( TTH JUDICIAL DISTRICT COURT ( ‘SIERRA COUNTY NM FILED IN MY OFFICE 5/19/2016 8:40:01 AM MARY MORA, DISTRICT COURT CLERK STATE OF NEW MEXICO Js! Mary Mora 5/19/2016 SEVENTH JUDICIAL DISTRICT COURT COUNTY OF SIERRA No: _0-721-C¥.2016-00040 JUDGE: — Reynolds, Matthew G. IN THE MATTER REGARDING THE TESTIMONY OF REBECCA DOW PURSUANT TO RULE 1-027 ‘VERIFIED DI PURSUANT TO RULE 1-027 NOW COMES Petitioners M.R. and C.R. by and through their atiomey BEFORE (ON Mark A. Filosa and hereby request a Court Order allowing a deposition to be taken pursuant to Rule 1-027, and would state: 1. MR.and C.R. are the parents of M, A. R., who was the vietim of a sexual attack by an employee of various entities which are in the control of Rebecca Dow. 2. Rebecea Dow's employee, Alejandro Hemande2, plead guilty to sex erimes in ‘which one of the victims was M.A.R. who was a participant in various programs sponsored by Rebecca Dow’s entities, 3. Due to this incident, the Petitioners expect to be parties to an action cognizable in Court but are presently unable to bring it or cause it to be brought due to the Fact that Rebecca Dow and her entities are not providing preliminary information as requested. 4, Petitioners have attempted to obtain information that will designate what entities8% are responsible for the actions of Alejandro Hemandez, Petitioners have attempted to obtain this information by writing to wit: a. A letter to Rebecca Dow on July 27, 2015. b. A letterto Lisa C. Ortega, Esq... on August 7, 2015. ©, Alletter to Lisa C. Ortega, Esq. on August 10, 2015. dA letter to Lisa C. Ortega, Esq, on September 29, 2015. @ A letier to M, Clea Gutterson, Esq., dated October 8, 2015. £ A letter to M, Clea Gutterson, Esq, dated November 1, 2015, g Email to counsel on May 6, 2016. fh, ‘Two emails to counsel on May 13, 2016. ‘The potential law suit that may be filed in this matter is attached hereto and identified as Exhibit A. (This suit is subject to change once more information is provided by the deponents). ‘The names of the potential adverse parties are: a Rebecca Dow b. Amelie Wilcox €. Apple Tree Educational Center 4. Boys and Girls Club of Sierra County ‘The names of the persons to be examined are Rebecca Dow and Amelia Wilcox whose addresses are c/o Ms. Clea Gutterson, Esq. and Lisa Ortega, Esq. The substance of the testimony necessary 1o obtain documents and testimony. relevant to the entities sesponsible for the actions of Alejandro Hemandez as to10. the actual incident shall include, but is not necessarily limited to: a e Insurance policies in existence regarding this matter (although one policy has been provided; nonetheless, such production was not helpful since itis unclear what entities are responsible for this matter and what entities employed Alejandro Hemandez). Actual entities for whom Alejandro Hernandez worked. Employee file of Alejandro Hemandez. Actual training provided to Alejandro Hemandez. Training manuals and employee hand-outs regarding direction and responsibilities Payroll records for Alejandro Hemmandez. Grants received by various entities, which shall include the awarded grant, all grant solicitations, and grant applications as to all potential Defendants, All information requested by Petitioners in the letters indicated in Item 5 above. Legal documents creating said entities. ‘Any and all agreements and memorandums of understanding as to all entities involved in this matter. All communications among these entities and their agents regarding this matter. Any and all websites of the potential Defendants sine January 1, 2015. Its likely that if this information is not provided, and Petitioners file their suit,that the Defendants, including but not limited to Rebecca Dow and Amelia Wilcox may seek Rule 11 sanctions against Petitioners’ counsel or file Motions to Dismiss; thus, this is an effort to climinate such Motions. WHEREFORE, Petitioners requests this Honorable Court for an order authorizing the Petitioners to take the deposition of Rebecea Dow and Amelia Wilcox for the purpose of MARK A. FILOSA Attorney for the Petitioners P.O, Drawer 391 Truth or Consequences, NM 87901 (875) 894-7161 FAX: (575) 894-7570 filosa@zianet.com perpetuating this testimony. a SUBSCRIBED AND SWORN TO before me this 99 aay of May, 2016, by MARK A. FILOSA. Dp, \ ap My Cor isin Expres: Ai Muh \ Alay le bead 2Z/20" Notary PublicSTATE OF NEW MEXICO SEVENTH JUDICIAL DISTRICT COURT COUNTY OF SIERRA No: JUDGE: M.R.ANDCR. ) individually and as Parent next friend of ) MAR ) ) Plaintifis, ) ) vs, ) ) APPLETREE EDUCATIONAL CENTER, BOYS & GIRLS CLUB OF SIERRA COUNTY, ) REBECCA DOW and AMELIA WILCOX) Defendants. ) COMES NOW the Plaintifis by and through their attorney, Mark A. Filosa, and for their Complaint against the Defendants, allege as follows: 1, Plaintiffs are residents of Sierra County, State of New Mexico Due to the sensitive nature of this claim, Plaintiffs have elected not to diselose the full names of the Plaintiffs; nonetheless, Plaintiffs’ names and identity are known to the Deferidants. 2 For purposes ofthis suit, all Defendants ere residents of Sierra County, New Mexico, 3. Defendants are affiiated with a Protestant, evangelical, theological, conservative, Christian school located in Truth or Consequences, Sierra County, New Mexico,jow and Ver ‘The events or admissions giving rise to this claim occurred in Truth or Consequences, Sierra County, New Mexico. Therefore, venue is proper in the Seventh Judicial District for the State of New Mexico. Agency Whenever is alleged that the Defendants did any act or thing, itis meant that Defendants, officers, agents, servants, employees, or representatives did such act, or thing with full authorization, and ratification, or was done in the course and soope of employment. In the alternative or in addition, officers, agents, servants, employees or representatives were aided in the agency in the actions of the Defendants, thus rendering Defendants vicariously liable, of all liat damages asserted therein. Factual Allegations. Defendants are the recipients of mamerous grant monies to support their various programs in the community and to provide income to the individual Defendants, To further that effort, Defendants hired Alejandro Hemandez as an employze to be responsible for children for whom Defendants had responsibility. Alejandro Hemandez is the agent of alt Defendants. ‘Defendants undertook no basic efforts to investigate Mr, Hernande2’s background, including but not limited to, deficiencies in the following areas: a Defendants obtained no authorization for receipt of personnel files forML b prior employers, Defendants did not require Hernandez to list all prior. ‘employers in his application, Defendants did not require Hemandez (o list reasons for leaving all prior employers, Defendants did not adequately contact or research the employment of Alejandro Hernandez, and failed to conduct interviews with former employers, Defendants did not investigate and evaluate any gaps in Hemnandez’s employment, Defendants completed no background check of any nature, Defendants did not obtain police records or reports concerning Hemandez, Upon information belief, Defendants simply made inquiries regarding ‘Hemandez regarding his Christian faith, and took the assurances of his mother, who was also an employee of Defendants. Once Defendants hired Hernandez, he was provided no orientation or training concerning “do's and don’t's” and appropriate boundaries with children. Daring all times relevant, Defendants provided no training to other employees ‘with respect to awareness of known patterns regarding sexual abuse of penpetrators such as Alejandro Hernandez: On or about May 29, 2015, Defendants arranged for Hernandez to be in control and supervise children, including young boys, in an overnight field wip located on upervis ip4, 16. 