Free Motion to Compel - 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,

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

GEOSYNTEC' S MOTION TO COMPEL DISCOVERY REGARDING DAMAGES AND FOR SANCTIONS
Defendant GeoSyntec Consultants , Inc. f/k/a GeoServices , Inc. (" GeoSyntec ), through

its counsel and pursuant to Fed. R. Civ. P. 37(c)(I) and 37(d), moves the Court for an order
precluding Plaintiff Robert M. Friedland (" Friedland" ) from introducing certain evidence at trial
for failure to timely disclose , compelling Friedland to provide responses and documents

repeatedly requested in discovery, and awarding GeoSyntec its reasonable attorneys ' fees and

costs incurred in connection with this Motion. In support thereof, GeoSyntec states as follows:
CERTIFICATION OF COMPLIANCE WITH FED. R. CIV. P.

37(d)

and D. c.Colo. LCivR

Undersigned counsel hereby certifies that she conferred with Plaintiff s counsel on
multiple occasions (through phone calls , e-mails and letters) in an effort to obtain the disclosures responses and documents requested herein without court action.

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I. INTRODUCTION
This discovery dispute arises from Plaintiff s persistent refusal to disclose his damages.
Although it has been nearly two years since this case was filed , a year and three months since
Plaintiff made his initial disclosures , and a year since GeoSyntec issued its first discovery
requests , GeoSyntec
still has not received a computation of Plaintiffs alleged damages , or any

documents supporting such a computation.

Friedland filed this action on June 18 2004 , seeking contribution under CERCLA for

payments he made to resolve a cost recovery action brought in 1996 (the " EP

A Action ). To

settle the EP A Action , Friedland claims to have paid approximately $20. 7 million to the United

States and the State of Colorado in or around December 2000. (Am. Compl. ~ 4. )

In his

initial

disclosures served February 22 , 2005 (as in the Scheduling Order), Friedland calculated the

damages he is seeking at $20 723 181. Six months later , Friedland acknowledged in a discovery
response that he had recovered $16. 5
million of the costs he incurred in the EP

A Action.

GeoSyntec then requested that Friedland clarify and complete his responses , and
specifically, confirm that his recovery of$16. 5 million (from entities against whom he asserted

claims in the EP A Action , insurance companies he had sued, and other defendants dismissed

from this case) meant his contribution claim had been reduced to $4.2 million. In a responsive
letter, Friedland'
s counsel stated that his claim was

not reduced to $4.2 million , but was for

approximately $10 million. Without providing any detail , Friedland' s counsel stated that he did
not consider all of the payments he recovered to be " response costs " affecting his recovery in this
action.

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Again GeoSyntec requested clarification and completion, including a supplemental
disclosure setting forth Friedland' s damage calculation pursuant to Rule 26(a)(I)(C), completed

and verified interrogatory responses , and supporting documents such as settlement agreements
with other parties. l
Friedland failed

to comply.

Friedland' s failure to disclose is particularly puzzling, because this is a contribution case.

His damages are not speculative or difficult to calculate. Quite simply, Friedland paid money to
settle CERCLA claims; he has already recouped " some amount" of this payment in contribution

from other parties; therefore , his maximum recovery in this case is the difference (if any)

between those two figures. While Friedland has repeatedly disclosed that he paid $20. 7 million
for the settlement , he has persisted in playing " hide the ball" regarding the amount he has already
recovered , making it impossible for the Defendants to determine what is truly at stake.

Not only did Friedland fail to disclose his prior recoveries , but only two weeks ago , he
revealed a brand new " twist" to his theory of damages. While acknowledging for the first time
that he has recovered over $24. 3 million , he expressed an intent to treat an unspecified portion of

this amount - perhaps several million dollars - as " defense costs " rather than as " response
costs " reducing his contribution claim. This eleventh- hour bombshell has injected brand new

issues into this case that will determine not only the amount of Friedland' s recoverable damages
but whether Friedland has

any damages left to recover at all.

