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

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

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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 MEMORANDUM IN S SUPPORT OF ITS MOTION TO COMPEL DISCOVERY __________________________________________________________________________

Defendant TIC ­The Industrial Company (" TIC" by and through its undersigned ), counsel, respectfully submits this Reply Memorandum in support of its Motion to Compel Discovery. INTRODUCTION Despite explicitly putting " subsequent discovery"at issue in an effort to justify his substantial shift in position as to who is responsible for the environmental problems at the Summitville Mine, Plaintiff has refused to identify and/or produce both the alleged subsequent discovery and evidence regarding the timing and motivation of his shift in position. And, in his response to TIC' motion to compel such evidence, Plaintiff never s squarely addresses the fact that he himself has placed the alleged subsequent discovery at

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issue in the current litigation by relying on it in opposing TIC' Motion for Summary s Judgment (in contrast to merely relying on it in filing his complaint). But Plaintiff cannot evade the centrality of his claim that " subsequent discovery"has led him to believe that TIC exercised " substantial control over Mine construction operations,"a position that Plaintiff himself did not hold six years ago. Because the evidence TIC seeks is central to Plaintiff' s allegations, his opposition to summary judgment, and TIC' defense in this matter, this Court s should compel identification and production of it. ARGUMENT I. PLAINTIFF MUST SPECIFICALLY IDENTIFY THE DOCUMENTS AMONG THOSE FROM BECHTEL THAT HE PURPORTS TO RELY ON. In support of his radical change of position, Plaintiff pointed only to evidence produced in the Underlying Litigation. Now, in the " undisputed facts"and referenced Exhibits in Plaintiff' response to TIC' instant motion, Plaintiff implies that the " s s subsequent discovery"at issue is contained within 40 boxes of documents that were collected by Plaintiff' attorneys from Bechtel, Inc. in Hayward, California from November 16 through s 18, 2005. Pls. Resp. to TIC' Mot. to Compel at 4, ¶ 8; Ex. 4 to Id. s No documents from the Bechtel collection have ever been specifically identified or proffered to TIC or the Court by Plaintiff to refute his prior statements regarding control at the Site. Thus, TIC and the Court are left guessing as to the support for Plaintiff' change in s position. If the factual justification for Plaintiff' position shift is contained in these boxes, s Plaintiff must identify it. TIC has the right to request and obtain from Plaintiff the specific documents he alleges supports his claims rather than be left guessing. See Cook v. Rockwell

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Int'l Corp., 161 F.R.D. 103 (D. Colo. 1995); SEC v. Cymaticolor Corp., 106 F.R.D. 545, 549 (D.N.Y. 1985) (" is irrelevant that the party seeking discovery already knows the facts as to it which he seeks discovery" United States v. Beatrice Foods Co., 52 F.R.D. 14, 19 (D. Minn. ); 1971) (" courts have consistently held that a party may propound interrogatories calling for the disclosure of the opposing party's specific position as to the facts underlying his claim, notwithstanding that such facts, divorced from their application to the legal principles governing the case, may already be known or accessible to the propounding party." Baim & ); Blank, Inc. v. Philco Distributors, Inc., 25 F.R.D. 86, 87 (D.N.Y. 1957) (" purpose of the The deposition-discovery procedure is not only for the ascertainment of facts, but also to determine what the adverse party contends they are, and what purpose they will serve, so that the issues may be narrowed, the trial simplified, and time and expense conserved." ). In Cook, a Defendant requested that Plaintiff provide " discovery of documents Plaintiffs consider relevant to certain of their assertions and the issues in this lawsuit." Id. at 104. The Plaintiff refused to provide such documents, claiming that the Defendant already possessed them or Plaintiff had already provided all relevant documents responsive to Defendants request. Id. The Court ruled that Plaintiff had to provide the Defendant with the responsive documents, " [t]he fact that the moving party is already in possession of documents it seeks to obtain by inspection, is not necessarily a sufficient reason for denying discovery. ` purpose of the discovery rules is not only to elicit unknown facts, but also to The narrow and define the issues, and for this purpose it is often necessary to use discovery about known facts.' Id. at 105 (quoting 8 Charles A. Wright et al., Federal Practice & Procedure, "

