Free Motion to Compel - District Court of Colorado - Colorado

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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' MOTION TO S COMPEL DISCOVERY __________________________________________________________________________

Defendant TIC ­The Industrial Company (" TIC" by and through its undersigned ), counsel, respectfully moves this Court for an order compelling discovery from Plaintiff Robert M. Friedland. As grounds for this motion, TIC states as follows: I. INTRODUCTION At issue in this motion is whether Plaintiff Robert M. Friedland (" Friedland" is ) required to produce the " subsequent investigations and discovery"yielding information and documents that he claims, in opposing TIC' motion for Summary Judgment, support the s radical change in position at the heart of this lawsuit. This case arises from the massive

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1 environmental problems caused by Friedland and his companies' operation of the

Summitville Mine Site (" Mine"or " Site" in Southwestern Colorado. On May 23, 1996, the ) United States and the State of Colorado brought an action against Friedland in this Court to recover costs incurred in responding to environmental contamination at the Site (" Underlying Litigation" Am. Compl. ¶ 2. Friedland responded by joining Bechtel Civil & Minerals, ). Inc. (" Bechtel" and 12 other entities as third party defendants. See Ex. A-15 to TIC' Mot. ), s for Summ. J. at 1. During the course of over four years of litigation, with extensive discovery, neither Friedland nor any of those third party defendants, including Bechtel, asserted any claim against TIC, despite the fact that at the time of Mine construction, Friedland observed " people wearing TIC uniforms or insignia, and . . . trucks and heavy equipment that said TIC." See Friedland Depo. at 15:14-24, attached hereto as Exhibit A-1. On December 22, 2000, Friedland entered into a consent decree resolving the claims against him. This Court approved the consent decree on June 20, 2001, pursuant to which Friedland agreed to pay approximately $20 million to the United States and the State of Colorado. Am. Compl. ¶ 4. In this lawsuit, Friedland now seeks contribution under Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ), 42 U.S.C. § 9613, claiming that TIC " operated"the Site at the time of disposal and " arranged"for the disposal of hazardous substances. This position is directly contrary to the

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During the relevant time period, the Mine had been operated by the Summitville Consolidated Mining Company, Inc. (" SCMCI" a subsidiary of Galactic Resources, Ltd. and Galactic Resources, Inc. (collectively, " ), Galactic" ), companies operated by Friedland.

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position taken by Friedland in the Underlying Litigation that " Bechtel had significant design and operational control over the entire site as a result of its global agreements"and that pursuant to Bechtel' contractual authority, " s Bechtel reviewed and approved of all major contracts for construction and operation at the Summitville site in 1985-86 . . . ." See Ex. A-5 to TIC' Mot. for Summ. J at 13, 25. Friedland also claimed in the Underlying s Litigation that Bechtel " reviewed and signed off on all significant aspects of mine design and construction, including the heap leach pad design." Id. at 12. As Friedland explained Bechtel' role in the Underlying Litigation, " s Bechtel undertook to analyze and provide its approval for all work performed on or at the Summitville Mine by any party." See Ex. A-3 to TIC' Mot. for Summ. J. at 6 (emphasis added). Yet now, Friedland necessarily premises s this entire lawsuit on the opposite proposition: that TIC exerted design and operational control at the Site. When faced with the inconsistency between his position in the Underlying Litigation regarding Bechtel' degree of control and his position in the instant litigation regarding s TIC' position alleged as an operator and arranger, Friedland responded that " s subsequent investigations and discovery"support his current position. Pls. Opp' to TIC' Mot. for n s Summ. J. at 10. By making the claim that that " subsequent investigations and discovery"support Friedland' allegations in the current lawsuit, Friedland has introduced and put at issue new s factual allegations about what he has known and when he knew it about TIC' alleged degree s of control at the Site. Friedland has also, of course, introduced and placed at issue and any

