Free Brief in Opposition 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,

TIC - THE INDUSTRIAL COMPANY; and GEOSYNTEC CONSULTANTS , INC. f/k/a GEOSERVICES , INC.
Defendants.

GEOSYNTEC' S OPPOSITION TO MOTION TO QUASH SUBPOENA
Defendant GeoSyntec Consultants , Inc. f/k/a GeoServices , Inc. (" GeoSyntec ), through
its undersigned counsel , submits the following Opposition to the Motion to Quash Subpoena

filed by The Travelers Indemnity Company (" Travelers

CERTIFICA TION
GeoSyntec disagrees that Travelers has adequately conferred with undersigned counsel
as required by D.
Colo. LCivR 7. 1. Before Travelers filed its Motion to Quash , undersigned

counsel specifically asked Travelers to provide (a) a privilege log of documents that it claims are protected by the work product doctrine; (b) a copy of its retention agreement with Michael Zeeb
CP A; and ( c) copies of any case law supporting its sweeping claim of " work product" protection
as set forth in the Motion to Quash. (See

E-mail from Terence Ridley to Jon Bernhardt dated

'"

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6/15/06 , attached hereto as

Exhibit A )

Travelers counsel failed

to respond to these requests

before filing its Motion to Quash.

Had Travelers ' counsel conferred in good faith , some of the issues presented in its
Motion to Quash might have fallen by the wayside. Rather than providing the requested

privilege log, retention agreement and supporting case law to GeoSyntec , Travelers chose to

supply this information for the first time in its Motion to Quash. GeoSyntec respectfully submits
that Travelers

rush to quash" is not the type of conferral reasonably contemplated by Local

Rule 7.

INTRODUCTION
Travelers is not a party to this case , nor is it an opposing party to GeoSyntec in any other

case or dispute. Yet , Travelers has filed a Motion to Quash in this case , arguing that run-of- themill invoices and related accounting documents that Mr. Zeeb reviewed

for the benefit of a

testifying expert witness in a case that has since settled , somehow are worthy of protection under

the work product doctrine. Moreover , Travelers has failed to support its extraordinarily broad
claim of work product protection with a meaningful privilege log. This proceeding is a waste
judicial resources not only because the material at issue is not privileged , but also because the
underlying litigation in which the material was prepared has been completely resolved by

settlement. Travelers will sustain no conceivable prejudice or disadvantage through the
production of the requested materials. Simply put - and as expressed to Travelers '

counsel

before this fire drill was started

(see

Ex. A hereto), there is no principled reason for Travelers to

be fighting over the documents at issue in the Motion to Quash.

);

);

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II.

BACKGROUND

In this action , Plaintiff Robert M. Friedland (" Friedland" ) seeks contribution for

approximately $20 million he paid to settle a CERCLA lawsuit related to his company
operation of the Summitville Mine during the 1980' s
United States of America v.

Robert M

Friedland et ai.

Case No. 96-

1213 (the " EPA Action ) (Am. Compl. ~ 4. )

Since the time he

made this payment , Friedland has recovered contribution from several parties involved with the

Mine and has pursued numerous insurance claims , both as a beneficiary and an assignee of
proceeds.

See , e. g., Robert M Friedland

v.

The Travelers Indemnity Company,

No. 02- CVv.

4435 , Denver District Court (the " Travelers Case
Ins. Co. No. 04- CV- 8062 ,

Robert M

Friedland

United States Fire
Friedland

Denver District Court (the "USF&G Case

Robert M

The Hartford Ins. Group.

No. 06- CV- 474 ,

Denver District Court (the " Hartford Case

Through several sets of written discovery requests , GeoSyntec has attempted to
determine the remaining total of Friedland' s contribution claim , including details regarding the
attorneys ' fees and litigation costs he incurred in the EP
A Action. (Defendant

GeoSyntec

Consultants , Inc. ' s Second Set of Interrogatories and Requests for Production of Documents

dated 2/9/06 , attached hereto as

Exhibit B

at 5-

, No. 11. )

In response ,

Friedland stated that

(a)ttorneys fees and costs are not recoverable as ' response costs ' pursuant to Section 113 of

(CERCLA), " and consequently, " Mr. Friedland does not seek any attorneys ' fees or other

litigation costs as part of his CERCLA contribution claims. "

(Robert M. Friedland' s

Responses

to Defendant GeoSyntec Consultants , Inc. ' s Second Set ofInterrogatories and Requests for

Production of Documents dated 3/14/06 , attached hereto as

Exhibit C at 6 , No.

