Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02461-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2461-MSK-OES LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. PLAINTIFF' RESPONSE TO DEFENDANT' S S F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING DISCOVERY

Plaintiff Leprino Foods Company (" Leprino" or " Plaintiff" through its counsel, ), states as follows in response to Defendant' " s F.R.C.P. Rule 37 Motion for an Order Compelling Discovery" (" Motion to Compel" The Motion to Compel must be denied for ). the reasons set forth herein. Defendant would have the Court believe that Leprino has ignored its discovery requests and has refused to produce any documents at all. To the contrary, Leprino has timely and adequately responded to all of Defendant' written discovery requests s and has produced all non-privileged documents despite valid objections to many of Defendant' requests. s In recent months, Plaintiff' counsel has had telephone s

conversations with Defendant' counsel and exchanged correspondence in an effort to s resolve all outstanding issues of production. With the exception of a few documents, which were produced to Defendant the very day its Motion to Compel was filed, Leprino

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had already produced the vast majority of requested documents prior to Defendant filing its Motion to Compel. By way of letter dated November 9, 2004, Plaintiff' counsel informed Defendant s that all non-privileged documents responsive to Defendant' discovery requests were s being hand-delivered to Defendant' counsel and that efforts were underway to doubles check and verify that all responsive non-privileged documents had already been produced. (See, copy of Plaintiff' November 9, 2004 letter, attached to the Motion to s Compel as Exhibit E). This verification required Plaintiff' employees to search through s documents in four different locations from one end of the country to the other, i.e., Lemoore, California, Tracy, California, Waverly, New York, and Denver, Colorado. Around that time, counsel for both parties agreed that there was no pressing need for Plaintiff to expedite its search and verification of the documents produced, in part, because the parties stipulated to postpone discovery in an effort to resolve this dispute. Plaintiff then received no further inquiries by Defendant' counsel about any s allegedly deficient discovery responses until Defendant' May 5, 2005 letter. In a letter s dated May 18, 2005, Plaintiff' counsel responded by stating that the client s representative with whom counsel needed to speak regarding the issues in Defendant' s May 5, 2005 letter was out of town and unavailable for a period of time and, that upon his return, those issues would be responded to the next week. (See, copy of Plaintiff' s May 18, 2005 letter, attached to the Motion to Compel as Exhibit G). Apparently, without waiting for Plaintiff' response or seeking an update from Plaintiff' counsel, s s Defendant filed its Motion to Compel on May 27, 2005. That same day, May 27, 2005,

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as promised and without knowledge that the Motion to Compel was being filed, Plaintiff' counsel sent correspondence to Defendant' counsel that addressed each of s s the discovery requests about which Defendant now argues in its Motion to Compel, and provided documents that are arguably responsive to Defendant' requests for s production of documents, most of which were previously produced to Defendant. (See, copy of Plaintiff' May 27, 2005 letter attached hereto as Exhibit 1). s Along with

Plaintiff' May 27, 2005 letter, Plaintiff' counsel also tendered to Defendant' counsel a s s s copy of its privilege log in conformity with Fed. R. Civ. P. 26(b)(5). The May 27, 2005 letter closed by asking Defendant' counsel to contact Plaintiff' counsel if there were s s any further concerns about the discovery responses. As of the filing of this response, Defendant' counsel has not responded to s Plaintiff' May 27, 2005 letter. s Despite that lack of communication by Defendant' s

counsel, Plaintiff' counsel has left voicemail messages and electronic mail messages s with Defendant' counsel in an attempt to ascertain whether Defendant would withdraw s its Motion to Compel in light of the information and documents provided by Leprino. (See, copy of Plaintiff' June 20, 2005 electronic mail message attached hereto as s Exhibit 2). Those messages have likewise gone unanswered by Defendant' counsel. s As noted above and explained below, any non-privileged documents that Leprino has and that are responsive to Defendant' requests have been produced and, likewise, s all other discovery requests have been adequately responded to by Leprino. In short, there is no dispute between the parties concerning the information requested by Defendant. As this case proceeds, if Leprino locates any additional non-privileged