17. 18. 19. property owned by Defendants Hemandez ingratiated himself with M.A.R. and other children, and held himself’ out as a good friend and someone with whom the child could talk to. ‘The Defendants arranged a lockdown sleep over at the property, and Hernandez ‘was the adult chaperone at the sleep over. M.A.R_ and other children attended said activity. During the lockdown sleep over occurring in the auditorium of the Defendants’ property, the lights were tuned off Hernandez laid down there next to M.A.R. and put his hands on M.A.R’s shoulder and several times pulled MAR. toward him, Hernandez put his hands down M.A.R,'s shoris between five and 10 times and ‘was moving his hands around and underneath M.A.R.’s shorts, Hernandez touched M.A. penis and butiocks. M.A.R. moved away from Hernandez and told him to leave him alone. M.A.R. ‘was wearing a T-shirt and boxer shorts while Hemandez. was wearing skinny jeans and a polo shirt, Hernandez used his position of authority to abuse and molest MAR. Defendants and other employees associated with Defendants should have known that having a sleep over with Hemandez.as an adult chaperone was inappropriate, Hernandez was charged with engaging in sexual intercourse, cuniailingus, fellatio, or anal intercourse as to another student at the same activity possibly other times. ‘On or about March 2, 2016, Hernandez pled guilty to two counts of Criminal Sexual Contact in the Third Degree. (See DO-721-CR-2015-00099 and DO-721-2, 23. 24. 26. CR-2015-00100) Athis sentencing, no one on behalf of Defendants spoke to the Judge urging a significant penalty; to the contrary, various representatives and persons associated with the Defendants asked for leniency and questioned whether Hemandez really committed these acts despite the fact that Hermandez pled guilty to the charges. Doring the sentencing, Hemandez’s attorney, who apparently has ties to the Defendants” organization, indicated that he did not understand why his client did that, but stressed that it was not the employer's fault, thereby attempting to reduce Defendants" culpability, in essence, dealing with the civil aspect of this ease by ‘urying to protect the Defendants. ent Hi Plaintiffs realtege and incorporate by reference all the above referenced allegations, Defendants were under a duty to exercise reasonable care, as appropriate under the circumstances, in the hiring of and retention of employees to whom it would expose its students and participants in its programs. Defendants violated a duty of reasonable care in the hiring and retention of Hemandez, As a ditect and proximate result of Defendants’ negligent hiring of Hemandez, Plaintiffs suffered damage and injury Jigent Training and Policies. ount TL Plaintiffs reallege and incorporate by reference all the above referenced28. 29. 30, 31 32. 33. 34. allegations. Defendants are under a duty to act with due care and establish appropriate policies for the training of employees. Defendants are under a duty of due care to act in due consideration and circumspection in the training of its employees. Defendants, at all relevant times, did not possess adequate policies, or books or guidelines with respect to training new employees on boundaties, appropriate employee-student relationships and other such matters. Atall relevant times, Defendants possessed inadequate policies with respect to training employees to address red flags that could be signs associated with employees’ inappropriate conduct with respect to boundaries, and of inappropriate employee-children interactions, Atall relevant times, Defendants failed to provide appropriate training to new employees conceming appropriate boundaries, and appropriate employee and children relations and related conduct. Atall times relevant, Defendanls failed to provide appropriate taining to its employees concerning ted flags that are signs associated with behaviors of other ‘employees or violating boundaries and inappropriate employee-children relationships. Asa direct and proximate result of Defendants? negligent policies and training, Plaintifts suffered injury and damage. ‘ount II Negligent Monit: of Hernandez36, 31. 40. 4h 42, Piaimtffs reallege and incorporate by reference all the above referenced allegations. Defendants owed PlaintiffS a duty of care and monitoring and supervision of the employment of Hemandez. Defendants breached their duty of care owed Plaintiffs and monitoring Hernandez due to ignoring signs associated with Hemandez as being a sexual predator. In the exercise of due care and circumspection, Defendants knew or should have known of inappropriate conduct on behalf of Hernandez. Asa direct and proximate resuit of Defendants’ negligent monitoring of Hernandez, Plaintiffs suffered damages. ror Throw, Ory Plaintiffs reallege and incorporate by reference all the above referenced allegations. ‘Under New Mexico law, an employer is liable for the intentional torts of an employee if the employee was aided in accomplishing the same in connection with the agency relationship. ‘Hemandez’s conduct ocourred only as a direct and proximate result of the aid he received in accomplishing his duties by the existence of his agency relationship with Defendants. Under the aided agency theory, all Defendants are vicariously liable for all injuries and damages Plaintiffs suffer as a result of the tortuous conduct of Hernandez. Count V Vicarious Liability-Course and Scope44, 45. 46. 47. 48. 49. 