1!.) On that

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basis , Friedland declined to produce details of his attorney fees and litigation costs , stating that

it is neither necessary nor possible to document such costs at this juncture.

(Id.

Approximately six weeks ago , however , GeoSyntec learned that Friedland has already
recovered over $24 million of the costs he incurred in the EP A Action from various sources.

Nonetheless , Friedland contends that he is

still entitled to recover from GeoSyntec and TIC in

this case , because some unspecified portion of the $25 million should be allocated to his

defense costs" which total approximately $26- $28 million
Response
Exhibit 10

(See

Supplemental Interrogatory

to Motion to Compel Discovery Regarding Damages and For Sanctions

Doc. No. 121 (filed under seal 6/5/06).
In short ,

because Mr. Friedland has now recovered far more in contribution than the

amount he paid to the government for cleanup costs, he is now attempting to maintain a " balance
due " from GeoSyntec and TIC by shuffling millions of dollars in recovered funds out of the

response cost" column and into the " defense cost" column. In so doing, Friedland has placed
the amount and reasonableness of his EP A Action defense costs directly at issue in this case.

Earlier this year , GeoSyntec retained Michael Zeeb , CPA (with whom GeoSyntec

counsel had worked in prior cases) to consider issues related to damages - including the

allocation of response costs among the entities involved in the Summitville Mine. In the course
of that consultation , Mr. Zeeb disclosed that he was familiar with the EP A Action , because he

had previously been retained by Travelers (in the Travelers Case) to review Friedland' s defense

costs in detail and prepare comprehensive summaries of this information. After Friedland
disclosed his prior recoveries , and his defense costs became a central issue in this case , counsel

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for GeoSyntec asked Travelers for permission to review Mr. Zeeb' s file. When Travelers
counsel declined , GeoSyntec served a Subpoena Duces Tecum on Mr. Zeeb (the " Subpoena
In

the Subpoena , GeoSyntec requested Mr. Zeeb' s entire file regarding the Travelers

Case , including all documents provided to him and all summaries , spreadsheets , databases , and
expert reports in his possession. (See

Subpoena , attached as " Exhibit 1" to Declaration of Jon

Bernhardt , Doc. No. 126 filed
evaluating Friedland' s

6/16/06. Not only will the information assist GeoSyntec in

defense costs , but Travelers ' analysis of these costs is

directly relevant

determining the extent to which its settlement payment to Friedland was intended to compensate
for "

defense costs " as distinguished from " response costs " as Friedland claims.

Despite the fact that the Travelers Case has been dismissed with prejudice , and the

disclosure ofMr. Zeeb' s file poses no risk of prejudice to Travelers , Travelers filed a Motion to
Quash Subpoena Issued to Zeeb & Co. (the " Motion to Quash" ) on June
2006.

As the sole

basis for its motion , Travelers asserts a blanket claim that " (aJll of the materials in Zeeb'

possession that are responsive to the Subpoena are work product." (Motion to Quash at 7.
moving to quash the Subpoena, Travelers not only ignores the relevance of its analysis to the

defense cost/response cost" dichotomy articulated by Friedland , it apparently seeks to force
GeoSyntec to " reinvent the wheel" by having Mr. Zeeb reexamine the hundreds of billing

statements and invoices he examined before , and re-create his prior analyses.
Travelers ' position is tenuous at best , as the law does not support either its standing to

quash the subpoena or its broad claim of work product privilege , particularly as to

all materials

in Mr. Zeeb' s possession. For the reasons detailed below , the Motion to Quash should be

denied.

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III.

ARGUMENT

As A Non- Party to the Case, Travelers Cannot Assert Work Product Doctrine Against GeoSyntec.
As a threshold matter, Travelers ' Motion to Quash should be denied because Travelers is

not a party to this lawsuit. The express language of Rule 26(b )(3) limits work product protection
to one who is a party, or the representative of a party, to the litigation in which the discovery is
sought , encompassing only " documents and tangible things. . . prepared in anticipation of
litigation or for trial

by or for another party or by or for that other party s representative.
Hawkins v.

