DECLARATION IN SUPPORT OF PLAINTIFF’S MOTION TO LEAVE TO FILE AN AMENDED COMPLAINT (September 23, 2013)

by Audrey's Case Files

IN THE CIRCUIT COURT OF THE STATE OREGON

                                           IN THE COUNTY OF MULTNOMAH

 

AUDREY IVANCIE, an individual,  Plaintiff, vs. THE OREGONIAN PUBLISHING COMPANY, an Oregon Corporation, ELIZABETH VINEYARD, an individual, DAVE GILLARD, an individual,KEVIN DENNY, an individual, Defendants.

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Case No. 1207-09344 ________________________ DECLARATION IN SUPPORT OF PLAINTIFF’S MOTION TO LEAVE TO FILE AN AMENDED COMPLAINT

I, Audrey A. Ivancie, do hereby declare:

1.       I am the Plaintiff, Pro Se, in the above matter.

2.       I have personal knowledge of all facts and statements contained

 herein, and I am competent to testify thereto.

 3.       I am making this declaration to clarify, supplement, and incorporate facts to my supporting memorandum for my Motion to Leave to File an Amended Complaint. 

 4.    This declaration is a historical account of discovery problems defense and defendants have caused to stall and suppress document discovery for the Plainitiff.

 5.       Plaintiff served her first order of production on the Defendants on December 10, 2010.

 6.       December 11, 2013 Janet Schroer was appointed Arbitrator. Plaintiff had just filed a Motion for Summary Judgment on her pleading that was denied at the hearing because there were disputes between parties.

 7       Attached to this declaration as Exhibit 1, a true and correct copy of an email from December 12, 2012 by Defense counsel Mr. Schpak writing to Arbitrator Janet Schroer asking to set arbitration January 10, or 16, 2012. Prior to responding to or providing any discovery to Plaintiff.

 8.      Attached to this declaration as Exhibit 2, a true and correct copy of an email from December 13, 2012 by Plaintiff Audrey Ivancie to Janet Schroer about the arbitration she is scheduling being premature because defense and she are still gathering necessary data to present to the court.

 9.      Attached to this declaration as Exhibit 3, a true and correct copy of an email from December 13, 2012 by Plaintiff Audrey Ivancie to Arbitrator Janet Schroer and defense counsel Mr. Schpak and Mr. Harnden that she is still waiting on documents from the defendants and that she is filing a stipulation with the court.

 10.      Attached to this declaration as Exhibit 4, a true and correct copy of an email from January 2 , 2013 by Plaintiff Audrey Ivancie to Defense counsel Andrew Schpak stating to him she is still awaiting documents from the Oregonian and that she is available to have her deposition taken at his convenience after the 15^th of February.

 11.      On January 2, 2012 the Plaintiff files a Motions to Remove case from Arbitration.

 12.      Attached to this declaration as Exhibit 5,  is a true and correct copy of a hand written letter Dated January 7, 2013 by the Plaintiff to Arbitrator Janet Schroer and copied to defense counsel informing her that she is still waiting on all of the production of documents discovery from the defendants.

 13.    Attached to this Declaration as Exhibit 6, a true and correct copy of an e-mail from January 8, 2013 by Defense counsel Andrew Schpak to Arbitrator Janet Schroer, and to the Plaintiff, that he would be responding to Plaintiff’s production of document requests.

 14.     Defense Responds to Plaintiff’s production of order request January 8, 2012 objecting by stating they are “overly broad and unduly burdensome, attorney eyes only and work-product doctrine. They do not provide any requested documents.

 15.      Plaintiff  sends defense counsel a revised Request for documents January 15, 2010 after Defendants failed to fulfill the Production of Document with delivery instructions for defendants.

 16.     Attached to this Declaration as Exhibit 7, a true and correct copy of an e-mail from January 17, 2013 by Plaintiff Audrey Ivancie to Arbitrator Janet Schroer and Defense counsel Mr. Schpak, Mr. Harden, and Mr. Ray regarding defendants not turning over discovery documents, which are now overdue. Plaintiff asks Arbitrator Janet Schroer to set a date for Defendants to turn over requested documents, and to prepare to set a hearing to compel if they fail to deliver.      

