IN THE CIRCUIT COURT OF COLE COUNTY
STATE OF MISSOURI

Motion to Compel Discovery and Judicial Notice Comes now the Plaintiff, Lee Allen Martin, pursuant to Missouri Supreme Court Rule 61. It should be noted that the defendant has not filed any protective order as prescribed by Missouri Supreme Court Rule 56, and that the Answer to the Plaintiff's Request for Production of Documents was not provided within the time limit set down in Missouri Supreme Court Rule 58.01 (b) in that the answer and the objections were not served within 30 days. Judicial Notice Plaintiff requests that Judicial Notice be taken of the Southern District Court of Appeals Case State of Missouri V. Darnold 939 S.W.2d 66 [24] The general rule of discovery is that parties may obtain information regarding any matter relevant to the subject matter involved in the pending action so long as the matter is not privileged. State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995); see also Rule 56.01(b)(1). It is not grounds for objection that the information may be inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b)(1). State ex rel. Plank v. Koehr , 831 S.W.2d 926, 927 (Mo. banc 1992). [25] Where the party opposing a discovery is in control of facts peculiarly within that party's knowledge, as was the case in the instant proceedings, and it is asserting a privilege or immunity from the discovery request, the burden of proof must necessarily shift from the proponent of discovery to the opponent of discovery. See 1 M o. C IVIL T RIAL P RACTICE, § 5.61 (MOBAR 2D ED. 1988); see also Discussion of blanket assertion of privilege in State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 80 (Mo. banc 1984), (infra). [26] Few Missouri cases discuss this facet of the discovery process. However, the general scope of discovery set by Rule 56.01(b)(1) is similar to Rule 26(b) of the Federal Rules of Civil Procedure. Therefore, cases interpreting the federal rule are instructive in this area. See 1 M o. C IVIL T RIAL P RACTICE, § 5.3 (MOBAR 2D ED. 1988); see also Rule 34 of the Federal Rules of Civil Procedure, relating to production of documents. [27] Where a privilege is asserted and then challenged, the burden rests upon the party claiming the privilege to establish that the material is, in fact, not discoverable. In re Perrier Bottled Water Litigation, 138 F.R.D. 348, 351 (D.Conn. 1991) (citing In re Shopping Center Antitrust Litigation, 95 F.R.D. 299, 305 (S.D.N.Y. 1982)); Nutmeg Insurance Co. v. Atwell, Vogel & Sterling, 120 F.R.D. 504, 510 (W.D.La. 1988); 23 AM. JUR. 2D Depositions and Discovery § 29 (1983). The party claiming the privilege must supply the court with sufficient information to enable the court to determine that each element of the privilege is satisfied. Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan. 1994); F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980). A failure of proof as to any element of the privilege causes the claim of privilege to fail. Kelling, 157 F.R.D. at 497; Bulk Lift Intern., Inc. v. Flexcon & Systems, Inc., 122 F.R.D. 482, 492 (W.D.La. 1988). In the Darnold case the Southern District rightly points out that for the party claiming a privilege then the burden is placed upon the claiming party to prove the claimed privilege. Further, the plaintiff need only show that the requested documents are in fact relevant, and "reasonably calculated" to produce evidence. In all of the requested documents the plaintiff notes that they are all reasonably calculated to be admissible as evidence. The plaintiff asks the court to take judicial notice of the record created in open court on the 27th day of July 2001 where the plaintiff requested a discovery schedule. The Honorable Judge at that time relied upon the opinion of the defendant's attorney, Assistant Attorney General Harris, that a schedule would not be needed. That Mr. Harris would fully inform the plaintiff of the appropriate rule of court governing discovery. The Honorable Judge's reliance upon learned counsel for the defendant to comply with the Missouri Supreme Court Rules has been shown to be unfounded. Counsel for the defendant has deliberately disregarded the clear intent of the Rules of Court and the statutes of the State of Missouri. Continued reliance, by the Honorable Court, that counsel for the defense does know and is willing to comply with the rules and statute will result in manifest injustice and abuse of discretion. Counsel for defense has deliberately refused to comply with