Fed. R Civ. P. 26(b)(3) (emphasis added);
682 683- 84 (D. Colo. 1991);
(9th Cir. 1989); Rickman v.

South Plans Int' l Trucks, Inc. 139 F. RD.
892 F.2d 778 7801993); Burton v.

In re California Public Utilities Comm '
Deere

Co. 154 F. RD. 137 ,
(D. Kan. 2001).

138 (ED. Va.

Reynolds Tobacco Co. 200 F. RD. 661 , 675- 76

See also Foster

v.

Hill 188

3d 1259 ,

1272 (10th Cir. 1999) (work product protection applies only if the party seeking

information is adverse to party from whom information is sought).
In

this case , Travelers has no legitimate reason to prevent disclosure ofMr. Zeeb' s file to

GeoSyntec , nor does it appear to be protecting any interest other than forcing GeoSyntec to incur
needless expense. The requested information has nothing to do with Travelers or its internal

company secrets, nor with any strategies , thoughts , or mental impressions - of either experts or

counsel for Travelers - related to pending litigation. There is no threat that the information in
Mr. Zeeb' s possession can be used against Travelers in the future , as the Travelers Case has been
fully resolved.

Although Travelers claims to have standing to protect its work product through the
Motion to Quash (Mot. to Quash at 7), the cases it cited provide no support for this proposition.

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All three of the cases involved challenges

by parties to the litigation of subpoenas issued to non-

parties.

See , e. g., Jez

v.

Dow Chem. Co. 402 F. Supp.2d 783 , 784- 85 (S. D. Tex. 2005)

defendant opposed subpoena by plaintiff to affiliated companies of defendant , asserting

personal right of privacy " in the requested documents);
RD. 551 555 n. 3 (N. D. Ga. 2001) ( plaintiff
subpoena served on her mental healthcare providers);

Stevenson

v.

Stanley Bostitch, Inc. 201

had standing to challenge on privacy grounds a
Norris Mfg. Co. v.

E. Darling Co.

29 F. RD.

(D. Md. 1961) ( defendant moved to quash subpoena served by the plaintiff on

investigators hired by defendant).

None of the cases cited by Travelers refute , or even relate to , the established rule that a

person cannot invoke the work product doctrine in an action to which he is not a party. Because
Travelers is neither a party to this action nor threatened by disclosure of the documents , it cannot
prohibit GeoSyntec from obtaining Mr. Zeeb'
Hawkins 139 F. RD. at 683- 84.
s file by invoking the work product doctrine.

See

Even If Travelers Were Able to Assert the Work Product Doctrine, It Has Failed to Establish That the Materials at Issue Are So Protected.
A party resisting discovery based on the attorney- client privilege or work product
immunity bears the burden of establishing that the privilege applies.

Peat, Marwick

, Mitchell

Co.

v.

West 748 F.2d 540 , 542 (10th Cir. 1984). Travelers has failed to meet this burden , both

because the privilege log it has provided is insufficient to determine the existence of protection
and because much of the material described in the log does not appear privileged in any event.
Travelers Has Not Produced An Adequate Privilege Log.

Under Fed. R Civ. P. 26(b)(5), when a party withholds documents or other information
based on attorney- client privilege or work product protection , the party " shall make the claim

" (" (

,"

" (

" (

,"

" ( " ( " (

," ( " "

(

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expressly and shall describe the nature of the documents , communications , or things not

produced or disclosed in a manner that , without revealing information itself privileged or
protected , will enable the other parties to assess the applicability of the privilege or protection.
Horton v.

United States 204 F. RD. 670 , 673 (D. Colo. 2002). More specifically, the party

asserting privilege must provide a privilege log that describes in detail the documents or
information claimed to be privileged and the precise reasons the materials are subject to the
privilege asserted. , citing McCaa v.

Denny s Inc. 192 F. RD. 675 , 680 (D. Kan. 2000).

In this case , Travelers ' purported privilege log is wholly insufficient , containing neither

detailed descriptions of documents nor precise information as to why particular materials are
privileged. For example:

Many of the document descriptions are cryptic , e.

