Free Motion for Protective Order - District Court of Colorado - Colorado

Case 1:04-cv-00375-EWN-BNB

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Filed 11/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-00375-EWN-BNB ANTHONY RAY MARTINEZ, Plaintiff, v. ESTHER SMITH, and C.P.O. SUSAN KELLER, Defendants.

MOTION BY DEFENDANT SMITH FOR PROTECTIVE ORDER PURSUANT TO FED. R. CIV. P. 26(c) AND REQUEST FOR SETTLEMENT CONFERENCE

Defendant Esther Smith, by her counsel, Faegre & Benson, LLP, respectfully requests that the Court enter a protective order pursuant to Fed. R. Civ. P. 26(c) and schedule a settlement conference. In support of her request, Defendant Smith states as follows. DISCUSSION 1. On October 30, 2006 Defendant Smith responded to Plaintiff's settlement offer

made at a Status Conference on October 18, 2006. Thereafter, on November 3, 2006 Defendant Smith received Plaintiff's response to her counteroffer. Based on Plaintiff's response, it appears that Defendant Smith will be able to meet the Plaintiff's demands. However, Plaintiff is currently incarcerated at San Carlos Correctional Facility, making it difficult for the parties to directly communicate regarding settlement. 2. Furthermore, some of Plaintiff's previous communications lead counsel to believe

that it would be prudent to have the Court present and to have the settlement terms explained and

Case 1:04-cv-00375-EWN-BNB

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placed on the record to the satisfaction of the Court and the parties before either party commences performance of the proposed agreement. In order to expedite the settlement process and ensure that Plaintiff's agreement to the ultimate resolution is knowing, voluntary and final, Defendant Smith respectfully requests that the Court schedule a settlement conference and enter a protective order regarding discovery requests served on Defendants by the Plaintiff, pending a settlement conference. 3. Despite the impending settlement of this matter, Plaintiff has denied Defendant

Smith's request that she be given an enlargement of time within which to respond to the written discovery he tendered on October 25, 2006. As a result, he would force Defendant Smith to incur an undue burden and expense even though the matter is about to settle on terms offered by the Plaintiff. Under Fed. R. Civ .P. 26(c), the Court "may make any order which justice requires to protect a party" from "undue burden or expense." In this case, Defendant Smith and Plaintiff are very likely to reach a settlement agreement, and therefore a protective order is necessary to protect Defendant Smith from the undue expense of answering Plaintiff's discovery requests prior to a settlement conference. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A Pursuant to D.C.COLO.LCivR 7.1A and Fed. R. Civ .P. 26(c), counsel for Defendant Smith has conferred with Plaintiff and Defendant Keller's counsel. Defendant Keller's counsel does not oppose this motion. In a letter dated November 14, 2006 and a phone conversation on November 17, 2006, Plaintiff indicated that he is interested in reaching a settlement agreement through the Court's involvement in a settlement conference. However, Plaintiff requested that

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the settlement conference be scheduled within 30 days due to his concern with fees owed to the Department of Corrections. CONCLUSION WHEREFORE, Defendant Smith respectfully requests that this Court grant Defendant Smith's Motion for Protective Order Pursuant to Fed. R. Civ. P. 26(c) and that it set a Settlement Conference in this matter. Dated: November 17, 2006 FAEGRE & BENSON LLP s/ Laura A. Hutchings Patrick F. Carrigan Laura A. Hutchings FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, CO 80302 Telephone: (303) 447-7700 Facsimile: (303) 447-7800 [email protected] [email protected] ATTORNEYS FOR DEFENDANT ESTHER SMITH

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 17, 2006, I filed and served the foregoing MOTION FOR PROTECTIVE ORDER AND REQUEST FOR SETTLEMENT CONFERENCE via with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following persons: Alisha M. Burris 1525 Sherman Street, 5th Floor Denver, CO 80203 and on the following via United State mail, postage prepaid: Anthony Ray Martinez Prisoner No. 114709 4-R San Carlos Correctional Facility P.O. Box 3 Pueblo, CO 81002 s/Jennifer Pearce _________________________________

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