Free Stipulation - District Court of Colorado - Colorado

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

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Filed 10/20/2005

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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 BIG-D CORPORATION, a Utah corporation; BIG-D CAPITAL CORP., a Wyoming 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.

STIPULATION TO TRANSFER SUBPOENA TO UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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Plaintiff Leprino Foods Company ("Leprino") and Third Party Defendant Marelich Mechanical Co., Inc. dba University Marelich Mechanical ("UMM"), each through counsel, respectively submit the following motion to transfer subpoena that was served upon UMM before it was a party to this case. As grounds therefor, Leprino and UMM state: 1. Leprino issued a subpoena for the production of business records to then

non-party UMM. The subpoena was issued relative to this action by the United States District Court for the Central District of California. The subpoena is dated February 16, 2005, and is attached hereto as Exhibit 1. 2. UMM served objections to Leprino's February 16, 2005, subpoena on

February 28, 2005. 3. Subsequent to the issuance of the subpoena, UMM produced certain

electronic documents, allegedly including schedules, job costs data and financials, but Leprino contends UMM's production is incomplete. 4. Leprino filed a miscellaneous action for issuance of an order to show cause

to UMM regarding enforcement of the subpoena in the United States District Court for the Central District of California on July 7, 2005, Case No. CV 05-04949 FMC (RCx). After the subpoena issued, but before enforcement, UMM became a party to the instant action, designated United States District Court for the District of Colorado, Case No. 03-cv-2669MSK-PAC.

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5.

On September 12, 2005, the United States District Court for the Central

District of California issued an order to show cause to UMM regarding enforcement of the subpoena, and set the matter for hearing on September 21, 2005. 6. The parties desire to resolve the issue regarding enforcement of Leprino's

subpoena to UMM by order of the United States District Court for the District of Colorado, the action where both parties are now litigants. 7. The subpoena issued to UMM out of the United States District Court for the

Central District of California dated February 16, 2005 shall be deemed a request for production of documents pursuant to F.R.C.P. 34. UMM's February 28, 2005, objections to the subpoena shall be deemed a response pursuant to F.R.C.P. 34. 8. UMM shall produce to Leprino all non-privileged and not previously produced

documents responsive to the subpoena in electronic form, and where required, in both electronic and non-electronic form on or before October 15, 2005. UMM reserves its objections as set forth in Exhibit 2 and Leprino reserves the right to move to compel (or seek other relief) if it finds production pursuant to this stipulation is deficient in any way. Specifically, Leprino rejects any alleged right by UMM to withhold the production of nonprivileged documents based on UMM's objections to the subpoena. On or before

October 15, 2005, UMM agrees to provide a written response to the subpoena specifically addressing each category of requested materials and indicating which materials have been (or will be) produced.

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9.

The United States District Court for the District of Colorado shall hereinafter

have jurisdiction to enforce this order and to enforce the production of documents. 10. The parties shall dismiss the case in the Central District of California by

stipulation for dismissal with that court. Respectfully submitted this LEPRINO FOODS COMPANY 17th day of October, 2005. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL

By:

/s/ Patrick T. Markham

By:

/s/ Laurence R. Phillips

Patrick T. Markham Jacobson Markham L.L.P. 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected] Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206 (303) 322-3400 (phone) (303) 322-5800 (fax) [email protected] [email protected]

Laurence R. Phillips McKenna Long & Aldridge, LLP 750 B Street, Suite 3300 San Diego, California 92101Telephone: Telephone: (619) 595-5400 Facsimile: (619) 595-5450 [email protected] Peter J. Ippolito McKenna Long & Aldridge, LLP 750 B Street, Suite 3300 San Diego, California 92101 Telephone: (619) 595-5400 Facsimile: (619) 595-5450 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on the 17th day of October, 2005, I electronically filed the foregoing STIPULATION TO TRANSFER SUBPOENA TO UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 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] Patrick T. Markham [email protected] John David Mereness [email protected] C. Michael Montgomery [email protected] Daniel James Nevis [email protected] N. Kathleen Strickland [email protected]

/s/ Amy Freeman