Motion to Compel Discovery

FULTON COUNTY STATE COURT

STATE OF GEORGIA

JENNIFER GARRISON,

Plaintiff,

vs.

MONTAG REALTY COMPANY, LLC d/b/a VERONA APARTMENTS, THE REALTY FUND III, L.P. and JOHN DOES 1-5,

Defendants.

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JURY TRIAL DEMANDED

CASE NUMBER: 04-VS-070909-C



MOTION FOR ORDER TO COMPEL DISCOVERY

Plaintiff, JENNIFER GARRISON, through undersigned counsel, moves the Court for an Order to Compel Discovery from Defendants MONTAG REALTY and THE REALTY FUND and respectfully shows this Court as follows:

SUMMARY OF FACTS

Plaintiff was a resident at the Verona Apartment Complex in Atlanta, Georgia which was owned by Defendant THE REALTY FUND and managed by Defendant MONTAG REALTY. On May 21, 2004, Plaintiff was injured while using the emergency egress ladder attached to her balcony. Plaintiff brought the present lawsuit, alleging that the Defendants were negligent in failing to maintain the ladders in compliance with local safety and building codes, in failing to rectify the situation that they had been cited for and that they knew was dangerous and in failing to notify the Plaintiff and other tenants of the Verona Apartments of the dangerous condition.

1.

Plaintiffs served Defendants MONTAG REALTY and THE REALTY FUND, respectively, with a copy of Interrogatories and Requests for Production of Documents at the time of service of the Complaint upon each defendant.

2.

Plaintiffs propounded the following Requests for Production upon Defendants, to which Defendants responded thusly (in italics):

Request for Production # 4 .

"Copies of any and all reports, inner-office memoranda or other documents relating to matters which are the subject of this Complaint or which were prepared in the normal course of business."

RESPONSE: Defendants objected that the information was too vague and overly broad.

Plaintiffs are entitled to the requested information and property manager Wendy Tucker, during deposition, admitted that she kept such records in the ordinary course of business.

Request for Production # 13 .

"All documents relating to plans for repairing, improving and/or replacing the egress ladders or porch door latches considered or undertaken by Defendant for the apartment complex in question for anytime prior to or after May 13, 2004."

RESPONSE: Defendants objected that the information was too vague and overly broad. Both then claimed that they had no such documents.

Notwithstanding such response, Plaintiff has obtained records from the Cobb County Fire Marshall, sent from Defendants, which show estimates and contracts to renovate and replace many of the subject egress ladders. Please see Exhibit "B".

Request for Production # 14 .

"All documents relating to plans for repairing, improving and/or replacing the egress ladders or porch door latches considered, but not implemented by Defendant for the apartment complex in question for anytime prior to May 13, 2004."

RESPONSE: Defendants objected that the information was too vague and overly broad. Both then claimed that they had no such documents.

Notwithstanding such response, Plaintiff has obtained records from the Cobb County Fire Marshall, sent from Defendants, which show estimates and contracts to renovate and replace many of the subject egress ladders. Please see Exhibit "B".

Request for Production # 29 .

"Please provide all contracts or agreements entered into between Defendant and any other individual or company regarding repairing, improving and/or replacing the egress ladders at the apartment complex in question."

RESPONSE: Defendant is not in possession of any documents responsive to this request.

Notwithstanding such response, Plaintiff has obtained records from the Cobb County Fire Marshall, sent from Defendants, which show estimates and contracts to renovate and replace many of the subject egress ladders. Please see Exhibit "B".

Request for Production # 30 .

"Please provide all notes, memoranda, minutes and other written evidence of safety meetings held by Defendant, your employees, agents or independent contractors, for the past five (5) years."

No documents were produced, but Plaintiffs have obtained information from the deposition of Wendy Tucker, the property manager for Verona Apartments, and from the Fire Marshall of Cobb County that several meetings were held concerning the egress ladders specifically in which emails and correspondences were exchanged.

Request for Production # 31 .

"All fire inspection reports from federal, state or local authorities within the past five (5) years."

RESPONSE: Defendant is not in possession of any documents responsive to this request.

Wendy Tucker, the property manager of Verona Apartments, admitted in her deposition that she had filed such copies of records and that the same was kept by defendant Montag in the ordinary course of business.

Request for Production # 32 .

"All correspondence, citations, notices or warnings from any government entity during the past five (5) years concerning any possible building, fire or safety code violations relating to ingress and egress from any apartment building at Verona Apartments."

