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Hon. Gabriel C. Handel Hearing date: September 11, 2013 Without Oral Argument

IN THE SUPERIOR COURT OF WASHINGTON IN AND FOR KING COUNTY MONDOCONDO, LLC, a Washington Limited Liability Company, Plaintiff, v. BANKNAME BANK, a federal savings bank, Defendant. I. ) ) ) ) ) ) ) ) ) ) No. 12-0-00000-0 SEA PLAINTIFFS MOTION FOR DISCOVERY PROTECTIVE ORDER

RELIEF REQUESTED

Plaintiff, MondoCondo LLC (MondoCondo), and non-party deponent Robert Drake respectfully request under CR 26(c) and CR 45(b)(3)(A) an order of protection preventing or limiting Defendant, Bankname Bank (the Bank), from requiring MondoCondos managing agent Robert Drake to bring MondoCondos records and his own personal and business documents to his deposition, because the Bank may not use Rule 45 to end-run the requirements of Rule 34 as to Plaintiffs records, and because Mr. Drakes personal business records are irrelevant, voluminous, and confidential. II. STATEMENT OF FACTS

The discovery cutoff date in this case is September 3, 2013. The parties agreed to set certain depositions the week after, including the deposition of MondoCondos manager and co-owner, Robert Drake. Declaration of Godwin Jackson (Jackson Dec.) 2. But the Banks

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deposition notice for Mr. Drake, although served on MondoCondos counsel, is styled as a subpoena duces tecum, requiring Mr. Drake to bring documents regarding MondoCondos loans from Island Credit Union, Mr. Drakes and his other companies loan records, all communications with or about (among others) MondoCondos other member (Mr. Kermit Lattor), all records Mr. Drake may have about Mr. Lattor, Plaintiffs records supporting or alleged to support Plaintiffs damages, and such other matters set forth in the Complaint and/or Answer. Id. 3 & Exh. A. The so-called subpoena lacks the text of CR 45(c)-(d). Id. Exh. A. Mr. Drake has been in the real estate development business in Island County for decades, as owner or manager of many companies otherwise unrelated to MondoCondo, in some of which Mr. Lattor also has an interest. Id. 4. He and/or some of his entities are involved in other lawsuits as well, some of which relate to credit issues or events involving Mr. Lattor. Id. Mr. Jackson asked for a CR 26(i) conference, and told counsel for the Bank that he would wait to file this motion until today, but counsel for the Bank has not called or said when he may be available for the conference. Id. 5. III. STATEMENT OF ISSUE

Should the Bank get discovery of Plaintiffs records without following the requirements of CR 34, CR 45, or CR 30(b)(1), by a notice of deposition to its managing agent personally? Should the Bank get discovery of Mr. Drakes unrelated business and personal records? IV. EVIDENCE RELIED UPON

Plaintiff relies upon the Declaration of Godwin Jackson filed herewith, and the balance of filings in this action. V. ARGUMENT

To discover MondoCondos records, Rule 34 requires service of requests on MondoCondo, not its agents or owners, no later than 30 days before the date of production. CR 34. A party may not use Rule 45 or Rule 30 to circumvent the requirements of Rule 34. See, e.g., Caston v. Hoaglin, 2009 WL 1687927 (S.D. Ohio June 12, 2009) (Regardless of how plaintiff attempts to

