Free Reply to Response to Motion - District Court of Arizona - Arizona

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MESCHKOW & GRESHAM, P.L.C.
Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818
(602) 274-6996 (602) 274-6970 (facsimile) Email: [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, v. AVNET, INC., Roy Vallee and Cindy Vallee, husband and wife, and Al Maag and Michaelle Maag, husband and wife, Defendants. Plaintiff Dan Coogan ("Coogan"), by and through undersigned counsel, hereby replies to Avnet's Response to Plaintiff's Motion for Sanctions. Defendants' filing of a Motion for Status Conference, instead of following up on defense counsel's promised commitments and promptly and properly answering five month-old and older discovery requests, as promised, is certainly sufficient grounds for sanctions under FED. R. CIV. PROC. Rule 11(c) because the filing of it violated FED. R. CIV. PROC. Rule 11(b), and its admonishment, that no pleading or motion be "presented for any improper purpose, such as... to cause unnecessary delay or needless increase in the cost of litigation." Defendants' filing of a Motion for Status Conference did the former, and because Plaintiff was instead expecting answers to five month-old and older discovery requests, as promised by defense counsel and instead had to respond to Defendants' Motion, it also needlessly increased the Plaintiff hates to trouble the Court, as well, but the Court will see that Defendants have not cooperated in discovery matters since discovery began in this matter, and need to be sanctioned when they act unnecessarily.
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Case No.: CV-04-0621 PHX SRB PLAINTIFF'S REPLY TO AVNET'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS 1 (Assigned to The Hon. Susan R. Bolton) (ORAL ARGUMENT REQUESTED) (BY DEFENDANTS)

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cost of litigation. It also could qualify as a Motion for Sanctions under FED. R. CIV. PROC. Rule 37, because the Motion for Status Conference was just one more discovery abuse promulgated by defendants. LEGAL ANALYSIS I. Plaintiff's Claim for Sanction is valid under Rules 11 and 37. Plaintiff's request for sanctions in an amount to cover drafting plaintiff's response to Motion for Status Conference, was stated was for Defendants' filing of a Motion for Status Conference, instead of following up on defense counsel's promised commitments and promptly and properly answering five month-old and older discovery requests, as promised. See July 1, 2005 letter of Charles Houston, served late that Friday of the Fourth of July weekend. (See Exhibit 2 to Avnet's Response). In this letter Mr. Houston states: "My review of Plaintiffs Second Request for Production of Documents to All Defendants and your correspondence reveals that: (1) you seem to think Avnet has more documents than it actually has; (2) you believe you are entitled to unfettered access to Avnet's computers, computer networks, systems, etc. As for the first item, I have confirmed that Avnet has produced all of the physical documents in its possession that are relevant to this matter. You seem disinclined to accept this but that is your right. I am in the process of gathering the electronic logbook, copies, archives and backup files you have requested in your various discovery requests and will have those to you within two weeks." Now, the first assertion, that defense counsel finds his "review of Plaintiffs Second Request for Production of Documents to All Defendants and your correspondence reveals

18 that: (1) you seem to think Avnet has more documents than it actually has... Avnet has 19 produced all of the physical documents in its possession that are relevant to this matter"; is 20 clearly oxymoronic to "I am in the process of gathering the electronic logbook, copies, 21 archives and backup files you have requested in your various discovery requests and will 22 have those to you within two weeks." Yet, instead of that coming, what came was the 23 Motion for Sanctions. 24 Next, on August 3, 2005 when Defendants served Avnet's Responses to Plaintiffs 25 Second Request for Production of Documents to All Defendants, no "electronic logbook" 26 was delivered, and for the "copies, archives and backup files you have requested in your 27 various discovery requests" Avnet produced two CD-ROMs, one with four files on it, and 28
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a second with five files on it, and the letter advising defense counsel that the CD-ROM with four files on it, has four unreadable files, and that the logbook was missing goes unanswered as of the date this was filed. See Avnet's Responses to Plaintiffs Second Request for Production of Documents to All Defendants (no logbook is identified) and 4 August 2005 letter from J, Meschkow to C. Houston, sent by email on 4 August 2005 to both C. Houston, and his assistant, M. Hildebran, attached as Exhibit 1. Moreover, the more defense counsel asserts that "Avnet has produced all of the physical documents in its possession that are relevant to this matter" the more it appears that either Avnet and/or the individual defendants are refusing to produce obvious documents, or both are spoliating evidence. As pointed out in Plaintiff's Response to Motion for Status Conference and Sanctions, these are the same defendants who were asked on September 27, 2004 for "All documents concerning any photographs, and their use, if any"; "All documents concerning any of Plaintiff's Photographs, and where applicable to Pose A and Pose B, broken out by Pose A and Pose B"; and "All documents concerning Dan Coogan and/or Coogan Photographic which is currently or subsequently in Avnet's possession" (attachments omitted, here, but attached to Plaintiff's Response to Motion for Status Conference and Sanctions), and who answered on November 1, 2004 with objection after objection, and then saw fit to serve AVN0020-AVN0045, which could fit within any or all of the above requests, in Avnet's 1st Supplemental Disclosure