1 Friedland also has unreasonably delayed the taking of his deposition. Although
defense counsel began requesting available dates in the Fall of2005 , to date , he has provided only one half day of available time on January 27 , 2006 for GeoSyntec to begin its examination. In response to repeated requests for dates on which to complete his deposition , which will require at least a day and a half, Friedland gave a Friday and Saturday in June (on which TIC' counsel was unavailable), and now proposes July 6 and 7 , after the June 30 discovery cutoff.

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Rather than prejudicing the Defendants further, by requiring them to address these new
issues in the four (already crowded) weeks left for discovery, or excusing Friedland' s willful

misconduct by extending discovery for several months , the Court should sanction Friedland for

his unjustified failure to disclose fundamental information about his case. Friedland should be
precluded from introducing

any evidence of his alleged " defense costs " or the characterization

of his prior recoveries as " defense costs " rather than " response costs " at trial.

II. EFFORTS TO OBTAIN DISCOVERY OF PLAINTIFF' S DAMAGES
On February 22 , 2005 , Friedland served initial disclosures that calculated the

damages he is seeking in this case - the amount for which he seeks contribution - at
approximately $20. 7

million , which is the full amount he claims to have paid to the United States
(See

and the State of Colorado.

Plaintiff Robert M. Friedland' s Rule 26(a)(I) Initial Disclosures
Exhibit 1 at p. 11.)

dated

2/22/05

attached hereto as

GeoSyntec served its First Set ofInterrogatories and First Request for Production
of Documents (the " Discovery Requests ) to Friedland on June 17 , 2005. (Discovery Requests
attached hereto as

Exhibit 2 ) In Interrogatory No.

, Friedland was asked to:

Identify Your costs , damages , injuries or expenses arising from or caused by the Cost Recovery Action for which You seek contribution in this lawsuit.
Id. at 6 , Interrogatory No.
) In Interrogatory No.

, Friedland was asked to:

Identify all payments , recoveries , or contributions You have received from any source related to Your costs damages , injuries or expenses arising from or caused by the Cost Recovery Action for which You seek contribution in
this lawsuit.

" (

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Id. , Interrogatory No.

In

conjunction with these interrogatories , GeoSyntec requested the

production of " all settlement agreements and consent decrees related to the Lawsuit , Cost

Recovery Action , or Related Disputes

Id.

at 8

, Request No. 6), and of " all Documents

evidencing any payments , recoveries , or contributions You have received from any source

related to Your alleged costs , damages , injuries or expenses arising from or caused by the Cost

Recovery Action for which You seek contribution in the Lawsuit." Id. , Request No.
GeoSyntec received unverified responses to the Discovery Requests on or about
July 29 2005. (Robert M. Friedland' s Responses to Defendant GeoSyntec s First Set of

Interrogatories and Requests for Production (the " Responses
response to Interrogatory No. , Friedland stated:

), attached hereto as

Exhibit 3

)2

The " costs , damages , injuries or expenses caused by the Cost Recovery Action" for which Plaintiff seeks contribution in this lawsuit are the amounts he paid to settle the CERCLA claims against him by the State of Colorado and the United States i. e. $20 288 081 , and the additional response costs Plaintiff incurred when he paid $435 100 for the Conceptual Remediation Plan.
Id. at 6 , Response to No.
In

response to Interrogatory No. , Friedland stated that he had

received total payments of approximately $16 500 000 from various sources , including insurance
companies , and that " some portion" of those payments was related to his total response costs in
the EPA Action.

(Id. at 7 , Response to No.

