of the individual students who have not waived their right to privacy; their right to privilege against identification and their right to the personal privilege as to the reasons or the decisions made by third persons to enroll them in the academy; said information also violates the public policy established by the United States with respect to student records under 20 USC ?1230 et seq., which all though not applicable to Mountain Park or Palm Lane, nonetheless establishes the public polity of this state.

Mr. Briggs is "fairly confident" there is a law prohibiting this.

6. State the names, last known addresses and last known telephone numbers of any and all witness you intend to call at the trial of this cause, and for each such person, state:

(a) Their name, address, and telephone number.

(b) A brief synopsis of their expected testimony.

Answer: Objection: Defendant objects to interrogatory number 6 for the reason that the same seeks to inquire into and acquire the work product of this defendant.
Mr. Briggs states that he will answer on behalf of his clients, Bob Wills, Betty Sue Wills, Sam Gerhardt, Bo Gerhardt, Julie Gerhardt, and Robert Obrient.

Therefore compulsion as to this question is sought only with respect to Palm Lane Baptist Church, Inc., dba Palm Lane Boarding Academy Drew Parrish, and Robert Kennedy.

7. State the names, last known addresses and last known telephone numbers of all persons hired by Mountain Park Boarding Academy or Palm Lane Boarding Academy at any time in the past ten years. For each such person, state their:

(a) Starting and ending date;

(b) Hours of work;

(c) Starting pay and ending pay; and,

(d) A brief job description.

ANSWER: Objection: Said Interrogatory seeks information that is protected from production by the attorney work product doctrine. Said Interrogatory seeks information of a highly confidential manner, including income and salary information. Said Interrogatory seeks information that is irrelevant and not likely to lead to the discovery of admissible evidence. Said Interrogatory is overly broad and unduly burdensome with no limitation as to time and scope.

ANSWER: Objection: Defendant objects to interrogatory number 7 as irrelevant and immaterial with respect to the names of employees; unduly burdensome as respect to the time limitation (10 years). With respect to the remaining sub-parts (b, c, and d) said interrogatories violate the privacy of the employees by requiring information about their income to be revealed. The interrogatory further is generally objectionable as requiring production of penitent/priest privileged information.

Mr. Briggs says he will think about it.

10. Please list all assets in the possession or control of each of the Defendants, with a value greater than $1,000, and for each asset, state the following:

(a) A description of the asset;

(b) The actual or estimated value of the asset;

(d) Any encumbrances on the asset.

ANSWER: Objections: Said Interrogatory is overly broad and unduly burdensome with no limitation as to time and an overly broad scope. Said Interrogatory seeks information that is irrelevant and not likely to lead to the discovery of admissible evidence. Said Interrogatory seeks information of a confidential and proprietary nature.

ANSWER: Objection: Defendant objects to interrogatory number 10 for the reason that the defendants have not placed their financial condition into issue; that the interrogatory seeks to obtain personal private information, which is both confidential and proprietary. That the interrogatory, in using the words "possession and control" is clearly irrelevant and immaterial and not reasonably calculated to the discovery of admissible evidence.

Defense cannot move off that position.

16. In paragraph 27 of the First Amended Complaint, it is alleged:

On information and belief, Mountain Park has a close working relationship with a "bounty hunter" type service which can be utilized by either Mountain Park or parents, for a fee, in order to have a child forcibly returned to Mountain Park.

With respect to these allegations, please state:

(a) How many persons have been brought to your facility within the last 10 years by sheriff deputy or other law enforcement official?

(b) How many persons have been brought to your facility within the last 10 years by Strawn Security Service or like agency?

(c) Identify all security or escort services which, to the knowledge of the Defendants or any of them, have brought at least one person to Palm Lane Boarding Academy or Mountain Park Boarding Academy in the last ten years, and for each such service, please state the name, address, and telephone number of the service, the number of persons so transported, and the names and dates of arrival of each such person.

ANSWER: Objection: Said Interrogatory is nonsensical in that it asks for information to disprove an allegation of Plaintiff’s First Amended Complaint. Said Interrogatory is irrelevant and not likely to lead to the discovery of admissible evidence.

ANSWER: No.

Defense position is "make your argument to the judge."

17. In paragraph 212 of the First Amended Complaint, Plaintiff alleged:

Defendants and all of them confined Plaintiff, without legal justification, from October 24, 2001, through November 10, 2001, under circumstances as to prevent his exercise of legal rights secured by the constitution and laws of the State of Missouri and the United States, for the purpose of preventing Plaintiff from the exercise of his legal rights.

With respect to these allegations, please:

(a) State each and every legal or factual basis for denying Plaintiff his liberty during that period of time.

(b) State what rights Plaintiff had during this time, in the view of the Defendants;

(c) State the official policy of Mountain Park Boarding Academy concerning students who have legal rights to an appeal upon arrival, or during their stay, at Mountain Park Boarding Academy.

(d) State the official policy of Mountain Park Boarding Academy concerning students who request consultation with counsel concerning any legal rights they may have have upon arrival, or during their stay, at Mountain Park Boarding Academy.

ANSWER: Objection: Defendant objects to interrogatory 17 for the reason that the same inquires into the work product of this defendant and is nonsensical.

They just won’t answer.

18. In paragraph 213 of the First Amended Complaint, Plaintiff alleged:

Defendants and all of them confined Plaintiff, without legal justification, from November 10, 2001, through March 15, 2002, knowing that Plaintiff had completed his high school education and had a full legal right, under Missouri law, to his liberty. This confinement was also for the purpose and with the effect of preventing Plaintiff from the exercise of his legal rights.

With respect to these allegations, please:

(a) State each and every basis for denying Plaintiff his liberty during that period of time.

(b) State what rights Plaintiff had during this time, in the view of the Defendants;

(c) State the official policy of Palm Lane Boarding Academy concerning students who have legal rights to an appeal upon arrival, or during their stay, at Palm Lane Boarding Academy.

(d) State the official policy of Palm Lane Boarding Academy concerning students who request consultation with counsel concerning any legal rights they may have have upon arrival, or during their stay, at Palm Lane Boarding Academy.

ANSWER: Objection: Defendant objects to interrogatory 18 for the reason that the same inquires into the work product of this defendant and is nonsensical.

They just won’t answer.

By:__________________________

Oscar Stilley, Attorney at Law

Central Mall Plaza Suite 520

5111 Rogers Avenue

Fort Smith, AR 72903-2041

Attorney for Defendant

479 996-4109

479 996-3409 Fax

oscar@ostilley.com email

CERTIFICATE OF SERVICE

I, Oscar Stilley, by my signature above certify that I have this July 18, 2003 served the defendant with a copy of this pleading by pdf to the email addresses of John Oliver and John Briggs and by placing same in the US mail, postage prepaid to: John Oliver, Attorney at law, Oliver, Oliver, & Waltz, PO Box 559, Cape Girardeau, MO, 63702-0559 and Steven H. Schwartz, Brown & James, P.C., 1010 Market Street, 20^th Floor, St. Louis MO 63101-2000.