Case 5:10-cv-00140-C Document 69 Filed 06/06/12 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA DOUG FRIESEN, Plaintiff, v. CHARLES N. ERB, JR., Defendant. ) ) ) ) ) )

Case No. CIV 10-140-C

MOTION TO COMPEL BY DEFENDANT CHARLES N. ERB, JR. WITH BRIEF IN SUPPORT COMES NOW Defendant, Charles N. Erb, Jr., through counsel, Joseph L. Wells, and pursuant to Federal Rule of Civil Procedure 37, moves this Court to compel Plaintiff, Doug Friesen to provide the following discovery. 1. Copies of any and all contracts between Doug Friesen and Mack Martin for Mr.

Martins representation, copies of any and all checks, invoices, receipts from any and all people who paid money that is claimed as damages, and a list of who paid the money, whether it was a loan or gift, and how much money it was, and when. 2. The address and phone numbers of all the people that gave or loaned Plaintiff

money for his criminal representation. 3. Present Mack Martin as Mr. Friesens attorney in the criminal case to testify

as to any and all matters involving his representation of Mr. Friesen including, but not limited to contracts, fees, work done for the fees, theory of the case, and all matters relating to Mr. Martins defense of Mr. Friesen.

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Pursuant to L CvR 37.1, counsel for both parties met on May 17 and 18, 2012 during depositions and discussed these issues. The items listed above were and have not been resolved, even though Plaintiff said he would provide the information requested in items 1 and 2 within two weeks. Two weeks has passed. Also as to item 3, Mr. Martin stated he would not waive attorney client privilege without a court order. The parties agreed that present counsel would ask for a status conference to resolve this issue. ARGUMENT: Counsel has repeatedly requested the information sought in this motion and has been promised such information, to no avail. Mr. Martin was subpoenaed for a deposition for May 18, 2012. The subpoena provided that he was to bring all matters relevant to the attorney fees and costs charged to Doug Friesen in case number CR-08-041-L in the United States District Court for the Western District of Oklahoma. The subpoena also requested all

contracts between Doug Friesen and Mack Martin regarding representation in case number CR-08-041-L, as well as any and all documentation regarding fees and expenses paid, and any and all documents regarding Mr. Friesens representation involved in case number CR-08-041-L. These were to be produced at the deposition. Mr. Martin did provide several items. However, there were no signed contracts or
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receipts showing money paid to him from Mr. Friesen, only money he paid out on Mr. Friesens case. Mr. Martin, at the time of the deposition, invoked attorney client privilege and stated he would answer no questions other than questions relating to money paid in or out. Mr. Friesen, who was present, also would not waive attorney client privilege with Mr. Martin. Mr. Friesen is the one that has raised the issue of attorney fees, and costs as damages because of Mr. Erbs purported negligence. Mr. Erb is entitled to know how these damages were arrived at and whether or not they are a result of his purported negligence or some other cause. There were five counts on the indictment. Four involved lying by Mr. Friesen. Mr. Erb needs to know how his purported negligent acts caused Mr. Friesen to lie. Mr. Martin, due to his representation, may be able to help answer these questions. Plaintiff was required to produce this information to Defendant without awaiting a discovery request under Fed. R. Civ. Pro. 26(a)(1)(A)(iii)(Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: . . .(iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which
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each computation is based, including materials bearing on the nature and extent of injuries suffered . . . .). L CvR 37.1 has been complied with. WHEREFORE, Defendant Charles N. Erb, Jr. Would request the Court grant his motion to compel for the reasons stated. Respectfully submitted,

s/Joseph L. Wells JOSEPH L. WELLS, OBA #9470 Attorney for Defendant, Charles N. Erb, Jr. 3955 Northwest 23rd Street Oklahoma City, OK 73107 Telephone: (405) 942-8800 Fax: (405) 947-1937 Email: joewells@swbell.net

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CERTIFICATE OF SERVICE

I hereby certify that on June 6, 2012, I electronically transmitted the attached document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the ECF registrants and by regular U. S. Postal Service to: Doug Friesen, pro-se 1309 N. Shartel Oklahoma City, Oklahoma 73103 and Mack Martin 125 Park Ave 5th Fl Oklahoma City, OK 73102 s/Joseph L. Wells JOSEPH L. WELLS OBA # 9470