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ATTORNEY 2R PfeRTY WITH~YT ATTORNEY {Nome, state bar number, and address): FOR COURT USE ONLY
Andrew E. H1 lier Bar No. 29 79)
Hillier Law
600 W. Broadway, Suite 700, Son Diego, CA 92101
TELEPHONE NO:1619) 500-7906 FAX NO: (6 I 9) 839-3895
ATTORNEY FOR IName I: A. Sameh El Kharoc= E-FILED
SUPERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO 9/3/2021 11:46 PM
Civil Division Superior Court of California
1130 0 Street County of Fresno
Fresno, California 93721-2220 By: J Nelson, Deputy
PLAINTIFF/PETITIONER: A. Sameh El Kharbawy
DEFENDANT /RESPONDENT:Baard of Trustees of Calffomla State Unlverslly
CASE NUMBER:
REQUEST FOR PRETRIAL DISCOVERY CONFERENCE 21CECG02214
0 Plaintiff(s) D Defendant(s) D Cross-complainant(s) D Cross-defendant(s) D Other(s) Request a
Pretrial Discovery Conference.
A Pretrial Discovery Conference is being requested for the following reasons:
D A dispute has arisen regarding a request for production of documents, set propounded on
0 A dispute has arisen regarding form or special interrogatories, set one propounded on l /2 l /202 l
D A dispute has arisen regarding a deposition subpoena directed at for deposition
scheduled for
D A dispute has arisen regarding a deposition notice, production of documents at a deposition or deposition
questions related to the deposition of scheduled for or held on
D A dispute has arisen regarding monetary, issue, evidence or terminating sanctions related to a failure to
comply with
D Privilege is the basis for the refusal to produce documents and a privilege log is attached which complies
with Local Rule 2.l.l7(B).
The parties have engaged in the following meaningful meet and confer efforts prior to filing this request:
(Describe in detail all meet and confer efforts including any narrowing of the issues or resolutions reached via
these efforts.)
Plaintiff propounded Form Interrogatories – General and Form Interrogatories – Employment (Sets One) on January 21, 2021. After a
series of mutual extensions, Defendant provided initial deficient responses on June 2, 2021 with a series of inappropriate objections.
On July 19, 2021, Plaintiff sent a meet and confer letter regarding Defendant’s deficient responses to Form Interrogatories. Plaintiff
provided a specific explanation describing how each response was insufficient and how Defendant’s objections were meritless.
On July 26, 2021, Defendant’s counsel wrote: “I have not had a chance to complete my response to your letter. My intention is to
respond within the next few weeks, and most certainly in less time than it has taken you to respond (substantively) to my letters.”
On August 6, 2021, Defendant’s counsel wrote: "...I am actively working on responses to all of your meet and confer letters to date. I
believe it would be best to schedule a meet and confer phone call once you receive my responses."
In the month since Defendant’s promise to respond to Plaintiff’s meet and confer letters, Defendant has not responded. Defendant has
not produced any substantive response to Plaintiff’s meet and confer efforts. More importantly, Defendant has not answered the vast
majority of Plaintiff’s discovery requests. Defendant has not produced a single document in the case. No narrowing of the issues has
occurred because Defendant has not responded to Plaintiff's meet and confer correspondence.
PCV-70 R0S-19 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page I of 2
Mondatorv Local Rule 2.1. 17
A brief summary of the dispute, including the facts and legal arguments at issue is as follows:
[Excepting a privilege log if checked above, no pleadings, exhibits, declarations, or attachments shall be
attached.)
Defendant failed to adequately respond to the form interrogatories propounded by Plaintiff. Defendant failed to provide any response to
nearly half of them (Form Interrogatories - General Nos. 12.1, 12.2, 12.3, 12.4, 12.5, .12.6, 14.1, 15.1 and Form Interrogatories - Employment
No. 216.1). For nearly all of the form interrogatories, Defendant claimed that the terms used were “vague and ambiguous,” but failed to
acknowledge that the Judicial Council of California drafted these interrogatories for use in all matters—an argument that Defendant’s counsel
lodged in its own meet and confer efforts. Making matters worse is the fact that Defendant claimed that obvious and understandable terms
were “vague and ambiguous.” For example, in response to Form Interrogatory No. 200.5, which asks whether Plaintiff’s employment was
“covered by one or more collective bargaining agreements or memorandums of understanding,” Defendant claimed that that phrase was
“vague and ambiguous.” But Defendant initiated a “temporary” suspension of Plaintiff under the terms of its Collective Bargaining
Agreement with the California Faculty Association. Certainly, Defendant knew at the time that it suspended Plaintiff under that collective
bargaining agreement that the CBA applied to Plaintiff’s employment. It fails common sense that Defendant now finds that application to be
vague and ambiguous.
The remainder of Defendant’s objections are mere boilerplate. Indeed, in nearly every response, Defendant claims the attorney-client
privilege and the work-product doctrine prohibit a response, but fails to identify what information responsive to the interrogatory would be
protected by these privileges.