50. Plaintiffs reallege and incorporate by reference all the above referenced allegations. ‘Hernande7, at all relevant times, was acting in the eourse and scope of his employment with respect to all tortuous conduct directed towards Plaintiffs Under the doctrine of vicarious liability, Defendants are responsible for the tortuous conduct of Hernandez. rt tras iduct on Behalf of Defendants Rebecca Dow and Amelia Wilcox Plaintiffs reallege and incorporate by reference all the above referenced allegations AS soon as this matter becamte public, Plaintiffs came to see a lawyer in the small town of Truth or Consequences, New Mexico. Atthat time, the mother of the victim herein was employed by Defendants, In an effort to meet a quota to justify grant funding, the Defendants strongly encouraged Plaintifis to enroll M.A.R. in Defendants’ various programs. Jn that regard, Amelia Wileox, Apple Trec’s Assistant Director, saw Plaintiffs? car in front of a lawyer’s office in the small town of Truth or Consequences, New Mexico. After concluding that the Plaintiff$ were seeking counsel Defendants Dow and Wilcox abused their principal and employer status by putting pressure on Plaintiffs by attempting to coerce them into foregoing filing a claim by summoning C.R. to Ms. Dow’s office and putting pressure on her through the53. 34, 56, 57. 59, possible Joss of her employment or at the very least by Rebecca Dow exercising her authority as C.R.’s supervisor, In addition, Defendants Wilcox and Dow wrongfully indicated that Defendants bad no liability insurance, but indicated as a gesture of goodwill the Defendants would pay all expenses of Plaintiffs Said action was prompted by an effort to protect Defendants" entities, and further to protect Defendant Rebecca Dow’ statu in the community since she was contemplating a ran for a state political office. Said activity was done in a wanton disregard of M.A.R. and the Plaintiffs’ family. Despite Defendants’ misrepresentation, Defendants do actually have insurance. Defendants Dow and Wileox’s actions are outrageous and contrary to the Christian values Defendants tout in their website in an effort to obtain children to meet their quota to justify their grant funding, Defendants Dow and Wilcox breached all basic tenets of human decency by threatening this family, whose child was molested by Defendants’ pedophile hired by Defendants, In addition, efter it was established that Defendants’ employee and agent Hernandez had molested the Plaintiffs’ child, they sent a past-due bill for the “services” the family had received from Defendants, see Exhibit A attached hereto, Defendant Rebecea Dow is running for State political office and touts her role in education, but does not report to the public her program's responsibility in hiring61 62, 65. 4 pedophile, see Exhibit B attached hereto, Count VII Prima Racie Tort Plaintiffs ceallege and incorporate by reference all the above referenced allegations. Defendants have lured families into their programs without employing reasonable standards to safeguard children, Count VIII Unfair Trade Practice Plaintifs reallege and incorporate by reference all the above referenced allegations Defendants’ actions amount to violation of the New Mexico Unfair Trade Practice Act. unt 1 Plaintiffs reallege and incorporate by reference all the above referenced allegations. Plaintiffs have been damaged as a result of reactions described above as follows: 2 Medical expenses b. Mental health expenses c. Future medical expenses 4, Future mental health expenses ©. Physical pain £ Mental pain and emotional anguish & Mental suffering 1066. 67. 68. 69. 70. Psychological injuries i. Future physical pain Furure mental pain and emotional anguish Kk, Finure mental suffering 1, Foture psychological injuries m, Possible loss of earning capacity Loss of value and enjoyment of life Count XI Punitive Damages Plaintifisreallege and incorporate by reference all the above referenced allegations. ‘The conduct of all Defendants with respect to their reckless conduct and utter disregard and indifference to safeguarding and hiring, orientation, training and supervising of Hernandez support an award of punitive damages. Defendants have engaged in actions that have pat their personal political desires and business interests ahead of the children and families they say they desire to help. Defendants have demonstrated a cavalier attitude and culpable mental state in the manner in which they have harmed M.A.R. and treated Plaintiffs, which was done to protect their grant funded entities and businesses and the political ambitions of various Defendants. The reckless, wanton, end cavalier conduct of Defendants, through their employees and agents, aets and omissions of aforementioned taken separately or ucollectively, also constitute direct and proximate cause of damages to Plaintiffs 71. Consequently, Plaintifis are entitled to punitivelexemplary damages from Defendants. MARK A. FILOSA Attorney for Plaintiffs Post Office Drawer 391 Truth or Consequences, NM 87901 (575) 894-7161 FAX: (575) 894-7570_ 05/01/2026 sow es4t ax : Brae ‘este ree Sacatont Comer 08 =: ‘Frudh a Consequenars, tet 87804 ‘wince avyuvacrdbntinee "ren cetact From tno Seciorng Siemert Beience: 155.00 Geet Fost Gate Deserpi Cornet Chae] Greet] Balance] asl anol pol teen]¢ 282016 ‘Phen Rabe. Rebecca Dow tr State Represents Home Contact News Donate Gallery ABOUT REBECCA Home > About Rebecca Rebecca Dow is the 42 year old wife of Aaron Dow, and ‘mother of two children Jaylah Danielle Dow-Pendleton, and Seth Dow. Aaron and Rebecea owa Dow Technology, a ‘multifaceted technology firm. In addition, Rebecca provides Consultation services to for-profit and faith-based early childhood providers operating in the Rocky Mountain region. Rebecca is a member of the New Mexico Association of Commerce and Industry. She is a member of the Truth or Consequences Rotaty Club and active at her local church. ‘I've always been 2 good businesswomen, [ Started my first business in third grade, My grandma let me have a section of her garden. With an abundance of ‘crops’ loaded my red rider wagon and sold produce door to door in my neighborhood. In high scheo! operated a vending machine and taught piano lessons” She holds an coe Associate's Degree in Early Childhood from Tulsa Community College and a bachelors in Business Management from Oral Roberts University, Rebecca is the founder and director of AppleTree Educational Center, one of Sierra County, NM's largest employers. AppleTree provides early care and education, New Mexico PreK and Early Prex, apeebeccacew comabodebccal ‘a‘ sem06 About Rebecca Rebecca Dow far State Represartsive X12 private schooling college and career preparation services for youth to adult Jearners, New She serves as the Policy Chair of the New Mexico Child Care and Education Association, a statewide trade association for licensed child care providers. Rebecca is a founding member of the New Mexico Early Childhood Alliance, and is the founder and president of the Boys and Girls Club of Sierra County. She isthe founding chairof | the Sierra County Juvenile & a Justice Advisory Council, Rebecca represe: ional Early ‘Childhood Education ‘Consortium. Rebecca hes served on vatious commissions, councils and task forces for Democrat and Republican Governors, including Susanna Martinez’s Business Friendly Task Force, CYFD and HHS transition ‘eams, and currently serves on the Early Leaming Advisory Council. She has been a featured speaker for the Association of Christian Schools International, presented on the state and national level for the National Association for the Education of Young Children as well as the National Child Care Association, and has testified before elected officials at the state and national level on behalf of Private and faith-based early childhood providers, and the families they serve. She is actively involved in the legislative process, working with legislators and various associations toto draft and pass multiple bills and memorials impacting District 38. Rebecca is the recipient of the 2008 Governor's Award for Outstanding New Mexico Woman, Distinguished Alumn{ of Tulsa Community College, and a Leadership Award from the National Childcare Association, AppleTyee was recognized with the Excellence in Education award from Educate New Mexico, Pioneers in New Mexico Pre-K from the NM Lieutenant Governor, Dianne pithebeccarey cian sebecca! aYouth Services from the Community Foundation of Southern New Mexico, Address: 806 Sierra Vista Truth or Consequences, NM 87901 Phone: §75-342-1902 Email: Rebecca@dowforhouse.com & wh & ar g g ™, Crystal Diamond Treasurer. Designed and Managed by KK MEDIA Developed by ThemeMakers pr eboccadow cman ebecca!Home - Rebecca Dow for State Representative Page 1 of 2 G Lopin © create Account DONATE Home About Rebeces Contact News Donate Education, important ystem pr Rela 53 arents, and ols they need to “elt http:srebeccadow.comy 5182016f 7TH JUDICIAL DISTRICT COURT ‘ ‘SIERRA COUNTY NM FILED IN MY OFFICE 116 3:53:34 PM MARY MORA DISTRICT COURT CLERK 5/19/20. STATE OF NEW MEXICO Isl Mary Mora SEVENTH JUDICIAL DISTRICT COURT COUNTY OF SIERRA No: D-721-CV-2016-00040 IN THE MATTER REGARDING THE. ) TESTIMONY OF ) REBECCA DOW ) PURSUANT TO RULE 1-027 ) ) NOTICE OF EXCUSAL ‘The undersigned hereby notifies the court that the Honorable Matthew G. Reynolds is excused from presiding over the above-captioned case. Dated this 19 th day of May 2016. MARK A. FILOSA Attorney for the Petitioners P.O. Drawer 391 Truth or Consequences, NM 87901 (575) 894-7161 FAX: (575) 894-7570 filosa@zianet.com 5/19/2016} 7TH JUDICIAL DISTRICT COUR} SIERRA COUNTY Ni FILED IN MY OFFIC! 5/18/2016 4:32:36 PI MARY MO} OISTRICT COURT CLERI /s/ Mary Mora 5/19/2016 STATE OF NEW MEXICO SIERRA COUNTY. SEVENTH JUDICIAL DISTRICT COURT MRET.AL, v. APPLETREE EDUCATIONAL CENTER, ET. AL, No. D-721-CY-2016-00040 NOTICE OF JUDGE REASSIGNMENT The above referenced case has been reassigned to the Honorable Kevin R, Sweazea, District Judge, Seventh Judicial District. This reassignment is effective 5/19/2016. CLERK OF THE DISTRICT COURT CLERK SUPERVISOR CERTIFICATE OF SERVICE 1 the undersigned Employee of the District Court of Sierra County, New Mexico, do hereby certify that served a copy of this document to all parties listed below on 5/19/2016. Mack A. Filosa Po Drawer 391 Truth Or Consequences Nm 87901-0391i 7TH JUDICIAL DISTRICT COUR? t { SIERRA COUNTY NN FILED IN MY OFFICE 8/25/2016 10:27:47 AN MARY MOR# DISTRICT COURT CLERK STATE OF NEW MEXICO ‘si Lindsey Huston 5/25/2016 SEVENTH JUDICIAL DISTRICT COURT COUNTY OF SIERRA MR, ET. AL., v APPLETREE EDUCATIONAL CENTER, ET. AL.1 No: D-721-CV-2016-00040 JUDGE: Honorable Kevin R. Sweazea REQUEST FOR SETTING Type of Case: Domestic Relations - Non-Jury 2. Judge to whom assigned: The Honorable Kevin R. Sweazea 3. Are any hearings presently set? If so, when? 4. Specific matters to be heard: Verified Petition to Take Deposition Before Action Pursuant to Rule 1-027 5. Estimated total time required for hearing all parties and witnesses: 45 minutes 6. Names, addresses and telephone numbers of all counsel or parties pro se entitled to notice: MARK A. FILOSA THERESA PARRISH Attorney for Plaintiff Attorney for Rebecca Dow Post Office Drawer 391 201 Third St. NW, Ste. 2200 Truth or Consequences, NM. 87901 Albuquerque, NM 87102 (675) 894-7161 FAX: (575) 894-7570 (S05) 768-7202 FAX: (505) 768-7395 M. CLEA GUTTERSON PO Box 25286 Albuquerque, NM 87125 (605) 242-6000 FAX: (505) 213-0561 Date: 05/25/16 MARK A. FILOSA Attorney for Plaintiff/THUDICIAL DISTRICT COURT i i SIERRA COUNTY NM. FILED IN MY OFFICE 6/3/2016 1:11:28 PM MARY MORA DISTRICT COURT CLERK STATE OF NEW MEXICO és! Lindsey Huston 6/3/2016 COUNTY OF SIERRA SEVENTH JUDICIAL DISTRICT COURT MRetal, APPLETREE EDUCATIONAL CENTER, et No: D-721-CV-2016-00040 NOTICE OF MOTION HEARING NOTICE (S HEREBY GIVEN that a hearing in this case has been set before the Honorable Kevin ®. Sweazea, as follows: Date of Hearing: Wednesday, 22nd day of June, 2016 at 3:00 PM Place of Hearing: Sierra County Courthouse Courtroom} 311 Date St ‘Truth or Consequences, NM 87901 “Mamter to be Heard: Verified Petition o Take Deposition Before Action Pursuant to Rule 1-027 COMMENTS: {this hearing requires more or les time than the court has designated, fering, please contact us immediately as comtinuances wil not be granted on late notice. The Diswics Covet complies with the Americans with ‘Act. Counsel or PRO SE persons must notify the Clerk of the Court ore Ture ofthe disability atleast five (5) days before ANY hearing so appropriate accommodations neve ‘made. The same requicement applies ifan interpreter will be needed, CLERK OF THE DISTRICT COURT CERTIFICATE OF MAILING / DELIVERY / FAX CERTIFY that copy ofthe foregsing was mailed / ever /fxed 63/2016 o: M Clea Guterson Mark A Filose ‘Theresa Pai File CopySIERRA COUNTY Nid TED NNVOFFICE Shaeters64aeM warn oisratcr cour ctenK STATE OF NEW MEXICO. fs/ Lindsey Huston 6/14/2016 SEVENTH JUDICIAL DISTRICT COURT COUNTY OF SIERRA No. D-721-CV-2016-00040 JUDGE, Reynolds, Matthew G. IN THE MATTER REGARDING THE TESTIMONY OF REBECCA DOW PURSUANT TO RULE 1-027 Rodey, Dickason, Sloan, Akin & Robb, P.A. (Lisa C. Ortega and Theresa W. Parrish) hereby enters its appearance as counsel of record for Respondents Rebecca Dow and Amelia Wilcox. RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A. By: 4/ Theresa W. Parrish — Electronically Lisa C. Ortega ‘Theresa W. Parrish P.O, Box 1888 Albuquerque, New Mexico 87103 (S05) 768-7202 E-Mail: iparrish@rodev com) ‘Attorneys for Rebecca Dow and Amelia Wilcox Thereby certify that a copy of the foregoing pleading was served on counsel of record this 14th day of June 2016 via the court’s electronic mail system. RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A. By s/ Theresa W. Parrish — Electronically filed ‘Theresa W. Parrish 2240884‘ SIERRA COUNTY NM FILED IN MY OFFICE 6/15/2016 3:41:43 PM MARY MORA DISTRICT COURT CLERK STATE OF NEW MEXICO