Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01009-EWN-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1009-EWN-MEH MARIAN J. BARCIKOWSKI, v. SUN MICROSYSTEMS, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO COMPEL DEFENDANT'S CUSTODIAN OF RECORDS TO PRODUCE DOCUMENTS LISTED IN SUBPOENA ______________________________________________________________________________ COMES NOW the Plaintiff, by and through his attorneys, Roseman & Kazmierski, LLC, and, respectfully submits the following Reply in support of his Motion to Compel Defendant's Custodian of Records to Produce Documents in Subpoena ("Motion to Compel"): 1. In the Response that Defendant filed to Plaintiff's Motion to Compel, it cited three Plaintiff,

district court opinions for the proposition that a "Rule 45 subpoena used to obtain discovery from another party must be filed and served prior to the discovery deadline in the case," and that a "party may not use a Rule 45 subpoena after the discovery cut-off to obtain materials that could have been produced during discovery" (Defendant's Response to Plaintiff's Motion to Compel, p. 1, ¶ 2). Defendant contends that "Plaintiff's subpoena unquestionably constitutes an attempt to obtain discovery" (Id., p. 2, ¶ 3), and that Plaintiff's motion to compel therefore should be denied. 2. Each of the three cases cited by Defendant is distinguishable on its facts: (a) In Rice v. United States, 164 F.R.D. 556 (N.D. Okla. 1995), the defendant issued

subpoenas duces tecum to third parties to obtain medical records, school records and Social Security records pertaining to the minor plaintiff's mother in that medical negligence action. Id. at 556-57. The defendant did so after the discovery cut-off date in that case. Id. at 557. The district court quashed those subpoenas on the ground that they were "a form of discovery" that were subject to that court's discovery deadline. Id. at 558. That court noted, however, that "not all uses of Rule 45 subpoenas would constitute discovery and thereby be affected by discovery deadlines," giving the example of a subpoena "to secure the production at trial of original documents previously disclosed by discovery." Id. at 558 n. 1. In addition, those subpoenas duces tecum were not directed to a

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party and were not issued in connection with an upcoming trial. (b) In Mortgage Info. Servs., Inc. v. Kitchens, 210 F.R.D. 562 (W.D.N.C. 2002), the

plaintiff issued a subpoena directed to one of the defendants, commanding him to produce all documents showing a co-defendant's dollar sales for each month for more than a three-year period of time to each of its customers and to each of 11 listed customers; all "documents that constitute, contain, describe, mention, reflect or relate to" that co-defendant's agreements with any of those 11 listed customers; all documents that "constitute, contain, describe, mention, reflect or refer or relate to any communications between" any of the defendants and any of those 11 listed customers for more than a three-year period of time; and all "documents which refer or relate to any title insurance, real estate property reports or real estate appraisal reports written or sold by" two of the defendants during their employment with a co-defendant. Id. at 567 n. 3. That court also noted "that situations may arise in which a subpoena duces tecum may not constitute discovery and therefore may properly be filed and served following the end of the discovery period." Id. at 567. (c) In Dreyer v. GACS, Inc., 204 F.R.D. 120 (N.D. Ind. 2001), the defendants

issued a subpoena duces tecum to the psychiatrist for one of the plaintiffs for the production of that plaintiff's patient records. Id. at 121. That subpoena commanded the production of "[a]ny and all medical records, x-rays, MRI's, and CT scans and any other records, correspondence, prescriptions and other documents in your care, custody or control which pertain to" that plaintiff; and "[a]ll reference material" in that psychiatrist's office or in a psychiatric clinic that pertained to certain medications, "including, but not limited to, any information about side effects of these drugs taken independently or in concert with each other." Id., n. 2. The district court denied the defendants' motion to enforce those subpoenas. 3. The Subpoena that Plaintiff has served on Defendant is not a discovery subpoena.

Plaintiff's Exhibit List, attached to the Final Pretrial Order, includes "Sun Microsystems personnel policies concerning disciplinary action" (trial exh. 2) and "Sun Microsystems personnel policies concerning administrative leave" (trial exh. 3). Plaintiff subpoenaed those documents with the intent to introduce them into evidence, not to obtain discovery.1 The Subpoena does not list broad Defendant has claimed that it has no personnel policies concerning administrative leave, other than one paragraph in Plaintiff's trial exhibit 1. Plaintiff will treat this as a judicial admission and, therefore, is not seeking to compel the production of any policies that Defendant claims do not exist.
1

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categories of documents, as did the subpoenas in the cases cited by Defendant. As a result of the judicial admission made by Defendant, see supra n. 1, the only document(s) now at issue consists of Defendant's personnel policies concerning disciplinary action. 4. This Subpoena is not vague or overbroad. If Defendant genuinely were concerned

about the alleged vagueness or overbreadth of the Subpoena, its attorneys could and should have discussed with Plaintiff's undersigned attorney which categories of documents arguably are covered by this Subpoena in order to narrow its scope. Based on the experience of Plaintiff's undersigned attorney in hundreds of other employment cases, it is probable that the document(s) in question most likely is or are five, or perhaps, ten pages in length.2 5. This Court should enter an order compelling Defendant to comply fully and

completely with the trial Subpoena that Plaintiff has issued in this case. The trial in this case should constitute a search for the truth, not an exercise in gamesmanship, as Defendant seems to believe. WHEREFORE, Plaintiff submits that this Court should grant Plaintiff's Motion to Compel Defendant's Custodian of Records to Produce Documents in Subpoena.

Respectfully submitted, ROSEMAN & KAZMIERSKI, LLC s/Barry D. Roseman BARRY D. ROSEMAN 1120 Lincoln Street, Suite 1607 Denver, Colorado 80203 303/839-1771 Attorneys for Plaintiff

Defendant stated that "to put to rest what should be a non-issue," it "hereby moves for an order quashing the subpoena ..." (Defendant's Response to Plaintiff's Motion to Compel, p. 2 n. 1). Defendant has failed to comply with the requirements of D.C.COLO.LCivR 7.1A with respect to its new motion to quash. In addition, as Plaintiff has pointed out previously (Plaintiff's Motion to Compel, p. 3, ¶ 9), Defendant has not alleged any of the grounds for a motion to quash or modify a subpoena pursuant to Fed. R. Civ. P. 45(c)(3).

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CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the sixth day of April 2006, a true and correct copy of the above and foregoing Plaintiff's Reply in Support of Motion to Compel Defendant's custodian of Records to Produce Documents Listed in Subpoena was sent via CM/ECF electronic filing, addressed to the following party: Steven J. Merker, Esq. R. Stephen Hall, Esq. DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202-5647

s/Karin C. Bailey Karin C. Bailey