Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-1263-PSF-MEH ROBERT M. FRIEDLAND, Plaintiff, v. TIC-- THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC Defendants. ________________________________________________________________________ Defendant TIC-The Industrial Company' Reply Brief in Support of its Motion to s Compel Plaintiff to Respond to Its Third Set Discovery Requests ________________________________________________________________________ It certainly is correct that there are many documents potentially relevant to this case. It also is correct, despite Plaintiff' suggestions otherwise, that all parties have undertaken s extensive efforts to review them. Neither of these truths excuse Plaintiff from his obligation to respond appropriately to discovery requests served under Rules 33 and 34. Let us not forget that it was Plaintiff who chose to bring a lawsuit, seeking $20 million from TIC and/or GeoSyntec. Some inconvenience necessarily does, and rightfully should, accompany such an act. This is particularly true when the " inconvenience"is in reality the means by which Plaintiff is asked to prove his case. Rather than responding to the extensive discursion prefacing Plaintiff' response to s the Motion, TIC will give its reply with respect to the specific discovery requests at issue.

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 2 of 11

Rule 33 Certification Compel was filed.

TIC notes that this was provided only after its Motion to

Request for Production (RFP) No. 7: For purposes of streamlining this issue, TIC will limit its request to those circumstances where there is no question of privilege: situations where Robert Friedland is involved in a lawsuit with an insurer, and he or his attorneys communicate with that insurer or its attorneys. Certainly two adversaries, each represented by counsel, cannot claim a privilege for their communications. According to Robert M. Friedland' Opposition brief, there are four such lawsuits, s two that have been settled and two that are ongoing. (Opposition Brief, p. 13.) Plaintiff represents that he has produced the pleadings, expert reports, and settlements from these cases. He also should be compelled to produce the correspondence between he or his counsel and the insurers or their counsel, from the time when a lawsuit was brought until the present. Again, there is no argument that these communications between adversaries would be privileged. These documents are relevant for the reasons stated in TIC' initial motion. Plaintiff s suggests that TIC is frivolous to focus on the contradictory positions he has taken through his various lawsuits. TIC could not disagree more. The machinations, 180° turns, and mutually exclusive assertions about control he has made are substantive and important. Signed, sworn, expert-supported positions taken in previous lawsuits cannot just be discarded with no legal or persuasive effect.

2

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 3 of 11

In addition, with respect to the payment of and reimbursement for Plaintiff' defense s costs, the record is anything but clear. Even accepting Plaintiff' evidence that he paid the s $20 million to the government from his own funds, there remains a significant dispute about the defense costs. Rather than duplicating that argument here, TIC refers to GeoSyntec' s Reply in Support of Motion to Compel Discovery Regarding Payments Allegedly Made by Plaintiff. RFP No. 11 Based on an analysis of the most recently produced evidence, TIC will drop its motion to compel on this RFP. RFP No. 15 This request asked for all materials submitted by one of Plaintiff' companies to the s MLRB. As to materials other than slides and videotapes, Plaintiff' Opposition brief s includes a statement that is not contained in the signed discovery pleading itself: that " Robert Friedland does not possess any personal or business documents relating to this issue. Therefore, the third party documents . . . remain the only potential source [of such documents]." (Opposition Brief, at p. 17.) Even assuming this were a proper certification of the statement, Plaintiff' discovery s response is inadequate. Plaintiff seeks to establish that the hundreds of boxes he obtained from other parties may be produced en mass pursuant to Rule 34, because they are being produced " they are kept in the usual course of business." There is only one case cited for as this proposition, the District of Wisconsin court' opinion in Hagemeyer N. Am., Inc. v. s Gateway Data Scis. Corp. (Opposition Brief, p. 9.) Yet Hagemeyer does not stand for such

3

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 4 of 11

a broad proposition. See Hagemeyer, 222 F.R.D. 594 (D. Wis. 2004). In a later case, another federal court clarified that in Hagemeyer, the documents had been sent to storage by the responding company itself ­and the only question was whether the way they were sent to storage accurately reflected the way they were kept in the ordinary course of the underlying business. Am. Int' Specialty Lines Ins. Co. v. NWI-I, Inc., 2007 U.S. Dist. LEXIS 3025, at l 32-33 (N.D. Ill. 2007), attached as Exhibit I. In American International, like here, the responding party sought to produce boxes that had been received from a third party. The court held that providing these boxes as they were received from the third party was not sufficient, unless the respondent also could show that the documents ­as packed by the third party ­reflected the way they were kept in the usual course of the underlying business. Am. Int' Specialty, 2007 U.S. Dist. LEXIS at 31, l 33. Plaintiff certainly has not made, and presumably could not make, such a showing here. He describes a collection of documents gathered from 21 different sources, many acquired through various judicial proceedings and labeled under a document production system, not as originally kept in the underlying business. His description of the procedure by which he obtained the documents, and the condition in which he received them, does not suggest with any confidence that they were produced as kept in the original underlying business. In addition, Plaintiff himself bears the burden to prove that this is true, with more " evidence"than a mere assertion. Johnson v. Kraft Foods N. Am., Inc. 236 F.R.D. 535, 54041 (D. Kan. 2006).

