Motion to Quash

[XLFD]

These Depositions Came Last Saturday along with these interrogatories and request to admit

 

I think they went a little overboard with Toni's deposition, after all, her only 'crime' was helping me get information from a corrupt city, but here was the body of my Motion to Quash (yeas that's an actual legal term-- lawyers are so crazy!)

 

MOTION TO QUASH SUBPOENA

Plaintiff/Counter-Defendant, TONI SWIGER, files this motion to quash a subpoena issued by Attorney George V. Saylor, III acting on behalf of the Defendant/Counter-Plaintiff in the above captioned civil action.  In support of her motion, Plaintiff/Counter-Defendant Swiger claims the following:

1)  This is an action to quash a subpoena issued by Defendant's attorney George SAYLOR III seeking to have Plaintiff SWIGER compile several documents and testify at a deposition.

2)  The Subpoena, signed by Defendant SAYLOR on 1-13-2012, was sent by first-class mail and was received by Plaintiff SWIGER on 1-14-2012.

3)  The Subpoena ordered Plaintiff SWIGER to produce all bank account statements for 2011, paycheck stubs for December 2011, income tax returns for 2010 and 2011 and to testify at a deposition to take place on 1-26-2012.

4)  The time between 1-13-2012 and 1-26-2012 is less than 14 days.

5)  The subpoena was issued under the authority of MCR 2.305(A) and ordered documents to be produced as per MCR 2.305(B).

6)  MCR 2.305 (B)(1) states the following rules must apply to such a subpoena:  "The subpoena must be served at least 14 days before the time for production." 

7)  Such an order to produce documents on a subpoena 13 days after its production, 12 days after its receipt, is a violation of Michigan court rules.

8)  Furthermore, Plaintiff SWIGER seeks relief from the Defendant from future depositions of similar nature to protect her from the annoyance, embarrassment, oppression, or undue burden or expense so imposed, as per MCR 2.302(C).

9)  Plaintiff SWIGER is admittedly indigent, she has a sworn Affidavit of Indigency on file with the defendant, and Defendant SAYLOR requests for her to compile documents, some of which are not readily available to her and would require fees for their compilation.

10)  Defendant SAYLOR's order has no inclusion of, or promise to pay, any compensation for her compilation of these documents or for the time involved in taking time to testify.  This is an undue burden and expense for Plaintiff Swiger.

11)  Plaintiff SWIGER submitted a sworn  Affidavit of Indigency on 1-28-2011 with the Defendant CITY OF LUDINGTON which certified that she was on public assistance or otherwise indigent.

12)  The order by Defendant SAYLOR to produce her 2010 Income Tax returns seeks to find out her financial status during 2010, which is beyond the scope of any claim by the defendant and irrelevant to the findings of this civil action, since the Defendant did not recognize the right afforded to Plaintiff SWIGER by the Affidavit of Indigency at that time.  The request seeks to further annoy, embarrass and/or oppress Plaintiff Swiger. 

12)  The Defendant arbitrarily retracted, without due process, the rights afforded by Michigan law by the Affidavit of Indigency to Plaintiff SWIGER  in a 10-4-2011 E-mail (Exhibit D) where Defendant's FOIA Coordinator said "Since Tom Rotta is actually submitting these FOIA requests to take advantage of the $20 credit, the City will no longer honor the $20 credit."

13)  Plaintiff SWIGER's indigent status has not changed since the Affidavit was accepted in January 2011 and rejected in October 2011 arbitrarily and capriciously by the Defendant's FOIA Coordinator.  After October 4, 2011, the rights granted by her legally- indigent status has not been recognized by the Defendant.

14)  Defendant SAYLOR asks for Plaintiff Swiger's paycheck stubs for December, 2011.  A period beyond when Defendant's FOIA Coordinator recognizes any right afforded by the Affidavit of Indigency.

15)  The order by Defendant SAYLOR to produce her December 2011 paycheck stubs seeks to find out her financial status  beyond the scope of any claim by the defendant and irrelevant to the findings of this civil action, since the Defendant did not recognize the right afforded to Plaintiff SWIGER by the Affidavit of Indigency at that time.  The request seeks to further annoy, embarrass and/or oppress Plaintiff Swiger.

16)  The judges deciding Cashel v Smith, 117 Mich App 405 (1982),  concluded depositions may sometimes be appropriate in Freedom of Information Act cases, but they must be justified.  

17)  Plaintiffs contend that the need for a deposition from Plaintiff SWIGER has not been justified by the assertions in Defendant's previous counterclaims, answers, and affirmative defenses.  Interrogatories and requests for production of documents already sent to Plaintiff SWIGER and any other such future inquiries of the like will satisfy such a need for whatever other documents or information required by Defendant.

18)  Defendants during and before this civil action have sought to oppress and harass Plaintiff SWIGER in their claims and their efforts to quash SWIGER's right to seek information granted to her by the FOIA and often suppressed by the Defendant in their duties to her.

19)  Such actions by the Defendant as regards #18 include, but are not limited to:  A)  Charging fees to her that are not recognized by the FOIA and without regard for her Affidavit of Indigency on file with the Defendant   B)  Passing policy that allows the FOIA Coordinator/City Manager to restrict access and liberties to public facilities (placed on Plaintiff ROTTA on 3-01-11 without any due process)   C)  Making spurious, libelous claims in their court filings for this case about Plaintiff SWIGER, without any merit or legal significance to the eventual findings of the court   D)  Disregarding State FOIA law and their own written FOIA policy in order to withhold public records from her inspection, and giving no valid reasons for the abrogations of Defendant's duties.

WHEREFORE, for the reasons set forth above, Plaintiff TONI SWIGER respectfully requests this Honorable Court to quash the subpoena, or in the alternative, to

issue a protective order as per 2.301(c) that addresses the above concerns.

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