Free Statement - District Court of Arizona - Arizona

FRISBEE & BOSTOCK, PLC
Attorneys at Law
Robert M. Frisbee Susan L. Bostock 1747 East Morten Avenue ­ Suite 108 Phoenix, Arizona 85020 Tel: (602) 354-3689 Fax: (602) 266-7744

October 12, 2006

Judge Roslyn O. Silver United States District Court 401 West Washington Phoenix, Arizona 85003 RE: Meritage Corporation v. Greg Hancock, et. al. No. CV 04-0384-PHX-ROS Joint Letter Regarding Discovery Dispute Conference

A. GREG HANCOCK AND J2H2'S POSITIONS: 1. Documents: On September 27, 2006, after a lengthy discussion, the Court ordered Dan Goldfine to produce numerous documents, including the employment records of Suzanne Hilton, by October 4, 2006. As to the deadline for production, the Court said to Mr. Mathew, who wanted to make sure he was getting documents rather than a responsive letter, "You are to get the documents within a week." Dan Goldfine said, "As I understand the order, we - - I believe we can accomplish that." The Court added, "Mr. Goldfine, let me just stop you for a moment to make sure. You are to produce those documents by October 4." (T. 28). There was no misunderstanding regarding the Suzanne Hilton documents. The Court said, after Goldfine objected to producing the documents at all: "Mr. Goldfine, if any document exists that would support Mr. Frisbee's position, that is to be turned over whether or not it's contained in a personnel file or not. If there is anything that would indicate that these payments were made and they were not authorized and that Ms. Mesicko knew about it and then there's a possibility that she was retaliated against, any and all of that documentation is to be provided." (T. 12) The Hilton documents have not been produced, even though they were requested on 10-5 and again on 10-9. Goldfine has them, as he claims to be "reviewing" them and "will update when the review is done." There is no sound reason for non-production.

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2. Depositions: Because of Mr. Woods' illness, the Court continued the deposition of Greg Hancock to the week of 10-16, and ordered that half day depositions of Hilton, Landon and Arneson be completed "prior to October 16th." (T. 8) The Court ordered that the deposition of Landon be taken in Dallas, "And if there is a problem taking the depositions within that period of time, then you are to seek an order of this Court to extend the depositions." (T. 9) Goldfine sought no court order, but rather started dictating on what dates and times depositions could be taken. Most have been agreed upon, but counsel needs the requested documents in a reasonable time prior to the scheduled depositions. Greg Hancock requests that the documents be produced by 5:00 p.m. on October 16, that John Landon be ordered to appear in Phoenix on October 19 for his deposition, and that Meritage be ordered to pay the all costs, including attorneys' fees, for the remaining depositions. B. RICK AND BRENDA HANCOCK AND THE RICK HANCOCK CORPORATE DEFENDANTS' POSITIONS: 1. Meritage Has Failed to Make Discovery. Despite the Court's Order of 9-27-06, Meritage has made no meaningful production of documents and has ignored the Court's Order regarding the timing of depositions. Mr. Goldfine would not respond when dates were requested for Hilton's deposition, so it was noticed within the timelines set by the Court. Goldfine informed counsel that Hilton would not be "available" until after 10-30. Counsel believes that the depositions have been deliberately delayed so as to prejudice Rick Hancock's Response to Meritage's Motion to Dismiss his Counter and Third-Party Claims and depositions. No requested Navigant (Meritage's damages expert) or Arneson documents have been produced, even though Arneson is scheduled to be deposed on 10-17. The Navigant report lists as a document reviewed a letter by Arneson regarding Greg Hancock's employment termination. It has not been produced, and Meritage's deposition of its own employee (Arneson) was a mere subterfuge. On 10-5 a DVD disc was produced, which required a computer expert to open. There was only one e-mail and none of the requested documents. Subsequently, Meritage stated that the documents were copied for a specific computer program. Meritage was specifically told not to send over documents in a coded form. It appears that Meritage is using the Court's 9-27 Order as a shield against supplying discovery rather than complying with it. Goldfine failed to attend a conference call about the dispute on 10-6, even though he scheduled the time. A privilege log was produced on 10-5, but it is incomplete and mislabeled.

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2. Depositions. Rick and Brenda Hancock and Hancock Defendants agree with the position and factual basis of Greg Hancock's paragraph #2 above regarding depositions. 3. Sanctions Requested by Rick Hancock. Counsel believes that Meritage's refusal to make meaningful discovery and to obey the Court's 9-27 Order justifies Rule 37(d) sanctions at the Court's discretion, including the prohibition of Navigant testimony, dismissal of Meritage's claims, dismissal of its Motion to Dismiss Rick Hancock's claims, and appropriate monetary sanctions. At a minimum, John Landon should be ordered to appear in Phoenix, and the date for Rick Hancock's Response to Meritage's dismissal motion should be delayed until after the subject depositions have been completed. Rick Hancock requests attorneys' fees and costs. C. MERITAGE'S POSITION. Dan Goldfine refused to submit a joint letter.

Respectfully submitted,

/s/Robert M. Frisbee /s/Ivan K. Mathew

CERTIFICATE OF SERVICE Meritage v. Hancock, et al. Case No. CV 04 00384 ROS

I hereby certify that on October 12, 2006, 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:

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Dan W. Goldfine Richard G. Erickson Snell & Wilmer, LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 e-mail: [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants Steve Hilton and John Landon Timothy J. Burke Fennemore & Craig, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012 e-mail: [email protected] Attorneys for Third Party Defendant, Snell & Wilmer, LLP Mark I. Harrison Sarah Porter Osborn Maledon, P.A. 2929 N. Central Avenue, Suite 2100 Phoenix, AZ 85012 e-mail: [email protected] Attorneys for Defendant Greg and Linda Hancock and Counsel of Record Robert Frisbee

Robert M. Frisbee Frisbee & Bostock 5611 N. 16th Street Phoenix, AZ 85016 e-mail: [email protected] Attorneys for Defendant Gregory Hancock

Grant Woods Grant Woods, P.C. 1726 N. Seventh Street Phoenix, AZ 85006 e-mail: [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants Steve Hilton and John Landon

s/Karen Gawel

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