2010 03 31 Yelm Response to Interrogatories_Page_011
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❑ EXPEDITE
❑ Hearing is set:
Date /Time:
Calendar /Judge: Civil/McPhee
8 1 SUPERIOR COURT OF WASHINGTON
9 FOR THURSTON COUNTY
10 ANDREW J. SMITH and CYNTHIA M. SMITH,
11 Husband and Wife
Plaintiffs,
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V.
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THE CITY OF YELM, a Municipal Corporation;
14 GRANT BECK; STEVE CHAMBERLAIN; FHI,
15 LLC, a Washington corporation; DAN LEE;
TRIANCE GROUP INC., d /b /a TRIANCE
16 HOMES, a Washington corporation and a licensed
Washington construction contractor; STATE
17 FARM FIRE & CASUALTY CO., Bond No.
98GD85307; MAUREEN NIELAND;
18 VANDORM REALTY, INC., a Washington
19 corporation.
20 I Defendants.
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TO: Defendant City of Yelm
NO. 09 -2- 02879 -3
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM AND
ANSWERS THERETO
L INTERROGATORIES
Pursuant to Civil Rules 26 and 33, Plaintiff submits the following interrogatories to be answered
in writing, under oath within forty (40) days of service. These interrogatories are intended to be
continuing in nature so as to require supplemental information under Civil Rule 26(e).
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 1
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II. REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Civil Rules 26 and 34, you are requested to produce at the Cushman Law Offices
P. S., all documents designated below that are in your possession, custody, or control of your agents,
attorneys, consultants, or representatives or which are accessible to any such person within forty (40)
days of service upon you. This Request for Production of Documents is also continuing in nature
under Civil Rule 26(e), and should you discover additional responsive documents after your initial
production, you are required to produce such documents.
III. INSTRUCTIONS
A. These Interrogatories and Requests for Production of Documents are continuing and
you are requested to provide any information which is responsive to them after the time you answer or
respond. If such responses are not furnished, plaintiffs will move at the time of trial to exclude from
evidence any requested information not so furnished.
B. Each Interrogatory and each subparagraph of each Interrogatory is to be fully and
separately answered, in writing and under oath. Before each response is given, the paragraph and
subparagraph number of the Interrogatory to which the answer or response relates is to be set forth.
C. The answer and response to each Interrogatory and Request for Production shall include
such knowledge and documents as are within your custody, possession or control, or readily obtainable
by you, including knowledge within the custody, possession or control of your attorneys, agents, and
other representatives.
D. If you refuse to answer or respond to any Interrogatory or Request for production, in
whole or in part, identify the basis for your refusal to answer or respond, including any claim of
privilege.
E. If you assert a claim of privilege to the production of any document requested below,
state for each document the following information:
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 2
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1. Which privilege is claimed;
2. A precise statement of the facts upon which said claim of privilege is based;
3. The following information as to each purportedly privileged document:
a. Its nature, e.g., letter, memo, minutes, etc.;
b. The date it bears;
C. The identify of the persons sending it;
d. The identity of each person receiving a copy;
e. A statement of the subject matter of the document;
If you contend only a portion of the document is privileged, please provide a redacted copy of
the document with a listing of the above information as to the redacted portion.
F. With respect to any Interrogatory or Request for Production contained herein, if you are
able to provide some, but not all, of the information requested, provide such information as you can
and specifically identify each item as to which you do not have sufficient information to fully respond.
G. The Interrogatories shall be answered within forty (40) days after the service thereof
upon you.
H. You are directed to produce all documents requested below regardless of when such
document was drafted or generated and regardless of whether or not such document was drafted or
generated after completion of the project.
I. The documents requested below shall be produced and made available for inspection and
copying at the Cushman Law Offices, P. S., 924 Capitol Way South, Suite 201, Olympia, Washington
98501 within forty (40) days after the date of service thereof upon you.
IV. DEFINITIONS
As used in these Interrogatories and Requests for Production, the following terms shall have the
following meanings:
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 3
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A. The term "you" and "your" means yourself, and any and all other persons or entities
acting on your behalf, or on whose behalf you are acting, including, without limitation, your insurer,
bank, accountant and /or attorney.
B. The terms "and" and "or" shall, unless the context clearly indicates otherwise, and are
both the conjunctive and disjunctive.
C. In construing these Interrogatories and Requests for Production of Documents, the
singular of each term shall include the plural and the plural shall include the singular, and a masculine,
feminine, or neuter pronoun shall not exclude the other genders.
