Free Motion in Limine - District Court of Arizona - Arizona

EXHIBIT

4
Filed 06/26/2008 Page 1 of 9

Case 2:04-cv-00384-ROS

Document 571-5

1 Dan W. Goldfine (#018788)

Richard G. Erickson (#019066) 2 SNELL & WILMER L.L.P. One Arizona Center
3 400 E. Van Buren

Phoenix, AZ 85004-2202
Facsimile: (602) 382-6070

4 Telephone: (602) 382-6000
5 Attorneys for Plaintiff Meritage Corporation

6 7
8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARZONA

9
10

Meritage Corporation, a Maryland Corporation,
Plaintiff,
v.

Case No. CV-04-0384-PHX-ROS

~ ~N ~ ~"i 12 ~~
1" rnuigo

~

11

DECLARTION OF DAN W. GOLDFINE

~ ~g~~ ~~¡::~~ 13
00 ~ ß~N
1" .. g.~~ "'U ~S3 14 ..
_l-.. 0 B 2~

Q) .ê ~
$: ~-"
o
~

Greg Hancock,

rn -:0-

15

Defendants.
16

17 I, Dan W. Goldfine, declare as follows:
18 1. I am at least 18 years of age, and I make this Declaration in the above-

19 captioned matter.
20 2. I am an Attorney with Snell & Wilmer, L.L.P., which represents Plaintiff

21 Meritage Corporation in this matter.
22 3. Defendant's counsel and Meritage's counsel have attempted to resolve this
23 dispute. Meritage's counsel repeatedly contacted Defendant's counsel on Monday June

24 23,2008; on Wednesday June 25,2008 through 5:30 pm; and on Thursday, June 26, 2008
25 including phone calls on the last two days. Defendant's counsel's last response was at
26

Case 2:04-cv-00384-ROS

Document 571-5

Filed 06/26/2008

Page 2 of 9

1 about 10:00 am on Wednesday, June 25,2008. A summary of

the email correspondence

2 with respect to attempting to obtain an electronic record from.Defendant's counsel to

3 establish whether Mr. Erickson received the October 22,2007 at 3:37 pm email is
4 attached as an Exhibit to this Declaration.

5 4. Meritage hired Snell & Wilmer, a prominent law firm with collective centuries

6 of complex litigation experience, to handle, among other things, document production in

7 this matter.
8 5. Snell & Wilmer assigned a senior associate, who in 2006 was an eight-year

9
10

attorney at the two largest firms in Phoenix, and a paralegal, who at the time had eleven

years of comple,- litigation and document production experience, to head up the review of
documents for document production in this case in coordination with in-house attorneys
and others in finance and IT at Meritage.
6. The document review team at Snell & Wilmer employed a tagging and double

~ ÆiN
1" (luigo ... UJo\J0 ~ S¿ocoS3

~

11

~ ~"i ~ ~~

12

~j~~~~ 13 _y.. 0 ~ 2('

00 ~ ~~Ñ

1" :1~ x~ 14

~ ~.'& .ê ~
$: ~-"
o
~

review system, meaning that all documents produced were reviewed by two separate sets
of eyes before production.

rn -:0-

15

16 7. The Snell & Wilmer attorney and paralegal were supervised by a litigator with

17 20 years of complex litigation experience and who addressed specific document

18 production questions.
19 8. Meritage and Snell & Wilmer reviewed more than several milion documents
20 to comply with Defendants' document requests.

21 9. Meritage produced more than 75,000 batestamped documents, including the

22 electronic data, and provided a lengthy and detailed privilege logs with more than 400

23 items set forth on them, including litigation summaries like Exhibits 1 and 2.

24 Pursuant to the Rules of Civil Procedure, I declare under the penalty of perjury and
25

26

Case 2:04-cv-00384-ROS

Document 571-5

-2-

Filed 06/26/2008

Page 3 of 9

1 under penalty of possible sanctions, that the foregoing is true and correct.
2
3 Executed on the 26th day of June, 2008.

4
5

6 7
8
8899692.1

By

9
10
Si i5N
~ cnuigo S. ~g:2~
~

11

S ~~ 12

_y .. 0 ~ .ê:, co ~ V..N

~jtt:~~ 13

1" :s~ x~ 14

~ ~."" .ê g
rn -:0o
~

$: ~-"

15

16
17 18

19

20
21

22
23

24
25

26

Case 2:04-cv-00384-ROS

-3Document 571-5 Filed 06/26/2008

Page 4 of 9

EXHIBIT 1
Declaration of Dan W. Goldfine
Case 2:04-cv-00384-ROS Document 571-5 Filed 06/26/2008 Page 5 of 9

Goldfine, Dan
From:

Sent:
To:

Subject:

Goldfine, Dan Wednesday, June 25,200810:11 AM 'rfrisbee~fbplclaw.com' RE: The email

The IT person seems to think that from the metadata, one may be able to determine whether Rick received the email. The IT folks say that they can capture that metadata without altering the email in your sent folder.

Dan W. Goldfine Snell & Wilmer LLP

One Ari zona Center
400 East Van Buren Phoenix, AZ 85004 -2202

(602) 382-6282 (direct)
(602) 382-6000 (main)
dgoldfine~swlaw. com

(602) 382-6070 (facsimile)
(602) 330-3612 (mobile)
The information contained in this electronic mail message is confidential information intended only for the use of the individual or entity named above, and may be privileged. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone (602) 382-6000, and delete the original message. Thank you.

