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ELECTRONICALLY FILED 11/4/2013 10:10 PM 01-CV-2012-903414.



CV 2012-903414


COMES NOW the Petitioner, Karen Carroll, and files this Motion for Relief from the Courts Order Dated April 29, 2013, Section 5 Reimbursement for copying, and as grounds for relief, states the following: 1. The Petitioner initially filed a Rule 27 Petition seeking discovery of documents from the Girl Scouts of North Central Alabama (GSNCA), namely records of the non-profit corporation related to its Board of Directors decision in 2012 to approve a three-phase property plan. The vast majority of the documents requested fell within the purview of Alabama Code 10A-3-2.32. 2. After an unsuccessful attempt by GSNCA to have the Petition transferred or dismissed, GSNCA sent a discovery response that demanded the prepayment of $22,422.50 before any documents would be turned over. The demand was made in a letter to Petitioners counsel, dated February 6, 2013, which stated as follows: GSNCA has found 10,945 pages of documents responsive to your requests. At $.50 per page, GSNCA is entitled to be reimbursed $5,472.50. Once the appropriate Protective Order has been entered into, and signed by the Court, and once GSNCA has been


reimbursed the amount of $22,422.50 for time and expenses incurred in producing the documents, the documents will be provided to you. 1 (Emphasis supplied.) (See Attached Exhibit 1.) 3. GSNCAs answers to Petitioners Interrogatories were signed under oath by Patricia Coghlan (former CEO of GSNCA). In the answers, Coghlan responded to interrogatories number 1 and 4 by stating, See documents produced. (See Attached Exhibit 2.) However, no documents were actually produced based upon the requirement of prepayment demanded in GSNCAs letter. 4. In GSNCAs Responses to Petitioners Requests for Production of Documents, GSNCA used the following phrase twenty six (26) times: will be produced upon reimbursement of time spent gathering these documents and expenses at $.50 per page. GSNCA included this language in its responses to the following requests for production: 1, 2, 4, 5, 9, 10,12, 13, 14, 17, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36. (See Attached Exhibit 3). 5. Coinciding with the responses to discovery, and on February 6, 2013, GSNCA, GSNCA CEO Patricia K. Coghlan and GSNCA Board Chairperson Chris Ross, released the following statement on the GSNCA website under Property Updates: Today, GSNCA has formally responded to the discovery requests as the result of the lawsuit filed by Sarah Edwards. Thanks to the GSNCA staff who worked so diligently in gathering the information. Staff spent 339 hours searching for and gathering 10,945 pages of documents in response to the discovery requests. GSNCA has requested to be reimbursed for reasonable expense, that took away from our mission of serving girls - $50 an hour for staff time ($16,950) and $.50 a page ($5,472.50)- before the actual documents are produced to Ms. Edwards and her attorneys, Bradford & Ladner. Please take a moment to read !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 On April 29, 2013,this Honorable Court ruled that the Respondent was not entitled to reimbursement for paying employees, or others, to make the requested copies or for their work in locating the documents because the records were required to be kept pursuant to Ala. Code 10A-3-2.32. ! #!

the official response so you can be informed of the latest property development. (Emphasis supplied.) (See Attached Exhibit 4.) 6. On March 22, 2013, GSNCA filed a Motion to Dismiss for Lack of Prosecution, in which GSNCA made the following statements: 4. At the time GSNCA responded to the Petitioners requests for production of documents and interrogatories, a letter was sent to Petitioners counsel. A copy of this letter is attached hereto as Exhibit 3. That letter requested reimbursement for the 339 hours GSNCA spent retrieving the numerous documents requested, and coping expenses for 10,945 pages that were responsive to Petitioners requests. . . . 5. Notwithstanding GSNCAs responses on February 6, 2013, subsequent to February 6, 2013, Petitioner has made no attempt to prosecute her lawsuit. Petitioner has made no contact with GSNCA concerning a proposed Protective Order, arranged for reimbursement of time spent by GSNCA in locating documents requested by Petitioner, or the expenses incurred by GSNCA in copying the documents requested by Petitioner. WHEREFORE, PREMISES CONSIDERED, GSNCA requests this Court enter an Order dismissing the Petition, with prejudice, for lack of prosecution, and award to GSNCA the amount of $16,925.00 for reimbursement for time and expenses in locating the documents requested by Petitioner, and $5,472.50 for copying expenses incurred in copying the documents requested by Petitioner. (Emphasis supplied.) (See Attached Exhibit 5.) 7. On March 25, 2013 the Petitioner filed a Motion to Compel the production of the documents, asking for an order, directing the Respondent to make any and all information and documents responsive to the discovery requests immediately available for inspection... 8. On April 1, 2013, GSNCA filed a Response to Petitioners Motion to Compel in which GSNCA made the following statements: 4. On February 6, 2013, GSNCA filed their responses to Petitioners interrogatories and responses to Petitioners requests for production of documents. Copies of the responses to


