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

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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; and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

PLAINTIFF'S REPLY BRIEF IN FURTHER SUPPORT OF ITS RENEWED MOTION TO COMPEL AGAINST EMCOR GROUP, INC. (Docket No. 207)

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Plaintiff Leprino Foods Company ("Plaintiff" or "Leprino"), through its attorneys, respectfully submits the following Reply Brief in further support of its Renewed Motion to Compel Against EMCOR Group, Inc. ("Motion to Compel") 1. In its Response to the Motion to Compel, EMCOR Group, Inc. ("EMCOR")

argues that: (1) Leprino did not comply with D.C.COLO.LCivR 7.1A before filing its Motion to Compel; (2) Leprino's Subpoena Duces Tecum is unduly burdensome; (3) Leprino did not establish the relevance of documents sought in its Subpoena Duces Tecum; (4) the documents sought in its Subpoena Duces Tecum are protected by the attorney-client privilege and the work product doctrine; (5) the documents sought in its Subpoena Duces Tecum are protected trade secrets and/or other confidential research, development or commercial information; and (6) that it did not have reasonable time to respond to the Subpoena Duces Tecum. (See, Response at pp. 1-4). As detailed below, EMCOR's arguments are without merit and Plaintiff's Motion to Compel must be granted. Plaintiff More Than Complied With D.C.COLO.LCivR 7.1A By Conferring With EMCOR'S Counsel On Multiple Occasions Prior To Filing The Renewed Motion To Compel, But EMCOR Refused To Produce The Subpoenaed Documents 2. EMCOR incorrectly argues as a reason for the denial of Plaintiff's Motion

to Compel that Leprino did not comply with D.C.COLO.LCivR 7.1A. (See, Response at p. 1). As noted in the Motion to Compel, Leprino served EMCOR with a subpoena duces tecum in and around April 2005, which sought production of the very same documents identified in Leprino's Subpoena Duces Tecum and that are the subject of the Motion to Compel. In connection with the earlier subpoena, EMCOR served an

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objection, which objected to, among other things, the production of documents in Colorado. After receiving that objection, Leprino sent its June 16, 2005 correspondence to Peter Ippolito, which responded to EMCOR's objections in the hope of facilitating the production of the subpoenaed documents. (See, Motion to Compel at Exhibit 1). In response, Mr. Ippolito, sent his June 28, 2005 letter, which basically repeated EMCOR's objections to producing the subpoenaed documents, despite the reasons and explanations offered by Leprino in its June 16, 2005 letter. (See, Motion to Compel at Exhibit 2). Despite the contrary statements in EMCOR's Response, Leprino's counsel did confer with Mr. Ippolito about the subpoenaed documents back in June 2005. 3. Since Mr. Ippolito did not agree to the voluntary production of EMCOR's

documents, Leprino served its Subpoena Duces Tecum on EMCOR in Connecticut, which required production of the documents in Connecticut. After again failing to obtain EMCOR's voluntary production of the subpoenaed documents filed its motion to compel against EMCOR in the United States District Court for the District of Connecticut on September 8, 2005. In its Memorandum in Opposition to Motion to Compel, EMCOR continued its gamesmanship by asking the court to transfer the issue back to the United States District Court for the District of Colorado. (See, Memorandum in Opposition to Motion to Compel at p. 10). At the October 31, 2005 hearing before the United States District Court for the District of Connecticut, EMCOR was represented by James Newfield, Esq., who has offices located in Stamford, Connecticut. Subsequent thereto, on November 7, 2005, that court issued its Order Remitting Motion to Compel, which

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transferred Leprino's motion to compel to the United States District Court for the District of Colorado. 4. While Leprino believes that it has more than complied with any and all

rules including local conference requirements, Leprino took further steps to confer with EMCOR to again attempt to obtain the subpoenaed documents without intervention of the Court. On December 21, 2005, Leprino's counsel contacted Mr. Newfield to discuss EMCOR's voluntary production of the documents. As of January 4, 2006, Mr. Newfield had a lengthy telephone conference with Leprino's counsel concerning the subpoenaed documents and did not give any indication that he was not authorized to represent EMCOR on this issue. Again, by way of letter dated January 19, 2006, but sent on January 20, 2006, Mr. Newfield again discussed the subpoenaed documents with Leprino's attorneys and again gave no indication that the conversation should be taking place with another of EMCOR's attorneys. (See, EMCOR's January 19, 2006 letter to Leprino attached hereto as Exhibit 7). EMCOR must be estopped from now claiming that Leprino's counsel did not confer with the correct attorney for EMCOR. 5. Leprino has taken every step to obtain EMCOR's voluntary production of