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documents that are responsive to Defendant' discovery requests, Leprino will produce s them to Defendant subject to any applicable objections set forth in Leprino' responses s to Defendant' discovery requests. Accordingly, Defendant' Motion to Compel, which s s was unwarranted and prematurely filed, is now moot. Subject to the objections in its responses to Defendant' discovery requests, s Leprino responds as follows, as it did in its May 27, 2005 letter, to each of the discovery request that Defendant raises and argues in its Motion to Compel: Interrogatory No. 1 Leprino adequately responded to this interrogatory. The date of purchase is reflected on the contract documents and Defendant would (or should) know the date the equipment was shipped and delivered to Leprino. Indeed, Defendant' disclosures s

reflect that it already has that information. The silo at the Waverly, New York facility is still in use. Interrogatory No. 2 This interrogatory is overly broad and unduly burdensome. Defendant is well aware of the nature of the defect that is the subject of this litigation. Nonetheless, Leprino provided a lengthy response and also referred Defendant to Leprino' expert s disclosures served in this action. Interrogatory No. 4 This interrogatory is also overly broad and unduly burdensome. Nevertheless, other than the silo implosions at the Tracy facility and the Lemoore East facility (of

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which Defendant is aware), Leprino is not aware of any other silo implosions within the last ten years at any other Leprino facility. Interrogatory No. 8 Leprino bought and paid for a storage silo from Defendant for the Waverly, New York facility that, as it turns out, does not meet the express terms of the contract. Accordingly, Leprino is entitled to the contract price, which is no less than $48,850. Leprino is also entitled to the costs to replace the silo in the approximate amount of $45,000. Also, Leprino seeks any costs to mitigate its damages in the approximate amount of $6,000. Thus, Leprino' total damages at this point are just over $100,000. s Leprino also seeks its litigation expenses. Interrogatory No. 9 Leprino is not aware of any interviews except the ones between counsel and client which are privileged. Interrogatory No. 11 Leprino adequately responded to the requests referenced in that interrogatory. Request for Production No. 1 All non-privileged information has been produced. Request for Production Nos. 2 and 6 All non-privileged information has been produced. Request for Production No. 4 All non-privileged information has been produced.

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Request for Production No. 5 Plaintiff' counsel has provided all information in their possession responsive to s this request. Leprino' representatives are in the process of confirming that all s If there is additional

responsive non-privileged documents have been produced. information, it will be provided. Request for Production No. 7

Any modifications to the equipment at issue relate solely to Leprino' mitigation s efforts. No other modifications have taken place. Request for Production No. 8 Leprino is not aware of any such documents. Request for Production No. 9 Some copies of photographs have already been produced. Plaintiff' counsel is s not aware of any other photos or videos. Request for Production No. 10 All non-privileged information has been produced. Request for Production No. 11 All non-privileged information has been produced. Request for Production No. 12 and 13 All non-privileged information has been produced.

WHEREFORE, no order compelling production or responses is necessary, and Defendant' Motion to Compel should be denied. If the Court determines that there are s any outstanding issues concerning Defendant' Motion to Compel, Plaintiff' counsel s s 6

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believes that any such issues can be resolved by a fifteen-minute telephone conference between counsel and the Court. Respectfully submitted this 22nd day of June, 2005. CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC

By:

s/ Michael G. Bohn Michael G. Bohn Bret M. Heidemann 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] ATTORNEYS FOR PLAINTIFF LEPRINO FOODS COMPANY

CERTIFICATE OF SERVICE I hereby certify that on the day 22nd of June, 2005, I electronically filed the foregoing PLAINTIFF' RESPONSE TO DEFENDANT' F.R.C.P. RULE 37 MOTION S S FOR AN ORDER COMPELLING DISCOVERY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Catherine A. Tallerico, Esq. at [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

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