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Case 1:03-cv-02461-MSK-MEH Document 61 Filed 06/30/2005 Page 1 of6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461 MSK OES LEPRINO FOODS COMPANY, Plaintiff, Vv.
FELDMEIER EQUIPMENT, INC.,
Defendant.
DEFENDANT?’S REPLY IN FURTHER SUPPORT OF ITS F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING DISCOVERY
The Defendant, Feldmeier Equipment, Inc., by its attorneys, Fowler, Schimberg & Flanagan, P.C., presents the following Reply in Further Support of the F.R.C.P. Rule 37 Motion for an Order Compelling Discovery as follows:
I. Introduction To date, Plaintiff has still not complied with Defendant’s numerous attempts at obtaining discoverable information. Plaintiff's May 27, 2005 letter, purporting to supplement Responses to Interrogators and Production of Documents, received on the date this Motion was served and filed, did not fulfill its discovery obligation. Furthermore, Plaintiff's June 28, 2005 letter enclosing documents pertaining to Plaintiffs modification of Feldmeier’s tank left Defendant with more questions than answers. It should also be noted that this letter was served on Defendant one month after Plaintiff promised to supplement its discovery and on the eve of depositions in this case. The present motion is in fact ripe for consideration: it is neither premature nor moot, as the Plaintiff suggests.
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II. Plaintiff Has Failed To Comply With Its Pretrial Discovery Responsibility, Even After Submitting The May 27, 2005 And June 28, 2005 Letters
After a thorough and complete review of Plaintiff's May 27, 2005 letter responding to Defendant’s Request for Interrogatories and Production of Documents, Defendant’s position that Plaintiff has failed to meet its discovery obligations remains unchanged. Plaintiff has yet to furnish the requested information and documentation and has never submitted a signed verification page. Summarizing the sum and substance of Plaintiffs May 27 letter, Plaintiff essentially states that: (a) the unsigned and unverified interrogatories were adequately responded to in its initial response; or (b) Defendant is already in possession of the information requested.
Plaintiff however, has still not responded to Interrogatory No. 4 which asks Plaintiff to identify all other silo talks that have imploded at any Leprino facility/plant, nor has it provided documents relating to other implosions. This information is essential to Defendant’s case, as it is Defendant’s contention that the silo at issue has not imploded and is properly vented. Instead, the problem that Leprino is having with implosion is caused by other factors, since other Leprino tanks have imploded with all sorts of different venting systems. Plaintiff also did not substantively supplement its response to several other Interrogatories, including: facts in support of Plaintiff's allegations of a defect in Plaintiff's equipment ( Interrogatory No. 2); and specific information regarding Plaintiff's claimed damages (Interrogatory No. 8). Plaintiff's lack of forthrightness leaves Defendant grasping at straws to determine the exact nature of the alleged defect, damages and Defendant’s affirmative Defenses.
Finally, even if Plaintiff's May 27, 2005 letter had substantively responded to Defendant’s Requests for Interrogatories and Production of Documents, it fails to comply with
even the most basic requirement of Fed.R.Civ.P. 33, requiring that the Interrogatories be
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prepared and signed under oath by the party to whom the Interrogatory was addressed. Furthermore, Plaintiff has failed to provide Defendants with a privilege log, thereby directly ignoring the requirement to do so, as set forth in Fed.R.Civ.P. 26(b)(5).
On the evening before depositions were scheduled, Plaintiff served on this office several documents regarding modifications made by Leprino to Feldmeier’s tank in Plaintiffs letter dated June 28, 2005. It is the first time throughout the course of pretrial discovery that Plaintiff produced any documents regarding alterations made by Leprino. The unsigned and unverified Interrogatory responses previously submitted indicate that no modification had ever been made to the tank.
