Free Motion to Compel - 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; FRICK COMPANY, and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

PLAINTIFF'S RENEWED MOTION TO COMPEL AGAINST EMCOR GROUP, INC. - AND CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A

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Plaintiff Leprino Foods Company ("Leprino" or "Plaintiff"), through its counsel, Campbell Bohn Killin Brittan & Ray, LLC, respectfully moves the Court pursuant to Fed. R. Civ. P. 45(c)(2)(B) for an order compelling EMCOR Group, Inc. ("EMCOR") (a nonparty to this litigation) to produce, for inspection and copying, all documents in its possession, custody and/or control described in Leprino's Subpoena Duces Tecum. As grounds therefor, Leprino states as follows: CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A On or about April 12, 2005, Leprino served EMCOR with a subpoena duces tecum from this Court, which sought the production in this judicial district of documents within the custody and control of EMCOR. In response to the April 12, 2005 subpoena, EMCOR served an objection, which among other things, objected to the location of the production being in Colorado. The parties then exchanged letters and conferred

concerning Leprino's desire to inspect the subject documents and EMCOR's objection to producing any of the subject documents. (True and correct copies of Leprino's

June 16, 2005 letter to EMCOR and EMCOR's June 28, 2005 letter to Leprino are attached hereto as Exhibit 1 and Exhibit 2, respectively.) Despite the exchange of correspondence and multiple telephone conversations, EMCOR still refuses to produce any documents. Then on July 20, 2005, pursuant to Fed. R. Civ. P. 45(a)(3)(B), Plaintiff issued its Subpoena Duces Tecum to EMCOR from the United States District Court for the District of Connecticut seeking the very same documents that were the subject of its April 12, 2005 subpoena. EMCOR has offices located at 301 Merritt Seven, 6th Floor, Norwalk,

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Connecticut and the production of documents was requested at the offices of Coles, Baldwin & Craft, LLC, 1261 Post Road, Fairfield, Connecticut on or before August 8, 2005, 10:00 a.m. Plaintiff effectuated the service of its Subpoena Duces Tecum on EMCOR on July 20, 2005. (True and correct copies of Plaintiff's Subpoena Duces Tecum and the proof of service are attached hereto as Exhibit 3 and Exhibit 4, respectively.) On or about July 25, 2005, EMCOR and Third-Party Defendant / Counterclaimant Marelich Mechanical Co., Inc. ("UMM") served Leprino with their "Objection by EMCOR Group, Inc. and University Marelich Mechanical to Subpoena of Plaintiff Leprino Foods Company" (the "Objection"). EMCOR's Objection is identical to the earlier objection it served, with the exception of the removal of its objection to the location of the production, which was changed to Fairfield, Connecticut. (A true and correct copy of EMCOR's Objection is attached hereto as Exhibit 5.) After again failing to obtain EMCOR's voluntary production of the subpoenaed documents, Leprino filed its Motion to Compel against EMCOR in the United States District Court for the District of Connecticut on September 8, 2005. EMCOR then filed its response on or about September 29, 2005. In turn, Leprino filed its reply in further support of its Motion to Compel on October 13, 2005. The District Court in Connecticut held a hearing via telephone on October 31, 2005, concerning Leprino's Motion to Compel against EMCOR. At that hearing, 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. Then, after having been referred the Motion to Compel, Magistrate Judge Patricia A. Coan issued her Minute Order dated December 15, 2005, in which she denied Plaintiff's Motion to Compel for failure to comply with D.C.COLO.LCivR 7.1A. 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, Michael G. Bohn, telephoned and spoke with EMCOR's counsel, James Newfield, regarding Leprino's continued desire to obtain the subpoenaed documents. However, Mr. Newfield stated that he did not know if he had authority to address the request or if Leprino's counsel needed to speak with another of EMCOR's attorneys. Subsequently, Mr. Newfield left a voicemail message for Mr. Bohn stating that he still did not know with whom Mr. Bohn should speak regarding the subpoenaed documents. On January 3, 2006, Leprino's counsel sent correspondence to Mr. Newfield, again requesting EMCOR's voluntary production of the subpoenaed documents, and stating that Leprino would proceed with a renewed motion to compel if the matter was not resolved by January 5, 2006. (A true and correct copy of Leprino's January 3, 2006 letter to EMCOR is attached hereto as Exhibit 6.) On or about January 4, 2006, Mr. Newfield had a lengthy telephone conference with Leprino's counsel; however, a resolution could not be reached concerning the production of the subpoenaed documents. Again, in a final attempt to obtain the

subpoenaed document from EMCOR voluntarily, Leprino's counsel left another

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message for Mr. Newfield on January 18, 2006, asking again for production of those documents. As of the filing of this motion, EMCOR failed and refused to voluntarily produce the subpoenaed documents to Leprino. In short, Leprino has taken every step to obtain EMCOR's voluntary production of the subpoenaed documents, on multiple occasions, over the past eight months. Leprino is left with no options or alternatives but to seek judicial intervention to obtain the subpoenaed documents. MOTION TO COMPEL 1. EMCOR has failed to produce any documents pursuant to Leprino's

