Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

Document 231

Filed 09/08/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-01973-PSF-MJW (Consolidated with 04-CV-02112-PSF-MJW) WALKER GROUP, INC., Plaintiff, v. FIRST LAYER COMMUNICATIONS, INC. and J.E.H. KNUTSON, Defendants.

OPPOSITION TO PLAINTIFF' APPLICATION FOR ATTORNEY FEES AND COSTS S

Defendant, J.E.H. Knutson, by and through counsel, Fairfield and Woods, P.C., respectfully states as follows: I. INTRODUCTION At issue is Defendant'alleged non-compliance with a June 12, 2006 Order (" s First Order" requiring him to " ) provide responses to ROGs 8(f) and 10 and RFPs 4, 14, and 16 to Plaintiff on or before June 26, 2006." Pursuant to the First Order, Defendant submitted his Supplemental Response to Interrogatories and Requests for Production to Supplemental Proceedings to Plaintiff on June 27, 2006. Defendant did not formally request an additional day to provide responses beyond the June 26, 2006 deadline because of an email exchange that day with Plaintiff'counsel. s Exhibit A.

Case 1:03-cv-01973-PSF-MJW

Document 231

Filed 09/08/2006

Page 2 of 5

Plaintiff'July 18, 2006 Memorandum of Law in Support of Walker Group'Motion to s s Compel and for Sanctions (" Second Motion" contends Defendant did not fully supplement ) responses to ROGs 8(f) and 10 and RFPs 14 and 18 as required by the First Order. Understandably, the Court was concerned that, as represented in Plaintiff'Second Motion, s Defendant " raised new objections" his Supplemental Response. The Court'August 11, 2006 in s Order (" Second Order" apparently relied upon Plaintiff'representation and noted such ) s objections " should have been raised" earlier and that " this late date have therefore been at waived by Defendant." The alleged newly raised objections referenced in Plaintiff'Second Motion and the s Second Order were the statements in Defendant'Supplemental Response that " s financial information concerning his spouse" not discoverable. However, the very same objection was is previously asserted in Defendant'Response to Interrogatories and Requests for Production to s Supplemental Proceedings. II. ARGUMENT Defendant did not fail to comply with the First Order requiring supplemental discovery responses. A. Interrogatories 8(f )and 10. In his Response to Interrogatories and Requests for Production to Supplemental Proceedings, Defendant asserted the following general objection: Defendant objects to interrogatories seeking financial information concerning members of his immediate family as it is neither relevant nor reasonably likely to lead to discovery of admissible evidence. Exhibit B, pg. 1.

2

Case 1:03-cv-01973-PSF-MJW

Document 231

Filed 09/08/2006

Page 3 of 5

Neither Plaintiff'May 16, 2006 Motion to Compel (" s First Motion" nor the First ) Order challenges or even mentions Defendant'objection to producing information concerning s his wife. Accordingly, when submitting his Supplemental Response, Defendant had no reason to believe Plaintiff was seeking or the Court had ordered him to produce information concerning his wife. Simply restating the same objection in his Supplemental Response not previously challenged or addressed by Plaintiff or the Court is insufficient to conclude Defendant failed to comply with the First Order. B. RFPs 14 and 18. Plaintiff'July 7, 2006 letter (Exhibit C) addresses Defendant'Supplemental s s Response to RFPs. Notably, the alleged deficiencies only pertain to Defendant not having provided financial information concerning his wife. Plaintiff obviously did not consider its request for state tax returns to be material. Accordingly, Defendant did not produce state tax returns before Plaintiff filed its Second Motion, which for the first time mentioned that it desired Defendant'state tax returns in his Supplemental Response. Had Plaintiff'July 7, 2006 letter s s mentioned that it also desired Defendant'state tax returns, they would have been produced and s the issue would not have needed to be addressed in Plaintiff'Second Motion. s Plaintiff complains that it did not receive another copy of documents already in its possession. Specifically, Plaintiff states, " Defendant cannot, however, rely on documents produced in a separate lawsuit to fulfill his production obligations in this case."Second Motion, pg. 10.

3

Case 1:03-cv-01973-PSF-MJW

Document 231

Filed 09/08/2006

Page 4 of 5

Plaintiff is the pot that called the kettle black. In Plaintiff'response to s Defendant'Requests for Production in related Boulder County District Court Case No. 2005s CV-786, Plaintiff does not produce requested documents requested, explaining " these documents have been previously produced in the federal litigation."Exhibit D, responses to RFPs 2 and 3. III. CONCLUSION Plaintiff'objection to Defendant'Supplemental Response provided pursuant to the s s First Order concerns Defendant'failure to produce financial information concerning his nons party wife. As evidenced by Plaintiff'July 7, 2006 letter, Plaintiff did not seek information or s documents through Defendant'Supplemental Response other than that pertaining to s Defendant'wife. Nevertheless, Plaintiff'Second Motion expands the supplemental responses s s sought in Plaintiff'July 7, 2006 letter and misrepresents to the Court that Defendant raised new s objections in his Supplemental Response. In fact, the subject matter of Plaintiff'Second s Motion was not addressed in Plaintiff'First Motion, the First Order partially granting same, or s Plaintiff'July 7, 2006 effort to confer with Defendant concerning the sufficiency of his s Supplemental Response. Defendant respectfully submits the Court was mislead by Plaintiff in concluding Defendant had failed to comply with its First Order, and that good cause exists to deny or vacate the award of sanctions to Plaintiff.

4

Case 1:03-cv-01973-PSF-MJW

Document 231

Filed 09/08/2006

Page 5 of 5

Respectfully submitted this 8th day of September 2006.

s/ Michael R. McCurdy Michael R. McCurdy Fairfield and Woods, P.C. 1700 Lincoln Street, Suite 2400 Denver, CO 80203 Phone: (303) 830-2400 Fax: (303) 830-1033 Email: [email protected] ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE I hereby certify that on this 8th day of September 2006, I electronically filed the foregoing with the Court using the CM/ECF system, which will send notification of such filing to the following email-addresses: [email protected] [email protected] s/ Michael R. McCurdy Michael R. McCurdy Fairfield and Woods, P.C. 1700 Lincoln Street, Suite 2400 Denver, CO 80203 Phone: (303) 830-2400 Fax: (303) 830-1033 Email: [email protected]

5