IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA


PLAINTIFF,

v.

CABLE NEWS NETWORK, INC./HEADLINE NEWS C/O Turner Broadcasting Inc.; AMERICAN BROADCASTING COMPANY, Plaintiff INC.); KVOA COMMUNICATIONS, INC.; KGUN INC.; KOLD INC.; KNST INC.; “JOHN DOE Defendants,” 

Defendants.

 MOTION TO COMPEL DISCOVERY
 

 
   
   
    The Plaintiff in this action hereby requests that the Court order the Defendants to comply with the Plaintiff’s already served “Discovery Request” and “Interrogatories” and future discovery requests pursuant to Civ. R. 37.  Pursuant to Local Rule 1.10(k) these discovery requests and the submitted objections are described below followed by a Memorandum of Law to support this motion. In addition, copies of correspondence between the parties are attached regarding these discovery requests.  In addition, the Court may find that it is necessary on its own motion to issue an order pursuant to Civ. R. 16.

1)  The Plaintiff has submitted the following “Discovery Request” to KOLD, KNST, KVOA and KGUN on November 24, 1997:

 The Plaintiff in this action hereby requests the following Discovery  information pursuant to Civ.R.  26 (b)1 (as applicable to the circled Defendant):
 

1) Identity and address of all employees for KOLD-TV 13; KGUN-9; KVOA-TV 4; KNST-AM 790 Radio. from April 01, 1995 to April 30, 1996.  Also include a title of each person’s occupation and a brief description of his/her duties.  If an employee is no longer employed with the station, please provide current forwarding address or last known permanent address with date of departure.

 2) With regards to KNST, please include the following information as well:  Names and addresses of all persons who have business agreements for  purposes of exercising advertisement/promotional programming shows via utilizing the station’s premises and broadcast equipment for purposes of the show, and the time in which these programs aired.  Also, include all identity and location of persons who were considered “guests” for appearing on any radio show from April 01, 1995 to April 30, 1996.


The Plaintiff has also served all the Defendants with the following Interrogatories on December 06, 1997:
    INTERROGATORIES

1) State the name of the person completing these interrogatories, his/her title of employment for the defendant, and duration of employment with the defendant.(Add, as applicable other persons as directed in instruction G).
 

2)   Describe, in specific detail, the method by which the earpiece device (“talking ear”) that media broadcasting personnel wear during “live” broadcasts to receive transmissions.  Include the source(s) by which information  can/is transmitted from, who the information reaches before it is relayed directly to the media anchor/person wearing the “talking ear.”

3) a) Describe, in sequential order, the routing electronic transmissions,  video, audio or other, are received into broadcast equipment owned by the broadcaster.

 b) State the location(s) this equipment is located.

 c) State all sources transmitted voice, video or other electronic tranmissions can be derived which ultimately make their way to the local broadcaster.

4) Describe the sequence of events that take place in disseminating “live” broadcasts, news or otherwise, from the source to the broadcasting studio.  (i.e. persons and technological devices involved).
 

5) a) State the type of space communications/broadcasting satellite you utilize regularly for receiving and transmitting broadcast trasmissions (voice, video, data, or other electronic transmission).  Include the manufacturer and model name.

 b) State approximately the altitudinal range, in miles, that space   communications/broadcasting satellites reside in space.

 c) State who (name and address) owns and operates the equipment listed in 5(a) of this interrogatory.

6) State the name of all government agencies, state, federal, county or local, in which you maintain commercial agreements with in the course of your business.  Briefly state the nature of the business conducted with such an entity.

7) State the name of all parties:  private corporations, public corporations, and other business entities in which you maintain commercial agreements with in the course of your business. (You may exclude those businesses that have advertisement agreements, unless such an agreement allows/requires the use of the broadcasting premises and equipment in any way.) Briefly state  the nature of the business conducted with such an entity.

8)  In general, is it possible that informational transmissions, voice, video, data, or other electronic transmissions, transmitted and received via normal broadcasting transmitters and receivers, could have originated from a source who obtained the information of the transmission via eavesdropping or some other illegal or tortious method?

     The Plaintiff has also sent a letter to all Defendants requesting a “meet and confer” agreement or a meeting to discuss such an agreement per Civ. R. 26(d) on December 27, 1997 attached hereto.  However,  Defendants appear to be fixated on their premise that no discovery should not occur until after the Court has ruled on the dispositive motions.  Their premise is irregular and not founded on law.
     In addition, CNN/TBS was served with a discovery request on December 18, 1997, which is attached. (Not being attached to the Defendants’ copies of this motions as they already have a copy.)  In light of the facts, it is obvious why that request should be complied with.
2) KGUN, on December 24, 1997 has objected to the November 24, 1997,  “Discovery Request”  for the following reasons, which Defendants KOLD, KNST and KVOA have identically Joined this objection:
 

     This is the response of Lee Enterprises, Inc. of which KGUN-9 is a division, to Plaintiff’s “Discovery Request” dated November 24, 1997.  For purposes of this reponse we have stated request no. 1, which is the only request addressed to KGUN-9. KGUN-9 objects based on Fed. R. Civ. P., Rule 26(d).  No meeting under Fed. R. Civ. P. Rule 26(f) has occurred, nor has any order or agreement authorized Plaintiff’s premature discovery request.
      KGUN-9 also objects to this interrogatory as overbroad, unduly burdensome, and not reasonably calculated to lead to admissable evidence.  The request for the identity and address of all employees over a thirteen-month period, without any identification of the purpose of the request appears calculated to provide Plaintiff information to harass KGUN’s employees.  In addition, discovery is premature, and should be stayed until the court rules on pending dispositive motions.


