Free Statement - District Court of Arizona - Arizona

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

James K. Thurston, ARDC No. 6202021 Patrick K. Cary, ARDC No. 6227274 Daniel E. Tranen, ARDC No. 6244878 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 120 North LaSalle Street Chicago, IL 60602 Telephone: (312) 704-0550 Facsimile: (312) 704-1522 Admitted Pro Hac Vice Mark G. Worischeck, No. 011147 J. Steven Sparks, No. 015561 SANDERS & PARKS, P.C. 3030 North Third Street, Suite 1300 Phoenix, AZ 85012-3099 Telephone: (602) 532-5795 Facsimile: (602) 230-5054 Attorneys for Defendant Carolina Casualty Insurance Company UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alanco Technologies, Inc., et al. Plaintiffs, Case No.: CV-04-0789-PHX-DGC DEFENDANT'S STATEMENT OF FACTS IN RESPONSE TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT v. Carolina Casualty Insurance Company, Defendant.

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Defendant Carolina Casualty Insurance Company ("Carolina") for its Statement of Facts in Response to Plaintiffs' Motion for Summary Judgment, states as follows: 1. On February 14, 2005, Alanco provided its Initial Disclosures. In

response to the inquiry "[a] copy or description of all documents, data, compilation, and tangible things in plaintiffs' possession, custody or control that may be used to support their claims", Alanco only identified: "See Exhibits to summary judgment motions." (See, Plaintiff Alanco's Initial Disclosures, Ex. 1 hereto.) 2. In Question No. 1 of Carolina's Interrogatories to Alanco, Carolina

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asked: "identify all documents which related to or evidence the allegations set forth in 1
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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

your Second Amended Complaint." Alanco answered: "Plaintiffs refer Carolina to the Initial Disclosures filed on February 14, 2005." (See, Plaintiffs' Response to

Defendant's First Set of Interrogatories to Plaintiffs, Ex. 2; also included as part of Ex. 2 is Defendant's First Set of Interrogatories to Plaintiffs.) 3. asked: "Identify all litigation engaged in by any of the Plaintiffs during the relevant time period, including civil, bankruptcy and criminal litigation, it [sic] any, including in your response, the court where the litigation took place, the names of the attorneys and parties involved, and description of the litigation, including any adjudication or settlement reached." The "Definitions" section of Carolina's Interrogatories states: "Alanco Technology, Inc, Technology Systems International Inc, Robert Kauffman, Elizabeth Kauffman, Greg Oester and Linda Oester are the Plaintiffs in the above-captioned action. For the purposes of these Interrogatories, Plaintiffs shall include each and every one of them...". Alanco answered Question No. 5 as follows: "Plaintiffs object to this interrogatory to the extent it is vague, overbroad, and because it seeks information not relevant to this matter nor reasonably calculated to lead to the discovery of admissible evidence in this case." (See, Plaintiffs' Response to Defendant's First Set of Interrogatories to Plaintiffs, Ex. 2 hereto.) 4. In Document Request No. 7 Carolina requested from Alanco: "All bills In Question No. 5 of Carolina's Interrogatories to Alanco, Carolina

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for attorneys' fees and costs incurred in the defense of the underlying lawsuit." Alanco answered this Request by refusing to provide any documents responsive to the same: "Plaintiffs object to this Request to the extent it is overbroad, seeks information protected by the attorney-client privilege, and seeks information not relevant to this
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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

matter nor reasonably calculated to lead to the discovery of admissible evidence." (See, Plaintiffs' Response to Defendant's First Request for Production of Documents to Plaintiffs, Ex. 3 hereto; also included as part of Ex. 3 is Defendant's First Request for Production of Documents to Plaintiffs.) 5. Per this Court's Case Management Order dated February 15, 2005, "[t]he

deadline for completing discovery shall be August 12, 2005." (See, Order dated February 15, 2005, Ex. 4 hereto.) 6. Carolina requested this Court extend the August 12, 2005 discovery

deadline, and the day the discovery deadline expired (August 12, 2005), Alanco filed its objections to Carolina's extension of discovery motion arguing that the "Motion should be denied." (See, Plaintiffs' Response to Defendant's Motion to Stay the Discovery Schedule, Ex. 5 hereto.) 7. As of August 12, 2005, Alanco had provided no documents responsive to