RESPONSE: Defendant is not in possession of any documents responsive to this request.

Wendy Tucker, the property manager of Verona Apartments, admitted in her deposition that she had filed such copies of records and that the same was kept by defendant Montag in the ordinary course of business. Such records, sent by or addressed to Defendant Montag, are also in the file of the Cobb County Fire Marshall (Exhibit "B").

Request for Production # 33 .

All records, logs, notices, letters, emails or other communication concerning people being locked out on their back porches at Verona Apartments at any time in the previous five (5) years.

RESPONSE: Defendant is not in possession of any documents responsive to this request.

Wendy Tucker, the property manager of Verona Apartments, admitted in her deposition that there had been such instances and that Montag had always made incident reports and that she had filed such copies of records and that the same was kept by defendant Montag in the ordinary course of business.

3.

After Defendant's responses, Plaintiff has requested repeated updates to the Requests for Production. Defendants have refused to provide Plaintiff with such supplements. Plaintiff attaches the 6.4 requests hereto as Exhibit "A".

4.

Plaintiff sent an open records request to the Cobb County Fire Marshall which yielded the documents attached hereto as Exhibit "B".

5.

Plaintiff again sent a letter to counsel for Defendants requesting supplemental information. Defendants have refused to provide any additional information.

6.

At the deposition of Wendy Tucker, an agent for Defendant Montag, Tucker admitted that she kept many records relevant to this cause of action in the ordinary course of business. Defendants have been confronted with many of these records which were obtained from a different source.

7.

Nonetheless, Defendants have refused to provide Plaintiff with the additional information.

8.

Plaintiff cannot conduct adequate discovery without obtaining the requested documents from Defendants MONTAG REALTY and THE REALTY FUND. The requested documents go straight to the heart of establishing liability in a premises liability case, i.e., knowledge of a dangerous condition and failure to correct the hazard or to notify an invitee.

9.

The Requests for Production request discoverable information which is reasonably calculated to lead to the discovery of admissible evidence.

10.

Plaintiff has been unable to complete his investigation into the incident which gives rises to this action without the requested information.

WHEREFORE, Plaintiff prays that an Order issue, pursuant to Section 37 (a) of the Georgia Civil Practice Act, O.C.G.A. 9-11-37 (a), compelling the Defendants MONTAG REALTY and THE REALTY FUND to answer the Interrogatories and Requests for Production that said Defendants be required to pay the reasonable attorney's fees.

Respectfully submitted this _________ day of ___________________, 2006.



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P. Charles Scholle
Attorney for Plaintiffs
Georgia Bar Number 629736

Scholle Law
6340 Sugarloaf Parkway
Suite 200
Duluth, Georgia 30097
(678)775-6830



CERTIFICATE OF SERVICE

This is to certify that I have this day served opposing counsel for Defendants MONTAG REALTY and THE REALTY FUND in the foregoing case with the attached Motion for Order to Compel Discovery by depositing a copy of same in the United States mail with adequate postage affixed thereon addressed as follows:

Brenda Thomas
Thomas & Kane
3460 Chamblee-Dunwoody Way
Atlanta, Georgia 30341

This ____ day of ____________________, 2006.



________________________
P. Charles Scholle
Attorney for Plaintiffs
Georgia Bar Number 629736

Scholle Law
6340 Sugarloaf Parkway
Suite 200
Duluth, Georgia 30097
(678)775-6830


FULTON COUNTY STATE COURT

STATE OF GEORGIA

JENNIFER GARRISON,

Plaintiff,

vs.

MONTAG REALTY COMPANY, LLC d/b/a VERONA APARTMENTS, THE REALTY FUND III, L.P. and JOHN DOES 1-5,

Defendants.

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JURY TRIAL DEMANDED

CASE NUMBER: 04-VS-070909-C



ORDER TO COMPEL DISCOVERY

PLAINTIFFS' Motion for Order to Compel Discovery, having been read and considered and oral argument having been heard in open court on ________ _______________, 2006 by the attorney for Plaintiffs and the attorney for Defendants MONTAG REALTY and THE REALTY FUND, it is hereby:

ORDERED, that Defendants MONTAG REALTY and THE REALTY FUND shall submit to attorney for Plaintiffs written, verified responses to Plaintiffs' First Continuing Interrogatories and Requests for Production of Documents within ten days of the date of this order.

SO ORDERED this _________ day of ___________________, 2006.

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JUDGE MYRA DIXON
State Court of Fulton County

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