the subpoenaed documents, on at least seven occasions, over the past ten months. Leprino is left with no options or alternatives but to seek judicial intervention to obtain the subpoenaed documents. Plaintiff's Subpoena Duces Tecum Is Not Unduly Burdensome 6. merit. EMCOR's objection that the production is unduly burdensome is without

The production requests specifically relate to information that EMCOR has

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concerning Leprino's 475,000 gross square foot dairy and related products manufacturing, processing and storage facility located in Lemoore, California, and the subcontract agreement dated May 31, 2001, between UMM and Defendant Big-D Construction Corp.-California. At page 5 of its Response, EMCOR notes that it was not directly involved as a contractor or subcontractor in that project, so there cannot be an overwhelming number of documents that would relate to that specific project. 7. In support of its argument, EMCOR incorrectly contends that Leprino

received the same documents from UMM and, as such, the requests are unduly burdensome. However, Leprino has not obtained any such documents from UMM, because UMM has refused to produce them. As indicated in the Motion to Compel, that discovery dispute is being transferred to this Court. EMCOR's argument that it can obtain the documents from UMM can only be deemed disingenuous when UMM is objecting to the production of those documents. 8. Notwithstanding the fact that UMM has refused to produce documents,

Leprino is entitled to production of the subpoenaed documents directly from EMCOR. As outlined in the Motion to Compel, Leprino has information that UMM's claim in this case is likely inflated. Leprino has a right to examine the documents held by EMCOR, not just those UMM may or may not have provided to EMCOR. The documents held by EMCOR are in all likelihood different from those sought from UMM. The Documents Sought By Plaintiff's Subpoena Duces Tecum Are Relevant To This Case And Necessary For Plaintiff To Adequately Prepare For Trial 9. EMCOR's Response contends that Leprino did not set forth the relevance EMCOR is wrong. Leprino's

of the documents sought. (See, Response at p. 4). 5

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Motion to Compel and its previous correspondence to EMCOR sufficiently articulate why the subpoenaed documents are discoverable, as well as relevant. As the Court is aware, the standard for whether information and documents are discoverable is contained in Fed. R. Civ. P. 26(b)(1). 10. As previously detailed in Plaintiff's Motion to Compel, the accounting and

compliance materials of EMCOR itself clearly pertain to and implicate the substance of UMM's claim and, as such, they must be produced to Leprino. EMCOR's attempts to argue otherwise are without merit. (See, Response at p. 4). EMCOR's records on UMM's claims, which are subject to the Sarbanes Oxley requirements for accurate reporting of corporate claims, may support or refute the damages claimed by UMM. Likewise, EMCOR's requirements imposed on UMM for reporting and making lien claims is relevant to the accuracy of the damages claimed by UMM. Similarly, a

comparison of the documents held by EMCOR and those of UMM is warranted and will show whether the information provided to EMCOR is consistent with the information contained in UMM's records and consistent with the damages claimed by UMM. 11. Plaintiff's Motion to Compel sets forth the reasons why Leprino believes

EMCOR has information that UMM may have purposely and fraudulently inflated its claim, as well as highlights the evidence underlying that belief. (See, Motion to Compel at p. 6). The evidence that has lead Leprino to question the nature, extent and amount of the alleged damages sought by UMM was learned during the discovery process. For example, Leprino learned from Bruce Gantenbein's testimony that Big-D was forced to hire at least three (3) employees simply to evaluate the inflated change estimates by

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UMM.

Leprino's further inquiry into this area is proper.