Subpoena Duces Tecum, despite numerous conferences with EMCOR's counsel to obtain documents without Court intervention. After being told at least six times that EMCOR would not produce the subpoenaed documents, Leprino is left with no alternative but to file this renewed motion to compel. 2. EMCOR's Objection makes several general objections that are not

encompassed by any of its specific objections, which are addressed separately below. First, EMCOR incorrectly contends that UMM already produced all of the subject documents to Leprino. If this statement were true, Leprino would not be pursuing this motion. Second, EMCOR unconvincingly complains it did not have sufficient time to comply with the Subpoena Duces Tecum. With the Subpoena Duces Tecum being served on EMCOR on July 20, 2005, it had nineteen (19) 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

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on or about April 12, 2005. In effect, EMCOR had many months to compile the subject documents. Third, EMCOR contends it cannot understand the definitions in the

Subpoena Duces Tecum. As the Court can see for itself, the definitions are clear and concise. 3. It also appears that EMCOR's Objection contains the following specific

objections in various combinations to the seven categories of documents requested to be produced in Leprino's Subpoena Duces Tecum: (a) vague, ambiguous, overbroad and unduly burdensome (as to all categories); (b) harassing and oppressive (as to categories 2, 3, 4 and 6); (c) not relevant and not reasonably calculated to lead to the discovery of admissible evidence (as to categories 2, 3, 4, 5, 6 and 7); (d) protected trade secrets and/or other confidential research, development or commercial information (as to categories 1, 2, 3, 4, and 6); and (e) attorney work product doctrine and/or attorney-client privilege(as to all categories). 4. EMCOR's objections that the production categories are vague,

ambiguous, overbroad, unduly burdensome, harassing and/or oppressive are hyperbole in light of the direct and straightforward nature of the description of those categories of documents. The production requests specifically relate to information that EMCOR has 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. Hundreds of thousands of pages of documents have already been produced by the parties in this case, and considering that Leprino has

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already agreed to pay EMCOR reasonable copy costs associated with the production, the production would not be considered unduly burdensome or oppressive. 5. Concerning the objections that the requests are not relevant and not

reasonably calculated to lead to the discovery of admissible evidence, the evidentiary record thus far developed in this case calls into serious question the nature, extent and amount of the alleged damages sought by UMM. As UMM's parent company,

EMCOR's accounting practices and overall corporate compliance programs are directly relevant to the true amount of damages alleged by UMM, if any. Additionally, how EMCOR reports or otherwise accounts for its subsidiary's contracts and purported losses will certainly lead to the discovery of admissible evidence pertaining to the true nature, extent and amount of UMM's alleged damages. A UMM Vice President testified in his deposition that in preparing the demand letter for their construction claim, he guessed at the amount of damages. UMM routinely inflated their job change estimates by 300-400%. Big-D's superintendent Bruce Gantenbein testified that Big-D was forced to hire at least three (3) employees simply to evaluate the inflated change estimates by UMM. UMM's claim in this case exceeds $16 million, but its accounting records show the ostensible cost overrun was less than $5 million. Sarbanes Oxley requires accurate corporate claims reporting, and Leprino believes EMCOR has information that UMM in California may have purposely and fraudulently inflated the claim. 6. As to the objections that the requests call for protected trade secrets

and/or other confidential research, development or commercial information, Leprino's Subpoena Duces Tecum clearly states that any requested documents may be subject to

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the protections of this Court's December 21, 2004 Order Regarding Protection of Confidential Information ("Protective Order"). EMCOR's counsel, who is the same as UMM's counsel, has already agreed to the terms of the Protective Order on behalf of UMM. 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. 7. With regard to the objections that the requests seek information protected

by the attorney work product doctrine and/or attorney-client privilege, Fed. R. Civ. P. 45(d)(2) requires that such a claim of privilege be supported by a description of the nature of the documents, communications, or things not produced that is sufficient for Leprino to contest that claim of privilege. 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. 8. It is abundantly clear that EMCOR does not want to produce vital and

necessary documents to Leprino, despite Leprino's proper exercise of legal means to obtain those documents. EMCOR is unnecessarily and unjustifiably impeding Leprino's prosecution of its claims against the above-named defendants. 9. Finally, it is important to note that this is a motion to compel against a non-

party pursuant to Fed. R. Civ. P. 45(c)(2)(B), as opposed to a motion to compel against

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a party pursuant to Fed. R. Civ. P. 37. Fed. R. Civ. P. 45(c)(2)(B) provides, in part, as follows: [A] person commanded to produce and permit inspection and copying may . . . serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials . . . . If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Fed. R. Civ. P. 45(c)(2)(B) (emphasis added). As clearly evidenced by the language of the rule itself, Fed. R. Civ. P. 45(c)(2)(B) specifically authorizes the party seeking discovery to file a motion to compel at any time after an objection is filed. There is no requirement that Leprino respond to the Objection or otherwise make any further attempt to obtain the voluntary production of the subpoenaed 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 this motion and the previous motion to compel against EMCOR.

Respectfully submitted this 19th day of January, 2006. LEPRINO FOODS COMPANY

By:

s/ Michael G. Bohn One of Its Attorneys

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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 19th day of January, 2006, I electronically filed the foregoing PLAINTIFF'S RENEWED MOTION TO COMPEL AGAINST EMCOR GROUP, INC. - AND - CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A 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] C. Michael Montgomery at [email protected] Daniel James Nevis at [email protected] N. Kathleen Strickland at [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

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