interrogatories and responses to requests for production of documents are attached hereto as Exhibits 1 and 2 respectively. 5. At the time GSNCA responded to the Petitioners requests for production of documents and interrogatories, a letter was sent to Petitioners counsel. A copy of this letter is attached hereto as Exhibit 3. That letter requested reimbursement for the 339 hours GSNCA spent retrieving the numerous documents requested, and copying expenses for 10,945 pages that were responsive to Petitioners requests. ... ... 8. Petitioner correctly states that section 10A-3-2.32 provides that [a]ll books and records of a nonprofit corporation may be inspected by any member, director or officer, or his or her agent or attorney, for any proper purpose at any reasonable time. Ala. Code 10A-3-2.32 (2013). Petitioner did not (their emphasis) request an opportunity to inspect (their emphasis) the documents requested in her Request for Production; rather, Petitioner requested copies of all 10,945 pages of materials that also sought. ... 10. In filing her Motion to Compel, Petitioner has the burden to offer any Alabama case law or other authority for her position that GSNCAs estimated charges of $.50 per page for each page copied and $50 per hour for the labor that went into collecting Petitioners requested 10,945 pages of information are unreasonable charges. ... 12. Petitioner claims that her requests for production of documents sought for Petitioner, or her agent, be allowed to inspect the documents, with the option to copy all, some or non of the documents as Petitioner determined. Petitioner, through her attorney, has made no contact with GSNCA concerning a proposed Protective Order, requesting an opportunity to inspect the documents, arranging for reimbursement of time spent by GSNCA in locating documents requested by Petitioner, or for reimbursement


of the expenses incurred by GSNCA in copying the documents requested by Petitioner. The first time GSNCA received any response form Petitioner was when she filed her Motion to Compel. This was AFTER GSNCA filed its Motion to Dismiss For Lack of Prosecution. WHEREFORE, PREMISES CONSIDERED, GSNCA respectfully requests this Court enter an Order denying Petitioners Motion to Compel, awarding GSNCA the amount of $16,950.00 for reimbursement for time and expenses in locating the documents requested by Petitioner, awarding GSNCA the amount of $5,472.50 for copying expenses incurred in copying the documents requested by Petitioner. (Emphasis supplied.) (See Attached Exhibit 6.) 9. On April 4, 2013 this Honorable Court conducted a hearing on the Petitioners Motion to Compel and the Respondents Motion to Dismiss. One of the issues addressed in oral argument before the Court at the hearing was whether Petitioner had asked for the documents to be copied or simply asked for the opportunity to review the documents. Upon the undersigneds recollection, this Court questioned counsel for GSNCA concerning whether copies had been made, and counsel for GSNCA responded that copies had been made. Because of the numerous objections asserted by GSNCA in its response, this Court then asked how GSNCA knew which documents to actually copy. Counsel for GSNCA responded that GSNCA copied what they thought the Petitioner wanted. As a result of the statements made at the hearing, the undersigned was certainly under the impression that copies of documents had already been made. This belief was reinforced by the repeated references to reimbursement and the use of copying expenses incurred in GSNCAs pleadings. 10. On April 29, 2013, this Honorable Court ruled on the motions, granting Petitioners motion to compel, denying GSNCAs motion to dismiss, and denying GSNCAs motion for protective order. This Court also ruled that GSNCA was not entitled to reimbursement for its labor in retrieving the documents, and ordered that the Petitioner reimburse GSNCA for the copies at the conclusion of the case at the reduced rate of $.11.5 per page. 11. On May 7, 2013, the undersigned sent correspondence to GSNCAs counsel concerning the location of the copies and whether the copies could be picked up the next day. (See Attached Exhibit 7.)