Js! Lindsey Huston 6/15/2016 ‘SEVENTH JUDICIAL DISTRICT COURT COUNTY OF SIERRA No. D-721-CV-2016-00040 JUDGE: Reynolds, Matthew G. IN THE MATTER REGARDING THE. TESTIMONY OF REBECCA DOW PURSUANT TO RULE 1-027 RESPONSE IN OPPOSITION TO RULE 1-027 NMRA PETITION FOR LEAVE TO TAKE DEPOSITIO) This Court will be led into error if it allows Petitioners’ counsel to use Rule 1-027 NMRA to take two depositions for the purposes stated in the Petition. Perpetuation of testimony is only appropriate when it “may prevent « failure or delay of justice,” and is only appropriate in Jimited circumstances, none of which are presented here. Petitioners seek to obtain deposition testimony from two witnesses, Respondents Rebecea Dow and Amelia Wilcox, in pre-litigation discovery to support the allegations of the proposed lawsuit attached to the Petition, and to identify both entities and individuals to whom liability might attach and from whom damages right be collected, Petitioners’ counsel’s stated desire to avoid the possibility of a Rule 1-011 motion or motions to dismiss after the lawsuit is filed does not justify the relief sought now. Rule 1-027 allows the limited taking of depositions, only if a petitioner has made a specific showing that known information may be lost or destroyed before a lawsuit can be filed. ‘The discovery sought here is very broad and the requisite showing has not and eannot be made. Petitioners’ proposed lawsuit is detailed and wide-ranging, with four proposed defendants (two entities and two individuals), eight causes of action, and two demands for damages including punitive damages. This proposed lawsuit has been preceded by a fully developed criminal case that was concluded by this Court a few months ago, on March 2, 2016, with the sentencing of the 200862.1individual whose actions give rise to the allegations in the Proposed lawsuit (but who is not a proposed defendant), New Mexico is a “notice” pleading state and only a “short and plain statement of the claim showing that the pleader is entitled to relief is required for a complaint, with “each averment [to] be simple, concise and direct.” Rule 1-008A@2), NMRA. The proposed complaint far exceeds that. Petitioners’ interest in obtaining the information listed in the petition can be pursued in discovery after a lawsuit has been filed, when the defendants can be afforded their procedural rights to defend themselves, including their rights to object and to seek protect orders from improper discovery requests. Rule 1-027 Cannot Be Misused to Discover Evidence to Help Formulate a Complaint or Identify Defendants Pursuant to Rule 1-027, to be entitled to take depositions prior to filing a lawsuit, the petitioner must demonstrate three things: ‘+ Anexpectation that a suit will be filed that cannot presently be filed; * The facts desired to be established and the reasons for perpetuating testimony; and * The proposed deponents and the substance of the testimony expected to be elicited, ‘See Rule 1-027(A}(1}(a) (expectation suit will be filed but cannot yet be brought); Rule 1- O27AXINE)-(6) (requiring details of expected testimony and reasons testimony is needed); Rule 1-027(A)(1), @) (rule exists to perpetuate evidence). ‘There are very few published New Mexico cases that even mention Rule 1-027, let alone cases that interpret the Rule's various provisions. Accordingly, in addition to looking to the language of Rule 1-027, the Court can look to the cases interpreting Federal Rule of Civil Procedure 27, especially since the language of this federal rule is nearly identical to this state rule, See Chavez v. Regents of Univ. of N.M., 103 NM. 606, 611, 711 P.2d 883, 888 (1985) 2200862.(New Mexico Rules of Civil Procedure pattemed after Federal Rules); Benavides v, Benavider, 99. NM. 535, 539, 660 P.2d 1017, 1021 (1983) (where New Mexico and Federal Rules of Civil Procedure are same, appropriate to look to federal law to construe the New Mexico Rule). Cases interpreting Federal Rule of Civil Procedure 27 confirm that Rule 1-027 shall not be used for discovery, but only is properly used to preserve evidence that may otherwise be lost. In Moore's Federal Practice, the Honorable Patrick E. Higginbotham, Circuit Judge for the Fifth Circuit, describes the role of Federal Rule of Civil Procedure 27, “Rule 27(a) provides @ method for obtaining testimony before the filing of a suit when there is an expectation of future litigation and a risk that testimony will be lost if not preserved.” Hon. Patrick E. Higginbotham, 6 Moore's Federal Practice § 27.02{1}, § 27.13[1] (3d ed. 2011) (hereinafter “Moore’s"); see also Wright, Miller, & Marcus, 8A Federal Practice & Procedure § 2071, at n.4 (3d ed, 2010) (hereinafter “Wright & Miller”); Penn Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1373 (DC. Cir. 199), These requirements also are reflected in the language of Rule 1-027, Significantly, the rule may not be used to allow a search for discovery to help formulate a complaint. As Judge Higginbotham explains in Moore's: ‘The purpose of Rule 27 is simply to preserve evidence that otherwise would be in danger of being lost. ... Rule 27 may not be used to search for possible claims, or to search for possible defendants. Nor should it be used to gather facts for use in framing a complaint, ... A petition must set forth in some detail the expected substance of the testimony to be preserved. Insisting that a petitioner describe the testimony that is to be perpetuated deprives Rule 27 of practical utility as a general discovery device, thereby guarding against surrogate efforts to obtain discovery.” 6 Moore's § 27.03. Professors Wright, Miller, and Marcus similarly describe that courts consistently have rejected efforts to use Rule 27 to discover a basis for bringing suit: 2200882.1 “3.At first, some concern was expressed that [Rule 27] might be used for the purpose of discovery before action is commenced and might enable a person to fish for some ground for bringing suit. The early commentators agreed that this was not the purpose of the rule, and, despite an occasional intimation to the contrary, the couris have generally agreed that to allow Rule 27 to be used for this purpose would be an abuse of the rule.” 8A Wright & Miller § 2071, at nn. 5-7 (internal quotation marks omitted) (emphasis added), Specifically, in many cases, federal courts have rejected efforts to use Rule 27 exactly as Petitioners propose here. For example, in Lucas v. Judge Advocate General, Naval Criminal Investigative Services, the District Court for the District of Columbia held that “Rule 27 is not intended to be used as a discovery statute and therefore may not be used as a method of discovery to determine whether a cause of action exists; and if so, against whom such action should be instituted.” 