Free Reply to Response to Motion - 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. ______________________________________________________________________________ REPLY IN SUPPORT OF MOTION BY THE TRAVELERS INDEMNITY COMPANY TO QUASH SUBPOENA ISSUED TO ZEEB & CO. ______________________________________________________________________________ Interested Party, The Travelers Indemnity Company ("Travelers"), replies as follows in support of its Motion to Quash the Subpoena issued by Geosyntec Consultants, Inc. ("Geosyntec") to Zeeb & Co. ("Zeeb"). Reply Regarding Certification of Compliance with D.C.COLO.LCivR 7.1(A) Travelers disagrees with Geosyntec's assertion that Travelers did not make adequate efforts to confer with Geosyntec prior to filing the Motion to Quash. To the contrary, Travelers attempts to confer were reasonable and sufficient in light of the very short timeframe. Travelers first received notice of the Subpoena (from Mr. Friedland's counsel) at 4:00 p.m. on Wednesday, June 14, 2006. Counsel for Travelers immediately telephoned counsel for Geosyntec to discuss the Subpoena. Geosyntec's counsel returned the call on Thursday, June 15, 2006. Geosyntec's counsel also sent an e-mail on Thursday, June 15, 2006 stating

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Geosyntec's position that the materials sought in the Subpoena are not work product and denying Travelers request that the Subpoena be withdrawn. The Subpoena was returnable on Monday, June 19, 2006 at 9:00 a.m. Geosyntec's suggestion that there was time for Travelers to engage in an involved trading of positions and information prior to filing the Motion to Quash is unrealistic. SUMMARY OF TRAVELERS REPLY Travelers retained Zeeb to assist in analyzing Mr. Friedland's attorney fees in connection with the Travelers Lawsuit filed by Mr. Friedland. The Travelers Lawsuit was settled before Zeeb's analysis was completed. No expert report was ever completed, and no expert report was submitted that was based on or related to Zeeb's incomplete analysis. Geosyntec seeks to free-ride on Travelers investment in analyzing the Friedland attorney fees by subpoenaing Zeeb's incomplete work product. Travelers has a legitimate interest in protecting the confidentiality of its incomplete work product. There has been no waiver of Travelers work product protection. Travelers has standing to move to quash the Subpoena because Travelers is directly affected by the Subpoena. The Court should quash the Subpoena. ARGUMENT A. Work Product Protection Is Not Limited To Parties To The Current Lawsuit Geosyntec contends that Travelers has no standing to assert the work product doctrine because it is not a party to this lawsuit. Geosyntec is wrong. First, Travelers has standing because it is "affected by" the Subpoena. Second, contrary to Geosyntec's argument, the work product protection is not limited only to parties to the current lawsuit.

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1.

Travelers Has Standing To Move To Quash The Subpoena

Federal Rule of Civil Procedure Rule 45(c)(3)(B), the rule under which Geosyntec issued the Subpoena, expressly permits any person "affected by" a subpoena to move to quash. Because the documents and information sought by the Subpoena are Travelers work product, Travelers is directly "affected by" the Subpoena. Therefore, Travelers has standing to move to quash the Subpoena. See In re Grand Jury Proceedings, 604 F.2d 798, 801 (3d Cir. 1979) (client for whom work product was prepared has standing to assert work product doctrine against subpoena issued to its counsel). 2. Travelers Work Product Protection Applies In The Current Lawsuit

Geosyntec incorrectly asserts that work product protection is available only to parties to the current lawsuit between Mr. Friedland and Geosyntec, and that Travelers is not entitled to work product protection because it is not a party to this lawsuit.1 Geosyntec cites to cases holding that Federal Rule of Civil Procedure 26(b)(3) ("Rule 26(b)(3)") does not protect a person who is not a party to the lawsuit in which discovery is sought. Geosyntec confuses the scope of Rule 26(b)(3) with the wider scope of the work product rule set forth by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). If Geosyntec were correct that the scope of the work product rule is limited to the scope of Rule 26(b)(3), then the only circumstances in which the work product doctrine could be

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Geosyntec also suggests that the work product doctrine does not apply to work product prepared in connection with the Travelers Lawsuit, because that lawsuit has ended. The Tenth Circuit has made clear, however, that work product protection survives termination of the proceeding for which the work product was prepared. Frontier Ref., Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 703 (10th Cir. 1998).

