Free Motion to Compel - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 355-12

Filed 02/23/2006

Page 1 of 6

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Case 1:03-cv-02485-MSK-PAC

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Document 355-12

Filed 02/23/2006
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FROM:

Steen F. Pookm.

TEEPHONE

NO.: 317-236-5921

SUBCI:
COMMNTS:

McClain an Mil.. v. Hoar/land Homo Fina.., 1.c.

Civil ActnoNo. 1:OS-CV-Q416-TWT ,
Let nf lun 30, 2005, fr Ste Pnckn

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Case 1:03-cv-02485-MSK-PAC

Document 355-12

Filed 02/23/2006

Page 3 of 6

ICE:YI
TRANSMITTAL COVER SHEET
DATE:
June 30, 2005

LEGAL a BUSINESS ADVISORS

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COMPANY:
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Paul J. Lukas

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FROM:
SUBJECT:

Steven F. Pockrass

TELEPHONE NO.:

317-236-5921

McClain and Miles v. Heartland Home Finance, Inc. United States District Court for the Northern District of Georgia Civil Action No. 1 :05-CV-0416-TWT
Letter of June 30, 2005, from Steven Pockrass

COMMENTS:

WARNING CONFIDENTIALITY NOTICE:

This cover sheet and the materials enclosed with this transmission are the private confidential propert of the sender, and the materials are privileged communications intended solely for the receipt, use, benefit and information of the intended recipient indicated above. If you are not the intended recipient, you are hereby notified that any review, disclosure, copying, distribution, or the taking of any other action in reliance on the contents of this transmission is strictly prohibited, and may result in legal liability on your part. If you have received this transmission in error, please notify us immediately at the telephone number below' and arrange for return of this transmission to us.

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Case 1:03-cv-02485-MSK-PAC

Document 355-12

Filed 02/23/2006

Page 4 of 6

ICEMILL
WRITER'S DIRECT NUMBER: (3) 7) 236-592)
DIRECT

lEGAL Et BUSINESS ADVISORS
FAX: (3) 7) 592-4892

INTERNET: pockrasstíicemiller.com

June 30, 2005

VIA FACSIMILE AND E-MAIL
Paul J. Lukas

Nichols Kaster & Anderson PLLP 4644 IDS Center 80 South Eighth Street Minneapolis, MN 55402

RE: McClain and Miles v. Heartland Home Finance, Inc. United States District Court for the Northern District of Georgia
Civil Action No. 1 :05-CV -0416- TWT
Dear Paul:

I am writing as a follow-up to our phone conversation of earlier this month regarding your responses to Defendant's First Request for Production in the above-referenced matter. As per your request, I am identifying for you in writing some of the primary concerns that we have
regarding those production responses. I also am identifying some of our primary concerns

regarding your Answers to Defendant's First Interrogatories to Plaintiffs.

It appears from our conversation that it is your belief that you do not have to share our written Requests for Production with your clients, despite the fact that they are parties to this

lawsuit and that the production requests were directed toward them. Rather, it is my
understanding that your position is that you and your clients have fulfilled your ethical and legal obligations as long as you have asked your clients to provide you with all documents in their possession relating to their employment with Defendant. This is simply not the case.

Under Rule 34 of the Federal Rules of Civil Procedure, a request for production shall set forth, by individual item or by category, the items to be inspected and to describe each with "reasonable particularity." Our requests meet the "reasonable particularity" requirement, and you have an ethical obligation to make a reasonably diligent effort to communicate with your clients concerning the requests so that the documents can be produced. See, e.g., Rules 1.4 and 3.4 of the Model Rules of Professional Conduct. Although objections may be signed by counsel and documents may be made available through counsel, the party to whom the request is directed must make a good faith effort to locate and provide the requested documents. See Rayman v.
American Charter Federal Savings & Loan Ass'n, 148 F.R.D. 647, 651 (D. Neb. 1993) (briefs of

defendant's counsel stating that all such documents had been produced was insufficient; statement under oath from defendant was required). Moreover, a pary does not get to make an ex parte determination as to which documents to produce in response to a valid production
request. See Smith v. Logansport Community School Corp., 139 F.R.D. 637, 647-48 (N.D. Ind.

1991) (party did not object to discovery request, but instead qualified answer by reserving to herself the determination of whether any such records in her possession would be relevant and
One American Square I Box 82001 I Indianapolis,

IN 46282-0200 I P 317-236-2100 I F 317-236-2219 I www.icemiller.com

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Case 1:03-cv-02485-MSK-PAC

Document 355-12

Filed 02/23/2006

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Paul 1. Lukas June 30, 2005
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thus subject to discovery; this was improper, and she should have produced all documents called for in the request).

