Free Response to Motion - District Court of Colorado - Colorado

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

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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.

RESPONSE TO PLAINTIFF' MOTION TO COMPEL ANSWERS TO S INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND MOTION FOR ATTORNEYS' FEES

Defendant, J.E.H. Knutson (" Defendant" individually and through his attorneys, ), Fairfield and Woods, P.C., responds to Walker Group Inc.'Motion To Compel Answers To s Interrogatories and Production of Documents ("Motion to Compel" as follows: )

INTRODUCTION Plaintiff'discontent is a result of its own ill-conceived and hastily prepared discovery s requests. Defendant fully and completely responded to the interrogatories and requests posed to him. The information Plaintiff contends Defendant did not provide was not requested, was provided, or was objectionable. For example, Plaintiff asked Defendant to identify his present employer, but now complains Defendant failed to provide information about his prior employment. Plaintiff did not ask for Defendant'prior employment. Similar misconstructions s

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are the basis for all of Plaintiff'complaints regarding Defendant'responses. Plaintiff'Motion s s s To Compel should be denied. ARGUMENT A. Plaintiff did not request the information it now contends Defendant failed to provide Interrogatory Nos. 2, 8(c), and 11 Request No. 10 Plaintiff repeatedly complains Defendant failed to provide information but in several instances the information was not requested. For example, Interrogatory No. 2, in pertinent part asks, " you presently in business or employed?" Defendant responded by stating that he Are and was the General Manger of Long'Peak Equipment Co., Inc. and High County Equipment, Inc. s See Exhibit A to Plaintiff'Memorandum in Support of Motion to Compel (" s Discovery" at pp. ) 1-2. Plaintiff contends Defendant'answer is evasive because more than two years ago s Defendant testified he was employed by different company, Transvidia. The question posed to Defendant, however, asks for his present employment and not his prior employment so Defendant'answer is complete. s Another example is Interrogatory 8(c) which in pertinent part asks Defendant to identify whether he owns or owned an aircraft to which Defendant identified none. See Discovery at p. 3. Plaintiff contends this answer is inconsistent with Defendant'deposition testimony: s Q. A. Do you own a plane? I own - Mr. Walker: Objection. . . .

Knutson Depo. at p. 20:20-23, Exhibit G to Motion to Compel. This testimony does not indicate that Defendant owns or owned a plane. Plaintiff incorrectly assumes Defendant' s unfinished statement "own" I would have been followed by " plane" a which is pure speculation.

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As posed, Defendant properly answered interrogatory 8(c). Similarly, in Interrogatory No. 11 Plaintiff asks Defendant to " all debts owed to him list" and Defendant stated Plaintiff owes him approximately $50,000. See Discovery at p. 4. Plaintiff contends Defendant'response is insufficient and requests this Court to compel him to provide a s " and complete narrative account of the information requested without omission of any full relevant facts . . . ."See Memorandum in Support of Motion to Compel at p. 10. But Plaintiff' s interrogatory did not request any such explanation or narrative. Defendant properly answered the question posed. Regarding Request No. 10, Plaintiff argues Defendant failed to provide documents evidencing he currently owns an interest in Long'Peak Equipment Co. or High Country s Equipment, Inc. See Discovery at p. 7. Plaintiff inappropriately assumes Defendant owns an interest in one of these companies and that documents exist evidencing that interest. Plaintiff' s complaints are but inappropriate speculations. B. Defendant provided the requested information Interrogatory Nos. 13, 15, and 16 Request Nos. 4, 14, 16, and 18 With respect to other responses, Plaintiff'contentions that Defendant did not provide the s requested information are simply incorrect. For example, Interrogatory No. 13 requests Defendant to identify any payments he received within the past year to which Defendant answered he received $22,000 in full payment of an account receivable. See Discovery at p. 4. Plaintiff complains Defendant failed to provide particulars relating to this payment including the name of the debtor and documents evidencing the payment. The name of the debtor for the payment was previously identified to Plaintiff as " HCE" (High Country Equipment) in a

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document previously provided to Plaintiff in February, 2005 and which Plaintiff even attached to its Motion To Compel. See Exhibit E to Motion To Compel. Further, Interrogatory No. 13 does not request documents evidencing this payment. In Interrogatory Nos. 15 and 16 Plaintiff requests Defendant to list his secured and unsecured creditors, which Defendant did. See Discovery at p. 5. Plaintiff contends Defendant testified he borrowed money from his father but failed to identify his father as a creditor. Defendant'response to Interrogatory No.15, however, states this loan was in fact from s Defendant'father'company, Harold Company. See Discovery at p. 5. s s With respect to Request No. 4, Plaintiff complains Defendant failed to provide a copy of a life insurance policy. Defendant, however, stated he looked for but could not find a copy of the policy and instead provided Plaintiff detailed information regarding the policy, including the company'name, the policy number and the beneficiary. See Discovery at p. 6. Defendant s provided sufficient information so Plaintiff can seek the policy directly from the life insurance company. Another example is Request No. 14 in which Plaintiff requests Defendant'tax returns s for the " three years."See Discovery at p. 7. Since Plaintiff served its discovery in past December 2005 the " three years" past means 2002, 2003 and 2004. Defendant previously produced Defendant'tax returns for years 2000, 2001, 2002 and 2003. Defendant believed he s also produced his 2004 tax returns, but in reviewing records now believes that return was inadvertently not produced, and Defendant is currently locating that document and will produce it promptly.