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asserted would be those falling within the specific language of Rule 26(b)(3). That is not the case. The work product rule is not limited to Rule 26(b)(3). The work product protection was first set forth by the United States Supreme Court in 1947 in Hickman v. Taylor. Subsequently, in 1970, Rule 26(b)(3) was implemented to make clear that the work product doctrine applies to party-to-party discovery under the Rules of Civil Procedure. Rule 26(b)(3) did not operate to wipe out work product protection outside its own scope. For example, five years after implementation of Rule 26(b)(3), the Supreme Court held that the work product doctrine applies to criminal proceedings which, obviously, are not governed by the Rules of Civil Procedure. United States v. Nobles, 422 U.S. 225, 238 (1975). The work product doctrine also applies in the context of criminal grand jury proceedings, to which Rule 26(b)(3) similarly does not apply.2 E.g., In re Grand Jury Proceedings, 604 F.2d 798, 801-02 (3d Cir. 1979); In re Grand Jury Proceeding (Duffy), 473 F.2d 840, 842-43 (8th Cir. 1973). Furthermore, for purposes of this Motion to Quash, the work product doctrine applies in the context of a subpoena issued to a non-party under Rule 45. Rule 45(c)(3)(B)(ii) specifically protects "an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party."
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The grand jury cases further illustrate the error in Geosyntec's argument. Geosyntec contends that only a "party" to the legal proceeding in which a subpoena is issued may assert the work product protection against that subpoena. Obviously, a private entity is not a "party" to a federal grand jury proceeding. Nonetheless, it is clear that the work product doctrine applies to protect the interests of a private entity whose work product is subpoenaed by a grand jury.

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The work product protection is not limited only to party-to-party discovery in civil cases. The work product protection is broader than the scope of Rule 26(b)(3). Travelers may assert the work product doctrine to quash the Subpoena issued to Zeeb. B. Zeeb's Files Are Travelers Protected Work Product Geosyntec asserts that Travelers has not met its burden of establishing that Zeeb's files are protected work product. Geosyntec makes two arguments on this issue. First, Geosyntec contends that the inventory of Zeeb's files that accompanied the Motion to Quash is not a sufficient privilege log. This argument is moot. Second, Geosyntec contends that work product protection was waived because Zeeb's work was intended to support the work of a testifying expert. This argument is incorrect. 1. Travelers Privilege Log is Adequate

Geosyntec contends that the inventory of Zeeb's files that accompanied Travelers Motion to Quash was inadequate. Given the very short time Travelers had to get the Motion to Quash on file, the inventory was the most complete information possible. Travelers had approximately two business days to file the Motion, and Travelers did not have possession of Zeeb's files from which Travelers could prepare a detailed privilege log. Travelers has now had an opportunity to conduct a thorough review of Zeeb's files, and to prepare a privilege log. To the extent that a more detailed privilege log is appropriate, that concern should be satisfied by the attached log.3

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In preparing the detailed privilege log, Travelers identified certain items in Zeeb's files that are not work product. These items are noted in the privilege log. The non-privileged files include PDF images of 6,727 pages produced by Friedland in discovery in the Travelers Lawsuit. While Travelers does not object to production of these images, Travelers requests that the Court order
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The attached log satisfies Travelers burden of establishing the application of the work product doctrine. The work product doctrine protects from discovery things and mental impressions of an attorney or representative that are developed for or in anticipation of litigation or trial. The purpose of this doctrine is to permit attorneys to prepare for litigation or trial with a "certain degree of privacy" and without undue interference or fear of intrusion or exploitation of one's work product. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). Work product doctrine can be invoked where, as here, it is shown that the materials sought to be protected (1) are documents or tangible things (2) that were prepared in anticipation of litigation or for trial, and (3) were prepared by Travelers or its representative. See, e.g., Raytheon Aircraft Co. v. U.S. Army Corps of Engineers, 183 F. Supp. 2d 1280, 1287-88 (D. Kan. 2001). Under this standard, all of the items of Travelers privilege log are protected work product. All of the items are either copies of document or computer files, and, thus, are documents or tangible things. All of the items were prepared in connection with the Travelers Lawsuit to assist Travelers counsel or Mr. Hoffman, Travelers expert, in analyzing Mr. Friedland's attorney fees in connection with responding to the Travelers Lawsuit. All of