D. The term "document" means all written, graphic, or printed matter of any kind, however
produced or reproduced, including all originals, drafts, working papers and non - identical copies,
whether different from the originals by reason of any notation made on such copies or otherwise
including, but not limited to, papers, books, patents, letters, photographs, tangible things,
correspondence, telegrams, cables, telexes or telefax messages, memoranda, notes, data, notations, work
papers, interoffice communications, minutes, reports and records of any communications (including
telephone or other conversations, interviews, conferences or committee or other meetings), affidavits,
statements, summaries, opinions, reports, studies, analyses, plans, specifications, contracts, licenses,
agreements, journals, books or other records of accounts, summaries of accounts, bills, receipts, balance
sheets, income statements, advertisements, desk calendars, appointment books, diaries, lists, charts,
graphs, maps, surveys, sound recordings, computer records or impressions, microfilm, and all other
records kept by electronic, photographic, or mechanical means, and things similar to any of the
foregoing, however denominated.
E. The term "person" includes any natural person, firm, company, association, partnership
and joint venture corporation, and any other form of legal entity, and any city, state or federal
governmental entity or any agency, board or court thereof.
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 4
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F. The term "identify" means, with respect to a document, to state its type (e.g., letter,
interoffice memorandum, etc.), date, author, subject matter, present custodian, and if you are no longer
in possession of the document, whether it was lost, destroyed or otherwise disposed of and the
accompanying circumstances.
G. The term "identify" means, with respect to a natural person, to state his or her full name,
address, present or last known employer and position held; with respect to a person other than a natural
person, "identify" means to state the name and address of such person.
H. "Identify" or "describe," when used with respect to an act occurrence, contract,
transaction, decision, statement, communication or conduct (hereinafter collectively called "act ") means
to describe in substance the event or events constituting such act, or what transpired, the place, the date;
and to identify the persons involved and the documents referring or relating thereto.
I. The terms "relate," "in relation to," or "relating to" mean directly or indirectly
referring to, pertaining to, discussing, describing, commenting on, constituting, evidencing, referencing,
comprising, or reflecting upon a stated subject, in whole or in part.
J. The term "professional services" includes all architectural, engineering, construction or
material testing, accounting, landscaping, estimating or construction management services.
K. The term "Project" refers to the Plaintiffs' land and constructed house at 10756 Palisades
St SE, Yelm, Washington, also known as Lot 15 of the Plat of Palisades West.
L. The term "Contract" refers to any agreement or obligation you (see Definition at "A"
above) had or have with Plaintiffs concerning the purchase, construction, permitting, approval for
occupancy, and the providing of utilities to the Project in this matter.
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 5
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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INTERROGATORIES
INTERROGATORY NO. 1: Please identify by name, address, telephone number, employer and job
title of each person who was consulted or who assisted in the answering of these discovery requests, or
who furnished information which was used in answering them.
ANSWER:
These interrogatories are the same or very similar to those propounded on Grant Beck. The City
incorporates its answer to Interrogatory No. 2, submitted by Mr. Beck in his answers to the Plaintiffs'
First Set of Interrogatories as if fully set forth herein.
INTERROGATORY NO. 2: Prior to responding to these discovery requests, have you, or the persons
identified in answer to Interrogatory 1 above, thoroughly researched and identified every document and
made inquiry of every employee or agent having knowledge of the information and subject matter
sought by these discovery requests?
ANSWER:
Objection. These interrogatories are extremely broad and this Interrogatory makes an overly
burdensome request. For example, in Interrogatory No. 6, the plaintiffs ask the City to:
Identify and list every engineering report, drawing, audit, survey, sketch, investigative or
narrative memorandum, or other discoverable document by any person relating or
pertaining to this litigation in any way, including but not limited to the engineering
documents and review done in late -2009 specifically pertaining to Lot 15 of Palisades
West, and specify the following for any such document:
The City has answered that over 1,000 documents respond to this Interrogatory No. 6. Therefore, it is
impossible for the City to have "thoroughly researched and identified" over 1,000 documents since this
lawsuit was filed. In addition, the City has not yet conducted discovery in this case.
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 6
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INTERROGATORY NO. 3: Has the City of Yelm ever been a party to a legal action other than the
instant action, within the past 10 years, which concern disputes about: the issuance of building permits
and certificates of occupancy; performance and development bonds; the provision of city water or
sewer utilities; waivers of liabilities; and plat condition, development conditions, permit requirements,
or city planning issues. If so, please state as to each action:
a. Date the action was filed;
b. Title of the action;
C. Nature of the action;
d. Court and cause number of the action;
e. Disposition of the action;
f. Name, address and telephone number of your attorney(s); and
g. Name, address and telephone number of attorney(s) for all other parties.