Data Recd 081904

Database Update " (Privilege Log attached to the Motion to Quash as Exhibit 3 , subsec. D); " 148. pdfimage files id. ); and " IN BINDER la Reconciliation Binder ( id. at 3 , subsec. B , item 5.
In

most cases, the subject matter of the document is not specified , e.

mail w/attachments id. at 3 , sub sect. B , item 9); " Travelers Reports 20050801.zip id. at 5 , subsec. D); and " Travelers Declarations id. at 6
sub sec. D.

Many entries fail to identify the author or recipients of the document , e.
Summary of duplicate charges on different invoices included in the analysis
at 2 , subsec. A, item 3); " Travelers HRPW Review BACKUP 092905 0910am. mdb" ( id. at 5 , subsec. D); and " Copy of Travelers QA 20050730 174157. xls id. at 8 , subsec. E)

id.

Most of the entries contain no indication as to why the listed document is privileged , e. Summary of Expenses in Zeebco Database id. at 2 , subsec. A
item 6); " E-mail to Jon with JAL , CY , Testimony & executed Declarations id. at 8 at 3 , subsec. B , item 1); and " Travelers iLegal disbursements. zip
id.

subsec. E)

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In fact, several entries reflect information

that clearly would

any privilege or work product doctrine , e. from R Kirk Mueller (Friedland' s counsel) to Leslie A. Eaton (Travelers counsel) with attachments id. at 2 , subsec. A, item 1), as well as all of the Friedland billing statements Mr. Zeeb reviewed to conduct his analysis.

not be subject Copy of April 29 , 2003 letter

to

Travelers ' failure to describe the documents ' subject matter , the capacities of the parties thereto

the distribution lists for the documents, or the grounds upon which the work product privilege is
purportedly founded , make it impossible for GeoSyntec to formulate objections with regard to

particular documents. Having failed to establish that Mr. Zeeb' s file is subject to protection
under the work product doctrine , Travelers cannot successfully challenge the Subpoena.
See In

re Stern Walters Partners, Inc. No. 94 C 5705 , 1996 WL 115290 , at *4 (N. D. Ill. Mar. 13 , 1996)

(where court could not discern from document description that privilege applied , documents
would be produced); see also Barclaysamerican Corp. v.

Kane

746 F.2d 653

656 (10th Cir.

1984) (order compelling production not error where privilege log was inadequate).

Travelers Cannot Assert Work Product Doctrine Because Mr. Zeeb' s File Was Provided to Daniel Hoffman, a Testifying Expert.
Finally, even if Travelers had established that Mr. Zeeb' s file were subject to work
product protection , its Motion to Quash would nonetheless fail because the materials were

disclosed to a testifying expert in the Travelers Case.

Travelers bases its entire argument on the premise that , because it hired Mr. Zeeb as a

consulting expert" rather than a " testifying expert" in the Travelers Case , materials he prepared

to assist its counsel are protected by the work product doctrine. (Mot. to Quash at 7. ) However
Travelers fails to address the fact that Mr. Zeeb' s materials were made available to Daniel S. Hoffman , Esq. , an expert whom Mr. Zeeb assisted in analyzing Friedland' s defense costs.
(Bernhardt Declaration ,
~ 3. )

Unlike Mr. Zeeb ,

Mr. Hoffman was expressly designated as a

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testifying expert under C. RC. P.

26(a)(2). (See Travelers '

Unopposed Motion for 20- Day

Extension of Time in Which to Make Expert Disclosures in Case No. 02- CY- 4435 , attached
hereto as Exhibit

(requesting extension to submit expert reports of Daniel S. Hoffman and

Charles E. Stott , Jr.).

Where an expert witness utilizes an attorney s work product in the preparation of his
opinion , the work product becomes subject to discovery.
Boring v.

Keller 97 F. RD. 404 , 407-

08 (D. Colo. 1983). This is because the protection which Fed. R Civ. P. 26(b)(3) affords to
opinion work product is not absolute , and can be waived.
Id

at 407

citing Us.

v.

Nobles 422

US. 225 (1975). Moreover , the opinion at which an expert witness arrives , and the underlying
facts and opinions supporting the opinion , have traditionally constituted an exception to the work
product rule. Id

(citing cases). After work product materials have been provided to an expert

for the purpose of formulating opinions , the protections of the work product doctrine have been
waived.

Id See also Oneida,

Ltd

v.