discovery by the use of objections that are not grounded in law. The plaintiff further asks that judicial notice be taken of the Defendant's Answer to the Plaintiff's Complaint. This shows that an investigation into the facts concerning the Plaintiff's Complaint, pursuant to Missouri Supreme Court Rule 55.03: "that the submitting party is certifying the answer as to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," was not properly conducted. In the specific Answer filed with the Honorable Court by the defendant, could not even confirm that the plaintiff is a resident of the State of Missouri. In light of defendant's office and defendant counsel's office involvement in litigation with the plaintiff in Missouri Southern District Court of Appeals #21211-1 Memorandum issued, #23071-1 Martin V. Director of Revenue 10 S.W.3d 618, and #23604-1 opinion issued. Further Judicial notice is requested of the admitted fact that the defendant could not comply with the official sunshine request of March 24, 2001 within the specified time set down by the Missouri State Legislature in RSMo 610.023(4) which states that the denial should be provide in writing within 3 business days. It is a matter of record in the case at hand that the request was sent on the 27th day of March 2001 and the denial in written form was not provide until the 5th day of April 2001. Once again the plaintiff must reiterate that the present manner in which the defendant chooses to handle legal process before this honorable court is nothing more than abuse of process. The Defendant by and through counsel is trying to punish with litigation, and maintain public records in a closed format. The defendant had within their means to call for the attorney general of the state of Missouri to issue a formal opinion. Further if the defendant had any doubt as to the legality of the official request they were to bring this action before the honorable court, RSMo 610.027(5). Judicial Notice should be taken that the defendant at no time took to avail herself of any of these methods to resolve the dispute, but rather has turned to unethical legal maneuvers to thwart the timely release of public records. Plaintiff has proven by and through the Defendant's Answer to Request for Production of Documents that the defendant is a public governmental agency formed by the legislature of the state of Missouri and that the records are public governmental record that do exist for the running of said agency; therefore, pursuant to RSMo 610.027(2) the burden of persuasion is upon the governmental body. Plaintiff asks that the defendant not be allowed to ambush the defendant with evidence that it is unwilling to provide via discovery. Plaintiff has shown the words of the defendant and the learned counsel for defendant is unethical and that the trial court should take judicial notice of the burden now placed upon defendant. Plaintiff does not expect the defendant to rely upon sworn testimony as to the nature of the records in question, and therefore Plaintiff should have all records that has been requested supplied to him. The undue hardship of a public governmental body denying the existence of electronic formatted documents, and the existence of an application for a driver's license in light of 302.120 presents hardships for the plaintiff that may only be remedied through illegal means such as hacking. The position taken by the defendant is criminal, and counsel is conspiring in this conduct. As to Motion to Compel Discovery The following is the Answer to Plaintiff's Request for Production of Documents that was timely submitted and the certificate of service filed with the honorable court on the 2nd day of August 2001. The Answer to Plaintiff's request for production of documents were sent via Federal Express at 17:27 on the 4th day of September 2001. The clear reading of Missouri Supreme Court Rule 58.01(b)states "The party upon whom the request is served shall serve a written response within thirty days after service of the request," Service was mailed on the 30th day of July, 2001. Notice was given in open court that the request would be coming in the 27th day of July 2001. The honorable court on the 2nd day of August 2001 did claim to have filed the certificate of service. Answer was to be served within thirty days, 1st day of September 2001. Defendant's answer to request for Production of Documents is produced below with the plaintiff's argument as to the validity of the answer provided in the "reply" following each answer:

REQUEST NO.1: All records maintained by the Department in its various capacities for Lee Allen Martin. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence. However, attached is a copy, printed from a computer program, of an application on file from Lee Allen Martin REPLY: The attachment provide by defendant is a print out of an electronic format this does tend to show that an electronic record is maintained. Defendant does refer to attachment as an "application", and RSMo 302.120 specifically requires an application and the maintenance there of. RSMo 302.120 requires that all court abstracts be maintained by the department and all applications, and all revocations. These documents are conspicuously missing. Plaintiff has requested "all records" concerning plaintiff including but not limited to DMV and the department of taxation as well as any records maintained by the legal department for the defendant, these are not provided, but what is provided proves that electronic information is maintained by the defendant. The admissibility of any of these documents requested by the plaintiff is the sole discretion of the Honorable Judge and not the attorney for the defendant. For the Attorney General to not fully answer and supply the requested documents without the request for a protective order is to usurp the authority of the trial court. The documents requested are not only public records that should be readily available to all Missouri Citizens, it is also a personal record of the plaintiff and should be presented to the plaintiff without objection. It should be noted that in this request the defendant has refused the plaintiff to view these documents. In violation of Mo. S. Ct. Rule 56.

REQUEST NO.2: All records maintained by the Department in its various capacities for Carol Russell Fischer. ANSWER:Objection. This request is not calculated to lead to the discovery of admissible evidence, is over broad and burdensome, and most, if not all such records, would be considered confidential employment records not subject to discovery. REPLY: The defendant purports to be the Custodian of Record for the Department. Chapter 610 requires the appointment of a custodian of record. When the defendant was appointed to the Office of Custodian is of utmost importance and is admissible as evidence. Plaintiff sites 610.027(3) "that upon a finding by a preponderance of the evidence that a member of a public governmental body has purposely violated section 610.010 to 610.027." The nature of the requested documents would tend to prove that the defendant is a 27 year veteran of the Department of Revenue, and does know the statutes governing her office. The purposeful nature of her actions in the performance of her official duties are issues of fact in this honorable court. Further if the defendant wishes to ask for a protective order as provided in Rule 56.01 that is a issue of law to be determined in open court where the plaintiff has the ability to cross examine witnesses that the defendant may bring. Further, defendant's character and knowledge whether positive or negative has bearing on the purposeful act as defined in 610.027(3).

REQUEST NO.3: The Expert witnesses that defendant may call pursuant to rule 56.01(b)4 and 5, name address, occupation, place of employment, qualifications to give an opinion, curriculum vitae, and state the subject matter expert is called to testify. ANSWER: Defendant does not have any documents that satisfy this request. REPLY: It is the defendant right not to call expert witnesses, however, plaintiff asks the court to not allow ambush at trial of expert witnesses.

REQUEST NO.4: The Application for a Driver's License in all formats, electronic and printed. ANSWER: An application is not available in an electronic format, nor are there any blank printed applications. Clerks take the information from the applicant and enter it into a computer program. The only "electronic" application is generated by the Department of Revenue's computer program system, and the entire program, which is not available to the public, is necessary to generate such "electronic" application. REPLY: RSMo 302.120 calls for an "APPLICATION", and not the proposed process and/or program. It appears to the plaintiff that the counsel for defendant is now offering expert testimony as to the nature of computers, and has not supplied plaintiff with any offer to counsel knowledge in this field.

REQUEST NO.5: The Policy and Procedures of the Department of Revenue Personnel in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, the Defendant does not have any documents that satisfy this request. However, the Defendant will make the requested policies and procedures available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY: First, it must be noted that a document is available for viewing which does qualify as Policy and Procedure of Department of Revenue Personnel. It should also be noted that this document is the document in question in the Chapter 610 action. The nature of the document is admissible as evidence. Defendant admits that the document is a public document and yet holds added encumbrance of making an appointment to view these public documents produced by a public governmental body for the everyday operation of the public governmental body. Chapter 610 does not provide for this appointment. The intent of Chapter 610 is open government, and the provision of chapter 610 should be liberally construed in favor of openness.

REQUEST NO.6: The Driver License Applications that are maintained in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Additionally, the Defendant does not have any documents that satisfy this request as they are not available in "electronic" format. Furthermore, such information is confidential under Missouri Law and is not subject to discovery. REPLY: The Driver license applications are the subject of this civil action before the honorable court. Defendant's Answer in Request #3 is that the applications are in electronic format. Defendant has even submitted an application for the plaintiff as an attachment that was maintained in electronic format, for defendant now to claim that they are not is a contradiction. For the defendant to claim that the records are somehow protected by Missouri Law as a confidential record is false. RSMo 610.024 provides for redaction of exempt and non exempt material. Plaintiff fully believes that this document is open in its entirety.

REQUEST NO.7: The Oath of Office of all Driver License Personnel and where on file in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, the Defendant does not have any documents that satisfy this request. REPLY: Once again this document is one of the documents that are the subject of the civil action before the honorable court. The admissibility of this record can not be questioned. Plaintiff is fully aware that the documents in question are created in electronic format. The Constitution of the State of Missouri calls for an oath or affirmation by executive officers before excepting office Missouri Constitution Article VII sec.11. Further, plaintiff has good reason to believe that all state personnel are required to take the oath and affirmation to honor the constitutions of the United States and the State of Missouri, and to not violate the statutes of the State of Missouri or the United States of America. For Defendant's Counsel to state otherwise is a violation of his Oath as an attorney to not misrepresent the facts before the court.

REQUEST NO.8: The Policy and Procedures of the Custodian of Record for the Department in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the requested policies and procedures available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY: 610.028(2) calls for reasonable written policy in compliance with section 610.010 to 610.030 which are open to the public. As the character and the nature of the documents that are to be maintained by the Custodian are substantive issues of fact in the case at hand the records can not be considered over broad, burdensome, or something less than evidence. The admissibility of this record can not be questioned. Plaintiff is fully aware that the documents in question are created in electronic format.

REQUEST NO.9: The Policy and Procedures of the Department's Legal Division in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the requested policies and procedures available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY: The admissibility of this record can not be questioned. Plaintiff is fully aware that the documents in question are created in electronic format. Plaintiff suggests that the document in question is far from static and in fact is a dynamic document to help state personnel in the everyday performance of their duties.