ANSWER:
a. 1/15/2006
b. Protect Yelm v. City of Yelm; Wal -Mart
C. Land use petition, approval of site plan review for the construction of Wal -Mart.
d. Thurston County Superior Court, Cause Number 06 -2- 00103 -3
e. Dismissed with prejudice
f. Matthew Edwards for the City of Yelm
Owens Davies
1115 West Bay Drive, Suite 302
Olympia, WA 98502
360.943.8320
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 7
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g. David Bricklin for Protect Yelm
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
206.264.8600
John McCullough and Courtney Flora for Wal -Mart Stores, Inc.
McCullough Hill Fikso Kretschmer Smith Dixon PS
2025 First Avenue, Suite 1130
Seattle, WA 98121
206.448.1818
a. 3/4/2008
b. JZ Knight v. City of Yelm; Windshadow LLC; Elaine C. Horsak; Windshadow 11 Townhomes,
LLC; Richard E. Slaughter; Regent Mahan, LLC; Jack Long; Petra Engineering, LLC;
Samantha Meadows, LLC; TTPH.
C. Water availability at preliminary subdivision approval
d. Thurston County Superior Court Cause No. 08 -2- 00489 -6
e. Under appeal with the Division 2 of the Washington Court of Appeals, Cause Number 38581 -3-
II
f Richard Settle, Pat Schneider, Roger Pearce for the City of Yelm
Foster Pepper PLLC
1111 Third Avenue, Suite 3400
Seattle, WA 98101 -3299
206 - 447 -4400
Kathleen Callison for the City of Yelm
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 8
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802 Irving Street SW
Tumwater, WA 98512
360- 705 -3087
Keith Moxon for 7Z Knight
GordonDerr, LLP
2025 First Avenue, Suite 500
Seattle, WA 98121
206.382.9540
INTERROGATORY NO. 4: Will Yelm call any expert witnesses at trial?
ANSWER:
The City has not made a decision one way or another at this point in time.
INTERROGATORY NO. 5: If the answer to the preceding Interrogatory is anything but an
unqualified "no", state with respect to each expert witness you expect to call as a witness at trial:
a. Name;
b. Profession or occupation and job title;
C. Resume of education, training and experience;
d. The subject matter or area upon which he or she will testify;
e. Whether such potential witness will base his or her opinion:
I. in whole or in part upon facts acquired personally by him or her in the course of
an investigation or examination of any of the issues of this case, or
2. solely upon information as to the facts provided him or her by others.
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 9
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f. If your answer to "e" above discloses that any such witness has made a personal
investigation or examination relating to any of the issues of this case, state the nature and date of each
such investigation or examination;
g. Each and every fact, and each and every document, item, photograph or other tangible
object supplied or made available to such person;
h. The substance of the facts and opinions to which each such expert is expected to testify;
i. A summary of the grounds for each opinion of each such expert;
j. Whether he or she has rendered written reports, and, if so:
1. give the date of each report, and
2. state the name, address and phone number of the person having custody of each
such document.
k. Whether such expert has considered or intends to testify regarding statements contained
in published treatises, periodicals or pamphlets and, if so, the author, title, issue date and publisher of
each and every such publication.
ANSWER:
The City has not yet made a decision whether to call an expert witness at trial.
INTERROGATORY NO. 6: Identify and list every engineering report, drawing, audit, survey,
sketch, investigative or narrative memorandum, or other discoverable document by any person relating
or pertaining to this litigation in any way, including but not limited to the engineering documents and
review done in late -2009 specifically pertaining to Lot 15 of Palisades West, and specify the following
for any such document:
a What it shows;
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 10
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b The name, address and telephone number of the person who drafted or originated it;
c The date it was drafted or originated;
d The form it takes (e.g. sketch, report, etc.)
e The purpose for which it was drafted or originated; and
f The name, address and telephone number of the person having custody of such
documents.
ANSWER:
Objection under CR 26(b)(1), as unreasonably cumulative and unduly burdensome. The files in
the custody of the City of Yelm for the preliminary plat of Forrester Heights, final plat of Palisades
West and the Smith plat amendment include all of the information that the City of Yelm has that
"relates or pertains to this litigation." The files include over 1,000 pages of documents, and most, if not
all, of the "engineering reports, drawings, sketches or surveys" were prepared by persons other than the
City of Yelm. Some documents, such as staff reports, were prepared by the City staff person identified
on the face of the report. "What the documents show" and the "form the document takes" will be
evident from simply reviewing the many documents. For the documents that were not commissioned or
introduced into the file by the City, the City has little or no independent information regarding the
name, address, telephone number of the person who drafted it, the date it was drafted, the purpose for
which it was drafted. In addition, the City of Yelm has not yet begun its discovery and it may discover
additional documents relating to this litigation.