Statement, served months later on March 25th, 2005. And, defendants continue to
mystify in this regard, since now and since the beginning of this matter, Avnet has seen fit to provide little or no cooperation in discovery production. Besides the above nearly six month delay referenced above, Avnet, in Avnet's Responses to Plaintiff's Second Request for Production of Documents to Defendant Avnet, Inc. 2, now produces a May 14, 2004 email, ANV0063 in response to "Copies of any and all documents, including but not limited to invoices, contracts, agreements, receipts, and correspondence between any of the Defendants, Avnet personnel, Avnet personnel and others, Avnet personnel and third2

Attached as Exhibit 2.
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parties, and between all third-parties and copied to Avnet, concerning Plaintiff's Photographs" that fits squarely within document requests served September 27, 2004 ("All documents concerning any of Plaintiff's Photographs..." or "All documents concerning Dan Coogan and/or Coogan Photographic..."). It certainly mentions Plaintiff and his Photographs, and it was not produced until almost one year later August 3, 2005. Yet, to date, Avnet has not produced a scintilla of evidence of how Plaintiff's Photographs were distributed internally within Avnet, when they were only delivered to defendant Al Maag, and no one else. Nor has Avnet produced a scintilla of evidence of how Al Maag received "permission" from Upside Magazine to use any of Plaintiff's Photographs in the first place. Next, just now on August 3, 2005, Avnet provided its Document Retention Policy as AVN0064 to AVN0067. In it, Avnet personnel are required to keep, for seven years: "Contracts and agreements (including employment and labor contracts) and all amendments or modifications thereto"; "Correspondence (important) directly related to sales invoices, purchase orders, etc. other than general correspondence"; "Correspondence (important) modifying, interpreting or directly affecting contracts, agreements, leases"; "Expense invoices"; "Sales Contracts", and "Sales Invoices" Now, there is no question defendants considered Coogan Photographic Invoice No. 2002-1212 a contract and all of its terms binding. Plaintiff has shown this, and that Avnet materially breached its contract, in the pending Motion for Summary Judgment. Yet, when asked for documents related to this contract, Avnet objects, and produces little or nothing. Moreover, when asked for: "All Avnet promotional documents that make use of photographs, including without limitation, advertisements, brochures, fliers, sales tools, catalogs, order forms, price lists, training materials, memoranda and bulletins, trade magazines, annual reports, and all documents related to the use of that photography" See Avnet's Supplemental Responses to Plaintiff's First Request for Production of Documents to Defendant Avnet, Inc. #10, attached as Exhibit 3. On March 30, 2005, Avnet answers: Response: Defendants object to this request on the grounds that it is overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The request is not limited in scope and time and fails to specify with sufficient particularity which ,promotional documents Plaintiff seeks. Nonetheless and without waiving its objections,
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Avnet is endeavoring to produce all documents, including promotional materials, which make use of photographs of Roy Vallee for the time period 2001 - 2004. Avnet will supplement its response as this information becomes available. To date not even an Annual Report, nor any back up for the production of an Annual Report, has been provided by defendants, and two years' worth of Annual Reports carried Plaintiff's Photographs. Where could these documents be? So, after all this time, when defendants cannot seem to get what they want, they file a Motion for Status Conference, and when faced with a Motion for Sanctions they claim all of their discovery answers are complete. If having to respond to a Motion for Status Conference, instead of reviewing promised discovery answers is not sanctionable as a clear attempt to further delay (and it did ­ note the 1 July letter, the 20 July Motion for Status Conference, and the 3 August service of incomplete and defective electronic documents), then what is? Moreover, defense counsel arguing it is moot, when it is defense counsel that makes it so, defense counsel should be sanctioned for the needless increase in the cost of litigation. Lastly, this continual failure to disclose should be sanctioned under Rule 37, as well, but Plaintiff's counsel knows how the Court prefers the parties handle discovery disputes. Discovery is clearly not working in this case, if after document requests served September 27, 2004 do not even get fully answered by August 2005, and nothing shows this better than the latter illustration, and defense counsel can say it has responded to all of plaintiff's outstanding discovery requests. Plaintiff beseeches the Court to issue sanctions just to tell defendants that they must comply with discovery instead of filing a Motion for Status Conference. II. The Motion is NOT Moot Plaintiff needs the Court to tell defendants their discovery answers have been inadequate since 3 November 2004. Moreover, supplementing them 30 March 2005 with incomplete answers does not make things correct. If the Court lets defendants off without sanctions, here, it will tell defendants their discovery antics are correct. Moreover, if

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defendants do not want to see so many discovery requests, they should learn to answer discovery correctly in the first place. Despite that the Motion for Status Conference is moot, its filing represents how defendants have viewed plaintiff's discovery since September 2004. This is why sanctions should be issued when defense counsel creates additional work for plaintiff's. III. CONCLUSION After all of the discovery abuses by defendants 3 sanctions are appropriate when defense counsel shirks it own promises, pledges, offers, and then files a ubiquitous Motion for Status Conference. Plaintiff still awaits updated non-excusatory discovery answers and believes only sanctions will make this happen.

RESPECTFULLY SUBMITTED this 12th day of August, 2005

By: s/Jordan M. Meschkow______________________ Jordan M. Meschkow Lowell W. Gresham MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818

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The Court is reminded of Plaintiff's ill-fated Motion to Compel much earlier this year.
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CERTIFICATE OF SERVICE I hereby certify that on August 12, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Greene and Charles Houston FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants

/s Jordan M. Meschkow________________

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