Ill. Defendant Is Not Obliged Obligation To Continually Remind Plaintiff Of Its Discovery Obligation
It should also be noted that Plaintiff is misguided in its approach to the pretrial discovery process. Plaintiff suggests that it was essentially “standing-by” until it heard from Defendant for further directives on producing Responses to Interrogatories and Requests for Production of Documents. However, it is the Plaintiff's duty to supplement its disclosures and discovery responses. See, Fed.R.Civ.P. 26(e)(2). All parties have an ongoing duty to continue discovery through the entire pretrial discovery period. It is not the responsibility of the party requesting the documents to continually remind the dilatory party of their ongoing obligation.
Although Plaintiff suggests that there was no pressing need to respond to Interrogatories and Requests for Production of Documents in November of 2004, it is now July 1, 2005, the discovery cut-off. Plaintiff has not yet provided a framework for its claims against the
Defendant.
fod
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IV. Defendant Is Prejudiced By Plaintiff's Completely Inadequate Response To Interrogatories And Requests For Production Of Documents
The discovery cut-off in this case is now upon us. Depositions have already been held, and had to be conducted essentially through guess-work as to what are the actual claims against the Defendant and the amount of damages Plaintiff allegedly suffered. | Defendant could not rely on Plaintiffs Interrogatories during the depositions, because neither the original Interrogatory Responses not the “supplemental” Interrogatory Responses in the May 27, 2005 letter were actually signed the party. The Plaintiff's limited document production of the evening before depositions were held also placed the Defendant at a disadvantage. These documents were previously requested numerous times, and Plaintiff waited until the evening before the depositions to partially disclose the documents.
Plaintiff's failure to abide by the clear duties set forth in the Federal Rules of Civil Procedure have caused material and irreversible prejudice to the Defendant in defending this case.
Vv. Additional Materials That Have Not Been Disclosed or Produced That
Were Learned About Through Discovery
Defendant took the deposition of Leprino Waverly Project Engineer, Ritch Swetland, on June 29, 2005. During the course of that deposition, Defendant learned that Leprino had issued a request for bid to numerous silo manufacturers; that a number of manufacturers responded; that an “Approval for Expenditure (AFE)” was drafted and approved and only then the Feldmeier silo was purchased. This chain of documents have never been produced and are needed as Defendant wants to see what Leprino specified in its bid and how other competitor manufacturers responded
to the same. Swetland also testified there was a “project file” though such file has never been
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Case 1:03-cv-02461-MSK-MEH Document61 Filed 06/30/2005 Page 5of6 produced. Both Mr. Blanchard (plant engineer) and Mr. Swetland testified that in the future the plan may be modified and that plans were in the works, however, no such plans have been produced. Additionally, Swetland and Blanchard testified that they modified the Feldmeier tank based upon an engineering request but no engineering report has been produced. All of these documents are relevant and should have been produced by virtue of disclosure or response to written discovery.
WHEREFORE, Defendant Feldmeier Equipment, Inc. respectfully requests the Court enter an Order compelling Plaintiff Leprino Foods Company to respond fully and completely to Interrogatory Nos. 2, 4, 8 and 9 and Request For Production of Documents Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 and produce a verification page, a privilege log as well as the other documents discussed herein.
Respectfully submitted this 30" day of June, 2005.
/s/ Catherine A. Tallerico Catherine A. ‘Tallerico, Esq.
Timothy J. Flanagan, Esq.
FOWLER, SCHIMBERG & FLANAGAN, P.C
1640 Grant Street, Suite 300 Denver, CO 80203
(303) 298-8603 ATTORNEYS FOR DEFENDANT FELDMEIER EQUIPMENT, INC.
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Case 1:03-cv-02461-MSK-MEH Document61 Filed 06/30/2005 Page 6of6
CERTIFICATE OF SERVICE
I hereby certify that on this day of June, 2005, | caused a true and correct copy of the foregoing DEFENDANT’S REPLY IN FURTHER SUPPORT OF ITS F.R.C.P. RULE 37 MOTION FOR AN ORDER COMPELLING DISCOVERY to be placed into the United
States mail, first class postage prepaid, faxed as indicated below and correctly addressed as follows:
Michael G. Bohn, Esq.
Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Ste. 200
Denver, CO 80206
/s/ Angela Rose
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