This is not merely a technical issue or a question of semantics. For example, in Request hours worked, desk calendars, desk pads, personal diaries, or other such daily, weekly or monthly planning and/or appointment notes during the period of Plaintiffs employment with Defendant." This request obviously is relevant, because such documents may provide evidence of times when Plaintiffs said they were working for Defendant but actually were engaged in personal activities.
No.7, we asked for all "calendars, planners, appointment books, work logs, calculations of

Similarly, if one of the Plaintiffs were to testify that he or she worked at home (as Camile
Melonakis-Kurz alleges that she did in the case of Melonakis-Kurz v. Heartland Home Finance), such documents could provide support for or refute those allegations. However, without having

seen that production request, a Plaintiff might not think to produce such documents. Weare
entitled to know whether such documents exist. And if they do exist, we are entitled to see them.
Likewise, in Request No. 13, we asked for income tax returns for the year(s) Plaintiff was employed by Defendant. Such documentation not only provides verification of the income that

Plaintiffs received from Defendant, but also provides evidence of other sources of income that Plaintiffs had, either as employees or as independent contractors, which again is relevant to the manner in which Plaintiffs used their time while employed by Defendant. In response, you sÚite that "if Plaintiffs maintained other jobs while working for Defendant, they provide any w-2s or pay stubs in their possession relating to this concurent employment ...." However, this request was not limited to W-2s or pay stubs, These individuals also could have worked as independent contractors, for which they would not have received W -2s. Moreover, we are entitled to see the income tax returns in order to make our own independent determinations as to whether there were outside sources of income and to investigate those sources.

Similarly, in Request No.5, we requested "tape recordings and/or records retained or created by Plaintiff and any current and/or former agent, employee, and/or representative of

Defendant and any other potential witness concerning the allegations referred to in the
Complaint." In response, you stated that Plaintiffs wil produce "any and all recordings in their

possession relating to their employment with Defendant." However, no recordings were
produced, If, in fact, there are no recordings, then that should be disclosed, and we should not be

required to speculate about their existence. Furthermore, this request is not limited to tape recordings, but also includes other records of oral communications. And once again, although such records obviously would be relevant to the lawsuit, Plaintiffs may not have realized that
they needed to produce these without having been made aware of this specific request for production.

Although we did not discuss your clients' interrogatory answers during our phone
conversation, those answers raise similar concerns. In particular, I would direct your attention to

Interrogatories 7-10, which ask for information concerning communications and records of communications with various persons. In response to Interrogatories 7-9, you stated that Plaintiffs would produce statements obtained as defined by Fed.R.Civ.P. 26(b)(3) and, in response to Interrogatory 10, that Plaintiffs would produce all documents relating to their

Case 1:03-cv-02485-MSK-PAC

Document 355-12

Filed 02/23/2006

Page 6 of 6

Paul J. Lukas June 30, 2005
Page 3

employment with Defendant. For the

same reasons discussed above with respect to the

production requests, the answers to these interrogatories are deficient.

Your responses to Interrogatory 5 also is problematic. In that interrogatory, we requested information concerning bankruptcies, other lawsuits, legal actions or administrative proceedings. You objected, and your clients did not produce any substantive responses to this interrogatory. However, your objections are improper. If Plaintiffs have never been involved in any other legal

actions, then they should state this. And if they have been involved in other legal actions,
information concerning such legal actions may lead to the discovery of admissible evidence

related to their credibility, motivation and whether they are proper parties to this lawsuit.

Similarly, I would note that in Production Request No.1, we asked for all documents that substantiate or relate to wages, damages, benefits, expenses and/or any other amounts Plaintiff seeks to recover in this action, including but not limited to the costs and expenses Plaintiff claims

to have incured in connection with the maintenance of this action. This request includes
information regarding the costs and attorney fees incurred by Plaintiffs, which is relevant and
discoverable when Plaintiffs are seeking the recovery of attorney fees under a fee-shifting
statute. Documents concerning this information must exist, yet they were not produced.

In addition to the above, I would also note that you produced only three pages of
documents on behalf of Duane McClain (Bates range 235-237) and one page of documents on what appears to be a multi-page letter. If Mr. McClain has the remainder of that letter, it should be produced. In addition, the production of these few documents raises the question as to whether Bates range documents 001-234 exist, and if so, why they were not produced. Please produce those documents or else provide a reason for their non-production.
behalf of Alesia Miles (Bates range 2~8). The McClain documents include the first page of

We have not yet noticed Mr. McClain's and Ms. Miles' depositions, and we need to do so. Weare entitled to receive complete responses to these interrogatories and production requests, along with the requested documents, prior to taking Plaintiffs' depositions. We also are entitled to conduct discovery in the order that we deem appropriate, and it is certainly in the best interests

of efficiency and economy for the requested information and documents to be produced in
advance of these depositions. Accordingly, we request that you and your clients provide complete interrogatory answers, production responses, and the requested documents on or before
the close of

business on Friday, July 15.

Thank you for your cooperation and attention to this matter. Please contact David Carr or me if you have any questions.
Sincerely,

ICE MILLER

Steven F. Pockrass

J-L7Ü