Notwithstanding this objection, the City agrees to allow the plaintiffs access to these documents
at the time of their choice during regular work hours, at Yelm City Hall.
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 11
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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INTERROGATORY NO. 7: Please give a detailed description of the City of Yelm's relationship with
Plaintiffs. Specifically identify:
a. Date relationship began;
b. Date relationship ended, if applicable;
C. Reason for termination of the relationship;
d. The nature of the relationship;
e. The expectations the City of Yelm had of Plaintiffs by virtue of the relationship;
f The expectations you believe Plaintiffs had of the City of Yelm by virtue of the
relationship;
g. Any failures of Plaintiffs in fulfilling the duties identified herein; and
h. Any and all evidence that City of Yelm fulfilled and satisfied the rights of Plaintiffs as
identified herein.
ANSWER:
Objection under CR 26(b)(1): The City of Yelm has no "relationship" with the plaintiffs, other
than their attendance at City Council meetings, their submission of a plat amendment application to the
City, and their current "relationship" as the plaintiffs in a lawsuit against the City and Grant Beck. The
plaintiffs themselves are aware of the "nature" of this relationship, when it "began," when it is likely to
"terminate," the expectations the plaintiffs have themselves, etc.
INTERROGATORY NO. 8: Please identify the City of Yelm's relationship with Grant Beck.
Specifically identify:
a. Date relationship began;
b. Date relationship ended, if applicable;
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 12
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C. Reason for termination of the relationship, if applicable;
d. The nature of the relationship;
e. The expectations the City of Yelm had of Grant Beck by virtue of the relationship;
f. The expectations you believe Grant Beck had of the City of Yelm by virtue of the
relationship;
g. Any failures of the City Yelm in fulfilling the duties to Grant Beck.
h. Any and all evidence that City of Yelm fulfilled and satisfied the rights of Grant Beck as
identified herein.
ANSWER:
Grant Beck was hired by the City of Yelm on June 3, 2002. He is still the Community
Development Director. The "relationship" has not ended or terminated. He is an employee of the City
of Yelm. The City of Yelm has the expectations that he will fulfill his responsibilities according to law
as an employee of the City of Yelm and the Yelm Community Development Director. Grant Beck
expects the City to fulfill its duties as an employer as described in the City's Personnel Manual and
according to applicable law. The City knows of no failures of the City of Yelm in fulfilling its duties to
Grant Beck.
INTERROGATORY NO. 9: Please give a detailed description of the City of Yelm's relationship with
Defendant Steve Chamberlain. Specifically identify:
a. Date relationship began;
b. Date relationship ended;
C. Reason for termination of the relationship;
d. The nature of the relationship;
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 13
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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e. The expectations the City of Yelm had of Steve Chamberlain by virtue of the
relationship;
f. The expectations you believe Steve Chamberlain had of the City of Yelm by virtue of
the relationship;
g. Any failures of Steve Chamberlin in fulfilling the duties identified herein; and
h. Any and all evidence that City of Yelm fulfilled and satisfied the rights of Steve
Chamberlain as identified herein.
ANSWER:
Objection: This interrogatory has already been answered by Grant Beck in Mr. Beck's answers to
Interrogatory No. 25 of the Plaintiffs' First Interrogatories and Requests for Production to Grant Beck.
The City incorporates his answers herein as if fully set forth.
INTERROGATORY NO. 10: Identify all documents (see Definition Section IV.D. above) transmitted
between the City and any other party to this lawsuit regarding the Project.
ANSWER:
Many of the documents relating to the subdivision itself were given to Chamberlain and Lee as
the developers, along with FH1, LLC. Lee and Triance Group were provided all the building permit
records. The City is unsure whether State Farm, Maureen Niland or VanDorm were provided copies of
documents. The Smiths were provided copies of the building permit when they submitted a records
request, and all the staff reports and attachments for the plat alteration.
Additional documents relevant to this litigation, including but not limited to resolutions and
ordinances, may have been provided to unknown persons. The City is not required to keep any
documentation of the persons making all public records requests, and this interrogatory isn't even
limited as to time.
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 14
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INTERROGATORY NO. II: Furnish the name, current address, telephone number, occupation, job
designation, and present location of any person known to you or your attorneys as having knowledge of
the relevant facts pertaining to the above - entitled case. This interrogatory is intended to include all
witnesses known to you or to your attorneys.
ANSWER:
This interrogatory has already been answered by Grant Beck in Mr. Beck's answers to
Interrogatory No. 14 of the plaintiffs' First Set of Interrogatories to Grant Beck. The City incorporates
those answers herein as if fully set forth.