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such investigations and discovery. TIC now seeks an Order compelling production of that subsequent discovery and investigation, as well as disclosure of the what Friedland knew about TIC' alleged control of the Site and when he knew it during the course of the s Underlying Litigation and this litigation. This information is directly relevant to the issues of liability, allocation, and damages presented in this case. II. BACKGROUND In the Underlying Litigation, Friedland stated that " Bechtel had significant design and operational control over the entire site as a result of its global agreements." Ex. A-5 to TIC' s Mot. for Summ. J. at 25 (emphasis added). This position was explicitly supported by numerous documents discovered in the Underlying Litigation, for example: The Bechtel contract stated that Bechtel " shall bear total and joint and several responsibility to [SCMCI] for the construction of the Project, including total and joint and several responsibility for the labour performed on and incorporated into the Project by the company known as The Industrial Company of Steamboat Springs (TIC) . . . ." Ex. A-4 to TIC' Mot. for Summ. J. at 3. s An October 24, 1985, letter from SCMCI to the Colorado Mined Land Reclamation Division stated: " are presently in the construction phase of work at Summitville. We Bechtel Civil and Minerals is our construction manager for civil, mechanical, structural, electrical and instrumentation engineering, procurement, and ancillary facilities. They supervise work by . . . The Industrial Company [TIC]." Ex. A-19 to TIC' Mot. for Summ. J. at 1. s A chart of the " Summitville Mine Project Organization As of 9/9/1985,"shows that TIC performed its " Construction"activities under Bechtel. Ex. A-20 to TIC' Mot. s 2 for Summ. J.

2

These documents represent just a sample of the evidence establishing Bechtel' design and operational control over s the site. For further treatment of this evidence, TIC refers the Court to Defendant TIC' Motion for Summary s Judgment.

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Notwithstanding his previous position, as well as the extensive documentary evidence of Bechtel' design and operational control at the site, Friedland now takes the position that s " TIC' role was that of both " s operator"and " arranger"with in the meaning of CERCLA § 107." Pls. Opp' to TIC' Mot. for Summ. J. at 2. n s When faced with the inconsistency between his current and former positions, in Opposition to TIC' Motion for Summary Judgment, Friedland asserted to this Court that: s " subsequent discovery has demonstrated that Mine contractors, including TIC, exercised substantial control over Mine construction operations." " 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." " 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." Pls. Opp' to TIC' Mot. for Summ. J. at 5, 7, 10 (emphasis added).3 However, based on the n s Affidavit of Lauren Buehler (submitted as Exhibit 9 to Plaintiff' Opposition), all of the s substantive exhibits in Friedland' Opposition were in fact provided to Plaintiff in the s Underlying Litigation. Further, Friedland did not identify any documents in his responses to TIC' First Set of Interrogatories regarding operational control of the Mine that were not s
3

Plaintiff takes inconsistent positions with regard to what exactly the investigations and discovery are subsequent to-- characterizing it as subsequent to Friedland' Opposition to Bechtel' Motion to Dismiss, subsequent to s s Friedland' response to Bechtel' Motion for Summary Judgment, as well as subsequent to the Underlying s s Litigation. Pls. Opp' to TIC' Mot. for Summ. J. at 7, 5, 10. n s

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produced in the Underlying Litigation. In fact, Friedland has failed to identify a single document in support of his allegation in this action that TIC exerted control at the Mine that he did not already posses prior to the conclusion of the Underlying Litigation. In direct response to Plaintiffs'statement that " subsequent discovery and investigations"had led to Plaintiff' change in position, TIC requested the following s documents: 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 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. See July 26, 2006 letter from Colin C. Deihl to R. Kirk Mueller, attached hereto as Exhibit A-2. These requests were specifically made to obtain production of the subsequent discovery and/or investigations referred to by Plaintiff in his Opposition. In response, Plaintiff refused to produce any documents, taking the position that such documents are not relevant to the issues in this case and in any event are protected by the attorney-client privilege or workproduct doctrine. See August 4, 2006 letter from R. Kirk Mueller to Colin C. Deihl, attached

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hereto as Exhibit A-3. Further in response, Plaintiff hinted, but did not state conclusively, that no new documents or information have in fact been obtained through subsequent discovery. Id. Thus, Plaintiff' response suggests that only a new " s investigation"of existing information and documents led to his radical change in position. If this is in fact the case, Friedland' now-current position is directly at odds with that just taken before this Court, s where he three times referred to " subsequent discovery." Thus, TIC is left to guess at the nature of the substantive evidence for Friedland' key allegations. s III. ARGUMENT TIC is entitled to identification and production of any new documents, investigation, and facts uncovered by Friedland since the conclusion of the Underlying Litigation. Further, TIC is entitled to production of any communications referencing TIC and its alleged control at the Site from the commencement of the Underlying Litigation. This information is directly relevant to both TIC' alleged liability and the damages claimed by Friedland. s Plaintiff' convoluted response that such information is not relevant to the issues in the case s and protected by the attorney-client privilege and work-product doctrine is unsupported by the facts of this litigation and the law. First, the attorney-client privilege does not protect relevant facts that bear on TIC' s liability under CERCLA, and such facts do not gain protected status by communicating them to an attorney, or using an attorney to " investigate"them. Second, even if the privilege does apply, by representing to this Court, in opposing TIC' Motion for Summary Judgment, that s his entire theory of the case rests upon a new investigation and newly-discovered facts and