4

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 5 of 11

Since he has not done so, Plaintiff should not be relieved of his requirement under Rule 34 to isolate for TIC the requested documents, which were provided to the MLRB relating to the Summitville Mine. RFP Nos. 16, 22, 24, 25 and 26 Here again, the primary issue is whether Plaintiff may avoid responding to discovery requests that go to the heart of his claims against TIC merely by referring TIC to a room full of boxes received from third parties in connection with litigation. The answer, as discussed above, is decidedly NO. TIC notes in addition, with respect to the procedural issues raised by Plaintiff, that Plaintiff' own chart illustrates that TIC attorneys spent approximately two months, s intermittently, at Plaintiff' counsel offices looking through the documents at issue. (Exhibit s 3, Chronology of Formal and Informal Document Request and Production, TIC chart, dates 12-14-05, 6-27-06, 9-5-06, 9-10-06, 10-10-06, 1-10-07.) And this is in addition to the reviews TIC has made at its own offices of the thousands of documents produced by Plaintiff formally and informally, again as reflected at least partially on the chronology. Further, TIC notes that the EPA Administrative Record Index is just an index, containing some basic information about documents like titles or dates created. There remains uncertainty and dispute about the precise scope of this index. In any event, reference to the index in no way substitutes for a proper Rule 34 response that identifies whether there are any documents responsive to TIC' discovery requests, and specifies s

5

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 6 of 11

exactly what those documents are. A document' title and creation date will not give more s than a preliminary clue about whether it in fact is responsive to the request. Interrogatory Nos. 11 and 12 If Robert Friedland serves a properly verified Rule 33 interrogatory answer saying that during the entire requested time frame, SCMCI, GRI, Triangulum and Centaurus were wholly-owned subsidiaries of GRL, and his only ownership interest in them accordingly was through his ownership in GRL, then this would serve to answer part of these two interrogatories. To date, no such answer has been served. In addition, as explained in the original Motion to Compel, Friedland' ownership s interest in GRL and the affiliated companies is central to the issue of his operator liability. Not because his executive position by itself establishes liability, but because the evidence discovered to date supports the conclusion that Robert Friedland created, benefited from, and drove the interests and activities of GRL and the affiliated companies. Information about the extent of his financial interest provides additional evidence, and allows even stronger inferences to be drawn. It is not fair to state, as counsel does, that the response " only be ascertained by a can review of the corporate records of GRL, GRI, SCMCI, Triangulum and Centaurus." (Opposition Brief, p. 19.) Certainly Friedland may have ownership interests indirectly, behind the scenes, through his ownership or control of entities that are publicly listed as being the shareholders. This presumably would not be apparent simply by looking at the

6

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 7 of 11

corporate records for GRL. That potential lack of transparency is the driver behind these interrogatories in the first place. If Friedland is willing to state that he had no indirect ownership interests in GRL or any of the listed affiliates, then this answer needs to come properly verified by Friedland in a Rule 33 pleading ­not merely asserted by his lawyers in a brief. If the opposite is true, and Friedland did hold ownership interests in GRL or its affiliates through another entity, which would not be listed as " Robert Friedland"in the public documents, then the burden of locating the information would not be the same for Plaintiff as for TIC. As was explained in the initial motion, this makes a Rule 33(d) response inappropriate. Oppenheimer Fund, Inc. v. Sanders, 98 S. Ct. 2380, 2393 (1978); Puerto Rico Aqueduct and Sewer Authority v. Clow Corp., 108 F.R.D. 304, 307-308 (D. Puerto Rico 1985), citing Pascale v. G.D. Searle & Co., 90 F.R.D. 55, 59 (D.R.I. 1981). Interrogatory Nos. 13 and 14 For reasons similar to the above discussion, and as stated in the original Motion, Plaintiff should be compelled to answer these interrogatories about the financial benefits he received from his affiliation with GRL and the other listed companies, either directly as himself or indirectly through his affiliation with another listed shareholder. Counsel states that Plaintiff never sold a share of GRL stock and so his direct proceeds were zero. (Opposition Brief, p. 20.) No citation to the record is provided for this statement. Again, this type of answer would need to come through a properly verified Rule 33 answer. And again, the issue of indirect benefit, through shareholders other than