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Geosyntec to reimburse Travelers for the cost of imaging these documents at a cost of 10 cents per page, or $672.70. Travelers also identified certain items that it contends are beyond the proper scope of discovery in the lawsuit between Friedland and Geosyntec. In particular, Zeeb's billing records relating to the Travelers Lawsuit are neither relevant to, nor reasonably calculated to lead to the discovery of admissible evidence in, the lawsuit between Friedland and Geosyntec. These items are identified in the privilege log.

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items were prepared by some combination of Travelers counsel, Zeeb, and Mr. Hoffman, all of whom were retained by Travelers to assist Travelers in the Travelers Lawsuit. Therefore, all of the items on Travelers privilege log are work product and entitled to protection from subpoena absent a showing by Geosyntec of exceptional circumstances. 2. Because Mr. Hoffman Never Completed or Submitted An Expert Report Based On Zeeb's Work, There Was No Waiver of Work Product Protection

Travelers retained two experts to analyze Mr. Friedland's attorney fees: Zeeb, who is an expert forensic accountant, and Daniel S. Hoffman, Esq., who is a lawyer with expertise on the reasonableness of attorney fees. Zeeb's job was to analyze the Friedland attorney invoices and to assist Mr. Hoffman. If the Travelers Lawsuit had proceeded to the stage at which Travelers was required to make its expert disclosures, Travelers may have submitted an expert report by Mr. Hoffman. The Travelers Lawsuit never got that far. The Travelers Lawsuit was settled before Zeeb and Mr. Hoffman completed their analysis and, more importantly, before any report was completed and submitted. Nonetheless, Geosyntec contends that Travelers somehow waived its work product protection because Mr. Hoffman was identified as a potential testifying expert. Geosyntec is wrong because it ignores a critical fact: Mr. Hoffman never completed his analysis and never submitted an expert report. Work product protection extends to materials prepared by a consulting expert to assist counsel in the defense of litigation. See Fed. R. Civ. P. 26(b)(4)(B); Ager v. Jane C. Stormont Hosp., 622 F.2d 496, 502-03 (10th Cir. 1980); Disidore v. Mail Contractors of Am.,

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Inc., 196 F.R.D. 410, 415-18 (D. Kan. 2000). As Geosyntec notes, work product protection is waived as to materials prepared by or relied upon by a testifying expert. Thus, the critical distinction is whether or not Mr. Hoffman and/or Zeeb were non-testifying consulting experts (for whom work product is not waived) or testifying experts (for whom work product is waived). The Tenth Circuit decision in Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir. 1984), is instructive. In that case, the Plaintiffs retained Dr. Dyck and disclosed him as a probable testifying expert. Dr. Dyck prepared a report. Plaintiffs then concluded that they did not want to use him as a testifying expert, and so notified the Defendant. Plaintiffs never submitted Dr. Dyck's expert report. The Tenth Circuit held that this rendered Dr. Dyck a nontestifying expert from whom Defendant could obtain discovery only upon a showing of "exceptional circumstances." Numerous other courts have held that an expert, even if initially designated as a testifying expert, is classified as a non-testifying expert from whom no discovery is permitted (absent exceptional circumstances) if the party who retains that expert changes his designation before he testifies. Ross v. Burlington Northern RR Co., 136 F.R.D. 638, 638-39 (N.D. Ill. 1991) (citing Tenth Circuit decision in Durflinger); see also FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1042-48 (E.D. Cal. 2002) (granting motion to quash subpoena issued to expert originally designated as a testifying expert and then withdrawn after reports and opinions provided); Callaway Golf Co. v. Dunlop Slazenger Group Americas, Inc., 2002 WL 1906628, at *1-4 (D.Del. 2002) (collecting cases); Dayton-Phoenix Group, Inc. v. General Motors Corp., 1997