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Carolina's request for Alanco's legal invoices. See, Affidavit of James K. Thurston, Ex. 6, ¶3. 8. By Order dated October 31, 2005, this Court extended the discovery

period for an additional 30 days until November 30, 2005. See, Order dated October 31, 2005, Ex. 7. 9. On November 28, 2005, two days before the extended discovery period

expired, Carolina received for the first time Alanco's legal invoices. See, November 23, 2005 letter of Michael Daggett, Ex. 8 hereto. 10. In its present Motion for Summary Judgment, Alanco relies on Exhibits

B, C, D, F, G, and H. None of these documents are "Exhibits to summary judgment motions." See, Response to Motion to Dismiss and Motion for Summary Judgment and the Statement of Facts attached thereto and both dated June 14, 2004; Stipulated Statement of Facts filed by Alanco on March 11, 2005 and Plaintiffs' Separate 3

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

Statement of Facts in Support of Its Motion for Summary Judgment, collectively Ex. 9 hereto. See also, Affidavit of James K. Thurston, Ex. 6, ¶4. 11. In its present Motion for Summary Judgment, Alanco relies on Exhibits

B, C, D, F, G, and H. None of these documents were ever identified, disclosed or produced to Carolina during discovery. See, Plaintiff Alanco's Initial Disclosures, Ex. 1 hereto; Plaintiffs' Response To Defendant's First Set Of Interrogatories To Plaintiffs, Ex. 2 hereto; Plaintiffs' Response To Defendant's First Request For Production Of Documents To Plaintiffs, Ex. 3; see also, Affidavit of James K. Thurston, Ex. 6, ¶5. 12. Alanco's Second Amended Complaint for coverage against Carolina

does not contain a single allegation related to the Slander Lawsuit, the TSI Bankruptcy or the Nevada Lawsuit. (See, Alanco's Second Amended Complaint.) 13. Alanco never disclosed or identified documents related to the Slander

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Lawsuit, the TSI Bankruptcy or the Nevada Lawsuit in its Initial Disclosures. See, Plaintiff Alanco's Initial Disclosures, Ex. 1 hereto. 14. Alanco never disclosed or identified documents related to the Slander

Lawsuit, the TSI Bankruptcy or the Nevada Lawsuit in response to Carolina's Interrogatory requesting information concerning other litigation involving the Alanco Defendants, including civil and bankruptcy litigation. Plaintiffs' Response to Defendant's First Set of Interrogatories to Plaintiffs, Ex. 2 hereto. 15. Alanco has not produced a single document in discovery to Carolina

relating to the Slander Lawsuit, the TSI Bankruptcy or the Nevada Lawsuit. See, Affidavit of James K. Thurston, Ex. 6, ¶6. 16. The first time Carolina saw these Exhibits B, C, D, F, G and H was in

Alanco's Motion for Summary Judgment filed on January 13, 2006. See, Affidavit of James K. Thurston, Ex. 6, ¶7.

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

17.

In the Deposition of Ronald Estabrook, Estabrook testified: "I'm the

owner of...New Century Insurance Company...the sole owner" and "My client is Alanco." See, Deposition of Ronald Estabrook, Ex. 10, pp.6, 20. DATED this 16th day of February, 2006. SANDERS & PARKS, P.C.

By: s/ Mark G. Worischeck

Mark G. Worischeck J. Steven Sparks 3030 N. Third Street, Suite 1300 Phoenix, AZ 85012-3099 and James K. Thurston Patrick K. Cary Daniel E. Tranen WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 120 North LaSalle Street Chicago, IL 60602 Attorneys for Defendant
Carolina Casualty Insurance Company

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

I hereby certify that on February 16, 2006, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following EM/ECF Registrants: mdaggett @stinsonmoheck.com cbeams @stinsonmoheck.com Attorneys for Plaintiffs To be hand-delivered as a courtesy hard copy on February 16, 2006, to The Honorable David G. Campbell s/ Mark G. Worischeck

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