United States

43 Fed. Cl. 611 , 619 (1999) (work product

information provided to testifying expert held discoverable). This rule applies even where , as in
Mr. Hoffman s case , the expert is not ultimately called to testify.
See CP Kelco Us. Inc.

Pharmacia Corp. 213 F. RD. 176 , 179 (D. Del. 2003) (work product privilege of materials given
to expert could not be " unwaived" simply by changing his designation form " testifying "
to "

non-

testifying "

expert).

Not only did Mr. Hoffman have access to Mr. Zeeb'

s file

, he appears to have played a

key role in developing materials contained in the file. Travelers acknowledges that all of the
materials in Mr. Zeeb' s possession " were prepared by some combination of Zeeb , Travelers
counsel , and Mr. Hoffman" (Mot. to Quash at 7- 8), and that Mr. Hoffman was directly involved

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with Mr. Zeeb in preparing the database at issue, which purportedly contains a record for every
individual time entry reflected on Friedland' s legal bills. (Bernhardt Declaration , ~ 5. )
even ifMr. Zeeb' s

Thus

file were originally subject to work product protection, Travelers waived such

protection when it gave Mr. Hoffman - an expert hired to work with Mr. Zeeb in reviewing the
defense costs , to formulate opinions , and to testify if needed - access to these materials.
Boring,

See

97 F. RD.

at 408.
IV.

CONCLUSION

Travelers ' Motion to Quash was ill-conceived. Had Travelers conferred in good faith by

providing GeoSyntec s counsel with a privilege log, supporting case law , and Mr. Zeeb'
retention agreement

before rushing to quash the Subpoena , these proceedings might well have

been avoided. Nonetheless ,

because Travelers cannot assert the work product doctrine against

GeoSyntec as a non- party to this case , because it has wholly failed to meet its burden of

establishing privilege through a detailed log, and because it waived any work product protection
by giving access to Mr. Zeeb' s file to a testifying expert , Travelers ' Motion to Quash must be
denied. GeoSyntec further requests that the Court award GeoSyntec its reasonable attorneys

fees and costs incurred in responding to the motion. Respectfully submitted this 6th day of July, 2006.

By:

s/ Terence M. Ridley Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202- 2617 Telephone No. : 303- 292- 2525 Telecopier No. : 303- 294- 1879 E-mail: ridley~wtklaw. com

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Paul 1. Sanner Hanson, Bridgett , Marcus , Vlahos & Rudy LLP 333 Market Street , Suite 2100 San Francisco , CA 94105- 2122 Telephone No. : 415- 995- 0517 Telecopier No. : 415- 541- 9366
E-mail: psanner~hansonbridgett.com
Attorneys for

Defendant GeoSyntec Consultants

Inc.

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CERTIFICA TE OF SERVICE
I hereby certify that on July 6 2006 , I electronically filed the foregoing GEOSYNTEC' OPPOSITION TO MOTION TO QUASH SUBPOENA with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Jon Bernhardt
bernhardt~ballardspahr. com myersr~ballardspahr. com

Michael Stephen Freeman
mfreeman~faegre. com cdaniels~faegre. com dcopeland~faegre. com

Lauren C. Buehler Ibuehler~fognanilaw. com cvega~fognanilaw. com

Perry L. Glantz
pglantz~fognanilaw. com cvega~fognanilaw. com

Marian Lee Carlson
carlson~wtklaw. com carpenter~wtklaw. com
Colin Christopher Deihl
cdeihl~faegre. com j sullivan~faegre. com

Steven Matthew Kelso kelso~wtklaw. com hand~wtklaw. com

Kristina I. Mattson
kmattson~fognanilaw. com cvega~fognanilaw. com
Richard Kirk Mueller

Leslie Ann Eaton
eaton~ballardspahr. com dethlefs~ballardspahr. com hoefler~ballardspahr. com

rmueller~fognanilaw. com cvega~fognanilaw. com
Terence M. Ridley

ridley~wtklaw. com norris~wtklaw. com
and I hereby certify that a copy of the document has been served to the following non- CM/ECF
participant via E- Mail:

Paul 1. Sanner - psanner~hansonbridgett.com
By:

s/ Terence M. Ridley Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202 Telephone No. : 303- 292- 2525 Telecopier No. : 303- 294- 1879 Mail: ridley~wtklaw. com

Attorney for Defendant GeoSyntec Consultants, Inc.