From: rfrisbee~fbplclaw. com (mail to: rfrisbee~fbplclaw. comJ
Sent: Wednesday, June 25, 2008 10: 03 AM To: Goldfine, Dan
Subj ect: Re: The email

- - - - -Original Message- - - --

Bob Frisbee

about nothing.

i will let you know. First I want to know what you are doing. This is really much ado

- - - - -Original Message- - - -From: "Goldfine, Dan" -:dgoldfine~swlaw. com~

Date: Wed, 25 Jun 2008 09:51:26
To: -:rfrisbee~fbplclaw. com~

Subj ect: RE: The email

Bob,
When is the earliest that the IT person can get access?

Dan W. Goldfine Snell & Wilmer LLP One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202

(602) 382-6282 (direct)
(602) 382-6000 (main)
1

Case 2:04-cv-00384-ROS

Document 571-5

Filed 06/26/2008

Page 6 of 9

(E02) 382-6070 (facsimile)
(602) 330-3612 (mobile)
dgoldfine~swlaw. com

The information contained in this electronic mail message is confidential information intended only for the use of the individual or entity named above, and may be privileged. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone (602) 382-6000, and delete the original message. Thank you.

- - - - -Original Message- - - -From: rfrisbee~fbplclaw. com (mail

to: rfrisbee~fbplclaw. com)

Sent: Wednesday, June 25, 2008 9: 48 AM To: Goldfine, Dan Subj ect: Re: The email

no. Bob Frisbee
- - - - -Original Message- - - -From: "Goldfine, Dan" -:dgoldfine~swlaw. com~

Date: Wed, 25 Jun 2008 09: 07: 01
To: "Robert Frisbee" -:rfrisbee~fbplclaw. com~ Cc: -:sbostock~fbplclaw. com~

Subj ect: RE: The email
Bob,

Our IT person contacted your office this morning and was told that you were not available until Monday. Is there a way that the IT person can get access this morning?
Dan W. Goldfine Snell & Wilmer LLP One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202

(602) 382-6282 (direct)
(602) 382-6000 (main)

(602) 382-6070 (facsimile)
(602) 330-3612 (mobile)

dgoldfine~swlaw. com -:mailto: dgoldfine~swlaw. com~

The information contained in this electronic mail message is confidential information intended only for the use of the individual or entity named above, and may be privileged. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone (602) 382-6000, and delete the original message. Thank you.

From: Robert Frisbee (mail to: rfrisbee~fbplclaw. com)
Sent: Tuesday, June 24, 2008 7:16 AM To: Goldfine, Dan Cc: sbostock~fbplclaw. com

Subj ect: RE: The email

2

Case 2:04-cv-00384-ROS

Document 571-5

Filed 06/26/2008

Page 7 of 9

Your IT person can call me at 602-354-3689, 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 take a look at it in person. Finally, really nothing has changed about this whole topic. My offered stipulation solves your problem. Another alternative - show me any documentary proof that the Hancock litigation is mentioned anywhere other than in letters to and from your office.

From: Goldfine, Dan (mailto:dgoldfine~swlaw.com) Sent: Monday, June 23, 2008 4:47 PM
To : Robert Fri sbee

Subj ect: RE: The email
Thanks. Can I have an IT person give you a call and walk you through how to do it? What number should they call you at?
Dan W. Goldfine Snell & Wilmer LLP One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202

(602) 382-6282 (direct)
(602) 382-6000 (main)

(602) 382-6070 (facsimile)
(602) 330-3612 (mobile)
dgoldfine~swlaw. com -:mailto: dgoldfine~swlaw. com~

The information contained in this electronic mail message is confidential information intended only for the use of the individual or entity named above, and may be privileged. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone (602) 382-6000, and delete the original message. Thank you.

From: Robert Frisbee (mail to: rfrisbee~fbplclaw. com)
Sent: Monday, June 23, 2008 4:20 PM To: Goldfine, Dan

Subj ect: RE: The email

I don't know how to do that. I'll forward it to you from my "Sent" items. When emails do not go through on my system I get a miller-daemon failure notice. Had I gotten one in this instance because Rick was the only recipient I would have checked into it.

From: Goldfine, Dan (mail

to: dgoldfine~swlaw. com)

Sent: Monday, June 23, 2008 2: 56 PM To: Robert Frisbee Subj ect: The email

Bob,
3

Case 2:04-cv-00384-ROS

Document 571-5

Filed 06/26/2008

Page 8 of 9

I am trying to figure out what happened. Can you drag your October 22, 2007 at 3: 37 pm email to Rick, from your Sent Items, into a new email message as an attachment and forward to me.

Dan W. Goldfine Snell & Wilmer LLP One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202

(602) 382-6282 (direct) (602) 382-6000 (main) (602) 382-6070 (facsimile)
(602) 330-3612 (mobile)
dgoldfine~swlaw. com -:mailto: dgoldfine~swlaw. com~

The information contained in this electronic mail message is confidential information intended only for the use of the individual or entity named above, and may be privileged. If the reader of this message is not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone (602) 382-6000, and delete the original message. Thank you.

4

Case 2:04-cv-00384-ROS

Document 571-5

Filed 06/26/2008

Page 9 of 9