KGUN has also filed a formal objection with the Court to Plaintiff’s December 06, 1997 Interrogatories, which KOLD, KNST, and KVOA have identically Joined.   Its objection as served upon the Plaintiff dated December 24, 1997 is as follows:
 

 KGUN-9 objects to all Interrogatories numbered 1-8, as premature and not permitted under Fed. R. Civ. P., Rule 26(d).  No meeting of the parties has occured under Fed. R. Civ. P., Rule 26(f), nor has any order or agreement authorized the discovery request.
 KGUN-9 also objects to all Interrogatories as overbroad, unduly burdensome, and not reasonably calculated to lead to admissible evidence.  The Interrogatories seek highly technical information regarding broadcasting, and electronic transmissions, the response to which would require expenditure of considerable time and resource by KGUN.  In addition, the Interrogatories seek voluminous information concerning commercial agreements by KGUN that appear unrelated to the allegations of the Complaint.  KGUN has filed a potentially dispositive Motion to Dismiss, and all discovery should be stayed pending the court’s ruling on KGUN’s Motion to Dismiss.
     In addition, CNN/TBS has notified the Plaintiff of its intention to file a formal objection to Plaintiff’s December 06, 1997, Interrogatories.  Thus far, it has replied with two letters submitted to the Plaintiff regarding attempts between the Plaintiff and CNN/TBS to reach an agreement with CNN/TBS to answer the interrogatories.  (See attached four letters: CNN-December 17, 1997,  fax letter-December 19, 1997, CNN letter-December 22, 1997,  fax letter #2-December 24, 1997.)
     Defendant ABC has responded in no form whatsoever regarding the December 06, 1997, Interrogatories submitted by the Plaintiff and has therefore waived its right to object as the 15 days to reply, as stated in  Appendix A-Interrogatories of the Rules of Practice of the District of Arizona, has expired.
3)   The responses and objections of KGUN, KVOA, KNST, and KOLD to the November 24, 1997 “Discovery Request” are deficient for the following reasons.
 First, there is nothing premature about making a discovery request.  It is just that, a request, and if an opposing party chooses to object, then it may do so and subsequently alternative means for compliance with discovery will take place, as in this motion.  Second, there is nothing overbroad in requesting names of employees of the Defendants who not only have knowledge of the actions of the Complaint, but are also witnesses, perhaps even hostile witnesses.  The Plaintiff has not sought such information  “to harass [Defendants’] employees” as KGUN attempts to insinuate.   That information was  requested for precisely  what is stated in Civ. R. 26(b)1.
     Likewise, the responses and objections to Plaintiff’s “Interrogatories” are dificient as well.  The general theme among CNN/TBS, KGUN, KOLD, KNST and KVOA is that they believe they need not answer the interrogatories until after the Court has ruled on the pending potentially dispositive motions, or that all the interrogatories are burdensome.  There was nothing burdensome for the Defendants to surveille the Plaintiff for virtually a year or more. In addition, KGUN, KVOA, KNST and KOLD have objected to each individual interrogatory for the identical reason which is baseless as each differ substantively in what each propound.   Moreover, a Plaintiff is entitled to discovery when Motions for Summary Judgment are filed, thus there was nothing premature about the Plaintiff submitting the interrogatories.

    MEMORANDUM OF LAW

     In support of this Motion to Compel Discovery, Plaintiff refers the Court to the entire “Memorandum in Support of Plaintiff’s Complaint...,” particulary the conclusion section, as well as both of the Affidavits of Plaintiff   Not only has the Plaintiff provided prima facie evidence of fact in that Memorandum, but the Plaintiff is entitled to discovery as a matter of law when a defending party has submitted a Motion for Summary Judgment.  Specifically, Civ. R. 56(c) states “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file....”  Obviously, Plaintiff can not place into admissions interrogatoires or any other item relating to discovery if the Defendants do not provide proper replies to discovery requests.  In addition, the Supreme Court has stated:  [i]t is probably true that in the ordinary conspiracy case a plaintiff would be entitled to obtain discovery against all the alleged conspirators instead of being  obligated to proceed against them seriatim.  First National Bank Of Arizona v. Cities Service Co.  391  U.S. 253,  88 S. Ct. 1575,  20 L. Ed. 2d (1968).
 Therefore, the Court, as a matter of law must compel the Defendants to comply with submitted discovery requests by the Plaintiff.

Dated  January 05, 1998,  Plaintiff

Copies of the foregoing mailed, to the addresses on record,  this 05th day of January 1998, to:

David J. Bodney/CNN & TBS
Diane M. Johnsen & Stephen E. Silverman/ABC
George O. Krauja & Jennifer M. Dubay/KGUN
Janice A. Wezelman/KVOA
Gary F. Urman/KOLD & KNST
 

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