7

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 8 of 11

" Robert Friedland, individually" is presented. Plaintiff needs to consider precisely what , type of answer he can make, and then make it in a properly verified form. Interrogatory No. 17 Interrogatory 17 is relevant in light of Plaintiff' shocking claims that he walked away s from any involvement with the Summitville Mine after January 1, 1987. These claims are contradicted, extensively, by the factual record. If Plaintiff persists in making this argument, then he should be required to back it up by answering this question about how his time was spent after that date. In addition, for all times, the extent of Plaintiff' energies devoted towards s Summitville and the extent of the entity' energies devoted towards that project is relevant to s the question of his operator control. If Summitville was " from an operational it," perspective, then this affects an evaluation of the witness'credibility about who was aware of what issues, at what times, and who was involved in addressing them. TIC is willing to clarify that by the last clause of its Interrogatory, which asked for an estimate of " percentage of GRL' GRI' and/or SCMCI' overall workforce time spent the s, s, s on each project for each year"it does not seek an in-depth analysis of time records. Instead, it is asking for Plaintiff' overall recollection of how his companies'energies were devoted. s Interrogatory No. 18 In the cost recovery action, Plaintiff made sweeping allegations about the extent to which Bechtel controlled construction at the Mine. His opposition to Bechtel' motion to s dismiss was filled with sweeping statements about Bechtel' control, including these two s

8

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 9 of 11

examples: " means of the pervasive direction, management and control exercised by its By on-site managers, Bechtel pledged to satisfy its contractual obligations to guarantee project performance standards . . ."and " Bechtel had clear financial interests in the Mine and was actively involved in its finances, in construction and design of the Mine, in operational decision-making, and in the management of employees and contractors at the Mine." Robert M. Friedland' Response in Opposition to Bechtel Corporation' Motion to Dismiss the s s Amended Third-Party Complaint, at pp. 4, 14, attached as Exhibit J. Plaintiff then settled his claims for reimbursement with Bechtel, receiving in exchange only a commitment that Bechtel would consider deals with Ivanhoe Energy. In order to evaluate this exchange, for purposes of properly setting off the benefit Plaintiff received, TIC is entitled to seek information about what liabilities Plaintiff himself owed to Ivanhoe Energy. TIC should not be required to just accept self-serving statements by Plaintiff that he received no monetary value in connection with the projects mentioned in the settlement. (See discovery answer cited at Opposition Brief, p. 22.) Plaintiff should be required to answer the question. Having brought this lawsuit, seeking to recover up to $20 million from TIC, Plaintiff Robert Friedland should be required to provide full and fair answers to basic discovery requests that relate to the central issues raised by his claims.

9

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 10 of 11

Respectfully submitted this 19th day of February 2007.

s/ Colin C. Deihl Colin C. Deihl, Esq. FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203 Telephone: (303)607-3651 Fax: (303)607-3600 Email: [email protected] Delmar R. Enrich, Esq. FAEGRE & BENSON LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Telephone: (612) 766-7000 Fax: (612)766-1600 Email: [email protected] Attorneys for Defendant TIC

10

Case 1:04-cv-01263-REB-KLM

Document 248

Filed 02/19/2007

Page 11 of 11

CERTIFICATE OF SERVICE I hereby certify that on February 19, 2007, true and correct copies of the foregoing Defendant TIC-The Industrial Company' Reply Brief in Support of its Motion to Compel s Plaintiff to Respond to Its Third Set Discovery Requests was electronically filed via Electronic Case Filing (ECF) with the United States District Court for the District of Colorado and served electronically on the following:

John D. Fognani, Esq. R. Kirk Mueller, Esq. Perry L. Glantz, Esq. Fognani & Faught, PLLC 1700 Lincoln Street, Suite 2222 Denver, Colorado 80203 Terence M. Ridley, Esq. Marian L. Carlson, Esq. Wheeler Trigg Kennedy LLP 1801 California St., Suite 3600 Denver, Colorado 80202-2617 Paul J. Sanner, Esq. Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 333 Market Street, Suite 2100 San Francisco, California 94105-2173

s/Heather Christman

11