INTERROGATORY NO. 12 For each person listed in response to the preceding interrogatory, please
set forth a brief statement of the information that this individual has concerning the allegations contained
in the Complaint.
ANSWER:
This interrogatory has already been answered by Grant Beck in his answers to Interrogatory No. 15 of
the plaintiffs' First Set of Interrogatories to Grant Beck. The City incorporates his answers as if fully set
forth herein.
INTERROGATORY NO. 13 Do any city rules, codes, or any oral or written agreements exist which
require the City of Yelm to obtain city governmental or third -party approval prior to entering a
settlement, or which in any way limits the City's ability to enter into a settlement? If so, please identify
all parties to each such agreement and state in detail the terms of the agreement.
FIRST INTERROGATORIES AND CUSHMAN 924 CAPITOL WAY SOUTH
REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 15
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ANSWER:
The City of Yelm has insurance coverage with the Association of Washington Cities Risk Management
Services Agency (AWC- RMSA). The City would have to obtain permission from AWC -RMSA to
settle this lawsuit.
INTERROGATORY NO. 14: Referring to Plaintiffs' First Amended Complaint, if you deny (other
than denial based on lack of knowledge), in whole or in part, any of the statements and allegations in
the Complaint, please state the facts on which you deny the allegation, identify any person with
knowledge of the facts concerning the allegation, and identify any documents concerning the facts of
the allegation.
ANSWER:
The City objects to this Interrogatory for the same reasons stated in the City's answers to the
Amended Complaint and because it calls for legal conclusions.
In the City's answer, the City has denied any mischaracterization of any document referenced
by the plaintiffs. Because the documents speak for themselves, nothing further needs to be added with
regard to any documentation.
In the City's answer, the City has already described its objection to most "factual allegations."
For example, see the City's answer to paragraph 3.5 of the Amended Complaint.
In the City's answer, the City has denied all of the many averments made by the plaintiffs under
the heading "Causes of Action" and "Claims for Damages." In these sections of the Amended
Complaint, plaintiffs do not state any facts, but simply describe their story and erroneous legal
conclusions which support the false "factual allegations" in the Complaint. For example, in paragraph
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4.6 of the Amended Complaint, the plaintiffs describe their interpretation of the law, whether Grant
Beck acted "outside the scope of his authority," what his "personal goal" was, and what the City is
"liable" for — none of which are supported by any facts or require an answer. As another example,
plaintiffs allege, without any facts whatsoever, that Grant Beck had some kind of a "personal vendetta"
towards Steve Chamberlain. Plaintiffs assert that Grant Beck "used City legal services for his personal
bias and benefit." There is no way to respond to false statements, other than to deny them. If the
plaintiffs have made up the story that Grant Beck has a "personal vendetta" towards someone, then
there are no persons the City can identify with knowledge of such nonexistent "personal vendetta." If
the plaintiffs claim, without any supporting evidence, that Mr. Beck has misused legal services, when
this is simply not true, a denial is the only possible response.
In a similar vein, the plaintiffs make many more legal conclusions in paragraph 4.7 of the
Amended Complaint. Because the allegations in the Causes of Action and Claims for Damages section
are not factual statements, but are mischaracterizations of the "factual allegations," the City assumes
that no further answer is required.
INTERROGATORY NO. 15: If you allege any Affirmative Defenses, please identify:
a. Each and every fact upon which you base your affirmative defense(s);
b. Each and every witness who can support the facts upon which you base your affirmative
defense(s)
ANSWER:
The plaintiffs knew (or should have known) at the time they entered into a purchase and sale
agreement with the developers, that the plat conditions had not been satisfied. At the time of building
permit issuance, the plaintiffs knew (or should have known) that the plat conditions had not been
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AND ANSWERS THERETO- 17
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satisfied. The City was not a party to the agreement between the plaintiffs and the developers, and had
no idea when the plaintiffs planned to occupy the structure, whether such occupation would take place
prior to or after the structure was used as a model home. If the plaintiffs believed that there was some
"error" in the building permit made by the City, they should have appealed the building permit within
21 days after issuance under the Land Use Petition Act, chapter 36.70C RCW. They failed to do so.
As a result, they cannot complain now that that City or Grant Beck made any error.
The Amended Complaint requested a mandamus to force the City to issue its decision on the
plat amendment. At the time the Complaint and Amended Complaint was filed, the City had not issued
its decision on the plat amendment. The City has now issued its decision and the mandamus action is
moot.
The Hearing Examiner and City Council's decision described the plat conditions and the
persons responsible for installing such conditions. The developer and property owners are required to
comply with the conditions of plat approval and applicable law.
The witnesses are the plaintiffs and defendants herein.
The City has not yet completed discovery and cannot provide additional information at this
time.
