Free Affidavit - District Court of Colorado - Colorado

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

Document 254

Filed 03/02/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 03-cv-02669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP.- CALIFORNIA, a Utah corporation; et al., 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, et al., Counterdefendant/Third Party Defendants.

AFFIDAVIT OF FRANCIS J. HUGHES IN SUPPORT OF BIG-D CONSTRUCTION CORP.--CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S MOTION IN LIMINE NO. 3 TO PRECLUDE REFERENCE TO DISCLOSURE OF TAX RECORDS

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

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I, FRANCIS J. HUGHES, testify: 1. I am one of the attorneys of record for Defendants Big-D Construction

Corp.-California, Big-D Construction, Big-D Corp., and Big-D Capital Corp. (hereinafter collectively "Big-D") and I am licensed to practice law before the United States District Court for the District of Colorado. 2. I make this Affidavit in Support of Big-D's Motion in Limine No. 3 to preclude

reference of tax records. I have personal knowledge of all facts stated in this Affidavit and would competently testify under penalty of perjury thereto if called as a witness. 3. This action arises from a series of disputes stemming from the construction of a

cheese processing facility located in Lemoore, California (the "Project.") Plaintiff Leprino Foods Company ("Leprino"), as owner, entered into a general contract with Big-D to construct the Project. In turn, Big-D contracted with numerous subcontractors, including Third-Party Plaintiff Marelich Mechanical Co., Inc. ("UMM"), to perform various works on the Project. Leprino contends that Big-D and its subcontractors delayed completion of the Project and seeks damages which it claims to have suffered as a result of the Project delays. Big-D and UMM deny that they are responsible for causing the Project delays. In addition, Big-D seeks its remaining contract balance and its additional and extended general conditions, while UMM seeks additional compensation for its work on the Project. 4. During this litigation, Leprino requested that Big-D Construction Corp.-California

("Big-D Cal") produce its and its affiliates, Defendants Big-D Construction, Big-D Corp. and Big-D Capital Corp. (hereinafter collectively the "Affiliates") tax records. Big-D refused based on the privileged nature of those documents. At a hearing on this discovery dispute, the Court

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

Document 254

Filed 03/02/2006

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ruled that Big-D did not have to produce its tax records even though Leprino contended that BigD's tax records were relevant with respect to the corporate veil issue. The Court determined that the privileged nature of the documents warranted their protection from discovery. I declare under penalty of perjury under federal law under the laws of the States of Colorado and Utah that the foregoing is true and correct and that this Declaration was executed this 1st day of March, 2006, at San Jose, California.

s/ Francis J. Hughes Francis J. Hughes Miller, Morton, Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, California 95110 Telephone: (408) 292-1765 FAX: (408) 436-8272 E-mail: [email protected] Attorneys for Defendant Big-D Construction Corp.- California and Big-D Construction Corp.
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