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WL 1764760, at *1 (S.D. Ohio 1997); Mantolete v. Bolger, 96 F.R.D. 179, 181-82 (D. Ariz. 1982).4 The United States District Court for the Northern District of Illinois explained the issue succinctly in Ross: Although plaintiff may have originally designated the witness as a testifying expert, plaintiff has the prerogative of changing his mind. Since plaintiff changed his mind before any expert testimony was given in this case, the witness never actually acted as a testifying expert witness. ... Nor does the court find that the protection of Fed. R. Civ. P. 26(b)(4)(B) was waived because plaintiff identified the witness and indicated the subject matter of his testimony. ... Here, nothing more than the identity and the subject matter of the witness's testimony was revealed. This is not a situation where facts or opinions were disclosed. Accordingly, there is no basis for finding that there has been a de facto waiver of the protection of the rule. 136 F.R.D. at 638-39. Under these authorities, because Mr. Zeeb and Mr. Hoffman did not complete or submit an expert report and there was no expert testimony based on the materials in Zeeb's files, Travelers remains entitled to claim the work product protection for Zeeb's files. CONCLUSION Geosyntec has subpoenaed the work product of Travelers consulting expert in the Travelers Lawsuit. Geosyntec has not and cannot show that there has been any waiver of work

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In the interest of candor to the Court, Travelers notes that a minority of courts reject this position. See House v. Combined Ins. Co. of Amer., 168 F.R.D. 236, 238 (N.D. Iowa 1996). The more recent FMC Corp. and Callaway Golf decisions discuss the minority decisions and conclude that they should be limited to the specific facts in those cases. The FMC Corp. notes that this resolution of the matter prevents a party that has failed to diligently designate and prepare its own expert from relying upon the effort and expense of a diligent party. See FMC Corp., 196 F. Supp. 2d at 1047-48.

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product protection. Geosyntec has not and cannot show undue hardship sufficient to deprive Travelers of its work product protections. Therefore, the Court should quash the Subpoena. DATED: July 13, 2006.

Respectfully submitted, BALLARD SPAHR ANDREWS & INGERSOLL, LLP

By_s/ Jon Bernhardt_____________ Leslie A. Eaton Jon Bernhardt 1225 17th Street, Suite 2300 Denver, CO 80202 (303) 292-2400 ATTORNEYS FOR THE TRAVELERS INDEMNITY COMPANY

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CERTIFICATE OF SERVICE I hereby certify that on July 13, 2006, I electronically filed the foregoing REPLY IN SUPPORT OF MOTION BY THE TRAVELERS INDEMNITY COMPANY TO QUASH SUBPOENA ISSUED TO ZEEB & CO. with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: R. Kirk Mueller, Esq. Lauren C. Buehler, Esq. Perry L. Glantz, Esq. Kristina I. Mattson, Esq. Fognani & Faught, PLLC 1700 Lincoln St., Suite 2222 Denver, CO 80203 Terence M. Ridley, Esq. Marian Lee Carlson, Esq. Steven Matthew Kelso, Esq. Wheller Trigg Kennedy LLP 1801 California St., Suite 3600 Denver, CO 80202 Colin Christopher Deihl, Esq. Michael Stephen Freeman, Esq. Faegre & Benson, LLP 3200 Wells Fargo Center 1700 Lincoln St. Denver, CO 80203 [email protected] [email protected] [email protected] [email protected]

[email protected] [email protected] [email protected]

[email protected] [email protected]

and I served a copy via U.S. Mail, first-class postage prepaid, to: Paul J. Sanner, Esq. Hanson Bridgett Marcus Vlahos & Rudy, LLP 333 Market St., Suite 2100 San Francisco, CA 94105-2122

s/ Flavia Hoefler

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