245 F.R.D. 8, 9-10 (D.D.C. 2007) (internal quotation marks and citations omitted). Likewise, in In re I-35W Bridge Collapse Site Inspection, the District of Minnesota held that Rule 27 should not be used to fish for 2 ground for bringing suit. 243 F.R.D. 349, 352- $3 D. Minn. 2007); see also In re Boland, 79 F.R.D. 665, 668 (D.C. Cit. 1978) (Rule 27 is not properly used to determine against whom action should be filed); Jn re Chester County Elec., Inc., 208 F.R.D. 545, 547 (E.D. Pa. 2002) (Rule 27 may not be used to gather facts to draft ‘complaint, even though petitioner is presently unable to draft complaint); Jn re Petition of Ford, 170 FR.D. 504, 506 (M.D. Ala. 1997) (Rule 27 does not authorize discovery of evidence, including to determine if cause of action exists). These holdings match the general principle that the rules of civil procedure cannot be used to discover whether the basis for a lawsuit exists, See Institute for Wildlife Protection v. Norton, 337 F. Supp, 24 1223, 1226 (W.D. Wash. 2004) (“To maintain an action in federal court, an actual case or controversy must exist, and discovery may not be used to conduct a fishing expedition in hopes that some fact supporting an allegation will be uncovered.”). 2008e2.1Significantly, nothing in Rule 1-027 suggests that the rule can be used to shield an attomey from a claim that he or she did not act in compliance with the good-faith requirements for bringing an action as stated in Rule 1-011, NMRA. This has been specifically rejected in federal court cases. “Accepting Rule 11 compliance as a license for a Rule 27 proceeding ignores the language of the rule limiting its use to the perpetuation of testimony. Rule 27 is not 2 license for general discovery.” 6 Moore's § 27.13[4]{a]; see also In re Landry-Bell, 232 F RD. 266, 267 (W.D. La, 2005) (“Simply stated, Rule 27 is not a vehicle for compliance with Rule 11."), Indeed, the “overwhelming weight of authority simply does not authorize the use of Rule 27” to conduct pre-trial discovery to comply with Rule I1. Jn re Landry-Bell, 232 FR.D. at 267. This Petition does not properly seek to perpetuate testimony. “[PJecpetuation in thfe] context (of Rule 27] means the perpetuation of known testimony.” Jn re Vioxx Prods. Liab. Litig., 2008 WL 1995098, at *3 (E.D. La. May 6, 2008), This reflects the distinction between the proper use of Rule 27 to preserve testimony and evidence that may be lost before a complaint can be filed, and the improper use of Rule 27 to discover new or additional evidence. Petitioners attempt the latter, and does not identify any known testimony that is at risk of being lost.! Additionally, at least some, if not most, of the discovery sought by Petitioners here in the form of testimony appears to be overbroad, unduly burdensome or not otherwise reasonably calculated to lead to the discovery of admissible evidence if it were to be put in the form of discovery requests in a pending action. Rule 27 offers far narrower opportunities for depositions than does Rule 26. See 6 Moore’s § 27.03 (“{T]he scope of inquiry allowed under Rule 27 is narrower than that available under the general discovery provisions of Rule 26.”); Nevada v, O'Leary, 63 F.3d 932, 936 (Sth Cir. 1995) (same). * Petitioners complain that all the information has been requested informally since last summer but has not been provided. Petitioners offer no authority to support any argument that a duty exists to provide such information. informally in anticipation of litigation. 2200862.4Petitioners’ Allegations Do Not Establish a Need to Preserve Evidence [Although Petitioners’ counsel has attached a proposed lewsuit, demonstrating an expectation that a suit willbe filed, there is no proper showing why testimony is at risk of being lost or destroyed, because for example, a witness is of advanced age, suffering from a terminal illness, or about to leave the country for an extended period of time. Indeed, much of what Petitioners seek information about established in public or other records and documents, and is at no risk of being lost or destroyed, especially since Petitioners” counsel made a preservation of documents demand in a letter to Respondent Rebecca Dow almost 2 year ago. Pethaps tellingly, the first item on Petitioners’ list of requested ftems is “Insurance policies regarding this matter.” Although a plaintiff's seeking to find coverage for claims of injury and damages is not surprising, using Rule-1-027 is not the vehicle for discovering information about insurance policies, which is instead provided for in Rule 1-026B(4), ‘Additionally, the description by Petitioners of all of the information sought from these Pwo witnesses seems to contemplate a comprehensive document production, unlimited by pertinent time frame or otherwise, when in fact Rule 1-027 contemplates the perpetuation of testimony by deposition. Testifying about all these categories of documents necessarily will require that the witnesses identify, gather and review them, essentially committing them to memory or having them available to consult while testifying, none of which is contemplated under the rule. «simply alleging that testimony or information may be Jost, destroyed, or unrecoverable in the funure is, at best, vague and conclusory. Rule 27 requires that a petitioner demonstrate ant immediate need to perpetuate evidence.” In re Landry-Bell, 232 F.RD. at 267; see also In re Vioxx, 2008 WL 1995098, at *3 (compiling lengthy list of authorities that specific demonstration must be made as to risk of loss of evidence), The few New Mexico cases referencing Rule 1-027 200862.1 -6-have involved circumstances where a serious risk of lost evidence existed. See Stare ex rel. NM. State Highway Comm'n v. Taira, 78 NM. 276, 430 P.2d 773 (1967) (to survey land before Interstate 40 is built through Gallup); Bartow v, Kernan, 101 N.M. 532, 685 P.2d 387 (Ct. App. 1984) (seeking deposition of terminally-ill witness). Here, Petitioners have made no showing that the testimony and documents he seeks to obtain through Rule 1-027 are at any risk of loss or destruction, Consequently, there is no threatened “failure or delay of justice” as required by the rule for pre-litigation depositions to be allowed. Conclusi Petitioners seek to use Rule 1-027 as a discovery device in order to obtain swom testimony and uncover evidence to support a detailed lawsuit that already has been prepared and js attached to the Petition. Petitioners seek to take two depositions of proposed individual defendants for the stated purpose of avoiding potential Rule 11 sanctions or motions to dismiss. This is not a proper use of Rule 1-027, which exists only to perpetuate deposition testimony regarding known evidence that may be lost or destroyed before a lawsuit can be filed, in order to prevent a failure or delay of justice. Accordingly, Respondents respectfully request