Defendant also repeatedly cites the length of the complaint as a reason that it cannot respond. Aside from the inexplicability of this objection,
it fails to support Defendant’s objections in relation to the interrogatories. For example, Form Interrogatory No. 12.2 asks if “you or anyone
acting on your behalf interviewed any individual concerning the incident.” Defendant claimed that the length of the complaint prevented
Defendant from understanding what “incident” means; but that objection rings hollow considering what else has happened in this case. First,
Defendant suspended Plaintiff on the basis of faculty and student complaints. Clearly, someone interviewed those individuals about the
"incident" in this case. Second, Defendant hired a law firm to conduct an investigation of Plaintiff’s suspension. Again, someone on
Defendant’s behalf interviewed individuals about the incident in this case. Finally, Defendant moved to transfer the case from Los Angeles to
Fresno. In support of its motion, Defendant attached several declarations from “witnesses” who stated it would be inconvenient to travel to
Los Angeles to testify. Certainly, someone on Defendant’s behalf interviewed these individuals about the incident in this case before
representing to the court the they had relevant testimony.
Defendant also repeatedly invokes the Family Educational Rights and Privacy Act as a basis for failing to respond. But FERPA explicitly
permits an institution to disclose otherwise protected information “to comply with a judicial order or lawfully issued subpoena.” (34 C.F.R.
section 99.31(a)(9)(i).) Defendant’s attempt to use FERPA as a shield from discovery falls flat. Moreover, FERPA only protects disclosures
of "education records." Documents concerning a professor or an employment action against a professor (even if it contains information about
a student) is not an "education record." (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754-55.)
II is understood that the filing of this request for a Pretrial Discovery Conference tolls the time for filing a motion
to compel discovery on the disputed issues for the number of days between the filing of the request and
issuance by the Court of a subsequent order pertaining to the discovery dispute.
Opposing Party was served with a copy of REQUEST FOR PRETRIAL DISCOVERY CONFERENCE on: ..,_9-'-'/3"'/-"2"'-0",2'-l~ - - -
Date
Pursuant to Local Rule 2. l. l 7{A){l ), any opposition to this request for a Pretrial Discovery Conference must also
be filed on an approved form and must be filed within five [5) court days of receipt of the request for a Pretrial
Discovery Conference and must be served on the opposing party.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
correct.
9/3/2021 Andrew Hillier
Date Type or Print Name Signature of Party or Attorney for Porty
PCV-70 R05-l 9 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page 2 of 2
Mandatory Local Rule 2.1.17
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ATTORNEY 2R PfeRTY WITH~YT ATTORNEY {Nome, state bar number, and address): FOR COURT USE ONLY Andrew E. H1 lier Bar No. 29 79) Hillier Law 600 W. Broadway, Suite 700, Son Diego, CA 92101 TELEPHONE NO:1619) 500-7906 FAX NO: (6 I 9) 839-3895 ATTORNEY FOR IName I: A. Sameh El Kharoc= E-FILED SUPERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO 9/3/2021 11:46 PM Civil Division Superior Court of California 1130 0 Street County of Fresno Fresno, California 93721-2220 By: J Nelson, Deputy PLAINTIFF/PETITIONER: A. Sameh El Kharbawy DEFENDANT /RESPONDENT:Baard of Trustees of Calffomla State Unlverslly CASE NUMBER: REQUEST FOR PRETRIAL DISCOVERY CONFERENCE 21CECG02214 0 Plaintiff(s) D Defendant(s) D Cross-complainant(s) D Cross-defendant(s) D Other(s) Request a Pretrial Discovery Conference. A Pretrial Discovery Conference is being requested for the following reasons: D A dispute has arisen regarding a request for production of documents, set propounded on 0 A dispute has arisen regarding form or special interrogatories, set one propounded on l /2 l /202 l D A dispute has arisen regarding a deposition subpoena directed at for deposition scheduled for D A dispute has arisen regarding a deposition notice, production of documents at a deposition or deposition questions related to the deposition of scheduled for or held on D A dispute has arisen regarding monetary, issue, evidence or terminating sanctions related to a failure to comply with D Privilege is the basis for the refusal to produce documents and a privilege log is attached which complies with Local Rule 2.l.l7(B). The parties have engaged in the following meaningful meet and confer efforts prior to filing this request: (Describe in detail all meet and confer efforts including any narrowing of the issues or resolutions reached via these efforts.) Plaintiff propounded Form Interrogatories – General and Form Interrogatories – Employment (Sets One) on January 21, 2021. After a series of mutual extensions, Defendant provided initial deficient responses on June 2, 2021 with a series of inappropriate objections. On July 19, 2021, Plaintiff sent a meet and confer letter regarding Defendant’s deficient responses to Form Interrogatories. Plaintiff provided a specific explanation describing how each response was insufficient and how Defendant’s objections were meritless. On July 26, 2021, Defendant’s counsel wrote: “I have not had a chance to complete my response to your letter. My intention is to respond within the next few weeks, and most certainly in less time than it has taken you to respond (substantively) to my letters.” On August 6, 2021, Defendant’s counsel wrote: "...I am actively working on responses to all of your meet and confer letters to date. I believe it would be best to schedule a meet and confer phone call once you receive my responses." In the month since Defendant’s promise to respond to Plaintiff’s meet and confer letters, Defendant has not responded. Defendant has not produced any substantive response to Plaintiff’s meet and confer efforts. More importantly, Defendant has not answered the vast majority of Plaintiff’s discovery requests. Defendant has not produced a single document in the case. No narrowing of the issues has occurred because Defendant has not responded to Plaintiff's meet and confer correspondence. PCV-70 R0S-19 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page I of 2 Mondatorv Local Rule 2.1. 