Free Motion to Compel - District Court of Colorado - Colorado

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

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Filed 03/30/2006

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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 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, pursuant to Rule 45(c)(2)(B), moves that this Court compel Defendant's custodian of records to produce all documents described in the Subpoena that was served on Defendant on or about March 23, 2006. AND FOR CAUSE, Plaintiff shows unto the Court: 1. On March 22, 2006, Plaintiff's attorneys mailed a Subpoena and a Waiver and Plaintiff,

Acceptance of Service form to defense counsel in this case. That Subpoena directed Defendant's custodian of records to produce in court, at 10:30 a.m. on April 10, 2006, the first day of trial, copies of all personnel policies of Defendant, effective between January 2 and February 12, 2002, concerning or pertaining to disciplinary actions and to administrative leave. Steven J. Merker, lead counsel for Defendant in this case, previously had informed Plaintiff's attorneys that he would accept service of process for that Subpoena. 2. On March 29, 2006, Plaintiff's undersigned attorney sent an electronic mail message

to Mr. Merker, asking whether and when he would be returning a signed and notarized copy of the Waiver and Acceptance of Service. Mr. Merker still has not provided that document to Plaintiff's attorneys. 3. On March 30, 2006, Defendant filed a Response and Objections to Subpoena. Since

Defendant stated in that document that "[c]ounsel for Sun agreed to accept service of that Subpoena on behalf of Sun," it is evident that Defendant agrees that Plaintiff has properly obtained service of that Subpoena upon it.

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4.

Objections pursuant to Fed. R. Civ. P. 45(c)(2)(B) generally are filed by a non-party

to assert objections based on an evidentiary privilege or on the allegedly burdensome and oppressive nature of a subpoena to produce. See, e.g., In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997); Schaaf v. Smithkline Beecham Corp., 233 F.R.D. 451 (E.D.N.C. 2005). Defendant, of course, is a party to this case. Defendant has not asserted any evidentiary privilege or claimed that the subpoenaed documents constitute trial preparation materials, since such a claim "shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim." Fed. R. Civ. P. 45(d)(2). 5. Defendant has argued that the Subpoena is "an untimely attempt to obtain

discovery" (Defendant's Response and Objection to Subpoena, p. 1, ¶ 2(a)). That contention is frivolous. Plaintiff's attorneys issued the Subpoena in order to require Defendant to produce certain documents at trial. The discovery rules do not limit the ability of a party to issue or require compliance with a trial subpoena. Defendant cites no authority in support of its position that it has no obligation to produce the subpoenaed documents at trial. 6. Defendant also has argued that the Subpoena "seeks documents which are neither

relevant nor reasonably calculated to lead to the discovery of admissible evidence" (Id., ¶ 2(b)). That allegation is groundless. Defendant has not objected to the admissibility of those documents at trial (Defendant's Objections to Plaintiff's Trial Exhibits, Exh. A, trial exhs. 2 and 3). Nor has Defendant objected to the admissibility of its Gross Misconduct Policy (Id., trial exh. 1). Defendant has not even attempted to explain how its personnel policies relating to disciplinary actions and to administrative leave are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, where it has not objected to the admissibility of those documents or to the admissibility of another of its personnel policies. 7. The Subpoena covers Defendant's personnel policies, in effect between the date that

Plaintiff attempted to return to work from his FMLA leave and the date on which Defendant terminated his employment, concerning or relating to disciplinary actions and administrative leave. Since Defendant clearly disciplined Plaintiff by terminating his employment, and since Defendant claims that it placed Plaintiff on administrative leave when he attempted to return to work on January 2, 2002 (see Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment,

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Exh. Z, p. 2), Defendant's personnel policies concerning or relating to disciplinary actions and to administrative leave are relevant, admissible and calculated to lead to the discovery of admissible evidence. 8. In addition, Defendant has argued that Par. 1 of Attachment A to the Subpoena "is

overly broad and vague" (Defendant's Response and Objections to Subpoena, p. 1, ¶2(c)). That argument is both frivolous and groundless. The Subpoena covers personnel policies that were in effect for employees of Defendant during a 41-day period of time in early 2002. It should be easy for a company whose last Annual Report states that it has annual net revenues in excess of $11 billion, has some 31,000 employees and conducts business in more than 100 countries to locate its own personnel policies dealing with disciplinary actions. If it has concerns over the breadth or alleged vagueness of this Par. 1, its attorneys could confer with Plaintiff's attorneys and attempt to narrow the scope of that paragraph. Defendant has not done so. 9. Defendant has not moved to quash or modify the Subpoena pursuant to Fed. R. Civ.

P. 45(c)(3). It has not claimed that the Subpoena fails to allow a reasonable time for compliance, requires a non-party or non-officer to travel more than 100 miles, requires disclosure of privileged or other protected matter, or subjects any person to undue burden, as required by Rule 45(c)(3)(A). Nor does Defendant claim that the Subpoena requires disclosure of a trade secret or other confidential research, development or commercial information, or that it requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute, as required by Rule 45(c)(3)(B). 10. Defendant has filed its "Objections" to Plaintiff's Subpoena for an improper reason.

It has no legitimate basis for refusing to produce the subpoenaed documents at trial. Instead, it has interposed its frivolous and groundless objections because it does not want to produce those documents at trial. 11. If a motion to quash is opposed successfully, the issuer of the subpoena may request

attorneys' fees related to the motion to quash, unless the court finds that the losing party was justified substantially in making the motion or that an award would be otherwise unfair. 9A Wright & Miller, Fed. Practice and Procedure Civ.2d 16 (2005 Supp.). The same principles should apply to Defendant's frivolous, groundless and vexatious "Objections." See also 28 U.S.C. § 1927. 12. Plaintiff's undersigned attorney certifies that he has conferred with opposing counsel

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concerning the subject matter of this Motion before filing it. Mr. Merker has informed Plaintiff's undersigned attorney that Defendant opposes this Motion. WHEREFORE, Plaintiff moves that this Court compel Defendant's custodian of records to produce all documents described in the Subpoena that was served on Defendant on or about March 23, 2006.

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 CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the thirtieth day of March 2006, a true and correct copy of the above and foregoing Plaintiff's 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