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Defendants.
MOTION TO EXPEDITE DISCOVERY and
BRIEF IN SUPPORT
Come now Plaintiffs Dezso and Ann Benedek pursuant to Rule
26(d)(1) of the Federal Rules of Civil Procedure (FRCP), and move this
honorable Court for an order allowing immediate preliminary discovery to
preserve critical evidence related to issues raised by Defendants motions for
a stay of discovery and dismissal, and show the Court as follows:
1.
Plaintiffs seek the Courts permission, prior to the Rule 26(f)
discovery conference, to depose non-party witnesses who can confirm that
the Attorney General advised witnesses called to testify against Plaintiff
Dezso Benedek, in the failed attempt to revoke Benedeks tenure as a
professor at UGA, that they could knowingly give false testimony based on
manufactured evidence and be protected--even for perjury, evidence
tampering, and other criminal actions--by sovereign immunity.
2.
This raises a question of first impression in the courts of Georgia,
whether the doctrine of sovereign immunity may shield the actions of state
employees who employ the doctrine in a premeditated fashion as an integral
component of a criminal scheme. Moreover, prior decisions have addressed
sovereign immunity solely in the context of negligence claims brought under
the Georgia Tort Claims Actnever for criminal predicate acts such as wire
fraud, perjury, evidence tampering, and obstruction of justice under the state
and federal RICO Acts, OCGA 16-14-1 et seq & 18 USC 1961 et seq.
3.
7.
The evidence Plaintiffs seek to preserve through deposition testimony
of non-party witnesses is related both to a key legal issue in the case,
whether Defendants enjoy sovereign immunity from a civil RICO action,
and the material factual issue, whether Defendants committed criminal
RICO predicate acts in specific reliance on such sovereign immunity
protection.
8.
These matters are critical to the decision of the issues before the
Courtas there is no prior decision addressing the inclusion of sovereign
immunity protection as an essential, premeditated component of a pattern of
criminal RICO predicate acts.
9.
It is documented and undisputed, for example, that the Attorney
General brought tenure revocation charges against Benedek for terminating
UGAs program at Jilin University in China despite the existence of a memo
showing that Defendant Judith Shaw, not Benedek, made the decision to
terminate the Jilin program. See Jilin Memo, Humphreys Aff., Exh. R.
10.
parte order barring the deposition of Michael Adams and her repeated orders
denying amendment of the complaint to add claims for criminal RICO
predicate acts such as wire fraud, knowing misrepresentation of matters
under state and federal jurisdiction, and obstruction of justice, contrary to the
controlling statutes, OCGA 9-11-15 & 21. See, e.g., Aff, Exhs. A-D.
20.
The discovery Plaintiffs now seek is of a highly sensitive nature,
calling for adverse testimony by employees of Defendant University System
of Georgiathat should be preserved while it is available.
21.
The discovery Plaintiffs now seek has a direct bearing on the Courts
decision whether to exempt Defendants from any claims or additional
discovery based on a defense of sovereign immunity.
CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing has
been prepared in compliance with Local Rule 5.1(B) in 14-point New Times
Roman type face.
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CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies the electronic filing of this Motion for
Expedited Discovery with the Clerk of the Court using the CM/ECF system,
this 29th day of August, 2016, serving opposing counsel as follows:
Samuel S. Olens
Kathleen M. Pacious
Devon Orland
Deborah Nolan Gore
Office of the Attorney General
40 Capitol Square, SW
Atlanta, Georgia 30334-1300
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