 17.     Attached to this Declaration as Exhibit 8, a true and correct copy of an e-mail from January 23, 2013 by Andrew Schpak to Janet Schorer and Plaintiff, stating that they are ready to deliver documents.

 18.    On January 23, 2013 Plaintiff calls courthouse and tells clerk the Arbitrator and    defendants have not been responsive to her emails. The court clerk instruct her to call the arbitrator on the phone and office and speak with her directly. Plaintiff telephones Arbitrator Janet Schroer making a good faith effort to have defendants ordered to produce documents they have not delivered through a hearing to compel.

 19.     Attached to this Declaration as Exhibit 9, a true and correct copy of an e-mail from January 24, 2013 by Andrew Schpak to Janet Schorer and Plaintiff stating defense is overnighting documents to Plaintiff’s home.

 20.     Plaintiff receives 8,946 documents on January 25, 2013. Documents submitted are incomplete, many are missing, and a number are incorrect unsigned time cards.  Additionally, they gave alternative summaries of payroll that was unrequested. The data disc is missing almost entirely all of the relevant information and items that support the elements of her claim that she had request them to produce.

 21.     The week of February 1, 2013 Plaintiff examines disc and finds more documents: missing , incomplete, redacted and missing specific comparators information and PTO information she expected to receive.

 22.   On February 8, 2013 Plaintiff files a Motions to stay Arbitration and Leave to file Amended Complaint with Janet Schroer.

 23.     On the afternoon of February 15, 2013, a holiday weekend, Janet Schroer denies Plaintiff’s Motion to Leave to File, and to Stay Arbitration that is to commence the following business day on February 19, 2013.

24.     Plaintiff informs Defense counsel Andrew Schpak, at his office that they gave her a disc of documents missing the requested documents they stated they would provide while she is hand-delivering copies of filings on or around February 8, 2013.

 25.     On February 19, 2013 Plaintiff states in-person to Arbitrator Janet Schroer and Defense Counsel and the defendants Mr. Schpak that defendants are withholding requested documents.

 26.     On April 4, 2013 Plaintiff files a bar complaint on defense counsel Mr. Schpak regarding his behavior with discovery and stonewalling documents and communicating dishonestly.

 27.     On the week of June 18, 2013, the Plaintiff  RE-hand-delivers first request for production with highlighted documents missing on request and a note to Sean P. Ray defense counsel at Barran Liebman firm.

 28.    Attached to this declaration as, Exhibit 10, is a true and correct copy of a letter the Plaintiff wrote to Mr. Schpak  June 27, 2013 outlining the specifics of her document requests they have failed to turn over, or have turned over incomplete with data missing.

 29.     Attached to this declaration  as Exhibit 11, is a true and correct copy of a letter  July 1, 2012 by defense counsel Andrew Schpak to Plaintiff denying to give plaintiff documents stating their substitute incomplete documents should be enough.

 30.    Attached to this declaration as Exhibit 12, is a true and correct copy of an email by the Plaintiff on July 3, 2013 to Mr. Schpak attempting to confer with Defense counsel about discovery.

31.     Attached to this declaration as Exhibit 13, is a true and correct copy of an email by Mr. Schpak on July 4, 2013 to the Plaintiff about discovery stating they have provided sales sheets posted on the wall. Defendants had not.

 32.    Attached to this declaration as Exhibit 14, is a true and correct copy of the second bar complaint the Plaintiff files on July 8, 2013 for Defense failure to provide documents, and dishonest practices.

 33.    On or around July 15, 2013 Plaintiff files Motion with the court to Dismiss Defendants Pleadings in their entirety for failure to deliver discovery.

 34.     Hearing on Motion to Dismiss (Sanctions) is construed by Judge Rees as a Motion to Compel the missing discovery July 31, 2013. Judge instructs Parties to draft an order for him to sign based on his ruling.

 35.    Between August 1 and 8, 2013 Defense counsel and Plaintiff exchange numerous emails on judicial order and bids for document. Plaintiff asks to meet in person immediately to clarify the documents that are to be produced completely.