12. GSNCAs counsel responded that GSNCA had until May 13, 2013 to produce the documents under the time calculations in the Alabama Rules of Civil Procedure, and then went on to state: From my discussions with you and your argument in court, it was my understanding that you wanted to review the documents before any copies were made. Your email to me indicates that you want copies of all the documents. Please let me know what you want to do: I am fine either way. (See Attached Exhibit 8.) 13. On May 13, 2013, the undersigned sent a second letter to GSNCAs counsel noting the, repeated representations by GSNCA that copies of the documents had already been made as far back as GSNCAs discovery responses on February 5, 2013. (See Attached Exhibit 9.) Later that day, the undersigned and his law partner, Amber Ladner travelled to Sirote & Permutt, P.C. to determine the status of the document production. 14. Upon arrival at the time scheduled by GSNCA, 2:00 p.m., an issue arose as to who may review the documents. Initially, the undersigned was told that only the attorney of record for the Petitioner could see the documents. However, it was explained that Ms. Ladner was the undersigneds law partner and also an attorney of record, and after a delay, both the undersigned and Ms. Ladner were directed to a room containing approximately 20 5 binders containing documents. The undersigned was told to mark any documents that should be copied. The undersigned asked whether these documents were the copies to be given to the Petitioner, and was told that the documents in the binders were GSNCAs copies of the documents. 15. A short time later counsel for GSNCA arrived and the undersigned asked whether any documents had actually been copied as of that time. Counsel for GSNCA responded that no copies of documents had been made to give to Petitioner. 16. The undersigned attorneys reviewed as much as possible that day in the short time they were allowed to review the documents; 2:30 p.m. to 5:00 p.m. However, even a brief look at the documents revealed that the documents were not in any particular order. The documents were not in date order, with emails and correspondence from 2010, 2011 and 2012 mixed together and interspersed among other documents. Due to restrictions placed on the review and the jumbled nature of the documents, Petitioner chose to have copies made of the documents so that they could be reviewed and sorted at her counsels office. There was a delay of an additional four (4) days before


the copies were actually made and the documents were ready to be picked up from Respondents counsel. 17. Upon a review of the copies of documents produced by GSNCA, a large portion of the documents produced were either duplicates, blacked out, blank, or otherwise non-responsive. For instance: a. In documents Bates Stamped 2316 to 3084 (768 pages): 140 pages were duplicates, 18 pages contain only the Girl Scout Logo and no information, and 25 pages were either blank or completely blacked out. Out of 768 documents, 183 were non-responsive for one reason or another. b. In documents Bates Stamped 8061 to 8575, (514 pages): 284 pages were duplicates and 44 pages were either blacked out completely or were blank. Out of 514 pages, only 186 were responsive. c. In documents Bates Stamped 3841 to 4618, (804 pages): 337 pages were duplicates. Out of 804 pages, only 467 pages were responsive. 18. Additionally, there are numerous documents related to requests for production of documents that were withdrawn by the Petitioner. At the Courts request, Petitioner reviewed her request for production and voluntarily agreed to withdraw requests for production of documents numbers, 6, 7, 8, 12, 13, 16, 17, 18, 20, 23, 24, 27, 29, 32 and 36. (See Attached Exhibit 10.) The withdrawal of these request should have significantly reduced the number of responsive documents. For instance, Petitioner withdrew request numbers 12 and 13, which had asked for copies of emails or correspondence between or among the Board of Directors, GSNCA staff, membership, and consultants regarding the property plan. However, a significant amount of the documents copied and disclosed consisted of these email correspondence. 19. Additionally, there were a number of documents in the production that were emails that indicated many of the documents that were disclosed were already in electronic format, and therefore could have been disclosed in electronic format, thereby avoiding any issue as to copy costs. 20. Incur is defined as to suffer or bring oneself (a liability or expense.) Blacks Law Dictionary, Seventh Edition. This term was used in its past tense form over and over in GSNCA responses and pleadings, denoting that they have already created the documents and have a debt.


