Free Motion to Quash - 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. ______________________________________________________________________________ MOTION BY THE TRAVELERS INDEMNITY COMPANY TO QUASH SUBPOENA ISSUED TO ZEEB & CO. ______________________________________________________________________________ Interested Party, The Travelers Indemnity Company ("Travelers"), moves the Court, pursuant to Federal Rules of Civil Procedure 45(c)(3) and 26(c), to quash the Subpoena dated June 12, 2006 issued by Defendant Geosyntec Consultants, Inc. ("Geosyntec") to Zeeb & Co. ("Zeeb"), on the ground that all materials responsive to the Subpoena are protected work product prepared by Zeeb in connection with its engagement as a consulting expert on behalf of Travelers in a separate case. This Motion is supported by the following and by the accompanying Declaration of Jon Bernhardt ("Bernhardt Declaration"). A copy of the Subpoena is attached as Exhibit 1 to the Bernhardt Declaration. Certification of Compliance with D.C.COLO.LCivR 7.1(A) On June 15, 2006, undersigned counsel spoke by telephone with Terence Ridley, counsel for Geosyntec who signed the Subpoena. Undersigned counsel informed Mr. Ridley that

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all materials responsive to the Subpoena were protected work product prepared by Travelers consulting expert in a separate case, and asked Mr. Ridley to withdraw the Subpoena in order to avoid this motion to quash. Mr. Ridley stated that Geosyntec would not withdraw the Subpoena and that Travelers would have to file a motion to quash. Factual Background 1. Plaintiff Robert M. Friedland earlier brought a lawsuit against Travelers

(the "Travelers Lawsuit") in which Mr. Friedland sought insurance coverage from Travelers for amounts paid by Mr. Friedland to settle lawsuits brought against him by the United States Environmental Protection Agency relating to environmental damage at the Summitville Mine, and for legal fees and costs incurred by Mr. Friedland in those lawsuits. The Travelers Lawsuit was brought in the District Court for the City and County of Denver and was captioned, Friedland v. The Travelers Indemnity Co., Case No. 02-CV-4435. 2. 3. Zeeb's principal, Michael Zeeb, is an expert forensic accountant. In the course of defending the Travelers Lawsuit, Travelers retained Zeeb

as a consulting expert to assist counsel for Travelers in analyzing the legal fees and costs for which Mr. Friedland sought insurance coverage. (A copy of the retainer letter with Zeeb is Exhibit 2 to the Bernhardt Declaration.) Travelers also retained Daniel S. Hoffman, Esq. as an expert to assist counsel for Travelers in assessing the reasonableness of particular legal fees and costs that Mr. Friedland sought to recover. Zeeb was to assist Mr. Hoffman in that regard. 4. Zeeb reviewed materials provided to it by Travelers, including copies of

invoices for legal fees and costs produced in discovery by Mr. Friedland. Zeeb identified potential accounting issues relating to those invoices. Zeeb attempted to reconcile the legal fees

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and costs that Mr. Friedland sought to recover to the invoices produced by Mr. Friedland. In the course of that work, Zeeb selected documents of particular interest distilled from the universe of documents provided to Zeeb by Travelers. Zeeb also prepared spreadsheets summarizing the accounting issues that Zeeb had identified and its reconciliation efforts. 5. Zeeb also worked with counsel for Travelers and with Mr. Hoffman to

prepare a database. That database contains a record for every individual time entry for legal services separated and extracted by Travelers from the invoices produced by Mr. Friedland. Each such record contains the impressions of Mr. Hoffman regarding the reasonableness of the corresponding legal fee. 6. Because Zeeb was a consulting expert, Travelers never made an expert

disclosure or produced an expert report relating to the work performed by Zeeb. Travelers identified Mr. Hoffman as an expert witness, but did not produce a report by Mr. Hoffman relating to the work of Zeeb because the Travelers Lawsuit settled before any such report would have been due. 7. assist Geosyntec. 8. In February 2006, after counsel for Geosyntec learned that Zeeb had In connection with this case, counsel for Geosyntec has retained Zeeb to

previously been retained by Travelers in connection with the Travelers Lawsuit, counsel for Geosyntec asked Travelers to provide Geosyntec with Zeeb's work product from the Travelers Lawsuit. Travelers declined that request.