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information, Friedland has placed both this allegation, i.e. that investigations and discovery revealed new information, and any such information itself at issue. TIC therefore has a right to discover it. Finally, even if the factual information contained in the documents TIC seeks is considered work-product, TIC is entitled to the information under Rule 26(b)(3). Friedland must do more than merely assert that the alleged discovery is protected by a privilege. The Plaintiff carries the burden to show that a document constitutes work-product or other privileged communication. See Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (" [T]he party interposing an objection has the burden of establishing its claim of privilege or protection; a bald-faced assertion is insufficient." ) (quoting the District Court); Marcin Eng' LLC v. Founders at Grizzly Ranch, LLC, 219 g, F.R.D. 516, 525 (D. Colo. 2003) (" party resisting discovery bears the burden to timely The show that documents constitute work product." (quoting Audiotext Commc' Network, Inc. ) ns v. U.S. Telecomm., Inc., 1995 U.S. Dist. LEXIS 15395, at *11 (D. Kan. Oct. 5, 1995), rev' d on other grounds, 1998 U.S. App. LEXIS 18212 (10th Cir. Aug. 6, 1998)). Plaintiff has not met the burden of showing that these alleged documents are protected by a privilege, nor can he. A. The Attorney-Client Privilege Does Not Protect the Alleged Facts the Plaintiff is Attempting to Conceal.

The purpose of the attorney-client privilege is to " encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). However, " defendant may not use the privilege to [a]

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prejudice his opponent' case or to disclose some selected communications for self-serving s purposes." United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991). Plaintiff here is attempting to use the attorney-client privilege to withhold vital information from TIC. 1. The Attorney Client Privilege Does Not Prevent the Discovery of Facts.

Plaintiff cannot claim that the factual information allegedly in his possession and responsive to TIC' requests is protected by the attorney-client privilege. While the attorneys client privilege protects communication between a client and his attorney, " [the] protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing." Upjohn, 449 U.S. at 39596 (quoting Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962) (emphasis in the original)). The privilege also does not protect facts discovered by an attorney from an independent third party and then communicated to a client. Standard Chartered Bank PLC v. Ayala Int' Holdings (U.S.), Inc., 111 F.R.D. 76, 80 (S.D.N.Y. 1986) l (citing Hickman v. Taylor, 329 U.S. 495, 508 (1947)); Carte Blanche PTE, Ltd. v. Diners Club Int' Inc., 130 F.R.D. 28, 33 (S.D.N.Y. 1990), rev' on other grounds, 2 F.3d 24 (2d l, d Cir. 1993). In Carte Blanche, the plaintiff' attorney related factual information to his client s through a number of documents. Carte Blanche, 130 F.R.D. at 30. When the defendant attempted to subpoena these documents, the plaintiff claimed attorney-client privilege. Id. The Court reviewed the documents in camera and concluded that the documents communicated only factual information and ordered the plaintiff to produce the documents.

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Id. at 33. In this case, Plaintiff alleges that his attorneys have investigated and discovered additional evidence that allegedly proves TIC was responsible for managing the Site. The factual aspects of any investigations by Plaintiff' attorneys and communication between s Plaintiff' attorneys and Plaintiff related to TIC' alleged control of the Site are discoverable s s and not protected by the attorney-client privilege. 2. The Plaintiff has Waived Any Attorney-Client Privilege that May Have Existed by Placing the Requested Information " Issue." At

Even if the communications at issue are protected by the attorney-client privilege, Plaintiff has effectively waived such privilege by placing the subject matter of those communications at issue. Plaintiff' Opposition to TIC' Motion for Summary Judgment s s purports to be based upon " subsequent investigations and discovery"the Plaintiff has made that allegedly show that TIC controlled the mine. Pls. Opp' to TIC' Mot. for Summ. J. at n s 10. Thus, by defending his credibility and opposing TIC' Motion for Summary Judgment s primarily on the claim that new information has been uncovered, Friedland places the existence of subsequent investigations and discovery squarely at issue, as well as the timing of the discovery of this purported new information. As TIC has no knowledge of what this alleged new evidence could be, and when it was uncovered, fairness dictates that Plaintiff' s claims implicitly waive any attorney-client privilege that may exist. See Bilzerian, 926 F.2d at 1292 (" [t]he privilege may implicitly be waived when defendant asserts a claim that in fairness requires examination of protected communications." ). In evaluating whether a party has waived attorney-client privilege, the District of Colorado has adopted the test articulated in Hearn v. Rhay. Fed. Deposit Ins. Corp. v. Wise,