The accuracy of UMM's Contrary to EMCOR's

damages claim is clearly a central issue in the litigation.

contention, Leprino is not required to provide copies of the deposition transcript of Mr. Gantenbein along with its Motion to Compel. All such deposition transcripts are already most likely in the possession of Mr. Ippolito, the author of EMCOR's Response. 12. Leprino has already shown its need for the information sought. (See,

Motion to Compel at p. 6 and Exhibit 1). Just because EMCOR does not agree with or acknowledge the reasons articulated by Leprino does not mean that Leprino did not meet the requisite showing pursuant to Rule 26. Compel must be granted. Even Though EMCOR Contends Some Of The Subpoenaed Documents Are Subject To The Attorney-Client Privilege And Work Product Doctrine, EMCOR Must Still Produce All Other Responsive Documents 13. EMCOR argues that the requests seek information protected by the Accordingly, Plaintiff's Motion to

attorney-client privilege and/or work product doctrine. Leprino does not necessarily believe that any documents sought from EMCOR are so protected. Nonetheless,

EMCOR failed to comply with Fed. R. Civ. P. 45(d)(2) if it were indeed trying to assert that privilege. Fed. R. Civ. P. 45(d)(2) provides, in part, as follows: When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the 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)(emphasis added). As clearly evidenced by the language of the rule itself, Fed. R. Civ. P. 45(d)(2) requires that at the same time the claim of privilege is 7

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made, a privilege log must be tendered. In this case, EMCOR asserted the privilege in its objection and, accordingly, was required to tender a privilege log at the same time. EMCOR failed to include with its objection, or at any other time, such a description of the documents it claims are privileged. Without that description, as required by

Fed. R. Civ. P. 45(d)(2), the Court should properly conclude that there are no such privileged documents and, accordingly, order the production of EMCOR's documents. Even While EMCOR Contends That Some Of The Subpoenaed Documents Are Protected Trade Secrets And/Or Other Confidential Research, Development Or Commercial Information Compliance, Any Such Documents Would Be Subject To A Protective Order 14. EMCOR argues that it must not produce any documents because the

subpoenaed documents would include protected trade secrets and/or other confidential research, development or commercial information. In support of its argument, EMCOR contends it would not be protected by the Court's December 21, 2004 Order Regarding Protection of Confidential Information ("Protective Order"), because it was not a signatory to the underlying stipulation. Leprino has agreed, and its Subpoena Duces Tecum clearly states, that any requested documents may be subject to the protections of the Protective Order. The Protective Order is comprehensive enough to ensure the confidential nature of any documents that EMCOR wishes to designate as confidential, even though Leprino may not agree with that designation. EMCOR could just have easily stated that its production would be conditioned on the terms of the Protective Order applying to its documents as well. Leprino would not object to such an order by the Court.

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There Was Reasonable Time For EMCOR To Produce Documents Responsive To The Subpoena Duces Tecum 15. EMCOR unconvincingly argues that it did not have enough time to comply

with the Subpoena Duces Tecum. However, with the Subpoena Duces Tecum being served on EMCOR on July 20, 2005, it had nineteen days within which to meet the production date of August 8, 2005, not to mention the fact that all of the categories of documents are the same as those contained in the earlier subpoena served on EMCOR on or about April 12, 2005. It is now February 2006, EMCOR has had ten months to compile the subject documents. WHEREFORE, Leprino respectfully requests that the Court enter an order compelling EMCOR to produce, for inspection and copying, all documents in its possession, custody and/or control that are described in Leprino's Subpoena Duces Tecum at the offices of Campbell Bohn Killin Brittan & Ray, LLC, 270 St. Paul Street, Suite 200, Denver, Colorado. Leprino also respectfully requests an award of its

attorneys' fees incurred in pursuing and prosecuting the Motion to Compel and the previous motion to compel against EMCOR.

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Respectfully submitted this 10th day of February, 2006. LEPRINO FOODS COMPANY

By:

s/ Michael G. Bohn 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]

CERTIFICATE OF SERVICE I hereby certify that on the 10th day of February, 2006, I electronically filed the foregoing PLAINTIFF'S REPLY BRIEF IN FURTHER SUPPORT OF ITS RENEWED MOTION TO COMPEL AGAINST EMCOR GROUP, INC. (Docket No. 207) 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 at [email protected] Patrick Quinn Hustead at [email protected] Peter J. Ippolito at [email protected] Richard Carl Kaufman at [email protected] Patrick T. Markham at [email protected] John David Mereness at [email protected] Daniel James Nevis at [email protected] Laurence R. Phillips at [email protected] Christopher J. Hersey at [email protected] s/ Cori Atteberry Cori Atteberry, Legal Assistant 10