INTERROGATORY NO. 16: Please identify what your understanding was /is about the conditions
placed on the plat of Palisades West by the City Council of Yelm concerning the water booster pump
and the sewer pressure release value, also known as a sewer roll seal (see p. 3 of Plaintiffs' First
Amended Complaint). Specifically describe:
a. why those plat conditions were needed and their purpose(s);
b. the physical infrastructure and system components entailed;
C. who was going to implement the plat condition improvements, and when;
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AND ANSWERS THERETO- 18
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d. who was going to enforce the plat conditions, and how;
e. how those plat conditions could affect Plaintiffs' occupancy of their house at 10756
Palisades St SE, Yelm, WA; and
f. the consequences to each Defendant herein if those plat conditions were not fulfilled.
ANSWER:
The conditions were placed on the preliminary plat of Forrester Heights by the Yelm Hearing
Examiner. The "need and purpose" of the plat conditions were discussed during the hearing and
incorporated into the final decision. The Hearing Examiner's decision was not appealed and is now
final. The City Council's decision also included conditions on the final plat of Palisades West. The
City Council's decision was not appealed and is now final.
The physical infrastructure and system components of the water booster pump entail a system of
pumps designed to increase the water pressure within the development to meet normal household
pressure needs along with additional pumps to provide required fire flows, all located within an
enclosed structure as well as an generator for use during power outages. The physical infrastructure
and system components of the pressure sustaining valve is a valve designed to maintain pressure within
the sewer mains within the development along with a heated enclosure.
The developers and /or property owners are responsible for compliance with the preliminary plat
conditions. The developers and /or property owners were required to perform the conditions according
to the plat approvals, according to their warranty agreement and the building permit (the plan clearly
stated that the occupancy certificate would not be approved until the conditions were satisfied).
The City has the authority to enforce the plat conditions against the developer and /or property
owners. The City has recently issued a Notice of Correction, which is the first step in the enforcement
process.
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AND ANSWERS THERETO- 19
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Although the plaintiffs have asked "how those plat conditions could affect Plaintiffs' occupancy
of their house at 10756 Palisades St SE, Yelm, WA," the plaintiffs are aware that the conditions must
be satisfied before an occupancy certificate can be approved. It is the developer /property
owner /plaintiffs' choice not to comply with the conditions that has "affected Plaintiffs' occupancy of
their house at 10756 Palisades St. S.E., Yelm, WA."
Although plaintiffs have asked the City to identify "the consequences to each Defendant herein
if those plat conditions were not fulfilled," the City has not initiated this lawsuit, and has no idea what
the consequences to each of the defendants will be as a result of this lawsuit. If the plat conditions are
not fulfilled, the City has the authority to proceed with an enforcement action against the
developers /property owners /plaintiffs to require compliance. The consequences have been detailed in
the Notice of Correction, previously sent to the plaintiffs, in Yelm Municipal Code and the State
Subdivision Act.
INTERROGATORY NO. 17: Describe all steps and efforts Yelm took to require the plat developer to
complete the booster pump station as identified in Plat Condition No. I [see p. 3 of Complaint], listing
dates and costs associated with such activity.
ANSWER:
Objection. The question as to the "costs associated with such activity" is unclear as to which party
plaintiffs believe would incur these costs.
Notwithstanding this objection, the conditions were placed on the preliminary plat, final plat and
the building plans for the building permit. The City Building Official repeatedly discussed the need for
the booster pump station with Dan Lee, who represented both the developer, FHI, LLC, and the builder,
Triance Homes, LLC.
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DEFENDANT CITY OF YELM ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
AND ANSWERS THERETO- 20
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The City issued a notice of correction pursuant to Section 1. 16.040 YMC to the developer and property
owners of the subdivision requiring corrective action on February 23, 2010.
INTERROGATORY NO. 18: Describe all steps and efforts Yelm took to require the plat developer to
complete the pressure release valve or sewer roll seal as identified in Plat Condition No. 1 [see p. 3 of
Complaint], listing dates and costs associated with such activity.
ANSWER:
Objection. The question as to the "costs associated with such activity" is unclear as to which party
plaintiffs believe would incur these costs. The conditions were placed on the preliminary plat, final plat
and the building plans for the building permit. The City Building Official repeatedly discussed the need
for the booster pump station with Dan Lee, who represented both the developer, FH1, LLC, and the
building, Triance Homes, LLC.
The City issued a notice of correction pursuant to Section 1. 16.040 YMC to the developer and
property owners of the subdivision requiring corrective action on February 23, 2010.