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139 F.R.D. 168, 171-72 (D. Colo. 1991). Under the Hearn test, the party asserting the privilege has impliedly waived it through its own affirmative conduct if: i. assertion of the privilege is the result of some affirmative act, such as filing a suit, by the asserting party, ii. through the affirmative action, the asserting party has placed the protected information at issue by making it relevant to the case, and iii. application of the privilege would deny the opposing party access to information vital to its defense . . . . Fed. Deposit Ins. Corp., 139 F.R.D. at 171 (citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975); see also Aull v. Cavalcade Pension Plan, 185 F.R.D. 618, 630 (D. Colo. 1998); Ryall v. Appleton Elec. Co., 153 F.R.D. 660, 662 (D. Colo. 1994). Each of these factors is met here. First, Plaintiff has taken the affirmative steps of bringing the instant lawsuit and opposing TIC' Motion for Summary Judgment with claims s of subsequent investigations and discovery. Plaintiff' assertion of the attorney-client s privilege is a result of these affirmative actions. See Fed. Deposit Ins. Corp., 139 F.R.D. at 172 (" Applying the three-prong tests . . . First, plaintiff is asserting various privileges as the result of its affirmative decision to file the action against defendants." WLIG-TV, Inc. v. ); Cablevision Sys. Corp., 879 F. Supp. 229, 235 (E.D.N.Y. 1994) (" WLIG asserted the privilege by its affirmative act of filing this pending suit." ). Second, Plaintiff has expressly relied upon the existence of subsequent investigations and discovery as a basis for seeking both relief from this Court and denial of TIC' Motion s for Summary Judgment, making it relevant to the case. The issue of subsequent investigation and discovery showing TIC' alleged control or management of the Site has been put s

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centrally at issue by Plaintiff' Opposition to TIC' Motion for Summary Judgment. See s s Fed. Deposit Ins. Corp., 139 F.R.D. at 172 (" making such repeated allegations, plaintiff By has injected into this controversy the actions, knowledge, and beliefs of the regulators, forcing these issues to the very forefront of the litigation." ). The mere assertion of a fact by a party is enough to put the truthfulness of that assertion at issue. See Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 488 (S.D.N.Y. 1993) (" [E]ven if a party does not attempt to make use of a privileged communication, he may waive the privilege if he asserts a factual claim the truth of which can only be assessed by examination of a privileged communication." judgment entered by 161 F.R.D. 270 ), (S.D.N.Y. 1995). Plaintiff' assertions go to the heart of his opposition to TIC' Motion for s s Summary Judgment, namely, that subsequent investigations and evidence show that TIC exerted design and operational control at the site. TIC has the right to examine the truthfulness of these assertions. See Bilzerian, 926 F.2d at 1292 (" [T]he attorney-client privilege cannot at once be used as a shield and a sword." ). Because management, direction and control of the construction activities at the Mine is a central issue to the claims brought against TIC, discovery of the factual evidence behind Plaintiffs claimed is vital to TIC' defense. See Frontier Ref. v. Gorman-Rupp Co., 136 F.3d s 695, 701 (10th Cir. 1998) (vital information, if available from no other source, meets the Hearn standard). All evidence available to TIC points to the conclusion that it was not an " operator"or " arranger"at the Mine and, until this present action was filed against TIC, Plaintiff had consistently asserted that Bechtel controlled operations at the mine. Plaintiff is

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the only known party with alleged subsequently discovered factual information that is contrary to its own prior position, and TIC has a right to discovery of the alleged subsequent investigations and discovery in order to mount its defense. B. The Work-Product Doctrine Does Not Shield Plaintiff From Providing Responsive Information.

While the applicability of the work-product doctrine requires a slightly different analysis, the doctrine is also not designed to prevent the discovery of factual information and allows discovery when, as in the present case, there is a substantial need for the information and no other source for a party to obtain the requested documents. 1. The Work-Product Doctrine Does Not Prevent the Discovery of Facts.