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frame his request, a Rule 45 subpoena is a discovery device that may not be used to circumvent other civil rules or court orders including Rule 34)); Hernandez v. City of Corpus Christi, 2011 WL 2194254 (S.D. Tex. June 6, 2011) (It is well established that a party may not use Rule 45 subpoenas duces tecum or Rule 34 requests for productions to circumvent a discovery deadline.); Thomas v. IEM, Inc., 2008 WL 695230, at *2 (M.D.La.2008) (The Court will not allow Thomas to employ a Rule 45 subpoena to avoid the discovery deadline and to obtain documents from IEM that could have been requested pursuant to a Rule 34 document request well before that deadline.); Barrington v. Lockheed Martin Corp., 2007 WL 1303032, at *4 (M.D.Fla.2007) (It is improper to use a Rule 45 subpoena for the express purpose of circumventing the response time provided to a party under Rule 34 and the Court's discovery deadline.); Disney v. State Farm Fire & Cas. Co., 2004 WL 1091135, at *1 (W.D.Tenn.2004) ([T]o the extent Disney's July 10, 2003 request for production of documents at the depositions of Buie and Swain was made pursuant to Rule 34, the request was untimely because the discovery deadline had expired.). In Stokes v. Xerox Corp., 2006 WL 6686584 (E.D. Mich. Oct. 5, 2006), for instance, the district court quashed a deposition duces tecum notice addressed nominally to the defendants employee, seeking company business records. The court reasoned: The leading treatises agree that although Rule 45 may apply to both parties and nonparties, resort to Rule 45 should not be allowed when it circumvents the requirements and protections of Rule 34 for the production of documents belonging to a party. If documents are available from a party, it has been thought preferable to have them obtained pursuant to Rule 34 rather than subpoenaing them from a nonparty witness. 8A Charles Alan Wright, et al., Federal Practice and Procedure 2204 at 365 (2nd ed.1994) (citing Bada Co. v. Montgomery Ward & Co., 32 F.R.D. 208 (S.D.Cal.1963) and Overly v. HallNeal Furnace Co., 12 F.R.D. 112 (N.D.Ohio 1951)). Although Rule 45 is not limited by its terms to nonparties, it should not be used to obtain pretrial production of documents or things, or inspection of premises, from a party in circumvention of discovery rules or orders. Discovery from a party, as distinct from a nonparty, is governed by Rule 34, not Rule 45. 7 Moore's Federal Practice 34.02[5][e] (3d ed.) (citing Hasbro, Inc. v. Serafino, 168 F.R.D. 99 (D.Mass.1996)). Stokes v. Xerox Corp., 05-CV-71683-DT, 2006 WL 6686584 (E.D. Mich. Oct. 5, 2006).

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Here, the Bank apparently wishes it had asked MondoCondo timely for these documents, but did not, so it seeks to get them through the back door by way of a so-called subpoena duces tecum to Mr. Drake. The document in question is merely a notice of deposition, which does not comply with the requirements of CR 45(a)(1)(D) in that it lacks a reproduction of CR 45(c)-(d). By serving the notice on MondoCondo and in the form of a notice of deposition, instead of serving a subpoena directly on Mr. Drake, and by seeking MondoCondo records, not merely Mr. Drakes personal records, the Bank plainly intends to call Mr. Drake as managing agent of MondoCondo under CR 30(b)(1), but at the same time, the Bank tries to treat him as a third party from whom it may demand documents by subpoena duces tecum without complying with CR 34. CR 30(b)(1), however, clearly distinguishes between a notice of deposition to a managing agent, and a notice with subpoena duces tecum to a non-party. The requests for MondoCondos records are untimely and improper, and should be quashed. Even as to Mr. Drakes own records, the request is improper in that it lacks the required notice of CR 45(c)-(d), and it is also overbroad, unduly burdensome, and invades privilege, work product protection, and business confidentiality, and so should be quashed or at least greatly limited under CR 26(c) and CR 45(b)(3)(A). Mr. Drake and the Bank are repeat players in the small business community of Island County, and the Bank may not use this lawsuit by one of Mr. Drakes companies to obtain information about Mr. Drakes other companies (or Mr. Drakes own) loan applications and credit agreements with other banks information that would no doubt be very useful to the Bank the next time one of those entities seeks a line of credit, but which has nothing to do with this case. This case is about whether the Bank did or did not agree to make a loan to MondoCondo and renege on its agreement. See Complaint. Mr. Drakes other companies loans from other banks are completely irrelevant, and they constitute confidential business information that should not be casually disclosed to a lender.

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The Banks requests for Mr. Drakes communications and other records relating to Mr. Lattor are absurdly overbroad Mr. Drake and Mr. Lattor as the sole co-owners of MondoCondo have communicated on every subject imaginable related to MondoCondo, most of which have no bearing whatsoever on this case. As long-term business partners in other, unrelated businesses, they have communicated on even more subjects, all irrelevant. Lastly, Mr. Drake, like many developers, has been in more than one lawsuit over the years and he or his companies are engaged in other lawsuit even now. The Bank has no right to view privileged communications with those entities attorneys or documents obtained or generated in preparation for trial. VI. CONCLUSION

This Court should enter an order quashing the so-called subpoena duces tecum portion of the notice of deposition of Mr. Drake. A proposed Order is attached. DATED this 3d day of September, 2013. RICHARDSON LAWYERS, P.S. /s/ Godwin Jackson R. Roy Richardson, WSBA # 4646 Godwin Jackson, WSBA #39991 Attorneys for Plaintiff

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