2 GeoSyntec received Friedland' s verification on September 27 2005 , in which he declared the Responses true and correct " under penalty of perjury under the last (sic J of the United States. " (Letter from Cynthia S. Vega to Colin C. Deihl and Terence M. Ridley dated 9/27/05 , attached hereto as Exhibit 6

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On August 5

2005 counsel for GeoSyntec sent a letter to Friedland' s counsel

requesting completion of the Responses. (Letter to R. Kirk Mueller from Marian L. Carlson
dated 8/5/05 ,
attached hereto as

Exhibit 4 ) Highlighting the need for

specific information on

Friedland' s recoveries , counsel stated:

Without any identification of the source , purpose , amount or date of each payment received by Friedland , this answer (that Plaintiff received total payments of approximately $16 500 000) is insufficient. GeoSyntec is entitled to know the extent to which Friedland has already been reimbursed for the costs he seeks to recover in this action. Please provide a complete response to this interrogatory.
Id.
at 3

, item d.

By letter dated August 30 2005 , Plaintiffs counsel provided some clarifications
and later produced additional documents related to issues other than damages (Letter from R.
Kirk Mueller to Marian L. Carlson dated 8/30/05 ,
attached hereto as

Exhibit 5 ) With regard to

Interrogatory No. 7 and the corresponding document requests , counsel declined to produce the

settlement agreements reflecting amounts Friedland had recovered , but stated that he would

obtain permission to disclose the consideration paid subject to a confidentiality order. ( Id.
On March 22

at 2.

2006 GeoSyntec sent another letter to Friedland' s counsel pointing

out that Friedland had ample opportunity to calculate his total damages again requesting that he

supplement his discovery responses and disclosures regarding damages. A copy of this letter is
attached hereto as

Exhibit 7 .

By letter dated April 18 2006 Friedland' s counsel made some
damage calculations , but provided no specific

unverified statements regarding Friedland' s

disclosure of what amounts he has received , from whom , pursuant to what terms , or how any

particular payments were applied. (Letter from R. Kirk Mueller to Marian L. Carlson dated

" (

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4/18/06 , attached hereto as

Exhibit 8 ) Plaintiff s

counsel stated that " a significant portion of the

settlements paid to Mr. Friedland by insurance carriers are attributable to Mr. Friedland'
defense costs ' which defense costs totaled approximately $26 000 000 , as distinguished from
his CERCLA response costs.
Id.
at 1. )

Without giving

any basis for his calculation , he stated

that Friedland seeks to recover approximately $10 000 000 in this action , and that additional
damages-related discovery would be provided after the entry of a protective order.

(Id.

The parties agreed to a Stipulated Confidentiality Protective Order , which was
approved and entered by the Court on April 27 , 2006. The following week , having received no
additional information from Friedland , GeoSyntec
again requested that Friedland provide the
Exhibit 9

requested information by May 12 , 2006. A copy of this letter is attached hereto as

On May 19 2006 , Friedland' s counsel served an unverified set of First

Supplemental Responses to Defendant GeoSyntec Consultants , Inc. ' s First Set ofInterrogatories

and First Request for Production ofDucments (sic) (the " Supplement" ), addressing only one of
several items raised in GeoSyntec ' s May 5 letter. The Supplement contained a further response
to Interrogatory No. , disclosing for the first time that Friedland has recovered $24 325 000 nearly

$4 million more than the $20. 7 million he originally claimed to be seeking in this case
(Supplement

related to his costs , damages , injuries and expenses arising from the EP A Action.
attached hereto as

Exhibit 10

(filed under seal) at 4.

Even with this Supplement (assuming it will ultimately be verified), only four
weeks before the discovery cutoff date and nearly two years after the case was filed , Friedland
still has failed to compute , fully explain , and document the damages he is seeking in this case.

More specifically:

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(A)

Friedland never supplemented his initial disclosures to provide a computation of
his total damages , as required by Rule 26(a)(I)(C), nor has he made available " the

documents or other evidentiary material" on which his computation is based;
(B)
Friedland has produced

documentation of the payments he has received , such

as memos , correspondence , or settlement agreements , as requested in Geosyntec

Requests for Production No. 6 and 7;
(C)

Friedland has failed to produce any documents , or identify any legal authority,
explaining the basis for his attempt to apply only " some portions " of the payments

he has received against the response costs recoverable in this action; and
(D)
Friedland has failed to produce any documentation or computation of the
spectacular $28 100 000 in " defense costs " he claims to have incurred (Ex. 10

at 5), to which he seeks to apply millions of dollars he has already recovered with
regard to the EP A Action.