 36.     Defendants mail a second  bates Disc dated “August 5, 2013” PTO information overnighted to Plaintiff August 6, 2013. Plaintiff examines disc of literally hundreds of pages.  Plaintiff discovers the information defendants were requested to provided were in fact, substituted with incomplete documents, missing key information pertinent to the discovery process, again.

37.     Defense Counsel Andrew Schpak e-mails a letter to Plaintiff regarding their responses to documents On Aug. 7, 2013 stating they don’t have documents any longer, will produce “Order Production Sheets” 13,000-18,000 and plaintiff  must pick a bid on their cost.

  38.    Defense counsel states all he and Mr. harden are away and will not return until the    following Wednesday, August 14, 2013.

 39.    Plaintiff goes to defense firm Barran Liebman  to meet with Mr. Schpak and Mr. Ray to go over each incomplete document as it appears in an accompanied declaration she also prepared for the judge in her proposed court order.

 40.     August 15, 2013 Plaintiff writes a letter to Judge Rees that she conferred in detail and supported this conferral in a Declaration (with supporting exhibits) to Defense Counsel Mr. Schpak that specific documents were missing, as well as missing fields of information in submitted documents, that should have been accounted for. Plaintiff provided sample copies of the documents request that came incomplete or not at all and examples of complete documents with easily visible differences referenced.

41.      On August 23, 2013 Defense send a letter to Plaintiff with a bates disc AIVA 010163-0103234. Plaintiff examines bates disc AIVA 010163-0103234, from defense counsel, and information expected per mutual conferral is not produced on disc.

42.     September Plaintiff file another motion to compel on August 29, 2013 after defendants fail to comply with judicial order, and do not produce order production sheets promised and ordered. They make it cost prohibitive at over $1,500 in bids and won’t deliver ordered documents.

 43.     Plaintiff files a Motion to Strike Defendants Pleading in their entirety on September 3, 2013 for failure to deliver court-ordered discovery.

 44.     Plaintiff files an affidavit in Support of her motion to Strike Defendants’ pleadings September 3, 2013  because the defendants’ disk has not deliver court-ordered documents.  Moreover, the 1000s of documents they did submit were missing years of information, as well as applicable agent comparators –of which they were instructed to provide.

 45.     On September 16, 2013 there was hearing on Plaintiff motion to strike defendants pleading as sanctions for failure to deliver court ordered documents and compelling production of documents. Judge instructed defense counsel to write him by the following day explaining where the missing documents “ order production sheet that they promised to deliver and the judge had ordered.

 46.     September 17, 2013 Defense writes Judge Rees explaining they’re faulted for not looking in the box of document from the defendants to discover a disk of information that are probably the order production sheet.

 47.     September 18, 2013 the Plaintiff receives in the afternoon mail over 36,000 documents on a data disc containing only partial documents. The Disc had a creation date of January 1, 2000 (Y2K) over four year before the Plaintiff  was employed at the Oregonian. This disc contained information from her employment but it was still incomplete as requested and ordered by the court.

48.    Attached to this declaration as Exhibit 15, is a true and correct copy of  a letter sent to Judge Rees In the evening of September 18, 2013 Plaintiff writes and  explains that she just received a disc with over 36, 000 files, in an alien format that has incomplete reports of the promised Order Production Sheets.

 49.     Septembers 19, 3013 Judge Rees addresses the  Plaintiff letter  to the court regarding the discrepancies of the disc from the defendants Motion.  Plainitff provides the court with a sample from the disc showing blank information and incomplete fields. Defense argues that there is more information than she requested. Plaintiff states the information she requested is still not there. Judge Rees postpones Defendants Motion for Summary judgment hearing so that Plaintiff can spend more time sifting through the 36,000 documents defendants delivered the night before.

 50.    The Plaintiff has been able to infer and deduce that the evidence withheld by defendants and stonewalled by defense on PTO, wages, quality of calls, Order Production, and missing employee handbook are indicators that they support her IIED claim and elements of her claim.

I hearby declare that the above statement is true to the best of my knowledge and belief,and that I understand that it is made for use as evidence in court and subject to penalty for perjury.                                                   

                                                                                            ______________________________

  SIGNED this date September 23, 2013 by                Audrey A. Ivancie –Plaintiff Pro Se