Free Response in Opposition to Motion - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 Morten Ave. E. Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 [email protected] 4 Attorneys for Defendant Greg Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MERITAGE CORPORATION, a Maryland corporation Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CIV 04-0384-PHX-ROS

DECLARATION OF ROBERT M. FRISBEE

GREG HANCOCK, an individual; RICK HANCOCK, an individual; and 12 RICK HANCOCK HOMES, L.L.C., an Arizona Corporation,
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Defendants.
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I, Robert M. Frisbee, do declare and state as follows:
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1. That all facts stated in the foregoing Response to Meritage Motion In Limine Re
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Claimed Privileged Documents are true and correct, or asserted to the best of my belief.
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2. On October 22, 2007, at 3:37 I sent the email quoted at page 2 of the Response to
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Rick Erickson.
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3. If an email fails to get to the recipient, I receive a MILLER DAEMON notice that
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the message has failed; I have never received such a notice in connection with my emails to
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Snell & Wilmer during the entire course of this litigation, and I did not receive one in this
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instance.
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4. On June 23 and 24, 2008, Dan Goldfine contacted me about viewing the email on
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my equipment; on June 24, 2008, I advised him that, "Your IT person can call me at 60226 8 Case 2:04-cv-00384-ROS Document 575 Filed 07/02/2008 Page 1 of 2

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354-3689, as long as it takes less than five minutes. And you should know I'm not going to `drag' anything out of my sent box. Alternatively, you or your IT person can come and take a look at it in person." 5. I got no response until Goldfine and/or his IT person called my office on June 26, 2008, when I was out of state; the message was that they wanted to look at my computer in my absence. 6. When I returned from out of state I learned that what was intended would take much longer than five minutes, and would constitute a voyage to the innards of my computer, which because it contains mostly privileged material, I would not have allowed. 7. Before I could convey that message, I received Meritage's motion regarding the exhibits, which was the subject of the email. 8. All Meritage has to do to resolve the situation is to stipulate that this litigation appears nowhere in its records, including litigation summaries; that is the truth, but evidently Meritage doesn't want the truth to be known. 9. Attached hereto as Exhibit A are two pages from Meritage's Objection to Exhibits, which was filed on at least two occasions subsequent to October, 2007; it demonstrates unequivocally that defendant planned to use the exhibits, that counsel knew it, and that no effort other than the objections was made to retrieve the documents. 10. I know of no authority or rule whereby an opposing litigant can simply order the other to destroy exhibits it doesn't like and where there is a dispute about waiver of privilege. I declare, upon the penalties of perjury and the risk of sanctions, that the above is true and correct to the best of my knowledge. Executed this 2nd day of July, 2008. \s\ Robert M. Frisbee

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