Through these repeated failures to respond and his undue delay in disclosing a
computation of damages , Friedland has caused severe prejudice to the Defendants. Even now

they still lack fundamental information about this case that could have impacted numerous

strategy and settlement considerations. Had the information - particularly Friedland' s recovery
of $24 million - been disclosed in a timely fashion , Defendants could have filed a dispositive
motion on the issue that might have resolved this case months ago , saving tens of thousands of

3 Although expert disclosure and discovery regarding the allocation of Friedland'

alleged damages among the defendants has been stayed pending determination of GeoSyntec ' s Motion to Bifurcate Proceedings , this deferral does not affect Friedland' s duty to disclose the total damages he seeks to recover.

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dollars in legal fees and costs. At the very least , Defendants would have had a meaningful and

timely opportunity to conduct discovery into the legitimacy of Friedland' s calculations , which
might involve law firms , insurance companies , and parties with whom he previously settled.

III. ARGUMENT
Rule 37(c)(I), Fed. R Civ. P. states that where a party fails to make a disclosure required
by Rule 26(a) or Rule 26(e)(I), that party may not use at trial any witness or information not so
disclosed , unless the court determines that the failure to disclose was substantially justified or
harmless. See

Fed. R Civ. P. 37(c)(I). The non-moving party has the burden of showing that
Nguyen v.

they were substantially justified in failing to comply with Rule 26(a)(I).

IBP, Inc.

162 F. RD. 475 ,

680 (D. Kan. 1995). While Rule 37(c)(I) is written in mandatory terms , it also
appropriate sanctions "

vests the court with discretion to impose " other
an order striking witnesses or evidence not properly disclosed.

in addition to or in lieu of
s Supply, Inc.

See Woodworker
993 (10th Cir. 1999).

Principal Mut. Life Ins. Co. 170 F. 3d 985

For purposes of Rule 37(c)(I), a non-moving party s failure to disclose is substantially
justified where it has a reasonable basis in law and fact , and where there exists a genuine dispute
concerning compliance.

Nguyen 162 F. RD. at 680. The determination of whether a Rule 26(a)

violation is justified or harmless is entrusted to the broad discretion of the district court
weighing such factors as: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such

testimony would disrupt the trial; and (4) the moving party s bad faith or willfulness.
Woodworker s Supply, Inc. 170 F. 3d at 993.

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Friedland should be precluded from offerin2 as evidence anv component of his dama2e calculation not timelv disclosed under Rule 26( a)(1 )( C). includin2 anv evidence attributin2 prior recoveries to " le2al defense costs.
Even without a discovery request , Friedland was required to provide " a computation of any category of damages claimed by (Friedland), making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from
disclosure , on which such computation is based. . . . " Fed. R Civ. P. 26(a)(I)(C). Without
substantial justification

, Friedland has failed to disclose basic information required by Rule

26(a), or to provide any supplementation.

This failure was not harmless. Only four weeks before the close of discovery, Friedland
still has not produced the calculation or supporting documents to which the Defendants are

entitled. At the last minute , he has identified a brand new theory - the alleged entitlement to
offset millions of dollars in legal fees against his prior recoveries - that has an enormous impact

on the case and will require months of discovery to investigate. This prejudice to the Defendants
is not curable , because even if discovery is extended for several months , they would be required
to re-

formulate their discovery plans , plan and take many additional depositions , and review

what are likely to be hundreds of billing statements from the many law firms Friedland retained
for various aspects of the EP A Action.

Not only was Friedland' s disregard of his discovery and disclosure obligations
prejudicial , it was also willful. There is no conceivable claim that he (or his counsel) did not

understand the requirements of Rule 26(a)(I), or that he could not provide straightforward
information regarding his damages computation and methodology.