REQUEST NO.10: The Policy and Procedures of the interaction of Department of Safety and the Department of Revenue Personnel in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request as there is no "Department of Safety." REPLY:Plaintiff does admit to a typo, but does disagree with the purported confusion that defendant claims to have concerning this request. Plaintiff request that the department of public safety be substituted for the department of safety in the interest of justice and in the interest of public accountability.

REQUEST NO.11: The Policy and Procedures of all Branch Offices as promulgated on the behest or by the Department of Revenue in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence, is over broad and burdensome, and is vague and ambiguous.However, as stated previously, the Defendant will make policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY: The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.12: The Policy and Procedures of the Lottery Commission in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the requested policies and procedures available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.13: The Policy and Procedures of the Motor Vehicle and Drivers Licensing Division in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY: The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.14: The Policy and Procedures of the Taxation and Collection Division in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.15: The Policy and Procedures for all internal auditors used either as sub contractor, contractors, or employee in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.16: The Policy and Procedures for Planning and Public Information in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.17: The Policy and Procedures for Performance and Excellence in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court. Plaintiff notes that this division is under the director, and as stated in the Missouri Blue Book: "is responsible for implementing department-wide result-oriented process in order to deliver ever-improving value to our customers and our employees." Plaintiff contends that it reasonable to calculate that this could be admissible as evidence, and further that this division under the director's immediate control would tend to prove that electronic storage and production of records are not only practiced, but is a fundamental policy of state government in the new century.

REQUEST NO.18: The Policy and Procedures for Budget Administrator in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.19: The Policy and Procedures for Human Resource Services in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence, is over broad and burdensome, and is vague and ambiguous. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court.

REQUEST NO.20: The Policy and Procedures for the Information Services in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. However, Defendant will make the policies and procedures of the Department available in paper format for Plaintiff to view, by appointment, in Jefferson City at the Truman Building. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court. Defendant now would have plaintiff believe that computer nerds in the state offices do not keep policy and procedures in computer format.

REQUEST NO.21: A list of all financial institutions that the Department of Revenue maintains any amount of funds in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Furthermore, Defendant does not have any documents that satisfy this request. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court. Defendant would have the plaintiff believe that the State of Missouri keeps financial records in some form other than a spread sheet.

REQUEST NO.22: The personnel records of the Defendant, Carol Russell Fischer. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence. Furthermore, such records are required to be kept confidential under state law and are not subject to discovery. REPLY:The admissibility of this record can not be questioned. The character of the defendant, whether good or bad, has been called into question. A 27 year veteran which holds multiple positions within the department goes to the credibility of the defendant. Defense will certainly entertain the court with the honesty and integrity of the defendant. Plaintiff has the right to the personnel records of the defendant, if the court would like to put a protective order upon the plaintiff as to the dissemination of these records plaintiff will be happy to comply. The character of the defendant goes to the purposeful act.

REQUEST NO.23: The list of all Financial Records needed to be kept for the case of audit in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence, is over broad and burdensome, and is vague and ambiguous. Furthermore, the Defendant does not have any documents to satisfy this request. REPLY:The admissibility of this record can not be questioned. It appears by the answer that this and all requested policy and procedures are one and the same. The nature of the documents electronic or handwritten is a substantial issue of fact to be decided by the court. Surely, the defendant is not going to claim to this court that they destroy financial records also.

REQUEST NO.24: The list of email addresses for all department Personnel in electronic format. ANSWER: Objection. This request is not calculated to lead to the discovery of admissible evidence. Furthermore, the Defendant does not have any documents to satisfy this request. REPLY:The admissibility of this record can not be questioned. Further, there is a substantial list of email addresses for the department maintained on the Missouri Government Home page. I have Ms. Fischer's e mail address presently and we do e mail back and forth as to the audits being conducted presently of the department. For the Counsel for the defense to claim they do not have these document is to lie to the plaintiff and to the court. Plaintiff request that the Honorable Court examine the web page listed: http://www.oa.state.mo.us/cgi-bin/email/cgi/email.cgi.

Wherefore, the plaintiff has shown that the answer to plaintiff's Request for Production of Document is false the plaintiff must ask for sanctions and costs of 250 dollars. Plaintiff asks that the documents in question be supplied to him immediately so that plaintiff may prepare for trial. That the records in question be submitted to the court for protection to prevent any further tampering or destruction. Plaintiff asks that all future amendments to the documents be supplied to him in electronic format immediately. That the honorable court report the learned counsel for defendant to the State Bar for disciplinary action.