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

Case 1:04-cv-00860-WDM-PAC

Document 223

Filed 07/06/2005

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-WM-860 (PAC) ROBERT ALWARD Plaintiff, v. VAIL RESORTS, INC., a Colorado corporation; VAIL CORPORATION, INC. D/B/A/ VAIL ASSOCIATES INC., a Colorado corporation; VR HOLDINGS, INC., a Colorado corporation; and WILLIAM JENSEN, individually and in his official capacity as Senior Vice President and Chief Operating Officer of Vail Resorts, Inc. Defendants. ______________________________________________________________________________ PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO APPEAL AND OBJECTIONS TO THE APRIL 15, 2005 ORDER OF U.S. MAGISTRATE JUDGE ______________________________________________________________________________ Plaintiff Robert Alward, by and through his attorneys, McClain, Drexler & Matthews, LLC, and pursuant to the Court's Order dated June 23, 2005 and Administrative Order 2005-7, hereby replies to the Defendants' Response to Plaintiff's Appeal and Objections to the April 15, 2005 Order of U.S. Magistrate Judge. I. Fourth Motion to Compel

Contrary to the defendants argument in their Response, plaintiff's Fourth Motion to Compel presented new issues to the court, arising out of defendants' failure to adequately respond to plaintiff's second set of discovery requests. In addition, that motion asked the court to enforce its November 23, 2004 order, which granted in part plaintiff's first motion to compel. It would be improper for the court to consider the motion in the "context of the entire lawsuit." Rather, the court must review the order and the underlying motions on their particular merits. The magistrate judge failed to do so, and has repeatedly throughout this litigation.

Case 1:04-cv-00860-WDM-PAC

Document 223

Filed 07/06/2005

Page 2 of 6

Defendants did not, and cannot, show that the magistrate judge applied the correct legal standard in deciding the Fourth Motion to Compel. On the contrary, as set forth in plaintiff's Fourth Motion, plaintiff sought redress for the defendants' inadequate responses to the interrogatories and requests for production contained in plaintiff's second set of discovery requests. None of these issues had been previously brought to the court's attention. Although a copying error did result in the wrong document being attached as an exhibit to plaintiff's Motion instead of the discovery responses, the magistrate judge had a copy of these responses before rendering her decision. Nonetheless, the magistrate judge did not consider the issues, but rather rendered yet another automatic decision against the plaintiff by applying the incorrect standard, without fair consideration of the law or the facts of this case. As such, the April 15 Order is clearly erroneous. (a) Request to Enforce Magistrate Judge's Orders Moreover, the magistrate judge erred when she disregarded the fact that defendants have failed to produce key personnel records in compliance with the November 23 Order. Although defendants produced certain of the files maintained by their human resources department and the "visa application files", defendants have not produced any of the files maintained by the Vail and Beaver Creek ski school for the adult alpine ski instructors--the relevant group of employees. Defendants do not, and cannot, deny that these files exist and have not been produced. As such, defendants have not complied with that Order. The magistrate judge erred when she refused to enforce her November 23 Order in this regard. Defendants' emphasis of the number of pages of documents they have produced is an exaggeration and a red herring. Most of the personnel files were for non-ski school employees, such as housekeeper, childcare, and food service. In addition, of the files that did appear to

2

Case 1:04-cv-00860-WDM-PAC

Document 223

Filed 07/06/2005

Page 3 of 6

pertain to ski instructors, the vast majority of the files were for snowboard, Nordic, or children's instructors at Breckenridge or Keystone. Defendants do not, and cannot, deny this failure in their response to discovery. In short, defendants have engaged in the typical tactic of burying the plaintiff with irrelevant and non-responsive documents. The documents for the group of similarly situated (full-time adult alpine ski instructors at Vail and Beaver Creek) stored and maintained by those ski schools have not been produced, in violation of the court's Order. Moreover, defendants have stonewalled the discovery process by refusing to provide even a printout of the most relevant information, which can be readily obtained by running queries of the personnel database on defendants' computer systems. As a result, plaintiff has not obtained the information he requested, which is essential to his case. (b) Second Set of Written Discovery Defendants incorrectly summarize plaintiff's objections. As set forth in his Appeal, that the magistrate judge did not permit argument and did not consider Bob Borgo's complete declaration is further evidence that the magistrate judge's Order was clearly erroneous because it misapplied the law and failed to consider the merits of plaintiff's Fourth Motion. Plaintiff is well aware that the court may decide a motion at any time, and need not permit oral argument. This is not the basis of plaintiff's objections. However, the court is also charged with considering the merits of the motion, and rendering a decision based on the application of the correct legal standard to accurate findings of fact. Here, the magistrate judge failed to do either. The defendants incorrectly argue that the magistrate judge had already ruled on the Borgo declaration. On the contrary, plaintiff asserted that the defendants failed to fully respond to discovery because they failed to produce the transcript of the Borgo conversation. Plaintiff

