Free Motion for Protective Order - District Court of Colorado - Colorado

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

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Filed 01/31/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. ______________________________________________________________________________ MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH OR MODIFY SUBPOENA ______________________________________________________________________________ Defendant College Partnership, Inc. ("College Partnership"), by and through its counsel, Rosemary Orsini of Burg Simpson Eldredge Hersh & Jardine, P.C., pursuant to Fed. R. Civ. P. 26(c), 45(c), and local rule D.C.COLO.LCiv.R.30.1 hereby moves the Court for a protective order or, in the alternative, an order quashing or modifying a subpoena duces tecum served on College Partnership. As grounds therefore, Defendant states as follows: CERTIFICATE OF COMPLIANCE Pursuant to D.C.COLO.LCivR. 7.1, Rosemary Orsini, counsel for Defendant conferred with Dan Scheid, counsel for Plaintiff, seeking to reschedule the deposition to a mutually agreeable date and time that would allow reasonable time for compliance with the extensive document request. Mr. Scheid refused to reschedule the deposition. Rosemary Orsini also conferred with Dianna Karg, who refused to reschedule the deposition - even for only a few days - and demanded either that the undersigned appear for a 4:00 telephonic hearing with the Court

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on less than 2 hours notice, or produce financial records as to "where College Partnership's money is located." Rosemary Orsini explained to Ms. Karg that she had a previous commitment for 4:00 p.m. and could not be present at a telephonic hearing on such short notice, and also that she did not have information from her client, or authorization from her client, to produce financial records as to where College Partnership's money is located. MOTION 1. The Court entered judgment in this matter on August 25, 2005. Promptly after

expiration of the automatic stay provided for in Fed. R. Civ. P. 62(a), Plaintiff took action to enforce the judgment, including service of Writs of Garnishment and a Rule 69 deposition of College Partnership's representative, Dr. Janice Jones, which was held on October 12, 2005. 2. Dr. Jones brought extensive documents to the deposition, as requested by

Plaintiff. Nonetheless, Plaintiff made oral demands for extensive additional follow-up information that was not specifically requested. 3. 4. After the deposition, College Partnership satisfied the judgment that was entered. On January 3, 2006, the Court entered a second judgment in this matter, one for

attorney fees and additional costs. Pursuant to the automatic stay of Fed. R. Civ. P. 62(a), enforcement of that judgment was stayed through the close of business on January 18, 2006. 5. On January 24, 2006, Plaintiff's counsel, Dan Scheid, sent a letter to Rosemary

Orsini requesting immediate production of extensive documents, including requests that documents be created that do not exist. A copy of that request is attached as Exhibit 1. 6. Without allowing Ms. Orsini to respond to the January 24, 2006 demand, Mr.

Scheid issued a subpoena duces tecum on January 25, 2006 for a second Rule 69 deposition of -2-

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College Partnership. A copy of the subpoena is attached as Exhibit 2. Attached to the subpoena is a list of documents that not only includes all of the documents in Mr. Scheid's January 24, 2006 letter, but 17 additional categories of documents. 7. The Rule 69 deposition was set by Mr. Scheid for February 1, 2006 at 9:00 a.m.,

without any attempt to clear the date on Mr. Orsini's calendar. 8. Ms. Orsini has a previous commitment for February 1, 2006, namely, a mediation

at Judicial Arbiter Group scheduled for all day February 1, 2006. 9. Plaintiff's subpoena for a deposition violates both federal and state court

procedural rules. In particular: · It was served without any attempt to confer and clear a reasonable date with opposing counsel, in violation of local rule D.C.COLO.LCivR 30.1 and C.R.C.P. Rule 121 § 1-12; · It was served without any attempt to confer in a good-faith effort to agree on a reasonable means of limiting the time and expense of the deposition; · It did not allow a reasonable time for compliance, namely it did not provide 11 days under local federal rules or 5 days prior notice under Colorado rules. · It did not allow reasonable time to obtain all of the detailed financial information requested. 10. Plaintiff's subpoena is also overly broad in that it goes far beyond any reasonable

discovery as to College Partnership's current assets that could be used to satisfy any judgment. For example, it seeks all credit card records for two years, all federal income tax records for 2001-2004, Complaints, Answers, Counterclaims, and orders of any lawsuits to which College Partnership has been a party, lease agreements, patents, licensing agreements, and other -3-

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documents regardless of whether or not these agreements are liabilities of College Partnership (i.e., College Partnership is obligated to make payments for the lease of others' property as opposed to College Partnership leasing its property to another). 11. Furthermore, Plaintiff's subpoena requests the production of documents that do

not exist, with the demand that College Partnership create the documents. For example, Plaintiff requests that College Partnership create listings of the names of banks or financial institutions where VDMI maintains accounts, a listing of personal property located at College Partnership's Texas facility, a listing of what personal property on a schedule previously produced is owned by College Partnership as opposed to what property is leased. 12. Plaintiff's request also seeks a second Rule 69 deposition of College Partnership

without leave of the Court or a showing of good cause. Both Fed. R. Civ. P. 30(a)(2) and C.R.C.P. 30(a)(2) require a second deposition of the same person or party to obtain leave of the Court. Plaintiff requests much of the same information that was the subject of the October 2005 Rule 69 deposition; accordingly, under these circumstances, it is unnecessarily harassing. 13. College Partnership is entitled to its reasonable attorney fees for filing this Motion

for Protective Order, due to the unreasonable conduct of Plaintiff in refusing to clear the deposition or to allow a reasonable period of time for compliance, and refusing to modify the subpoena to permit the deposition to occur when counsel could be present.

WHEREFORE, College Partnership respectfully requests that the Court issue a protective order quashing the subpoena duces tecum issued January 25, 2006 or modifying the subpoena to allow College Partnership a reasonable amount of time to comply when College Partnership's -4-

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counsel can be present, and further modifying the scope of the documents sought in the subpoena to presently-existing documents on College Partnership's present assets. College Partnership further requests that the Court award College Partnership its reasonable costs and attorney fees for having to file this Motion for Protective Order.

DATED this 31st day of January, 2006.

Respectfully submitted, BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C.

s/ Rosemary Orsini Rosemary Orsini 40 Inverness Drive East Englewood, Colorado 80112 Telephone: (303) 792-5595 Facsimile: (303) 708-0527 ATTORNEYS FOR DEFENDANT COLLEGE PARTNERSHIP, INC.

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CERTIFICATE OF SERVICE I hereby certify that on this 31st day of January 2006, I filed and/or served a true and complete copy of the foregoing MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH OR MODIFY SUBPOENA by CM/ECF filing, to the following:

Gary Parish, Esq. R. Daniel Scheid, Esq. Sander, Scheid, Ingebretsen, Miller & Parish P.C. 700 17th St., Suite 2200 Denver, CO 80202 Patrick J. McElhinny, Esq. Dianna S. Karg, Esq. Kirkpatrick & Lockhart LLP 535 Smithfield St. Henry W. Oliver Building Pittsburgh, PA 15222 s/ Sharla Sheeks Sharla Sheeks

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