Free Order on Motion to Compel - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

Document 147

Filed 01/10/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge David L. West Civil Action No. 04-CV-01099-JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, vs. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

ORDER GRANTING DEFENDANT' MOTION TO COMPEL RE: PHEND S

ORDER ENTERED BY MAGISTRATE JUDGE DAVID L. WEST BACKGROUND 1. By subpoena dated February 28, 2005, Plaintiff requested documents from Phend & Company (" Phend" Phend did not produce the subpoenaed documents. Plaintiff filed a Motion to ). Compel production on April 13, 2005. Neither Phend nor the Defendant filed a response. 2. Plaintiff states in its Renewed Motion to Compel that Defendant agreed to provide its consent and procure production and represented that such consent for production was given to Phend. 3. The subpoena Plaintiff served on Phend requested production of documents related to Leavell-McCombs, Kingsbury Pitcher and/or Wolf Creek Pass, including: a. b. tax returns work papers and other documents relied upon to prepare the tax returns

Case 1:04-cv-01099-JLK-DW

Document 147

Filed 01/10/2006

Page 2 of 2

c.

correspondence between Phend and Leavell-McCombs, Kingsbury Pitcher and/or Wolf Creek Pass documents provided by Leavell-McCombs, Kingsbury Pitcher an/or Wolf Creek Pass

d.

Phend wrote Plaintiff objecting to the subpoena based upon the accountant-client privilege, C.R.S. §13-90-107. FINDINGS AND ORDER The Court finds that Defendant waived the privilege by putting at issue accounting and financial issues as well as Wolf Creek' and Mr. Pitcher' relationship to the Joint Venture. s s Additionally, Defendant has failed to comply with the requirement that they produce a privilege log, and therefore waived the privilege. Attebury v. Longmont United Hosp. 221 F.R.D. 644 (D. Colo. 2004). In reviewing Plaintiff' Motion to Compel, this Court finds that Plaintiff' request for s s documents is reasonably calculated to lead to the discovery of admissible evidence in this matter, and that the accountant-client privilege does not apply to the underlying documents provided to Phend, and Defendant has waived any privilege by putting at issue accounting issues and material provided to and prepared by Phend. Accordingly, Plaintiff' Motion to Compel Phend & Company to Produce Documents within s five business days of service of this Order is hereby GRANTED. DATED: January 10, 2006 BY THE COURT:

s/David L. West United States Magistrate Judge