17 A brief summary of the dispute, including the facts and legal arguments at issue is as follows: [Excepting a privilege log if checked above, no pleadings, exhibits, declarations, or attachments shall be attached.) Defendant failed to adequately respond to the form interrogatories propounded by Plaintiff. Defendant failed to provide any response to nearly half of them (Form Interrogatories - General Nos. 12.1, 12.2, 12.3, 12.4, 12.5, .12.6, 14.1, 15.1 and Form Interrogatories - Employment No. 216.1). For nearly all of the form interrogatories, Defendant claimed that the terms used were “vague and ambiguous,” but failed to acknowledge that the Judicial Council of California drafted these interrogatories for use in all matters—an argument that Defendant’s counsel lodged in its own meet and confer efforts. Making matters worse is the fact that Defendant claimed that obvious and understandable terms were “vague and ambiguous.” For example, in response to Form Interrogatory No. 200.5, which asks whether Plaintiff’s employment was “covered by one or more collective bargaining agreements or memorandums of understanding,” Defendant claimed that that phrase was “vague and ambiguous.” But Defendant initiated a “temporary” suspension of Plaintiff under the terms of its Collective Bargaining Agreement with the California Faculty Association. Certainly, Defendant knew at the time that it suspended Plaintiff under that collective bargaining agreement that the CBA applied to Plaintiff’s employment. It fails common sense that Defendant now finds that application to be vague and ambiguous. The remainder of Defendant’s objections are mere boilerplate. Indeed, in nearly every response, Defendant claims the attorney-client privilege and the work-product doctrine prohibit a response, but fails to identify what information responsive to the interrogatory would be protected by these privileges. Defendant also repeatedly cites the length of the complaint as a reason that it cannot respond. Aside from the inexplicability of this objection, it fails to support Defendant’s objections in relation to the interrogatories. For example, Form Interrogatory No. 12.2 asks if “you or anyone acting on your behalf interviewed any individual concerning the incident.” Defendant claimed that the length of the complaint prevented Defendant from understanding what “incident” means; but that objection rings hollow considering what else has happened in this case. First, Defendant suspended Plaintiff on the basis of faculty and student complaints. Clearly, someone interviewed those individuals about the "incident" in this case. Second, Defendant hired a law firm to conduct an investigation of Plaintiff’s suspension. Again, someone on Defendant’s behalf interviewed individuals about the incident in this case. Finally, Defendant moved to transfer the case from Los Angeles to Fresno. In support of its motion, Defendant attached several declarations from “witnesses” who stated it would be inconvenient to travel to Los Angeles to testify. Certainly, someone on Defendant’s behalf interviewed these individuals about the incident in this case before representing to the court the they had relevant testimony. Defendant also repeatedly invokes the Family Educational Rights and Privacy Act as a basis for failing to respond. But FERPA explicitly permits an institution to disclose otherwise protected information “to comply with a judicial order or lawfully issued subpoena.” (34 C.F.R. section 99.31(a)(9)(i).) Defendant’s attempt to use FERPA as a shield from discovery falls flat. Moreover, FERPA only protects disclosures of "education records." Documents concerning a professor or an employment action against a professor (even if it contains information about a student) is not an "education record." (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754-55.) II is understood that the filing of this request for a Pretrial Discovery Conference tolls the time for filing a motion to compel discovery on the disputed issues for the number of days between the filing of the request and issuance by the Court of a subsequent order pertaining to the discovery dispute. Opposing Party was served with a copy of REQUEST FOR PRETRIAL DISCOVERY CONFERENCE on: ..,_9-'-'/3"'/-"2"'-0",2'-l~ - - - Date Pursuant to Local Rule 2. l. l 7{A){l ), any opposition to this request for a Pretrial Discovery Conference must also be filed on an approved form and must be filed within five [5) court days of receipt of the request for a Pretrial Discovery Conference and must be served on the opposing party. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 9/3/2021 Andrew Hillier Date Type or Print Name Signature of Party or Attorney for Porty PCV-70 R05-l 9 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page 2 of 2 Mandatory Local Rule 2.1.17