Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01258-LTB-BNB

Document 187

Filed 02/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-cv-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. STUDENT MARKETING GROUP, INC.'S SUPPLEMENTAL RESPONSE IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER Plaintiff Student Marketing Group, Inc. ("SMG"), by and through its counsel, files this Supplemental Response in Opposition to Motion for Protective Order and in support thereof states as follows: SMG'S SUPPLEMENTAL RESPONSE On January 31, 2006, Defendant College Partnership, Inc. ("CPI") filed its Motion for Protective Order and/or to Quash or Modify Subpoena ("Motion"). On February 3, 2006, SMG filed its Response in Opposition to CPI's Motion. Subsequently, on February 8, 2006, this Court issued an Order setting a deadline of February 21, 2006 for SMG to respond to CPI's Motion. Since SMG already filed its Response in Opposition to CPI's Motion, SMG incorporates by reference its Response in Opposition. SMG, however, files this paper to bring to the Court's attention additional information regarding this discovery dispute. CPI's motion focuses on scheduling conflicts and purported burdens arising from certain of the discovery sought. At bottom, CPI does not really

Case 1:04-cv-01258-LTB-BNB

Document 187

Filed 02/21/2006

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deny that SMG is entitled to most, if not all, of the information that it seeks in aid of execution. Since there is no legitimate dispute over SMG's entitlement to the information, SMG has pressed CPI for alternative dates and suggestions as to whether it can propose more convenient means to provide the requested information to SMG. See Exhibit A (three emails from SMG's counsel to CPI's counsel). As of the date of filing this Supplemental Response in Opposition, counsel for CPI has not responded to any of the three emails send by SMG's counsel. CPI's failure to respond demonstrates that it has no real interest in satisfying its discovery obligations, even in part, by providing any of the information to which SMG is entitled, but instead is simply attempting to obstruct SMG's efforts to execute on its judgment. This Court should not endorse CPI's efforts, but instead should deny the motion and require CPI to provide immediately the information requested. WHEREFORE, for the reasons set for in SMG's Response in Opposition to CPI's Motion for Protective Order and this Supplement thereto, Plaintiff Student Marketing Group, Inc. respectfully requests that the Court deny CPI's Motion for Protective Order, order CPI to appear for and produce information at a debtor's exam within ten (10) days, order CPI to produce, within two (2) days, a list of its current bank accounts that is current as of the date and time that the information is provided (to the extent CPI opens or closes new bank accounts after that date, CPI should have an ongoing duty to provide SMG with such current information), and award SMG its attorneys fees and costs for opposing this Motion (to which SMG is contractually entitled).

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Case 1:04-cv-01258-LTB-BNB

Document 187

Filed 02/21/2006

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Dated: February 21, 2006

Respectfully submitted: s/R. Daniel Scheid ______________ LEWIS SCHEID LLC R. Daniel Scheid River Point Building 2300 Fifteenth Street, Suite 320 Denver, CO 80202 Telephone: (303) 534-5040 Facsimile: (303) 534-5039 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Patrick J. McElhinny, Esquire Dianna S. Karg, Esquire 535 Smithfield Street Henry W. Oliver Building Pittsburgh, PA 15222 Telephone: (412) 355-6500 Facsimile: (412) 355-6501 Counsel for Plaintiff, Student Marketing Group, Inc.

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Case 1:04-cv-01258-LTB-BNB

Document 187

Filed 02/21/2006

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 21st day of February, 2006, I electronically filed the foregoing STUDENT MARKETING GROUP, INC.'S SUPPLEMENTAL RESPONSE IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Rosemary Orsini, Esquire Brian Matise, Esquire BURG, SIMPSON, ELDREDGE, HERSH, JARDINE, P.C. [email protected] [email protected]

s/Claudia Cooper