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

Case 1:03-cv-02669-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Defendants/Counterclaimants,

BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant.

MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants. LEPRINO FOODS COMPANY' MOTION FOR PROTECTIVE ORDER REGARDING S BIG-D CONSTRUCTION CORP.- CALIFORNIA' SUBPOENA TO JACK TOWLE S

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Plaintiff Leprino Foods Company ("Leprino" or "Plaintiff"), through its counsel, respectfully moves the Court pursuant to Rules 26(c) and 26(g)(2) of the Federal Rules of Civil Procedure for a Protective Order against a Subpoena served by Defendants Big-D Construction Corp. and Big-D Construction Corp. B California (collectively "Big-D" or "Defendant") to: 1. Prevent annoyance, oppression and undue burden and expense in duplicating the production of documents already produced by Leprino as requested in Big-D' s Subpoena to Leprino employee Jack Towle ("Subpoena")1; and 2. Sanction Big-D for its conduct in serving the Subpoena on a party witness, demanding a party witness to make duplicative discovery and serving a subpoena on a party witness when the deposition dates were agreed upon by all parties. As grounds for this motion, Leprino states as follows: INTRODUCTION AND BACKGROUND On or about June 24, 2005, Big ­D served Jack Towle with the Subpoena. Jack Towle is a Leprino employee, which is a well-established fact known to Big-D. The Amended Scheduling Order stipulated to by the parties and entered by the Court on May 24, 2005, provides "Jack Towle of Leprino may be deposed an aggregate total of five (5) days beginning July 25, 2005 through July 29, 2005."2 Prior to serving the Subpoena, on or about May 16, 2005, Big-D noticed the deposition of Leprino pursuant to Federal Rule of Civil Procedure 30(b)(6). Big-D noticed the depositions for May 24-26, June 15 & 17, and July 25-29. In a cover letter to the deposition notice, Viva Harris, attorney for Big-D acknowledged that the depositions were set for
1 A true and correct copy of the Subpoena is attached as Exhibit 10 to the Affidavit of Patrick T. Markham

("Affidavit").

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those dates with the "understanding that those are the days on which the witnesses you will be producing (including Joel Krein, the witnesses regarding Leprino Foods' damages claim, and Jack Towle) are available."3 Big-D established the deposition of Jack Towle prior to serving the Subpoena on or about June 24, 2005, and the Subpoena was unnecessary and intended to harass Leprino and its employee. LEGAL STANDARD A motion for protective order is the procedure to safeguard a party from "annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had... " Fed. R. Civ. P. 26(c). "To obtain a

protective order, the party resisting discovery or seeking limitations thereon must show ` good cause' for its issuance." Fed. R. Civ. P. 26(c); Jepson, Inc. v. Makita Elec. Works, Ltd. (7th Cir. 1994) 30 F.3d 854, 858. The movant may show good cause by making a "clear showing of a particular and specific need for the order." Blakenship v. Hearst Corp., 519F.2d 418, 429 (9th Cir. 1975). The grounds for granting a motion for protective order include situations where a party seeks discovery for an illegitimate purpose. ARGUMENT A. Leprino has Good Cause to Seek a Protective Order From Big-D' Subpoena. s In every way, Big-D has ignored the procedure for issuance of a subpoena and demanded that a Leprino employee make duplicative discovery. This is especially confounding as Leprino and Big-D agreed on the dates for Jack Towle' deposition nearly two months ago. It was not s only unnecessary, but willfully oppressive and burdensome to subpoena a party witness and

2 3

See Affidavit ¶ 23, Exhibit 12. See Affidavit, ¶ 22, Exhibit 11.

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demand extensive production of documents already produced by Leprino. To date, Leprino has incurred considerable costs associated with producing documents requested by Big-D. Leprino has avoided asking the court to intervene, and negotiated informal resolutions to previous discovery issues. However, this particular situation calls for an order of protection by the Court. It is clear Big-D is using the Subpoena as a weapon to cause Leprino undue burden and expense in re-producing an already extensive document production. The document categories attached to the Subpoena are duplicative of requests made by Big-D in First Request for Production of Documents ("First Document Request") to Leprino served on or about December 17, 2004.4 Big-D' First Document Request stated in the s definitions, "The term "YOU" and "YOUR" means LEPRINO FOODS COMPANY (referred to as "PLAINTIFF" or "LEPRINO"), its agents, attorneys, shareholders, partners, officers, directors, employees and/or representatives" (emphasis added).5 Thus, Big-D directed its First

