Free Response to Motion - District Court of Arizona - Arizona

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Ed Hendricks (Arizona Bar No. 002359) Michael K. Dana (Arizona Bar No. 019047) MEYER, HENDRICKS & BIVENS, P.A. 3003 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-2915 Telephone Number: (602) 604-2200 C. Frederick Reish (Arizona Bar No.: 002408) Michael A. Vanic (California Bar No.: 073486) (pro hac vice) REISH LUFTMAN REICHER & COHEN 11755 Wilshire Boulevard, 10th Floor Los Angeles, CA 90025-1539 Telephone Number: (310) 478-5656 Attorneys for Defendants Charles M. Brewer, Charles M. Brewer, Ltd. Profit Sharing Plan and Trust, Charles M. Brewer, Ltd. Restated Pension Plan UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Stuart J. Reilly, Plaintiff, vs. Charles M. Brewer, Ltd., Profit Sharing Plan and Trust, a retirement plan; Charles M. Brewer, Ltd. Restated Pension Plan, a retirement plan; Ross Gordon and Associates, Inc., a corporation; and Charles M. Brewer, Defendants.

CASE NO.: CIV 02 2218 PHX BTM BREWER DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR ORDER DIRECTING DEFENDANTS TO: (1) COMPLY WITH PREVIOUS DISCOVERY ORDER PURSUANT TO RULE 37(b) AND (2) PRODUCE CURRENT FINANCIAL REPORTS PURSUANT TO 29 U.S.C. § 1132(c) AND REQUEST FOR SANCTIONS

Defendants Charles M. Brewer, Charles M. Brewer, Ltd. Profit Sharing Plan and Trust, and Charles M. Brewer, Ltd. Restated Pension Plan (collectively, the "Brewer Defendants") submit the following Response To Plaintiff's Motion for Order Directing Defendants to: (1) Comply with Previous Discovery Order Pursuant to Rule 37(b) and (2) Produce Current Financial Reports Pursuant to 29 U.S.C. § 1132(c). In his attempt to take new discovery long after discovery has closed, Plaintiff misrepresents and omits critical events in the procedural
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history of this case. Plaintiff's Motion is without merit and should be denied. In addition, because Plaintiff's Motion was not substantially justified, the Court "shall" award Defendants their "reasonable expenses incurred in opposing the motion." Fed. R. Civ. P. 37(a)(4)(B). 1. Procedural Background On July 2, 2004, the Court issued an Order, in response to Plaintiff's Motion to Compel, that Defendants submit further responses to Plaintiff's interrogatory No. 5, and requests for production nos. 1 and 4. (7/2/2004 Order.) On August 13, 2004, Defendants fully complied with the Court's Order by submitting further responses to all of those discovery requests. (8/13/2004 Further Discovery Responses, Tab 1.) Plaintiff accepted Defendants' responses without objection. In mid-2005, approximately one year after the Court's discovery order, the parties corresponded regarding the possibility of settlement and mediation and eventually agreed to mediate the case on October 28, 2005. (See 7/1/2005 letter from Vanic to Reilly, Tab 2; 7/05/2005 letter from Reilly to Vanic, Tab 3; 8/03/2005 letter from Vanic to Reilly, Tab 4.) Up to that point, Plaintiff had never objected to the sufficiency of Defendants' discovery responses made nearly one year earlier. Nor had he attempted to confer with Defendants' counsel regarding the sufficiency of those responses. During the course of the parties' settlement and mediation discussions, Plaintiff requested certain information that he believed would be helpful in preparing a settlement demand, including certain unredacted copies of documents that had already been produced. (7/05/2005 letter from Reilly to Vanic.) Plaintiff did not suggest that the earlier production of those documents was in any way non-compliant with the Court's Order or Defendants' general discovery obligations. Rather, Plaintiff merely claimed that the additional information would be helpful for "supplement[ing] his settlement demand." (Id.) The parties completed their written discovery long before these settlement discussions began. Nevertheless, in order to help facilitate cooperation in the parties' settlement efforts, Defendants agreed as a courtesy to provide, and did provide, the information requested by Plaintiff, for the sole purpose of the parties' "settlement negotiation and pending mediation."
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(8/03/2005 letter from Vanic to Reilly.) In doing so, Defendants reiterated their position that the documents being provided "to the extent they involve other participants or plan assets after [Plaintiff's] withdrawal from the Plan" were not "relevant to any issue in this case or settlement." (Id.) On September 14, 2005, Defendants produced additional documents requested by Plaintiff, as part of the settlement negotiations, and again reiterated Defendants' position that the documents were not "relevant to any issue in this case or settlement." (9/14/2005 letter from Vanic to Reilly, Tab 5.) On September 21, 2005, Plaintiff unilaterally terminated the October 28, 2005 mediation. (9/21/2005 letter from Reilly to Vanic, Tab 6; 9/23/2005 letter from Vanic to Reilly, Tab 7.) On September 26, 2005, Plaintiff sent an e-mail to Defendants' counsel seeking documents previously sent by Defendants for settlement purposes. (9/26/2005 e-mail from Reilly to Defendants' counsel and response thereto, Tab 8.) Plaintiff claimed in his e-mail that he had not received those documents. (Id.) Because Plaintiff terminated the mediation a few days earlier, and because the documents sought were not relevant to any issue in this case, Defendants' counsel properly refused to send Plaintiff a second copy. (Id.) 2. Defendants have fully complied with the Court's Discovery Order; Plaintiff is not Entitled to any of the Documents Sought by his Motion. Plaintiff received Defendants' supplemental discovery responses on August 3, 2004, and the parties completed all written discovery in 2004. Over the following ten months, the parties reached the eve of trial three times, and each time trial was vacated and reset for a future date. (See 12/03/2004 Order; 4/13/2005 Order; 6/27/2005 Order). During that 10month period, Plaintiff never attempted to confer regarding the adequacy of Defendants' August 3, 2004 discovery responses. Nor did Plaintiff ever object to those responses. Therefore, had trial proceeded on any of the previously scheduled trail dates, Plaintiff would not have had any of the information he now seeks that was recently offered by Defendants, as a courtesy, for settlement and mediation purposes only. Now, more than one year after receiving Defendants' August 3, 2004 discovery responses, Plaintiff is making his first objection to those responses through his September 28,
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2005 Motion. And he is doing so without ever having sought to confer regarding the adequacy of those responses, in violation of the Rules of Civil Procedure, and the Court's specific Order, prohibiting motions to compel without having "first met to resolve any discovery difficulties. (6/25/03 Order, at 2.); see also Fed. R. Civ. P 37(a)(2)(A). Again, the cursory September 26, 2005 e-mail exchange cited by Plaintiff was written as part of a dialog regarding Plaintiff's request for certain documents for settlement and mediation purposes only. (See 9/26/2005 email, Tab 8.) Plaintiff cannot cite a single correspondence, let alone a timely correspondence, in which he suggested that Plaintiff's August 3, 2004 discovery responses failed to comply with the Court's Order. No such correspondence exists because the parties have never conferred regarding this discovery issue. Even assuming that Plaintiff's September 28, 2005 Motion was not doomed by the timeliness and failure-to-confer issues discussed above, the Motion still fails. The most recent deadline set by the Court for complying with all discovery was November 3, 2003 ­ 120 days before the trial date as scheduled at that time. (6/25/2003 Order, at 2.) While the Court never extended this discovery deadline in its subsequent orders postponing trial, the parties continued taking discovery through 2004, but never took written discovery within 120 days of any scheduled trial date. As such, even if written discovery was considered open until 120 days before the current January 10, 2005 trial date, Plaintiff's September 28, 2005 Motion is several weeks too late. Plaintiff's Motion also fails because Plaintiff completely ignored the requirements for motions to compel under the Court's local rules: When a motion for an order compelling discovery is brought pursuant to Rule 37(a)(2) of the Federal Rules of Civil Procedure, the moving party shall set forth, separately from a memorandum of law, the following in separate, distinct, numbered paragraphs: (1) (2) (3) the question propounded, the interrogatory submitted, the designation requested or the inspection requested; the answer, designation, or response received; and the reason(s) why said answer, designation or response is deficient.