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§ 2014 (1994)). In the present case, the critical issue of which parties managed, directed, or conducted operations at the Mine will be greatly narrowed if Plaintiff will actually identify the specific subsequent discovery that has led to his change in position as to who controlled the Mine site. II. PLAINTIFF OFFERS NO SUPPORT FOR HIS RADICAL CHANGE IN POSITION OTHER THAN THE ALLEGED SUBSEQUENT DISCOVERY; AS SUCH PLAINTIFF HAS PLACED THE ALLEGED SUBSEQUENT DISCOVERY AT ISSUE. Setting aside the unidentified Bechtel documents, the only support Plaintiff offers to support his shift in position thus far consists of immaterial documents that Plaintiff had access to in the Underlying Litigation, and a recent affidavit of an environmental coordinator at the Mine, who did not start work at the Mine until five months after TIC' contract was s concluded. Yet, in his response to TIC' Motion to Compel Discovery, Plaintiff again s alleges that he obtained information in the course of discovery for this litigation that forms the basis of his allegations about TIC' liability, without actually identifying the alleged s information. Pl. Resp. TIC' Mot. Compel at 2. s Because Plaintiff has failed entirely to address the positions he takes in opposition to TIC' Motion for Summary Judgment, the specific position shifts by Plaintiff, and the s inadequate evidence offered by Plaintiff in support of these changes, are detailed below: First, in its Motion for Summary Judgment, TIC relied on Friedland' statement in the s Underlying Litigation that " Galactic and SCMCI exercised full control over operations and environmental compliance at the site except for those operations which were the responsibility of ICC."Def. Corrected Resp. Opp' Bechtel' Mot. Summ. J. at 4, ¶ 10; n s

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cited by TIC in the present litigation at Ex-5 to Def. Mot. for Summ. J. at 4. Plaintiff has now shifted his position 180 degrees by stating in response to TIC' Motion for Summary s Judgment, " subsequent discovery has demonstrated that Mine contractors, including TIC, exercised substantial control over Mine construction operations."Pl. Opp' Mot. Summ J. at n 5, ¶ 8. The only evidence Plaintiff points to support this change is the affidavit of W. Jack Clark, a consultant who admittedly did not start work at the Mine until five months after TIC ended its involvement at the Site. Ex. 5 to Pl. Opp' Mot. Summ J. (dated March 8, 2005). n The affidavit states that Mr. Clark was hired as an environmental coordinator on or about October 16, 1996 and he asserts that, to the best of his knowledge, SCMCI did not have an environmental manager prior to his employment. TIC is not mentioned in the affidavit and the affidavit is irrelevant to the issue of who exercised control at the Mine. Second, TIC relied on Friedland' statement in the underlying litigation that " s Bechtel undertook to analyze and provide its approval for all work performed on or at the Summitville Mine by any party."Def. Resp. Opp' Bechtel' Mot. Dismiss Am. Third-Party n s Compl. at 6 (filed September 7, 1999); cited by TIC in the present litigation at Ex.3 to Def. Mot. Summ. J. at 6. Now Friedland claims, " subsequent discovery undertaken in this case has shown that Bechtel did not in fact approve work in all instances. Rather, TIC had authority to authorize and approve work."Pl. Opp' Mot. Summ J. at 7, ¶ 17. To support his n drastic shift in position, Plaintiff cites to Concrete Placement Records. Ex. 22 to Pl. Opp' n Mot. Summ J. These records are Bechtel forms used when concrete was poured at the Site. The forms do not identify who did the work. Instead, the section for ` Final Approval,'

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merely has a place for the signature of ` Area Supt.'and ` TIC BC&MI [Bechtel] Area Supt' and spaces are on the form for both TIC and BC&MI to check off that particular steps were completed. All of these Concrete Placement Forms were obtained by the Plaintiff through discovery in the Underlying Litigation. See Ex. 9 to Pl. Resp. Mot. Summ. J. (" These documents were produced or obtained by Mr. Friedland in connection with United States of America and State of Colorado v. Robert M. Friedland, et al., Civil Action No. 1213 (D. Colo. filed May 23, 1996" ). Finally, TIC relies on Friedland' statement that " s [s]ignificant earthwork projects at this already-disturbed historic mine site were directed and controlled by Bechtel, including clearing and grading of pads and roadways, blasting and excavation of rock and construction of the " barren pond"which housed the mine' cyanide solution, as well as a charcoal filter s pond." Now, having brought litigation against TIC, Friedland states " subsequent investigations and discovery has shown that TIC, rather than Bechtel, was responsible for managing, directing or conducting a substantial portion of the earthwork performed at the Site."Pl. Opp' Mot. Summ J. at 10, ¶ 29. n As evidence of this change in position, Plaintiff cites a number of exhibits, all of which were obtained by Plaintiff in the Underlying Litigation, none of which support his current position: · Ex. A-6 to Def. Mot. Summ. J. This is the construction contract between SCMCI and TIC. As TIC has addressed previously, nowhere in this document does TIC take on a duty to manage, direct, or control the earthwork at the site. · Ex. 13, 15, 16, 17, and 18 to Pl. Resp. Mot. Summ. J. These documents are Field Memoranda of Change (" FMOC" that contain communications between Bechtel and )

