Chapter 29 - EXHIBIT 29B • SAMPLE MOTION TO COMPEL
| Jurisdiction | Colorado |
Civil Action No.
JAMES DOE, Plaintiff,
v.
XYZ-COLA BOTTLING GROUP, now known as XYZ BOTTLING GROUP, INC., Defendant.
Plaintiff, James Doe, through his attorneys, Cramden & Norton, P.C., submits Plaintiff's Motion to Compel Production of Contents of "INFORM" Computer Database, and in support of this motion states as follows:
Plaintiff's counsel, Ralph Cramden, conferred in good faith extensively with defense counsel, Susan Stouffer, regarding the relief sought in this motion. Mr. Cramden set forth the legal authority supporting the disputed request for production in his letter to Ms. Stouffer dated January 17, 2016. (Exhibit 1.) Counsel conferred by telephone regarding the issue on January 22, 2016. In his January 24, 2016, letter, Mr. Killian responded to the objections raised by Ms. Stouffer during the January 22, 2016, telephone conference and asked that Ms. Stouffer reconsider her position no later than January 29, 2016. (Exhibit 2.) Both of these letters advised that Plaintiff would move to compel production of the requested information if XYZ refused to produce it. In addition, the January 24, 2016, letter advised that Plaintiff would seek attorneys' fees because XYZ had produced no legal authority justifying its refusal to produce the requested information. On February 12, 2016, Ms. Stouffer called Marilyn Roe, a paralegal in the office of Plaintiff's counsel, and indicated that she had spoken to representatives of ABCCo (the workers' compensation insurance carrier which maintains the INFORM database) and that the ABCCo representatives did not agree to Ms. Stouffer providing the requested information. Ms. Stouffer confirmed to Ms. Roe that XYZ would not provide the information despite the fact that XYZ employee Natalie Poe testified in her deposition that she has access to the INFORM database via her computer.
1. Plaintiff was injured on January 22, 2014. His employment was terminated on August 6, 2014. Plaintiff filed his EEOC charge alleging discrimination on December 7, 2014. XYZ filed its position statement on January 21, 2015, and Plaintiff filed his rebuttal statement on February 9, 2015. Plaintiff attended an Expedited Resolution Conference with representatives of XYZ on February 8, 2015.
2. On November 2, 2015, Plaintiff's counsel, Mr. Cramden, took the deposition of Natalie (Sam) Poe, the Workers' Compensation Disability Manager for the Great West Business Unit of XYZ. The following colloquy between Mr. Cramden and Ms. Poe occurred regarding Ms. Poe's access to information originating from ABCCo, the workers' compensation insurance carrier for Plaintiff's workers' compensation claim:
Q. Okay. I thought you said you had reviewed the doctor's reports to make sure that you understood [Plaintiff's] restrictions.
A. What I mean is I read them out of a computer, off of a computer.
Q. Are they scanned onto a computer?
A. No, it's not an actual note, it's from the adjuster notes is what I look at.
Q. So you're looking at the adjuster's notes?
A. Correct.
Q. Which are typed on to a computer and you have access?
A. Yes.
* * * Q. Well, is ABCCO a part of XYZ-Cola Bottling Company?
A. No.
Q. So how would you be able to get adjuster's notes from the computer? Does she send you e-mails? Or do you have access to ABCCO's files?
A. It's a computer system. It is called Inform, and that's I-n-f-o-r-m. And it is - it downloads once a week, and it has access to the adjuster notes. I don't know exactly how that works, but that is what it's called.
Q. So would those adjuster's notes still be available to you on computer?
A. Yes.
Q. The Inform?
A. Yes.
(Exhibit 3, Poe Deposition, p. 36, ll 22-25, p. 37, ll. 1-9 and ll. 17-25, p. 38, ll. 1-7; emphasis added.)
3. On January 3, 2016, XYZ served by mail Defendant's Response to Plaintiff's Second Set of Requests for Production. (Exhibit 4). It contained the following Request and Response:
REQUEST FOR PRODUCTION 12. Please provide the contents of the INFORM computer database concerning James Doe's accident of January, 2014, which was referred to by Sam Poe in her November 2, 2015, deposition.
RESPONSE. Defendant objects that Request No. 12 is overly broad, burdensome and oppressive, not reasonably calculated to lead to the discovery of admissible evidence and seeks documents and things that were created by and belong to a third party, ABCCo, who is not a party to this action. To the extent the documents and things sought in Request No. 12 reflect communications between Defendant's attorneys and ABCCo as Defendant's representative or were prepared by or for ABCCo as Defendant's representative in anticipation of litigation, they constitute attorney work product and are also protected from disclosure by the attorney-client privilege.
4. Also on...
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