Free Response to Motion - District Court of Colorado - Colorado

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

Document 109

Filed 05/05/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2461-MSK-MEH LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' S S MOTION TO COMPEL DISCOVERY (Document 95)

Plaintiff Leprino Foods Company (" Leprino" or " Plaintiff" through its counsel, ), states the following in opposition to Defendant' " s Motion to Compel Discovery" (" Motion to Compel" Defendant's Motion to Compel is moot and must be denied. ). The Motion to Compel seeks the following three categories of documents: (1) a request for bid to numerous silo manufacturers, responses of manufacturers and an "Approval for Expenditure"; (2) a project file; and (3) plans for modification. (See,

Motion to Compel at pp. 1-2.) While Defendant never made a proper Rule 34 request for the production of those documents, any and all non-privileged documents responsive to Defendant's Motion to Compel have been produced already. First, any non-privileged documents in the possession of Leprino that were responsive to the first category of documents identified above were copied and mailed to Defendant's counsel on or about September 8, 2005. Second, the project file, to the

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

Document 109

Filed 05/05/2006

Page 2 of 3

extent any documents can be considered included in such a designation, has already been produced to Defendant. Third, it is unclear to what plans Defendant refers in its third category of documents. If Defendant is referring to Leprino's plan to modify the Waverly silo, all such non-privileged documents responsive to that issue have already been produced to Defendant's counsel. In short, Leprino has produced any non-privileged documents responsive to the Motion to Compel even though no Rule 34 requests were ever propounded to Leprino for such documents. On May 5, 2006, Plaintiff's counsel conferred again with

representatives of Leprino and confirmed that all non-privileged responsive documents to the Motion to Compel have been produced. WHEREFORE, no order compelling production is necessary, and Defendant' s Motion to Compel should be denied. Respectfully submitted this 5th day of May, 2006. CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC

By:

s/ Bret M. Heidemann 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

2

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

Document 109

Filed 05/05/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on the 5th day of May 2006, I electronically filed the foregoing PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' MOTION S S TO COMPEL DISCOVERY (Document 95) 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/ Jing Yeng Lim Jing Yeng Lim, Paralegal

3