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9.

In June 2006, counsel for Geosyntec again asked Travelers to provide

Geosyntec with Zeeb's work product from the Travelers Lawsuit. Travelers again declined that request. 10. On June 13, 2006, counsel for Geosyntec caused the Subpoena to be

served on Zeeb. The Subpoena is returnable on June 19, 2006 at 9:00 a.m. The Subpoena unambiguously demands the production of Zeeb's files from its work as a consulting expert for Travelers: Pursuant to the attached subpoena duces tecum, the following documents are requested: 1. Your entire file regarding the matter of Friedland v. Travelers, Denver District Court Case No. 02CV4435 ("Traveler's Case") including, but not limited to: a. b. c. d. 11. Any and all documents provided to you in the Traveler's Case. Any and all electronic document images. Any and all summaries, spreadsheets, or databases (including any in electronic format). All expert reports or summaries of opinions.

Zeeb has materials in its files that are responsive to the Subpoena.

Attached as Exhibit 3 to the Bernhardt Declaration is a line-item inventory prepared by Zeeb of the materials that it has it its files relating to Zeeb's work as a consulting expert in connection

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with the Travelers Lawsuit. The responsive materials1 can be divided into the following categories: a. Various copies of a data base that contains one record for each separate legal fee or cost reflected in the invoices produced by Mr. Friedland. That data base includes an initial assessment by Travelers expert, Mr. Hoffman, regarding the reasonableness of each time entry. b. Results of various queries made of the data base. The queries were specified by various combinations of Zeeb, Travelers counsel, and Mr. Hoffman. c. A notebook containing documents selected by Zeeb from the documents provided to it by Travelers, including documents produced by Mr. Friedland. These documents were selected to illustrate accounting issues identified by Zeeb in its review of the invoices produced by Mr. Friedland. d. Spreadsheets prepared by Zeeb in its efforts to reconcile Mr. Friedland's claims to the invoices produced by Mr. Friedland. e. Spreadsheets prepared by Zeeb to summarize selected invoice data by various categories to assist in the evaluation of the invoices.

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Zeeb's inventory also reflects various correspondence and billing materials relating to its work for Travelers counsel. Travelers understands that Geosyntec has agreed that these materials are not responsive to the Subpoena.

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13.

On June 15, 2006, counsel for Travelers contacted counsel for Geosyntec

and requested that the Subpoena be withdrawn on the ground that all of the materials requested were protected work product of Travelers expert consultant. Counsel for Geosyntec declined that request. This Motion follows. Argument Federal Rule of Civil Procedure 45(c) provides that the Court should quash any subpoena that seeks protected matter, including work product. All of the materials that Zeeb has that are responsive to the Subpoena contain or constitute work product prepared by Travelers counsel, Zeeb, and Mr. Hoffman in connection with the Travelers Lawsuit. The Court should quash the Subpoena to protect that work product. A. Federal Rule of Civil Procedure 45(c) Protects Work Product Federal Rule of Civil Procedure has two provisions under which the Court should quash a subpoena to protect work product. First, Rule 45(c)(3)(A) provides for general protection of work product: On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it ... (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies .... Second, Rule 45(c)(3)(B) provides specific protection for work product prepared by an expert not retained by a party to the litigation in which the subpoena is issued: If a subpoena ... (ii) requires disclosure of 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 ... the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot

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be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order ... production only upon specified conditions. Travelers is a "person ... affected by the subpoena" as referenced in Rule 45(c)(3)(B), and so has standing to move to quash the Subpoena directed to Zeeb in order to protect Travelers work product. Jez v. Dow Chem. Co., 402 F. Supp. 2d 783, 784-85 (S.D. Tex. 2005); Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 555 n.3 (N.D. Ga. 2001); Norris Mfg. Co. v. R.E. Darling Co., 29 F.R.D. 1, 2 (D. Md. 1961) (non-party has standing to move to quash subpoena to protect its work product). B. Zeeb's Responsive Materials Are Work Product Work product includes "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 (including the other party's attorney, consultant ...)." Fed. R. Civ. P. 26(b)(3). Work product protection extends with particular emphasis to materials that reflect the thoughts and impressions of counsel. Fed R. Civ. P. 26(b)(3); see generally Hickman v. Taylor, 329 U.S. 495 (1947). 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., Inc., 196 F.R.D. 410, 415-18 (D. Kan. 2000); see generally Employer's Reinsurance Corp. v. Clarendon Nat'l Ins. Co., 213 F.R.D. 422 (D. Kan. 2003) (collecting cases regarding disclosure of materials of non-testifying expert). All of the materials in Zeeb's possession that are responsive to the Subpoena are work product. All of the materials were prepared by some combination of Zeeb, Travelers

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counsel, and Mr. Hoffman. All of the materials were prepared in connection with the thenpending Travelers Lawsuit to assist Travelers counsel in that litigation. Some of the materials in Zeeb's possession directly reflect the thoughts and impressions of Travelers counsel. For example, the documents that Zeeb chose to select from the universe of invoices produced by Mr. Friedland reflect not only Zeeb's mental impressions, but also the mental impressions and thoughts of Travelers counsel as expressed to Zeeb. In addition, the database of time entries specifically reflects the judgment of Mr. Hoffman whether each of those entries was reasonable in the context of the underlying litigation between Mr. Friedland and the EPA. Clearly, all of the responsive materials in Zeeb's possession are work product. Absent an exception to the work product protection, Geosyntec is not entitled to discover those materials, and the Court should quash the Subpoena. C. Geosyntec Cannot Show Undue Hardship Sufficient to Require Production of Work Product Federal Rules of Civil Procedure 45(c)(3)(B) and 26(b)(3) provide an exception to the protection of work product when necessary to prevent "undue hardship." Even where it does apply, the "undue hardship" exception to the work product protection does not permit discovery of "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Fed. R. Civ. P. 26(b)(3); Upjohn Co. v. United States, 449 U.S. 383, 401 (1981). The party attempting to take advantage of the "undue hardship" exception bears a "heavy burden" to demonstrate exceptional circumstances sufficient to overcome the work product protection. Ager v. Jane C. Stormont Hosp., 622 F.2d 496, 503 (10th Cir. 1980).

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The "undue hardship" exception is intended for circumstances where work product contains information that cannot be obtained in any other way. Here, Zeeb is still in business. Indeed, Geosyntec has retained Zeeb in this case. All of the responsive materials in Zeeb's possession could potentially be recreated by Zeeb in conjunction with Geosyntec, Geosyntec's counsel, and other experts Geosyntec may retain to analyze Friedland's legal fees and costs. The only impediment to that process is that Geosyntec would have to pay Zeeb and other experts to do so. This circumstance does not satisfy the "undue hardship" that Geosyntec must show before it may pierce Travelers work product protection. E.g., Connelly v. Dunn & Bradstreet, Inc., 96 F.R.D. 339, 343 (D. Mass. 1982) ("mere inconvenience or expense" insufficient to overcome work product protection); United States v. Chatham City Corp., 72 F.R.D. 640, 644 (S.D. Ga. 1976) ("cost or inconvenience" of replicating work product insufficient to show undue hardship); see also Grindell v. American Motors Corp., 108 F.R.D. 94, 95 (W.D.N.Y. 1985) (plaintiff not entitled to disclosure from consulting expert of defendant when it was able to hire own expert to perform same tasks); see generally Fed. R. Civ. P. 26, Advisory Comm. Comment to 1970 Amendment (recognizing concern with permitting "one side to obtain without cost the benefit of an expert's work for which the other side has paid, often a substantial sum"). Under these standards, the "undue hardship" exception to the work product protection does not apply to Geosyntec's Subpoena.

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Conclusion Geosyntec has subpoenaed the work product of Travelers consulting expert in the Travelers Lawsuit. 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: June 16, 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 June 16, 2006, I electronically filed the foregoing 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/ Darlene Dethlefs

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