an order blocking this proposed abuse of the rule and denying the Petition, RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A. By: 4/ Theresa W. Parrish ~ Electronically Lisa C. Ortega Theresa W. Parrish P.O. Box 1888 Albuquerque, New Mexico 87103 (605) 765-5900 E-Mail: Jortega@rodey,com iparrish@rodey.com. Attorneys for Respondents 2700862.1 -7-Thereby certify that a copy of the foregoing pleading was served on opposing counsel of record this 15th day of June 2016 via the court's electronic mail system. By:_[s/ Theresa W. Parrish — Electronically Filed “Theresa W. Parrish 200862.1 -8-( t TTH JUDICIAL DISTRICT COURT SIERRA COUNTY NM FILED IN MY OFFICE 6130/2016 9:44:57 AM MARY MORA DISTRICT COURT CLERK STATE OF NEW MEXICO. Is) Mary Mora 6/30/2016 COUNTY OF SIERRA SEVENTH JUDICIAL DISTRICT COURT MRetal., v. APPLETREE EDUCATIONAL CENTER, et.al No: D-721-CV-2016-00040 NOTICE OF MOTION HEARING NOTICE IS HEREBY GIVEN that a hearing in this case has been set before the Honorable Kevin R. Sweazea, as follows: Date of Hearing: Wednesday, 13th day of July, 2016 at 11:30 AM Place of Hearing: Sierra County Courthouse Courtroom! 311 Date St “Truth or Consequences, NM 87901 Matter to be Heard: varied Petition to Take Deposition Before Action Pursuant to Rule 1~ 7 COMMENTS: If this hearing requires more oles time than the court has designated, or if this hearing conflicts with any prior setting, please contact us immediately as continuances will not be granted on late notice. The District Court ‘complies withthe Americans with Disabilities Act. Counsel or PRO SE persons must notify the Cletk of the Court of the nature of the disability atleast five (S) days before ANY hearing so appropriate accommodations may be made, The same requirement applies ifn interpreter will be needed, CLERK OF THE DISTRICT COURT CERTIFICATE OF MAILING / DELIVERY ) FAX { CERTIFY da copy af the foregoing was mile / diver! faxed 6302016 “Teren W. Parish Mark A. Fis File Cory,peererrpny 0-721-CV-2016-40 STATE OF NEW MEXICO STATE OF NEW MEXICO SEVENTH JUDICIAL DISTRICT COURT SEVENTH JUDICIAL DISTRICT FILED COUNTY OF SOCORRO (Z¢G9~. JUL 13 2016 HON. KEVIN R. SWEAZEA : Mary Mora DIVISION II EEERK MONITOR, D. DENISE LUJAN # 308% PUTY CASE: MRET. AL V. APPLETREE EDUCATIONAL CENTER, ET AL. CAUSE NO.; D-721-CV-2016-40 HEARING: VERIFIED PETITION TO TAKE DEPOSITION BEFORE ACTION ATTORNEYS: P- MARK FILOSA / R- THERESA PARRISH STARTING TIME: 11:24:56 AM ENDING TIME: 12:27:18 PM NOTE: THIS LOG IS NOT THE OFFICIAL RECORD. THE OFFICIAL RECORD IS THE CD, THE LOG IS CREATED TO ASSIST IN LOCATING. INFORMATION ON THE CD. THE LOG IS NOT THE VERBATIM RECORD OF THE PROCEEDINGS LEGEND: J- JUDGE _DEX~- DIRECT EXAMINATION _BW- BENCH WARRANT P - PLAINTIFF'S ATTY XEX- CROSS EXAMINATION OBJ- OBJECTION D - DEFENDANT'S ATTY VD - VIOR DIRE EXAMINATION © - OVERRULED PLF - PLAINTIFF RB - REBUTTAL EXAMINATION S -SUSTAINED DFT -DEFENDANT RDEX - RE-DIRECT EXAMINATION IVR - INVOKE THE RULE _W1-WITNESS NO. RXEX - RE-CROSS EXAMINATION M- MONITOR Wea ococrsTOCD CR1 M RET. AL V. APPLETREE EDUCATIONAL CENTER, ET AL. CAUSE NO.: D-721-CV-2016-40 HEARING: VERIFIED PETITION TO TAKE DEPOSITION BEFORE ACTION ATTORNEYS: P- MARK FILOSA/ R- THERESA PARRISH [11:25:12 AM ~TFILOSA OBO PT 14:25:21 AM R | PARISH OB REBECCA DOW AND AMELIA WILCOX 44:25:39 AM J BEFORE BEGIN: POINT OUT I WAS THE SENTENCING JUDGE OF MR. HERNANDEZ; KNOWLEDGE OF OTHER CASE; TALK TO CLIENTS AND MAKE SURE IF EITHER HAVE CONCERN. HAPPY TO RECUSE AWARE OF THAT, DIDN'T SEE ISSUE 11:26:35 AMP TAWARE BECAUSE 11:26:45 AM J [ALSO RNOW WHO WS. DOW'S: NOT FRIENDS: A COUPLE | WEEKS AGO, EATING LUNCH AT CAFE DOWN THE STREET, MADE COMMENT ABOUT ANOTHER CASE INVOLVING APPLETREE AND | WASN'T SURE WHAT SHE WAS TALKING ABOUT; WE DIDN'T TALK ABOUT ANYTHING BUT MADE THAT COMMENT IN PASSING; NO DISCUSSION BUT WANTED TO POINT IT OUT; | HAVE NO CONCERN BUT IT YOU OR CLIENTS. |ARE CONCERNED [ISH’SHE HADN'T SAID THAT BU’ OBLEM; THIS 1S PRELIMINARY; WE HAVE NO PROBLEMS OBO PLF 44:38:37 AM J DIBNT KNOW AT TIME ABOUT ANOTHER CASE! SIMILARLY IF { | CONCERN; ‘WONDER IF YOU SHOULD TALK BY PHONE; | |DON" 'T WANT TO MAKE ADVERSE RULING; 28:56 AM P MY CLIENTS ARE WORKING PEOPLE: DONT WANT TO DELAY; SUSPECT YOU MAY BE TAKING UNDER ADVISEMENT; IAN TELL YOU NO PROBLEM FOR THIS MATTER; ONE PRELIMINARY MATTER; IF DENIED THEN WILL FILE LAWSUIT; WE HAVE NO PROBLEM AT ALL; | CAN ASSURE YOU 41:29:53 AMR "SORRY THAT ENCOUNTER HAPPENE COMMUNITY: HAVE NOT HAD OPPORTUNITY TO SPEAK WITH MS. DOW CONCERNING DO'S AND DON'T'S; NO PROBLEM WITH ISSUE. DON'T THINK SHE MEANT ANYTHING BY IT; 1 DIDN'T MAKE A~ _BIG DEAL ABUT WANTED ALL TO KNOW. D-721-CV-2016-40 2 7/13/2016TOCDCR1 HAVE REDACTED LETTERS, COPIES TO COUNSEL AND FOR } COURT; KNOW R VERY WELL; WONDERFUL WORKING RELATIONSHIP; REPRESENTING A CORPORATE OR AN | ENTITY RATHER THAN PEOPLE; AS TO R RESPONSE 14:32'57 AM P ‘SEVERAL YEARS AGO, CLASSMATE OF MY KIDS: THEIR MOM DIED; DID THAT PERSON'S DIVORCE: SAW THEM AT THE FUNERAL; AFTER DIVORCE, THE DECEDENTS FATHER HAD _ LEFT; CHILD CAME TO ME AND SAID | DIDN'T KNOW I WAS |ADOPTED; WENT THROUGH DIVORCE PAPERS, 3 CHILDREN |BORN OR ADOPTED; SHE THOUGHT ADOPTED; TOLD HER i |SHE WASN'T ADOPTED; POINT IS WE HAVE TO BE CAREFUL ; WHEN FILING LAWSUITS; TAKE OFF WITH A LIFE OF THEIR i ‘OWN; WANT TO BE CAREFUL WHO | NAME; SEXUAL ATTACK; | CORPORATE AND INDIVIDUAL PERSONS; I'M NOT INTERESTED IN FILING AN EMOTIONAL LAWSUIT AGAINST | SOMEONE; DON'T WANT TO WRONGLY SUE SOMEONE: i ALLEGATION DEVASTATING TO CAREER EVEN IF THEY i DIDNT DO IT DUALS; WANT | TO COVER EVERYTHING BEFORE | SUE THEM; TRYING TO | PROTECT PEOPLE; EMOTIONALLY BATTENED CASE; ONE IS | RUNNING FOR OFFICE: TAKE A LOOK AT STATE RULE 1-027; INCLUDED FEDERAL RULE 27; STATE'S VERSION AND INDICATED DIFFERENCES; PROCEDURE PROPOSED IS BEING SAID NOT APPROPRIATE; JUSTICE WILL BE SERVED. IF GRANTED; DON'T KNOW ANYTHING ABOUT WHERE PERPETRATOR WORKED PRIOR; COMPARE. 