Free Declaration - District Court of Arizona - Arizona

Robert Hardy Falk, Esq. (TX 06795300 , pro hac vice) 2 ROBERT HARDY FALK, P.C. Post Office Box 794748 3 Dallas, Texas 75379 Tel.: (214) 954-400 4 Fax: (214) 969-5941 E-mail: [email protected]
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Michael G. Ackerman, Esq. (CA 64997, pro hac vice) ACKERMAN, KEVORKIAN & MASH 7 2391 The Alameda, Suite 100 Santa Clara, CA 95050 8 Tel.: (408) 261-5800 Fax: (408) 261-5900 9 E-mail: [email protected]
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Attorneys for Plaintiff, RONALD CRAIG FISH, a law corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) Plaintiff, ) ) vs. ) ) THOMAS G. WATKINS, III, an ) individual; SKYLINE MANUFACTURING, INC., an Arizona ) ) corporation, ) ) Defendants. RONALD CRAIG FISH, a law corporation, a California corporation, Case No. CIV-03-67-PHX-SMM DECLARATION OF MICHAEL G. ACKERMAN IN SUPPORT OF MOTION TO QUASH SUBPOENA DUCES TECUM AND FOR PROTECTIVE ORDER

I, MICHAEL G. ACKERMAN, declare that: 1. I am an attorney duly licensed to practice law in the State of California and admitted before all of the Federal District Court's within the State of California and am a partner of the law firm of Ackerman, Kevorkian & Mash, attorneys for plaintiff Ronald Craig Fish in the above-entitled litigation. 2. Following the last hearing on the motion to quash the two subpoenas issued by Mr. Holohan's office, my office on November 23, 2005, served a disclosure of non-retained experts which included all of Mr. Fish's prior attorneys
-1DECLARATION OF MICHAEL G. ACKERMAN IN SUPPORT OF MOTION Case QUASH SUBPOENA DUCESDocumentFOR PR OTECTIVE ORD ER C ase No. C1 of 5 2:03-cv-00067-SMM 109 Filed 12/19/2005 Page IV -03-67-PHX-SMM TO TECUM &

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in the underlying litigation. In our disclosure we indicated that they were nonretained experts and that their testimony would relate to the reasonableness and necessity of the attorneys fees incurred in the underlying litigation. Following this disclosure, I dictated a letter dated November 30, 2005 which was to be sent via facsimile to Mr. Holohan on that date. Unfortunately my office staff did not fax the letter on that date which I did not discover until December 5, 2005 when I called Mr. Dudzik to obtain his response to my letter. The letter was then sent by facsimile on December 5, 2005 to Mr. Holohan's attention. A true and correct copy of that letter is attached hereto as Exhibit "A". 3. During a conversation with Mr. Dudzik, he indicated that he planned to issue a subpoena duces tecum for Mr. Falk's files and asked whether I would consent to accepting service of the subpoena. I indicated that I could not do so until I saw the subpoena and requested that he fax it to my office. Instead of doing so, they instead sent a copy of a subpoena duces tecum and notice of deposition by mail to my office. A true and correct copy of the subpoena and the notice of deposition are attached hereto as Exhibit "B". 4. I thereafter contacted Mr. Dudzik and indicated to him that his subpoena to Mr. Falk included the production of attorney-client communications, which communications have not been waived in this litigation. During the course of Mr. Fish's deposition at Mr. Dudzik's office, there were several documents shown to Mr. Fish which appeared to be attorney-client communications. At that time we objected to the documents and indicated to Mr. Dudzik that all of the attorney-client communications that had been previously disclosed inadvertently had been requested to be returned to Mr. Falk. Mr. Dudzik confirmed that in fact Mr. Falk had requested the return of certain documents which were designated by Bates numbers and that Mr. Falk had later served a privilege log. Thus, plaintiff has taken the position consistently in this litigation that he has not waived the attorney-client privilege. Defendant has not up to this time disagreed with this
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contention. 5. In my conversation with Mr. Dudzik, I requested that he confirm that his office was withdrawing the subpoena with respect to the attorney-client privileged documents and that they should similarly consider the documents protected by the attorney work product doctrine. Mr. Dudzik indicated to me that he would discuss this with Mr. Holohan and get back to me. When Mr. Dudzik later called on the morning of December 16. 2005, he indicated that their office would not agree to any documents being withheld and that plaintiff would have to file a motion with the court. I thereafter advised Mr. Dudzik's secretary, Kathy, that the conference call to the court on this discovery dispute would occur on Tuesday, December 20, 2005 at 1:30 p.m. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed in the City of Santa Clara, State of California, on December ____, 2005.

_________________________________ MICHAEL G. ACKERMAN

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The undersigned declares: I am a citizen of the United States and a resident of Santa Clara County, State of California. I am over the age of eighteen (18) years and not a party to the within above-entitled action. My business address is 2391 The Alameda, Suite 100, Santa Clara, CA 95050. On December 19, 2005, I served a copy of the following document(s) described as: DECLARATION OF MICHAEL G. ACKERMAN IN SUPPORT OF MOTION TO QUASH SUBPOENA DUCES TECUM AND FOR PROTECTIVE ORDER

on the interested parties in this action by placing true copies thereof in a sealed envelope addressed to the person(s) listed below: Robert Hardy Falk, Esq. ROBERT HARDY FALK, P.C. P.O. Box 794748 Dallas, Texas 75379 Email: [email protected] (Attorneys for Plaintiff, Ronald Craig Fish, A Law Corporation)

Darrell S. Dudzik, Esq. HINSHAW & CULBERTSON 13 3800 North Central Avenue, Suite 1600 Phoenix, Arizona 85012-1946 14 Email: [email protected] Facsimile: (602) 631-4404 15 (Attorneys for Defendant, Thomas G. Watkins, III)
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(By U.S. Mail) I am readily familiar with my employer's business practice

for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after dated of deposit for mailing in affidavit. I deposited such envelope(s) with postage thereon fully paid to be placed in the United States Mail at Santa Clara, California. (X ) (By E-Mail) I caused a true copy of the foregoing document to be served on Darrell S. Dudzik and Robert Hardy Falk via e-mail at the e-mail address listed above. Each e-mail was complete and no reports of error were received. ( ) (By Facsimile) I served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), calling for agreement and written confirmation of that agreement

DECLARATION OF MICHAEL G. ACKERMAN IN SUPPORT OF MOTION Case QUASH SUBPOENA DUCESDocumentFOR PR OTECTIVE ORD ER C ase No. C4 of 5 2:03-cv-00067-SMM 109 Filed 12/19/2005 Page IV -03-67-PHX-SMM TO TECUM &

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on court order, to the number(s) listed above or on an attached sheet. Said transmission was reported complete and without error. ( ) (By California Overnight Mail) I served a true and correct copy enclosed in a sealed package, for California Overnight collection and for overnight delivery. I marked said envelope for collection and overnight delivery to the addressed and to the office of the addressee(s) as above indicated. In the ordinary course of business and including said overnight envelopes, will be deposited with California Overnight at Santa Clara, California ( X ) (Federal Only) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct and that this declaration was executed on December 19, 2005, at Santa Clara, California. ______________________________________ CAMI J. SMURPHAT
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17 18 19 20 21 22 23 24 25 26 27 28 -5DECLARATION OF MICHAEL G. ACKERMAN IN SUPPORT OF MOTION Case QUASH SUBPOENA DUCESDocumentFOR PR OTECTIVE ORD ER C ase No. C5 of 5 2:03-cv-00067-SMM 109 Filed 12/19/2005 Page IV -03-67-PHX-SMM TO TECUM &