3

Case 1:04-cv-00860-WDM-PAC

Document 223

Filed 07/06/2005

Page 4 of 6

asserted that defendants' counsel misrepresented to the court that no such transcript existed. The court earlier found that plaintiff had not presented competent evidence to support this assertion, and declined to order relief. Plaintiff's Fourth Motion included the competent evidence of Borgo declaration in support of that defendants' counsel had misrepresented to the court that no transcripts of that conversation existed. This evidence was not previously provided to the court. Yet, the magistrate judge failed to consider the Borgo declaration despite the fact that her earlier order invited the plaintiff to present such competent evidence of defendants' counsels' misrepresentations to the court. Mr. Borgo did not imagine that defendants' counsel stated that a court reporter was present and taking down what he said. The competent evidence indicates that defendants' counsel misled the court on this issue, just as they have consistently misrepresented to the court--even under oath--their attempts to confer with the plaintiff pursuant to D.C.COLO.LCivR 7.1. Thus, the Order was clearly erroneous and must be vacated. (c) Defendants' deposition conduct. The transcript of the Marsh deposition clearly indicates that the defendants precluded plaintiff from obtaining the full seven hours of testimony for this deposition, in violation of Fed.R.Civ.P. 30 and 37. Defendants do not dispute this fact. Instead, they proffer flimsy excuses without any legal basis. The deposition took place in South Lake Tahoe, California at the end of February because defendants' moved the court for that date and location.1 They cannot now blame the weather to excuse their unrefuted violation of the Rules. Furthermore, defendants again exaggerate when they characterize what was in fact a short snow shower as a "serious snow storm." The court must not lose sight of the fact that defendants again violated the Rules and precluded plaintiff from obtaining discovery. The

1

Plaintiff originally noticed the deposition to take place on October 5, 2004--before Mr. Marsh had any medical issues. Defendants blocked that deposition by filing a motion for protective order that did not comply with Rule 26.

4

Case 1:04-cv-00860-WDM-PAC

Document 223

Filed 07/06/2005

Page 5 of 6

magistrate judge's ruling was clearly erroneous because she did not focus on defendants' violation and permit plaintiff the full seven hours of deposition time. II. Sanctions Against Plaintiff's Counsel

As set forth in plaintiff's Appeal, the magistrate judge imposed sanctions for actions outside the scope of the briefings ordered, and were therefore not addressed in Plaintiff's Brief. At the April 15 hearing, instead of hearing 45 minutes of argument on the motion to compel (the stated purpose of the hearing), the magistrate judge spent almost two hours retroactively notifying plaintiff that she intends to impose sanctions on plaintiff's counsel for virtually every motion filed in discovery. Subsequently, defendants have submitted an affidavit for more than $30,000 in attorneys' fees and costs. It is clearly erroneous for the magistrate judge to impose sanctions before providing notice and an opportunity to be heard. This sequence violates due process, and is clear evidence that the magistrate judge has prejudged the issue without due consideration. As such, the imposition of sanctions is an abuse of discretion, and contrary to law. Moreover, the magistrate judge has unnecessarily multiplied these proceedings by repeatedly refusing to hear plaintiff on any issue regarding the merits, and instead granting defendants' every motion. This approach has necessitated the plaintiff's appeals and motions for reconsideration, because plaintiff's counsel has an obligation to zealously represent her client, and to prevent manifest injustice. The court has hijacked this employment case and turned it into a trial of plaintiff's counsel. The entire discovery proceedings in this case have made a mockery of our justice system.

5

Case 1:04-cv-00860-WDM-PAC

Document 223

Filed 07/06/2005

Page 6 of 6

CONCLUSION For these reasons, and those set forth in Plaintiff's Appeal, the court should sustain his objections to the April 15, 2005 Order and modify the Order accordingly. Dated this 6h day of July 2005. Respectfully submitted, McCLAIN DREXLER, LLC By: /s/ Nina H. Kazazian Nina H. Kazazian Of Counsel 1700 Lincoln Street, Suite 3850 Denver, Colorado 80203-4538 Telephone: (303) 860-8400 Email: [email protected] ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that on this 6h day of July, 2004, I electronically filed the foregoing PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO APPEAL AND OBJECTIONS TO THE APRIL 15, 2005 ORDER OF U.S. MAGISTRATE JUDGE with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the defendants addressed to the following email address: Sherri Heckel Kuhlmann Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 [email protected] ATTORNEYS FOR DEFENDANTS /s/ Nina H. Kazazian

6