21. The Blacks Law Dictionary, Seventh Edition, definition for reimbursement, n. 1. Repayment. 2. Indemnification. This term was also used over and over in GSNCA responses and pleadings, reinforcing the suggestion that the documents had already been copied. 22. A great deal of time and effort went into addressing the issue of reimbursement for copies. From all that appears, this was wasted time and needless expense, prompted by the erroneous statements of GSNCA. The entire furor over copy reimbursement amounted to nothing more than additional delay by GSNCA. There had already been significant delays brought on by GSNCA. These delays were catalogued in the Petitioners response to GSNCAs Motion to Dismiss. 6. The Petitioner has not failed to prosecute her Petition. Further, the Respondent is not coming to the Court with clean hands. The Respondent has delayed responding to the Petition time and again. The Respondent was served October 24, 2012. In mid-November 2012, the Respondent asked Petitioners counsel for additional time to respond. The Petitioner agreed, and allowed the Respondent several weeks additional time to respond. 7. When GSNCA responded on December 7, 2012 it came in the form of a Motion to Transfer, or in the alternative to Dismiss, or in the alternative for Summary Judgment. This Court denied the Respondents motion to transfer on December 21, 2012, ruled that a Rule 12 Motion to Dismiss did not even apply to a Rule 27 Petition, and that GSNCAs request for summary judgment was not appropriate and very premature. The Court ordered discovery to proceed. 8. Even after being ordered to proceed with discovery, the Respondents response was to withhold production of documents until prepayment, prompting the Petitioner to file a Motion to Compel. 9. In GSNCAs Response to the Motion to Compel, the Respondent again seeks to delay. In its prayer for relief, GSNCA asks for yet another delay, asking for, a reasonable amount of time to produce the requested documents. (See Attached Exhibit 11.)


18. Petitioner would note that GSNCA held its Annual Meeting on April 27, 2013 and voted on board members for 2013-2014. Of the board members on the 2013-2014 board, there were eighteen board members who were on the board when the May 9, 2012 vote was taken approving the three-phase property plan. These board members were either re-elected to the board or remained on the board because their 2-year terms had not expired. As of today, November 4, 2013, fourteen of these eighteen have resigned. Additionally, the CEO of GSNCA, Patricia Coghlan, has resigned. The board members to resign that voted in favor or were on the board at the time of the vote were as follows: Rachel Russell (President of the board), Mary Edna Wuertenburger (3rd Vice President), Cindi Vice, Neeysa Biddle, Diane Brooker, Mariah Chapman, Paige Daniel, Wendy Evesque, Benjamin Goldman, Esq., Laura Huckabee-Jennings, Janet Kincherlow-Martin, Elaine Kwarcinski, Tanya Shunnara, Esq. (an associate at Sirote & Permutt, P.C.), Henley Smith. 19. Of the four remaining board members who were on the board at the time of the May 9, 2012 vote on the property plan, two were absent from that meeting and did not vote (Dawn Stanley and Barry Morris). Alice Williams was not re-elected to the board at the annual meeting; however, she was voted back on the current board to fill a vacancy. The other board member, Sally Smith, was the Property Committee Chair and gave the report at the board meeting. It is unclear how these two members voted, as the minutes from the meeting do not indicate how each board member voted. The minutes do indicate the numerical vote: 14 votes for phase one, and 4 votes opposed to phase one; 13 votes for phase two, and 4 opposed to phase two, with 1 abstention; 15 votes for phase three, 2 votes opposed to phase three and 1 abstention. 20. Based on the foregoing, this Courts decision regarding reimbursement of GSNCAs copying expenses was decided upon inaccurate representations by GSNCA that led the Petitioner and the Court to believe that the costs of copying had already been incurred and that reimbursement was needed. As it turned out, at the time of the hearing on April 4, 2013, GSNCA had not made any copies of documents to give to the Petitioner. No costs had actually been incurred by GSNCA for copies. The documents that were copied and produced contained numerous duplicates and blank or blacked out pages. Further, the document production included documents responsive to requests that were withdrawn by the Petitioner.


WHEREFORE PREMISES CONDISERED, the Petitioner prays that this Honorable Court will grant her the following relief: a. b. Enter an order relieving the Petitioner from the payment noted in the Courts order dated April 29, 2013, Section 5 Reimbursement for Copying, and Enter an order assessing attorneys fees against the Respondent in an amount which reasonably compensates counsel for Petitioner for time and expenses associated with responding to the Respondents motion to dismiss and in pursuing the Petitioners Motion to Compel.

Respectfully Submitted,

/s/ William K. Bradford William K. Bradford (BRA079) /s/ Amber L. Ladner Amber L. Ladner (LAD 004) Attorneys for Petitioner OF COUNSEL: BRADFORD LADNER, LLP. 3928 Montclair Road, Suite 208 Mountain Brook, AL 35213 (205) 802-8823


CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing upon the persons listed below or their counsel of record via electronic means through AlaCourt electronic filing, or via U.S. Mail, postage paid and properly addressed if so indicated below on this the 4th day of November, 2013. Daniel J. Burnick, Esq. Sirote & Permutt, P. C. 2311 Highland Avenue South Birmingham, AL 35205 /s/ Amber L. Ladner OF COUNSEL