Plaintiff can not hide behind the work-product doctrine in preventing TIC from discovering the alleged materials it has requested. See Hickman, 329 U.S. at 511 (" do We not mean to say that all written materials obtained or prepared by an adversary' counsel s with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney' file and where production of those s facts is essential to the preparation of one' case, discovery may properly be had." s ). Factual information obtained from third parties, whether reduced to writing by the plaintiff, his attorneys, or third-parities, is discoverable. See Marcin Eng' LLC, 219 F.R.D. g, at 525. In Marcin Eng' LLC, the Defendant testified in a deposition that he personally g, calculated damages related to a counter-claim based on information he received from unnamed third parties. Id. The Defendant claimed that these documents were privileged

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under the work-product doctrine as they were created in anticipation of litigation. Id. The Court found that facts stated in the document do not constitute work product. Id. (" This [work-product] doctrine applies to documents and tangible things prepared by a party in anticipation of litigation. It does not apply to facts underlying or contained in such documents." (internal citations omitted). ) In Resolution Trust Corp., the Plaintiff refused to let a witness, an investigator, answer factual questions regarding prior loan investigations, claiming work-product privilege. Resolution Trust Corp. v. Dabney, 73 F.3d 262, 265 (10th Cir. 1995). The Court ruled that the work-product doctrine did not apply because the information only dealt with the facts of the witness'investigation, " [b]ecause the work product doctrine is intended only to guard against divulging the attorney' strategies and legal impressions, it does not protect s facts concerning the creation of work product or facts contained within work product. Thus, work product does not preclude inquiry into the mere fact of an investigation." Id. at 266 (internal citations omitted). Here, the work product doctrine does not protect access to Friedland' subsequent discovery and investigation. s 2. Even if the facts requested are work product, the materials should be made available to the Defendant under Rule 26(b)(3).

Even if the documents requested by TIC constitute work product, Plaintiff must still provide the requested documents under Fed. R. Civ. P. 26(b)(3), which states: [A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party' representative (including the other party' s s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a

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showing that the party seeking discovery has substantial need of the materials in the preparation of the party' case and that the party is s unable without undue hardship to obtain the substantial equivalent of the materials by other means. Fed. R. Civ. P. 26(b)(3) (2006). Factual descriptions are discoverable if the party seeking discovery (a) has substantial need of the materials in preparation of the case; and (b) is unable to obtain the substantial equivalent of the materials by other means without undue hardship. United States ex rel. Stone v. Rockwell Int' Corp., 144 F.R.D. 396, at *12 (D. Colo. 1992) (" l Where, as here, the work product in question merely consists of a document reciting factual information provided by the client, the necessity for protection from discovery is weak, at best." see ); also Natta v. Hogan, 392 F.2d 686, 693 (10th Cir. 1968); Hamel v. Gen. Motors Corp., 128 F.R.D. 281, 283-84 (D. Kan. 1989); Arney v. Geo. A. Hormel & Co., 53 F.R.D. 179, 181 (D. Minn. 1971). Here, TIC cannot prepare its defense with out access to the subsequent investigations and discovery that Friedland purports support his claim. Further, only Friedland is in possession of this information so it cannot be obtained from another source at all. VI. 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:

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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 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.

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CERTIFICATIONS Pursuant to Fed. R. Civ. P. 37 and D.C.Colo.LCivR 7.1(A), counsel for TIC hereby certifies that he has attempted in good faith to confer with Plaintiff' counsel, Kirk Mueller, s in an effort to secure the information described above. Specifically, counsel for TIC has exchanged letters with Mr. Mueller regarding the disputed discovery, and in an August 4, 2006 letter, Mr. Mueller notified TIC counsel that Plaintiff would not provide the requested information. On October 10, 2006, counsel for TIC notified Mr. Mueller of his intent to file this motion to compel, and on October 11, 2006, Mr. Mueller notified TIC counsel that he opposes this motion. Respectfully submitted this 11th day of October 2006. 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 E-mail: [email protected] Delmar R. Ehrich, 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

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CERTIFICATE OF SERVICE I hereby certify that on this 11th day of October 2006, a true and correct copy of the foregoing DEFENDANT TIC ­THE INDUSTRIAL COMPANY' MOTION TO S 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 Colin D. Reid Vice President/General Counsel TIC Holdings, Inc. 2211 Elk River Road P.O. Box 774848 Steamboat Springs, CO 80477

s/ Lynne McWhirt

fb.us.61200395.01