IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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.
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,”
|MOTION TO COMPEL DISCOVERY
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
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,
The Plaintiff has also served all the Defendants with the following
Interrogatories on December 06, 1997:
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
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
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
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
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
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.
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,
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.
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
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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