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Rather than allowing Friedland to prejudice GeoSyntec by extending the discovery cutoff
yet again (as he will be requesting of the Court in any event), the Court should preclude him from offering at trial any evidence supporting the attribution of prior recoveries to " defense
costs " affecting his damage calculation. Rule 37(c)(I), Fed.
Engineering, LLC v.

Civ. P.

see also Marcin

Founders at Grizzly Ranch, LLC 219 F. RD. 516 , 525 (D. Colo. 2003).

Friedland had no valid excuse for failin2 to make critical disclosures and to respond to specific discovery reQuests.

In response to GeoSyntec s repeated requests for discovery regarding his claimed
damages , Friedland' s counsel offered two primary excuses for not providing timely responses
and documents. Both lack merit.

Friedland was not required to reveal confidential information to at least provide initial disclosures and discovery responses on his damage calculation.
In his initial Discovery Responses and his counsel' s letter of August 30 , Friedland argued

that he could not provide specifics on the amounts he has recovered because they were the
subject of confidential settlement agreements with other parties. (See

Ex. 3 at 13- 14;

Ex. 5

at 2.

Nothing prevented Friedland from initially disclosing the amounts of his recoveries without
identifying the parties who paid them , or from disclosing the combined total of his recoveries
before the entry of a protective order. More importantly, nothing prevented Friedland from

revealing his scheme to deduct attorney fees from his prior recoveries , in order to increase his

alleged damages in this case. Even before he filed this case , Friedland knew: (a) the amount he
had paid to settle the EP A Action; (b) the amount of " defense costs " he had incurred with regard

to the EP A Action; and (c) the amounts he had received from other parties , as well as the amount
of any pending claims.

g.,

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There is no reason Friedland could not have revealed his basic damage calculation in both the Scheduling Order and his Initial Disclosures , i. e. , $20. 7 million in payments to settle the EP A
Action , less the total payments he had recovered to date, plus the amount of specific payments he

sought to classify as " defense costs " rather than response costs , without revealing the names of

those who made the payments. Had he submitted this basic information about his theory of
damages , Defendants could have focused their discovery and depositions accordingly,

particularly regarding the $28 million Friedland claims to have incurred in defense costs.
Friedland'
s argument disintegrates further in light of the fact that even

after the

protective order was entered on April 27 , 2006 , over one month ago , Friedland failed to produce

the documents required by Rule 26(a)(I)(C) and by GeoSyntec s Requests for Production.
The deferral of expert disclosures on damages, based on GeoSyntec Motion to Bifurcate and defer discovery and trial regarding "allocation of costs among any responsible parties has no impact on Friedland' s duty to disclose a computation of his total damage claim.
Friedland has also asserted , on multiple occasions , that GeoSyntec has been

inconsistent" by seeking discovery related to damages issues while its Motion to Bifurcate
Proceedings has been pending.

(See , e.

Ex. 7

at 3;

Ex. 8

at 2;

Ex. 10

at 4-

) This assertion is

without legal basis , and misrepresents both the focus of the Motion to Bifurcate and the Court'
order deferring only

expert disclosures

on damages - not all discovery on damages - pending a

determination of the Motion to Bifurcate.

In the Motion to Bifurcate, GeoSyntec requested that the Court divide these proceedings
into two phases , one focused on the Defendants ' liability as " operators "
or "

arrangers " under
(Mot. to

CERCLA, and the second on the allocation of " response costs among liable parties. "

Bifurcate Proeceedings , Doc. No. 52 , filed 1/20/06 at 4. )

GeoSyntec advocated

the deferral of

" (

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discovery and expert disclosures related to " apportionment of costs " among the defendants ( id.

at 4), and requested that the second phase of the proceedings be devoted to " the allocation of
costs among any responsible parties.

Id. at 11.) While GeoSyntec pointed out that Friedland

would not be prejudiced because he had unduly delayed in producing his damage calculations
GeoSyntec did not request that

any disclosure of Friedland' s total damages be deferred until after

liability is determined, or even until the Motion to Bifurcate is determined.

