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

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Marshall Meyers (020584) Shalev Amar (022332) KROHN & MOSS, LTD. 111 West Monroe, Suite 711 Phoenix, AZ 85003 (602) 275-5588 (866) 385-5215 (facsimile) Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) Plaintiff, ) ) vs. ) ) ) NATIONAL RV HOLDINGS, INC., ) and FREIGHTLINER CUSTOM ) CHASSIS CORPORATION ) Defendants. ) To begin, Plaintiff asked for neither CHARLES DE SHAZER,

Case No. CIV 03-869-PHX-FJM PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR AN ORDER FOR DEFENDANT FREIGHTLINER TO SHOW CAUSE WHY THIS COURT'S PREVIOUS DISCOVERY ORDER WAS NOT COMPLIED WITH

contempt nor sanctions. Instead Plaintiff

requested an order to show cause why Freightliner had not complied with Judge Silver's
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prior order. Plaintiff will leave it to the discretion of this Court to decide whether Freightliner's disobedience warrants the imposition of sanctions. Plaintiff reminds the Court that Judge Silver told Freightliner Plaintiff's indemnification agreement request

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"requires an explicit response so you're not back in court here. And I will tell you if it comes back to me again with hair-splitting distinctions between what has been asked and what has been produced, there is no question that I will award sanctions to opposing

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parties." Id. at p.22, lines 8-13 (emphasis added). Judge Silver further stated, "Tell your

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client that they are to answer--it is to answer these questions explicitly. And tell them what the court said about the imposition of sanctions." Id. Judge Silver warned that Freightliner "need[ed] to produce more, not less. Your client needs to look at this in the broadest perspective that is possible." Id. at p.25, lines 8-11. Freightliner admits it disclosed the RVIA agreement between it and National on October 6, 2005 and did so only after National's disclosure. It is interesting that National supplemented its response to Plaintiff's discovery request without making the hairsplitting distinctions that Freightliner does even though Freightliner was admonished not to make such distinctions and to look at the requests in "the broadest perspective that is possible." The indisputable fact is the RVIA agreement was in effect as of the Court's March 3, 2005 directive but was only belatedly disclosed seven months later. Rather than taking the broadest possible perspective for production, Freightliner took the narrowest perspective and produced less not more. Further, contrary to Freightliner's arguments, the RVIA agreement between Defendants is highly relevant because the source of defects as well as apportioning of

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liability may already be decided in a confidential RVIA arbitration. Additional discovery may have uncovered the exchange of secret documents by Defendants herein that detail root causes of defects, and that Defendants are contractually obligated not to blame each

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other in open court but instead to cooperate with each other's defense. Plaintiff is prejudiced by being precluded from determining whether this case has already been arbitrated by Defendants and if so what the outcome was. Just the mere fact of

arbitration is an admission of liability by either or both Defendants, which is denied

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herein. This arbitration agreement clearly fell under the Court's previously ordered discovery (an indemnification agreement is by definition an agreement to make compensation for loss or damage, see Definition attached to Motion for Order to Show Cause as Exhibit E). Plaintiff trusts that this Court will know whether remediation is necessary, but at a minimum, Freightliner should be required to explain its actions to the Court. WHEREFORE, for the above mentioned reasons, Plaintiff requests this Honorable Court enter an Order requiring Freightliner to show cause for why it did not comply with this Court's previous discovery Order, as said non-compliance precluded further meaningful discovery. RESPECTFULLY SUBMITTED this 1st day of February 2006. By: s/Marshall Meyers______________ Marshall Meyers Shalev Amar KROHN & MOSS, LTD. 111 W. Monroe, Ste. 711 Phoenix, AZ 85003 Attorneys for Plaintiff Filed electronically on this 1st day of February 2006, with:

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United States District Court CM/ECF system Courtesy Copy mailed this 1st day of February 2006, to: Hon Frederick J. Martone United States District Court, District of Arizona 401 West Washington Phoenix AZ 85003 s/Shalev Amar Shalev Amar

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