INTERROGATORY NO. 19: Please identify any and all general or specific performance and /or
development bonds the City of Yelm imposed upon the plat developer to implement any of the
improvements for Palisades West f /k/a Forrester Heights which were made conditions of preliminary
and final plat approval. Your answer is to include, but is not limited to, any performance bond to install
the two final plat conditions (see p. 3 of Complaint). As to each bond, identify:
a. the date the bond was posted and the amount bonded;
b. the financial entity who posted the bond;
C. the requirements imposed before the bond could be released or satisfied;
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AND ANSWERS THERETO- 21
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d. the date the bond was released or satisfied.
ANSWER:
This interrogatory is the same as the interrogatory propounded on Grant Beck. The City incorporates
the answer from Mr. Beck to this interrogatory from Interrogatory No. 26 to his Answers to the
Plaintiffs' First Set of Interrogatories as if set forth fully herein.
INTERROGATORY NO. 20: If the City of Yelm did not require any type of performance or
development bond from the plat developer to assure there were funds to complete the two above -
referenced final plat conditions, please explain why, and explain why the Palisades West final plat
approval was granted without such bond(s).
ANSWER:
This interrogatory is the same as the interrogatory propounded on Grant Beck. The City incorporates
the answer from Mr. Beck to this interrogatory from Interrogatory No. 27 to his Answers to the
Plaintiffs' First Set of Interrogatories as if set forth fully herein.
INTERROGATORY NO. 21: Explain if the City of Yelm changed or authorized a change of
Palisades West Final Plat Condition No. 1, recorded February 12, 2008, which prohibited the issuance of
a residential building permit, to instead allow a residential building permit to be issued but prohibit its
occupancy certificate (thus allowing Plaintiffs to begin and complete a residence they cannot legally
occupy - see Complaint at Paragraph 4.7a):
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AND ANSWERS THERETO- 22
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a. If the City did not change or authorize this plat condition change, please explain how and
why the Smiths Building Permit No. BLD -08- 0326 -YL was issued on September 17, 2008.
b. If the City did change or authorize this plat condition change, please explain the
procedures the City took to implement such an amendment to Palisades West Final Plat Condition No. 1
ANSWER:
The City of Yelm issued the building permit on September 17, 2008 to the developer Dan Lee
of Triance Homes, LLC, who had also represented FH1, LLC during the development review process.
The plaintiffs apparently knew that this building permit application had been submitted, and that their
names were on the application as the owners of the structure to be constructed. Because the plaintiffs
purchased the property, they had constructive, if not actual notice, of the plat conditions. Therefore, the
plaintiffs were aware of the plat improvements that had to be constructed under the plat conditions.
They had constructive, if not actual notice that these plat improvements had not been constructed at the
time the building permit application was submitted. Even though the plaintiffs now believe that the
City should not have issued the building permit, the plaintiffs failed to timely appeal the building
permit based on their current lawsuit alleging that the City had no authority to "change" the conditions.
Therefore, the plaintiffs cannot now challenge the decision to issue the building permit, or any
"change" to any conditions.
The City's actions which allowed the building permit to issue were consistent with the plat
conditions. The developer and home builder were both were aware that even though a building permit
issued, it could not be occupied. The City had no knowledge at that time of any purchase and sale
agreement between the developer and plaintiffs, and that the plaintiffs planned to occupy the home
immediately after construction (instead of after the developer's use of the structure as a model home).
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AND ANSWERS THERETO- 23
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INTERROGATORY NO. 22: As to the engineering work proposed specifically for Palisades Lot 15
to address the water and sewer issues at an individual -lot level, which was jointly reviewed by
engineers from Yelm, Parametrix, and Washington State Department of Health in late -2009, please
identify:
a. The documents reviewed;
b. The results of that review, and
C. The estimated costs to implement those engineering plans.
ANSWER:
a. Preliminary and revised engineering design documents prepared by Dr. Vince McClure, P.E. for
an individual booster pump designed to provide 30 psi of water pressure to the home, but not designed
to provide adequate fire flow. Preliminary and revised engineering design documents prepared by Dr.
Vince McClure, P.E. for the installation of a filter pack on a sewer blow off in the development to
provide odor control in the event the pressurized sewer line did not maintain adequate pressure within
the main.
b. The plans for the interim booster pump was approved by the Washington Department of Health
and the City of Yelm. The plans for the filter pack were approved by the City of Yelm.
C. The City is not aware of any cost estimates prepared for these documents.
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 24
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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INTERROGATORY NO. 23: Has the City formally enacted a regulatory requirement that individual
single- family homes within the city limits maintain a water pressure standard of 30 psi? If so, please
identify where this requirement has been adopted into the City regulations, and the date(s) of adoption.
ANSWER:
Section 13.04.050 YMC relating to the City's water system authorizes the adoption of design standards.