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Similarly, with respect to Request No. 16, Plaintiff argues Defendant did not provide copies of any contracts to which he is, or has been, a party within the past five years. Plaintiff' s argument is puzzling as Defendant attached several agreements to which he is a party to his discovery responses including a transfer agreement, installment notes, and warranty deeds. See Discovery at p 8. Defendant does not understand Plaintiff'complaint here. s Defendant also previously provided the information sought by Request No. 18 that asks Defendant to provide documents showing Defendant'bank and investment accounts since s October 1, 2000. See Discovery at p. 8. This request appears to be hastily copied from Plaintiff'previous discovery requests served on Defendant over a year ago to which Defendant s fully responded after being ordered to do so by this Court. As conceded by Plaintiff, in March 2005, only nine months before Plaintiff served its Rule 69 requests, Defendant has already identified all of his bank and investment accounts to Plaintiff. Finally, as posed, Defendant properly responded to Request No. 21, but the documents sought in the Request were previously produced anyway. This Request seeks real property appraisals for any property presently owned by Defendant. See Discovery at p. 8-9. Defendant however owns no real property. Notwithstanding this, appraisals on real property owned by Defendant'spouse were previously produced to Plaintiff. s C. Plaintiff'requests are objectionable s Interrogatory Nos. 8(f) and 10 Request Nos. 5, and 13 Finally, several of Plaintiff'requests are simply objectionable. For example, in response s to Interrogatory No. 8(f), Defendant stated he has no property subject to attachment pursuant to the exemptions in C.R.S. § 13-54-102. See Discovery at p. 4. Plaintiff contends Defendant is

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required to specifically identify each piece of furniture or appliance it claims is exempt under this statute pursuant to two unpublished decisions from other jurisdictions, S.E.C. v. Tome, 1987 WL 9415 (S.D.N.Y. 1987); Caisson Corp. v. County West Building Corp., 62 F.R.D. 331 (E.D.Pa. 1974). Neither one of these cases interprets C.R.S. § 13-54-102 nor holds a party is required to specifically identify each item it claims is exempt pursuant to C.R.S. § 13-54-102. Defendant'answer is sufficient. s Another example is Request No. 13 in which Plaintiff requests, " Provide copies of all financial statements issued within the past five years."See Discovery at p. 7 (emphasis added). Plaintiff argues this request somehow asks Defendant to provide updated financial information to Plaintiff, but the request does not do that. The request makes no sense because it is not directed at Defendant, or any person for that matter, does not explain the meaning of " issued"and does , not request statements of a certain person or entity. Financial statements of whom? Issued by whom? The request is vague and ambiguous and Defendant answered it to the best of his ability. Finally, in a footnote only, Plaintiff complains that Defendant'responses to s Interrogatory No. 10 and Request No. 5 failed to identify or produce documents showing mortgages on real estate listed in response to Interrogatory No. 8. Significantly, Interrogatory No. 8 requests Defendant to identify real estate he owned since January 1, 2000. Defendant has not owned interest in the real property he listed in response to Interrogatory No. 8 since 2001. See Exhibit A to Discovery. The information sought by Interrogatory 10 is therefore overbroad, irrelevant, and not likely to lead to the discovery of admissible evidence. Notwithstanding this, Defendant produced copies of two Installment Notes, each stating it is secured by one of the properties listed in response to Interrogatory No. 8. See documents attached to Discovery.

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CONCLUSION Plaintiff'discontent is a result of Plaintiff'own failure to diligently prepare discovery s s requests seeking information it does not already have and that it wants. Defendant fully and completely responded to the discovery requests as posed and his responses are not evasive. For these reasons Plaintiff'Motion To Compel should be denied. s Defendant further requests an award of attorneys' incurred in responding to fees Plaintiff'Motion to Compel because the Motion is groundless and frivolous. s Dated this 8th day of June 2006. FAIRFIELD AND WOODS, P.C.

s/ Tamara A. Hoffbuhr 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

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of June, 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]

s/ Tamara A. Hoffbuhr 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

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