Similarly, the deferral of expert reports on issues of damages , which was based on
GeoSyntec s Motion to Bifurcate the case into liability and allocation phases , did not purport to
defer

all discovery related to damages , only

expert reports

related to damage issues.

(See

Order

Granting Plaintiff s Motion to Extend or Stay Deadline for Expert Reports Regarding Damage
Issues , Doc. No. 55 , entered 1/27/06. )
Thus ,

neither the pendency of the Motion to Bifurcate nor

the Court' s Order staying expert reports on damages excused Friedland from his fundamental
discovery and disclosure obligations.

GeoSvntec is entitled to an order compellin2 Friedland to disclose his dama2e computation and produce all supportin2 documents pursuant to Rule 26(a)(1)(C). to provide a complete response to Interro2atorv No. 7. and to produce all documents responsive to GeoSvntec s ReQuests No.
6 and

Regardless of what evidence Friedland mayor may not be permitted to introduce at trial
GeoSyntec is entitled to a specific computation of damages and supporting documents pursuant

to Rule 26(a)(I)(C), a complete and detailed response to Interrogatory No. , and the production
of all documents responsive to Requests for Production No.
6 and 7. See

Rule 37 (c) and (d),

Fed. R Civ. P. (allowing court to take any action permitted by Rule 37(b)(2)(A), (B), or (C) for

failure to make disclosures , respond to interrogatories , or produce documents in response to
requests) .

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V. CONCLUSION
This case has been pending for nearly two years. Discovery is scheduled to close in less

than one month. While GeoSyntec has received bits and pieces of information from Friedland on
his damages at various intervals , it still has
never received the calculation of Friedland' s

damages to which it is entitled under Rule 26(a)(I)(C), nor complete responses to its
interrogatories and document requests on damages , nor the documents that are essential to
evaluating Friedland' s

arguments regarding the deduction of " defense costs " from his prior

recoveries. Moreover , Friedland has sprung a new theory on the Defendants - one that could

impact his potential recovery by millions of dollars - a year and three months after it should have
been revealed , in Friedland' s initial disclosures.
Because Friedland' s failure to respond has been both willful and prejudicial , essentially

flouting Rules of Civil Procedure , GeoSyntec respectfully requests that the Court enter an order:
(a)

prohibiting Friedland from introducing at trial any evidence regarding the

attribution of prior recoveries to " defense costs
(b)

compelling Friedland to provide a specific computation of damages and

supporting documents pursuant to Rule 26(a)(I)(C), a complete and detailed response to
Interrogatory No. , and the production of all documents responsive to Requests for Production

No. 6 and 7;
(c)

extending the discovery cutoff in this case by six (6) months , if Friedland is not

precluded from introducing the " defense cost" evidence at issue; and
(c)

awarding GeoSyntec its reasonable expenses incurred in connection with this

Motion , including attorneys ' fees.

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DATED this 2nd day of June , 2006.
Respectfully submitted

By:

s/ Marian L. Carlson Terence M. Ridley Marian L. Carlson Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202- 2617 Telephone No. : 303- 244- 1800 Telecopier No. : 303- 244- 1879
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

Attorneys for

Defendant GeoSyntec Consultants

Inc.

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CERTIFICA TE OF SERVICE
I hereby certify that on June 2 , 2006 , I electronically filed the foregoing GeoSyntec Motion to Compel Discovery Regarding Damages and for Sanctions with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
Lauren C. Buehler lbuehler~fognanilaw. com cvega~fognanilaw. com

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

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

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

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

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

ridley~wtklaw. com norris~wtklaw. com

Perry L. Glantz
pglantz~fognanilaw. com cvega~fognanilaw. 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/ Marian L. Carlson Marian L. Carlson Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202 Telephone No. : 303- 292- 2525 Telecopier No. : 303- 294- 1879 Mail: carlson~wtklaw. com

Attorney for Defendant GeoSyntec Consultants, Inc.