Document Request to, among others, Leprino employee Jack Towle. To establish the duplicate nature of Big-D' document request in the Subpoena, attached is Schedule A, which sets forth s the document categories requested in the Subpoena and the identical categories in Big-D' First s Document Request. In response to the Big-D First Document Request, Leprino conducted a document production at its corporate offices in Denver, Colorado, on July 7-9, 2004, which resulted in the production of approximately 150,000 pages of documents. Thereafter on September 14-15, 2004, in a subsequent document production at its Lemoore West plant, Leprino produced

4 5

See Affidavit, ¶ 8, Exhibit 1. See Affidavit, ¶ 8, Exhibit 1.

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approximately 100,000 pages of documents and 74 CDs of electronic documents.6 Although BigD had not served Leprino with the First Document Request at the time of either production, Leprino made a considerable effort to gather all documents, including Jack Towle' regarding the s, construction project and arranged the documents by subject matter (i.e., invoices, reports, drawings). On or about January 28, 2005, Leprino served its formal response to Big-D' First s Document Request.7 In addition, Leprino supplemented the July and September document productions by independently providing CDs and documents at various times as they were discovered. Leprino' s computer technical department spent numerous hours reviewing and analyzing Leprino employee e-mails for production to Big-D. Over the course of the last year, Leprino produced over fiftyfive (55) CDs of responsive Leprino employee e-mails, including a disk of Jack Towle' e-mails, s and an entire hard drive of all responsive Leprino employee e-mails, including Jack Towle' at s, considerable expense. Leprino has produced all documents requested by Big-D and is now forced to file this motion in order to obtain protection against Big-D' efforts to force Leprino to make s duplicate discovery and incur enormous expenses in re-producing documents. B. The Court Should Order Big-D To Pay Sanctions Equal to the Amount of Attorney=s Fees and Costs Incurred by Leprino in Bringing the Instant Motion. Absent some justification for such conduct, the Court may impose sanctions against a party who abuses discovery. Specifically, Federal Rules of Civil Procedure, Rules 26(g)(2) and (3) provide, in relevant part: Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney' individual name, whose address shall be stated... The s
6 7 See Affidavit, ¶ 11. See Affidavit, ¶ 9 Exhibit 2.

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signature of the attorney or party constitutes a certification that to the best of the signer' knowledge, information, and belief, formed after a s reasonable inquiry, the request, response, or objection is:... (B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case... .(3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney' fee. s In addition, pursuant to Rule 45(c)(1), a party or attorney issuing a subpoena "shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Fed. R. Civ. P. 45(c)(1). The court "shall enforce this duty and impose upon the part or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, . . . a reasonable attorney' fee." Id. s Accordingly, it is proper to sanction Big-D for the costs incurred by Leprino in filing the instant motion. First, Big-D served a subpoena on a known party witness. Second, the Subpoena served by Big-D requested the same documents Leprino already produced to Big-D. Big-D' s conduct in this matter has been inexcusable and intended to harass Leprino and its employees. Therefore, Leprino seeks an order that the documents requested by Big-D in the Subpoena are not required to be re-produced and sanctions in the amount equal to the cost to prepare and argue this motion.

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CONCLUSION There is simply no legal justification for Big-D' Subpoena. Leprino requests that the s Court enter a protective order against Big-D' Subpoena and sanction Big-D and its counsel s including an award of litigation costs in an amount necessary to compensate Leprino for the costs associated with bringing the instant motion and any other sanctions the Court deems appropriate. Respectfully submitted this 22nd day of July, 2005. LEPRINO FOODS COMPANY By: s/ Patrick T. Markham One of Its Attorneys Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] Patrick T. Markham, Esq. Jacobson & Markham 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on the day 22nd day of July, 2005, I electronically filed the foregoing Motion for Protective Order with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Francis (Frank) J. Hughes [email protected] Patrick Quinn Hustead [email protected] Peter J. Ippolito [email protected] Richard Carl Kaufman [email protected] John David Mereness [email protected] Daniel James Nevis [email protected] and I hereby certify that I have served the document to the following non-CM/ECF participants by depositing said document in the United States mail, postage pre-paid, properly addressed to: Federal Insurance Company P.O.Box 1615 Warren, NJ 07061-1615 s/ Jill Lukins Jill Lukins, Paralegal

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