Section 3.010 (L) adopts the rules and regulations of the State Board of Health regarding public water
supplies, as published by the State Department of Health. These rules are published in Chapter 246 -290
WAC.
INTERROGATORY NO. 24: Please identify which specific City of Yelm regulations, codes,
ordinances, and policies govern the provision of municipal water and sewer utilities to its citizens.
ANSWER:
Chapter 13.04 YMC, City of Yelm Development Guidelines, City of Yelm Water System Plan, City of
Yelm Comprehensive Plan.
REQUESTS FOR PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 1: Please produce copies of all documents identified in
response to Interrogatory No. 6.
RESPONSE:
The City agrees to provide the documents for the plaintiffs' review at a time of the plaintiffs' choice,
during regular work hours, at Yelm City Hall.
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REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 25
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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REQUEST FOR PRODUCTION NO. 2: Please produce copies of all documents identified in
response to Interrogatory No. 10.
RESPONSE:
The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 3: Please produce copies of all documents identified in
response to Interrogatory No. 13.
RESPONSE:
The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 4: Please produce copies of all documents identified in
response to Interrogatory No. 19.
RESPONSE:
The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 5: Please produce copies of all documents identified in
response to Interrogatory No. 22.
RESPONSE:
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AND ANSWERS THERETO- 26
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The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 6: Please produce copies of all documents identified in
response to Interrogatory No. 23.
RESPONSE:
The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 7: Please produce copies of all documents identified in
response to Interrogatory No. 24.
RESPONSE:
The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 8: Please produce any and all letters and correspondence which
in any way mention or pertain to Plaintiffs, or to the property, plat, Project, and /or dispute which is the
subject of this lawsuit.
RESPONSE:
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 27
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 9: Please produce all logs, diaries, notes or other documents
that recorded any event, conversation, observation or activity related in any way to Plaintiffs or to the
property, plat, Project, and /or dispute which is the subject of this lawsuit.
RESPONSE:
The City agrees to provide the files it has on the project for the plaintiffs' review at a time of the
plaintiffs' choice, during regular work hours, at Yelm City Hall.
REQUEST FOR PRODUCTION NO. 10: To the extent not otherwise requested, please produce any
and all documents related to this Project in any way.
RESPONSE:
The City knows of no other documents at this time.
REQUEST FOR PRODUCTION NO. 11: To the extent not otherwise requested, please produce any
and all documents related to or referred to in any of your answers to these Interrogatories.
RESPONSE:
The City knows of no other documents at this time.
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 28
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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DATED this day of February, 2010.
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 29
CUSHMAN LAW OFFICES, P.S.
Ben D. Cushman, WSBA # 26358
Attorney for Plaintiffs
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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The undersigned attorney for the named Defendants has read the foregoing Interrogatories and
Requests for Production of Documents to Defendants and the answers thereto and they are in
compliance with CR 26(g).
DATED on this day of , 2010.
Attorney for Defendants
STATE OF WASHINGTON)
ss
County of )
I , being first duly sworn on oath, deposes and says:
I am one of the Defendants in the above - entitled action; have read the above Answers to
Interrogatories and Responses to Request for Production of Documents and believe the same to be true.
By:
(signature)
SUBSCRIBED AND SWORN TO before me this day of
FIRST INTERROGATORIES AND
REQUESTS FOR PRODUCTION TO
DEFENDANT CITY OF YELM
AND ANSWERS THERETO- 30
NOTARY PUBLIC in and for the State of
Residing at:
f111:
CUSHMAN 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
ATTORNEYS AT Lew (360) 534-9183 FAX: (360) 956 -9795
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2 The undersigned attorney for the named Defendants has read the foregoing Interrogatories and
3 1 Requests for Production of Documents to Defendants and the answers thereto and they are in
4 compliance with CR 26(g)
5 DATED on this day of 2010.
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8 rttomey for Defendants
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STATE OF WASHINGTON )
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County
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being first duly sworn on oath, deposes and says:
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1 am one of the Defendants in the above-entitled action; have read the above Answers to
Interrogatories and Responses to Request for Pr6ductlrobof Docu aand lieve the same to be true.
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By:
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(signature)
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SUBSCRIBED AND SWORN TO
fore me th' day of
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Roy/
X
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NOTARY PUBL in and for the State of
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Residing at:
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2 8 REQUESTS FOR PRODUCTION TO LAW OFFICES, P.S. OLYMPIA, WNS1 RNIGIDN98501
DEFENDANT CITY OF YELM ATM&NF.Ys K1, I.Aw, (360) 534-9183 FAX (360) 956-9795
AND ANSWERS THERETO- 30