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SCMCI formalizing the approval or non-approval of additional work at the Site for which Bechtel requested additional compensation above the terms of the agreement with SCMCI. These packets usually include timesheets identifying employee names, hours worked, tools used, and a description of the project at issue. Many of the FMOC' contain the following language drafted by the Bechtel Construction s Manager: " Questions regarding the scope of work of this FMOC are to be directed to the BC&MI [Bechtel] Field Engineer assigned to this FMOC... If you are not sure if the scope of your activities is extra work ASK the BC&MI Field Supervisor." The communications between SCMCI and Bechtel go into detail about what work was to be done and whether SCMCI would pay additional funds to Bechtel for the work. Most time sheets state that the forms were submitted by BC&MI and approved by SCMCI. · Ex. 19 to Pl. Resp. Mot. Summ. J. This exhibit contains TIC Summitville Project Reports which are TIC forms that outline basic labor tasks performed on particular days. The client is identified on the form as Bechtel. · Ex. 20 to Pl. Resp. Mot. Summ. J. This Exhibit is a letter from ICC to SCMCI stating ICC' concern over how other contractors were dumping material into ICC' major s s earth-work areas. ICC turned to SCMCI to resolve the issue. The only reference to TIC states " T.I.C. did the building demolition and began a loading and hauling operation from this area." See Ex. 9 to Pl. Resp. Mot. Summ. J. The factual evidence Plaintiff offers to support his new positions regarding control of the Mine was all available to Plaintiff in the Underlying Litigation. And, the evidence still leads to the conclusion that TIC never managed, directed, or conducted operations related to the release of hazardous waste at the Mine. Since he offers no new evidence, Plaintiff relies only on vague references to " subsequent discovery"to rebut his prior statements and positions.1 Of course, without further information regarding such alleged subsequent discovery, TIC cannot respond to this allegation. And, when all of the other irrelevant

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Such vague statements, are of course, conclusory and insufficient to properly oppose the specific evidence TIC puts for the in its Motion for Summary Judgment.

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evidence is stripped away (as shown above), Friedland' contention that subsequent s discovery supports his claim is all the support of Friedland' claim that remains. Thus, s Friedland has clearly put the alleged subsequent discovery not only at issue but as the only issue, and TIC is entitled to discovery of the information. In sum, having put the alleged " subsequent discovery"as the only assertion standing between TIC and summary judgment on the undisputed, well-developed record in the Underlying Litigation, Plaintiff cannot now " hide the ball"and survive TIC' Motion for s Summary Judgment. Plaintiff simply has no legitimate rationale for withholding such information from TIC during the discovery process. CONCLUSION For all of the foregoing reasons, Defendant TIC respectfully requests that the Court enter an Order compelling discovery of all communications, investigations, and discovery bearing on TIC' control of the Site completed or obtained by Friedland subsequent to the s commencement of the Underlying Litigation, specifically including, but not limited to: 1) all communications between and documents generated by Plaintiff, Plaintiff' s counsel, and/or Plaintiff' experts prior to June 18, 2004 [the date Plaintiff s commenced this lawsuit], that mention TIC; 2) the date on which Plaintiff formed his belief that TIC undertook general site responsibilities and managed and controlled construction activities at the Mine as described in Paragraphs 15-22 of the Amended Complaint; and

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3) all documents discovered by Plaintiff after August 16, 2001 [the date Plaintiff entered into a settlement of his claims against Bechtel], that formed the basis of his belief that TIC exerted control at the Mine. Defendant requests that the Court grant such other and further relief as the Court deems just and reasonable. In the alternative, TIC requests in camera review of all withheld documents for determination as to whether they qualify for attorney-client privilege or work-product protection. Respectfully submitted this 22nd day of November, 2006.

___________________________ 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 E-mail: [email protected] Delmar R. Ehrich, Esq. Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402 Attorneys for Defendant The Industrial Company

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of November, 2006, a true and correct copy of the foregoing DEFENDANT TIC ­THE INDUSTRIAL COMPANY' REPLY S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL DISCOVERY was electronically filed via ECF with the U.S. District Court for the District of Colorado and served electronically or via first-class U.S. mail 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 Terrence M. Ridley, Esq. Marian L. Carlson, Esq. Steven M. Kelso, Esq. Wheeler Trigg Kennedy, LLP 1801 California Street, Suite 3600 Denver, CO 80202-2617 Paul J. Sanner, Esq. Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 333 Market Street, Suite 2100 San Francisco, CA 94105-2122

fb.us.1665268.03

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