11:35:33 7 41:37:55 AMP [AS TO DIFFERENCE BETWEEN STATE RULE 1-027 AND FEDERAL RULE 27 TERS GIVE STATE JURISDICTION ON | PRELIMINARY MATTERS; 'M PROVIDING TO COURT. I'VE REDACTED MANY THINGS, LETTER TO MS. DOW; ON PAGE 2; [INTERESTED IN BOYS' AND GIRLS' CLUB; APPLETREE; | GRANT; INSURANCE; GOT ONE INSURANCE POLICY FROM. |BOYS' AND GIRLS’ CLUB; EMPLOYMENT APPLICATION: INDICATE | WILL BE FILING WHAT'S HEARD TODAY; AS TO LETTERS DEMONSTRATES EFFORT I'VE MADE TO GET INFO: SATISFIED NOT Gi INFO; AS TO RULE 1-027 TM UNABLE TO CAUSE IT TO BE BROUGHT, BY SOMEONE BEING ACCUSED OF HAVING SOMETHING TO DO WITH THIS ADMITTED CHILD MOLESTER IT WILL HAVE | REPRODUCTIONS ON ONE'S CAREER; IT'S WRONG FOR ME TO GO OUT AND JUST NAME PEOPLE: MET A, 8, C; 14:42:20 AM/P i D-721-CV-2016-40 3 7/13/2016TOCDCR1 11.43.25 AMI J TWHAT WANTING TO IDENTIFY; SPECIFICALLY “TAPBLICATION: WHO WORKING FOR AT THE TIME; ASKi | FOR INSURANCE; OF COURSE; FOR THESE GRANTS YOU | MUST HAVE INSURANCE: | NEED TO TELL WHICH ENTITIES |ARE RESPONSIBLE; THE LETTERS SHOW EFFORTS MADE; | WHERE IS EFFORT REQUIRED IN RULES: RSP'S ARE | PLAYING A SHELL GAME; JUST ASKING FOR INFO ON (GRANTS AND ENTITIES; | WHAT DOES KNOWING ABOUT GRANTS HAVE TO DO WITH | ENTITIES BEING RESPONSIBLE RVING TO FIND OUT WHO EMPLOYED THIS MAN; AS [UNDERSTAND, GET A GRANT YOU NEED TO HAVE THEM DO |SOME DUE DILIGENCE ON THE EMPLOYEE AND [REQUIREMENTS FOR INSURANCE; | CAN START NAMING A [BUNCH OF PEOPLE OVER THERE BUT I DON'T WANT TO DO THAT, JULY 27 TH LETTER OF WHAT ASKING FOR; ALL 1S | DISCOVERABLE SOONER OR LATER | JUST DON'T WANT TO |NAME SOMEONE | DON'T NEED TO; TO PAGE'4 OF COUNSEL'S BRIEF!” (CANT BE USED AGAINST ME, NOT FISHING EXPEDITION; HE | ADMITTED HE DID THIS; HE WAS EMPLOYED BY THE RSP'S; ! (CLEARLY THEY ARE RESPONSIBLE; IN BRIEF IS LIMITED |POSITION ON FEDERAL RULE 27; BLUE DOT; SECOND [MATTER 11:49:39 AMP | SEMINAR GIVEN ABOUT CHANGES SINCE DEALING WiTH FEDERAL LAW: PAGE 1 OF THE PAPER; INDICATES RULE 27 | MOVEMENT; AS TO SC CASES {ibii4 AMP ‘O MANY PEOPLE: iT WILL BE DEVASTATING; TWO DOCUMENTS; MAJORITY AND MINORITY RULE; EXPANDING RULE 27 BEING INCREASED IN FEDERAL COURT; A SEMINAR IN 2004; MOVEMENT TOWARD INCREASING 27; WORRIED ABOUT RSP’S EMPLOYEES, WITHOUT ATTORNEY'S; “UNDERSTAND YOU QUEST TO IDENTIFY: PARTIES; SCOPE OF WHAT YOU SEEK IS DESIGNED BROADER | i a LOOK AT PROPOSED COMPLAINT, I WANT TO FIND OUT WHO'S RESPONSIBLE FOR EMPLOYEE, HIRING, NEGLIGENT HIRING AND TRACING; FEDERAL RULES TALK ABOUT IS THE INFO GOING TO GO AWAY, TREND IS TO ALLOW EXPANDED | DISCOVERY AND I'M TRYING TO ELIMINATE PEOPLE; HAVE RULE 17 BASIS NDIVIDUALS OR ENTITIES FOF 11:54:20 AM PB” TONLY THE ONES ATTACHED TO COMPLAIN 14:54:29 AM J D-721-CV-2016-40 4 7113/2016TOCDCR1 17:54:35 AMP TAND TWO OTHERS; DO HAVE THE FOUR; R STARTS OFF sear | WITH P LEADING COURT INTO ERROR; IF | LOOSE, GO ALONG AND THEN NAME OTHER PEOPLE; THIS WILL BE A [SCAR [WHO ARE 10U 6 EI AMELIA WILCOX AND REBECCA DOW AND SUBPOENA _DOCUMENTS; THANK YOU R TVAUSO HAVE A HAND OUT OF THE MAIN ITEMS T SIGHTED, APPRECIATE THE POINTS P HAS MADE IN TRYING NOT TO CAUSE A SCAR FOR INDIVIDUALS OR NAMING THOSE THAT SHOULDN'T BE NAMED, HOWEVER, RSP'S DOW AND | WILCOX; BOTH EMPLOYEES OF APPLETREE, UNDER OUR SYSTEM FOR RULES OF PROCEDURE, NTC PLEADING; P PROPOSED COMPLAINT VERY SPECIFIC ALLEGATION; RULE | 27 I$ SUPPOSE TO BE USED IN INSTANCES WHERE l EVIDENCE IS A RISK OF LOSS OR DESTROYED; NO | | EVIDENCE THAT THAT IS GOING TO HAPPEN; MS. DOW IS. RUNNING FOR OFFICE; SITUATION WHERE RULE 27 TO BE USED IN LIMITED CIRCUMSTANCES; TBON'T KNOW ABOUT GRANT SITUATIONS, THAT IS FORUM _FOR DISCOVERY; WITH THE FRAMEWORK PRESENTED IN / | PROPOSED COMPLAINT; HE CAN GET TO INFO HE NEEDS WITH 4 PARTIES NAMED; I AM HERE OBO DOW AND WILCOX; PREMATURE TO DIG INTO GRANTS REQUIREMENTS FOR. NEW ENTITIES; NOT APPROPRIATE; LIMITS ON RULE; SIGHTED EXTENSIVELY TO FEDERAL COURT; ARTICLE FROM 2011; | DON'T SEE ANY TREND IN RULE 27 TO ALLOW DISCOVERY BEING PROPOSED HERE; CASES SITED ARE FOR PROPER APPLICATION FOR RULE | STARTED DEVELOPING LETTER TO DOW, WAS THE DEMAND [TO PRESERVE EVIDENCE; NO RISK OF EVIDENCE BEING i LOST; POLICIES ARE WHAT THEY ARE; PROVIDE FOR | | COVERAGE; PONT IS INDEED AS WE HAVE ARGUED; RULE I 127 LIMITED FOR CERTAIN TYPES OF DISCOVERY: INDICATED ! [To P THAT WE UNDERSTAND HE HAS LAW SUIT; WILL DEFEND AS APPROPRIATE; ~~ TB HAS PROVEN HE 1S'ABLE TO GET FO INFO; PAGES OF BRIEF, EXTENSIVE; QUEST ‘OT OF BROAD INI YOND WHO HIRED, PAYCHECKS; "| 1 [AGREE COURT HAS DIGRESSION, TAKING TO FAR IF | LEXPAND RULE 27; 42:07:53 PM TTREPLY Seas ane 72:07:56 PM Po “AT BLUE DOT; AS TO FCC, PAGE 4; D-721-CV-2016-40 5 7113/2016TOCD CR1 12:08:38 PMP TLAW REVIEW ARTICLE; A TREND; BACK TO RULE 1-027 JUMBER 3. es _. LURE OF : PEOPLE | MAY NAME ARE NOT EPRESENTED BY COUNSEL; IF ALL REPRESENTED THEY | WOULD BE HERE; URGING YOU TO RULE IN MY FAVOR; R |CLIENTS ARE PROBABLY GOING TO BE NAMED; DON'T WANT, |TO DO ANYTHING NEFARIOUS j, IF NEED TO CALL OTHERS YOU CAN TIN INTEREST OF JUSTICE: IF RULE AGAINST, YOU WONT’ |NEED TO WORRY; | WON'T APPEAL YOU; ASKING YOU TO DO} | WHAT IS BEST INTEREST OF JUSTICE REQUEST, WHAT WILL YOU BO ABOUT OBJ; 42:42:21 PMP [ATTACHED PROPOSED LAWSUIT SO NOT FISHING TF RULE | LIN MY FAVOR ANTICIPATE THAT I'D BE GETTING A LOT OF : | DOCUMENTS; THAT MIGHT SOLVE PROBLEMS; | WILL DO | | REQUEST FOR PRODUCTION; TAKE A DEPOSITION: NOT | | GOING TO GO ON FISHING EXPEDITION; IF R THINKS OUT OF | ‘SCOPE; | WILL STOP; CAN BRING IT BACK TO YOU; NO | PROBLEMS ees PM iF GRANT AND DOWN THE ROAD, FILE LAWSUIT AN HAVE | [SAME INDIVIDUALS THEY SAY ALREADY DID DEPOSITION; | t | | 42:44:47 PMP UNLESS NEW INFO: UNDERS Cat 7 TIME ST BELIEVE GUNDERSON WILL ENTER APPEARANCE; IF | GET | DOCUMENTS AND HAVE DEPOSITION THEN MAY NOT BE A | LAWSUIT; MAKE ME VERY HAPPY; I'M TO INTERESTED TO GO ON WITH SOMETHING WHEN | HAVE RULE 0/127; LINTERESTED IN SETTLING CASE; CONTEMPLATED UNDER RULE 27 TBACK”AND FORTH ON RULE 27, COMMUNITY COMMENTARY ABOUT RULE 27 PURPOSE; AWARE OF ANY [NOT OFF HAN ~TTINTERESTING, [APPLICATION AND STATE BEFORE ACTION; 42:46:38 PM J” FEDERAL RULE DIFFERE! i 42:19:46 PMP HYVES Zi 0-721-CV-2016-40 6 7113/2016TOCD CRt 12:19:52 PMS PREPARED TO RULE; READ RULE 27 A LOT OF TIMES, TRIED : TO STUDY IN PREPARATION FOR TODAY; CASE LAW IS THIN; COUPLE THAT PERMITTED DISCOVERY BEFORE ACTION | THEN FILED; FEDERAL RULE TALKED ABOUT PERPETUATING| | TESTIMONY SO THAT NOT LOST OR DESTROYED WHERE | STATE RULE DOESN'T HAVE SAME LIMITATION | UINTERPRETED RULE; TITLE CAN BE HELPFUL; SETS FORTH | STANDARDS FOR DISCOVERY; FEDERAL CASES CAN BE INFLUENTIAL WHEN NO STATE CASES; DIFFERENCES ARE WORTH CONSIDERING; UNDERSTAND ARGUEMENT; AS TO STATE RULE SUB A-3; | UNDERSTAND CONSEQUENCES OF ACTIONS LASTING A™” |LONG TIME: AFTER DISCOVERY OPT NOT TO NAMED; | DEMOSTRATED THAT SUIT HAS BEEN BROUGHT; INTEREST | | | |IN SUBJECT MATTER; INDICTED FACTS THAT THE COURT. ! | FINDING COMPELLING; FACTS OUGHT TO BE SUBJECT TO | | | 12:22:21 PM J | DISCOVERY PRIOR TO FILING; FACTS TO IDENTIFY SPECIFIC | PARTIES TO NAME IN ACTION; INDIVIDUALS INVOLVED IN | EMPLOYMETN OR TRAINING OF MR. HERNANDEZ; P [IDENTIFIED PERSONS WANT TO DIPOSE; MS. DOW AND | WILCOX 12:23:50 PM J FRAME WOR! IG MY DECISION | MORE RESTRICTIVE ; DISCOVERY IN STATE RULE IS MORE | EXTENSIVE; EXPANSE OF DISCOVERY THAT YOU. SUGGESTED IS BROADER THAN WHAT YOU OUGHT TO BE ABLE TO CONDUCT DISCOVERY OF INDIVIDUALS YOU IDENTIFIED; DISCOVERY INDIVIDUALS THAT SHOULD BE PARTIED IN CASE 42:25:35 PMP ~TTARE A STAB AT AI R;GO THROUGH | PROTECTIVE ORDER THEN MAY ABLE LOOK AGAIN; TALK TO RAND SEE IF APPEAL; UNDERSTNAD PERAMITERS; CAN DEAL WITH CAUSES OF ACTION TIN CONTEXT TO WHO CAN NAME AS Di |SUPPORT __ “NEGLIGENT HIRI ~TUNDERSTAND P'PREPARE ORDER D-721-CV-2016-40 7 7113/2016