Free Motion in Limine - District Court of Arizona - Arizona

EXHIBIT

3
Filed 06/26/2008 Page 1 of 3

Case 2:04-cv-00384-ROS

Document 571-4

Page 1 of2

Erickson, Rick
From: Erickson, Rick
Sent: Monday, October 22, 2007 4:21 PM

To: 'Robert Frisbee'

Subject: RE: Trial Exhibits
# 560 - Meritage Homes Phoenix Division - Quarterly Summary of Legal Activities, MER050347-57 # 561 - Meritage Corporation Material Litigation and Miscellaneous Legal Department Status report 2/13/06,

MER050533-43

From: Robert Frisbee (mailto: rfrisbee(Qfbplclaw.com) Sent: Monday, October 22,20073:29 PM
To: Erickson, Rick

Subject: RE: Trial Exhibits
What are 560 and 561? My paralegal took my books (and erroneously gave them to you, and right now I'm not sure what those exhibits are. Please let me know.

From: Erickson, Rick (mailto:rerickson(Qswlaw.com) Sent: Monday, October 22,20073:23 PM
To: Robert Frisbee

Cc: Goldfine, Dan Subject: RE: Trial Exhibits
Bob:

Despite our exchange below, we received your Exhibit Book 2 last Thursday, October 18th, and it included exhibits 560 and 561. We assumed that you had destroyed the records pursuant to E.R 4.4 (again, see the excerpted Rule below). Because it appears that you have provided us with originals, we will go ahead and destroy those records and expect that you will do the same with any copies you may have. Unless we hear otherwise within the next 10 days, we understand that you have withdrawn both exhibit

designations. .
Rick Erickson
sent: Thursday, September 13, 2007 7:18 AM
To: Erickson, Rick

Thank you for your cooperation.

From: Robert Frisbee (mailto:rfrisbee(Qfbplclaw.com)

Subject: RE: Trial Exhibits
Considering that I have never seen the documents, it doesn't appear that there is a problem.

From: Erickson, Rick (mailto:rerickson(Qswlaw.com)
sent: Wednesday, September 12, 20071:43 PM
To: Robert Frisbee

Cc: Goldfine, Dan; gw(Qgrantwoodspc.net Subject: Trial Exhibits

6/16/2008 2:04-cv-00384-ROS Case

Document 571-4

Filed 06/26/2008

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Page 2 of2

Bob:

Please delete Exhibits 559-561. The exhibits are clearly privileged communications and were inadvertently disclosed. Considering the volume of documents we have exchanged over three years of litigation, it is understandable that we overlooked some records that should have been disclosed in our privilege log. These are documents that should have been included in our log and not disclosed. That should have been obvious to you.

Please take a look at our Arizona Ethics Rule 4.4. It provides:
4.4. Respect for Rights of Others.

(a) In representing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden any other person, or use

methods of obtaining

evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document and knows or reasonably should know that the

document was inadvertently sent shall promptly notify the sender and preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures.

You reasonably should have known that a draft complaint between Meritage's attorneys and communications from Mr. Zimtbaum to his clients were subject to attorney-client privilege. The documents also qualify as work-product and would be privileged on that basis also.

As such, we are asserting these privileges and demanding that you destroy the records and modify your exhibit list accordingly.
Rick Erickson
Richard G. Erickson

Snell & Wilmer
L.L.P.

One Arizona Center

Phoenix, Arizona 85004-2202
Phone: (602) 382-6540 Fax: (602) 382-6070

rerickson~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. Ifyou have received this communication in error, please immediately notify us by telephone (602-382-6000), and delete the original message. Thank you.

Case 6/16/2008 2:04-cv-00384-ROS

Document 571-4

Filed 06/26/2008

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