Plaintiff's Motion makes no attempt to even minimally comply with these requirements.
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Finally, Plaintiff would not have been entitled to the information he requests, even if the request had been timely made. Defendants properly redacted certain information about the benefits to plan participants other than Plaintiff because such information is confidential and irrelevant to Plaintiff's own claims. 3. Conclusion For the reasons set forth above, Plaintiff's Motion to Compel should be denied. Moreover, because Plaintiff filed his motion without substantial justification, the Court "shall" award Defendants their "reasonable expenses incurred in opposing the motion" as sanctions against Plaintiff. Fed. R. Civ. P. 37(a)(4)(B). DATED this 17th day of October, 2005. MEYER, HENDRICKS & BIVENS, P.A. In addition, Plaintiff is not entitled to any current financial reports as a plan "participant" because Plaintiff is no longer a plan participant.

By:

s/ Michael K. Dana Ed Hendricks Michael K. Dana 3030 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-2915 -and-

REISH LUFTMAN REICHER & COHEN C. Frederick Reish Michael A. Vanic 11755 Wilshire Boulevard, Tenth Floor Los Angeles, California 90025-1539 Attorneys for Defendants Charles M. Brewer, Ltd. and Charles M. Brewer

Courtesy copy of the foregoing

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sent via Federal Express the 18th day of October, 2005, to: Hon. Barry Ted Moskowitz United States District Court 5160 Courthouse 940 Front Street San Diego, California 92101 s/Michael K. Dana

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Case 2:02-cv-02218-BTM-LSP
439562

CERTIFICATE OF SERVICE I hereby certify that on October 17, 2005, 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: Stuart J. Reilly Law Offices of Stuart J. Reilly, P.C. Attorneys for Plaintiff

I hereby certify that on ________________, I served the attached document by (insert service method: mail, courier service, in-person delivery, e-mail) on the following, who are not registered participants of the CM/ECF System:

s/ Michael K. Dana

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