PLAINTIFF SPACECON'S BRIEF REGARDING PRODUCTION OF DOCUMENTS

Plaintiff Spacecon Specialty Contractors, LLC ("Spacecon") submits this brief in connection with the Defendant's stated intention to pursue the production of additional documents, as stated at the Final Pretrial Conference.

A. Description of the Case

Spacecon is an interior finish construction contractor, the employees of which are not represented by the Carpenters Union. In 2007, the Carpenters Union commissioned and paid Mr. Bensinger to produce a film about Spacecon. Mr. Bensinger produced the film, which he entitled "Looking the Other Way: Benefiting from Misery" ("Film"), and screened it to a public audience in March 2009. Spacecon filed this action asserting a claim for libel per se under Colorado state law against Mr. Bensinger for the false and defamatory messages about Spacecon published to the audience in that screening and in the invitation and poster advertising the Film.

The Film and a poster and invitation published at the screening of the Film convey the following false and defamatory messages about Spacecon: (1) Spacecon contracts with "labor brokers" knowing that they hire immigrant laborers based on false promises about available work, high pay levels, living conditions and other work-related facts: knowing that the laborers will not be covered by workers' compensation insurance; knowing that the laborers will be unpaid or underpaid; and knowing that if paid, the immigrant laborers will be paid without the legally required payment of employment taxes and other withholdings; (2) Spacecon engages in human trafficking, tax evasion, and insurance fraud; (3) Spacecon evades taxes by routinely misclassifying many, if not all, of its own craft worker employees as independent contractors whom it pays without withholding or paying employment taxes; and (4) Because Spacecon engages in human trafficking, tax evasion, and insurance fraud, it lowers its labor costs and submits low bids to win many project.

B. Defendant Has Waived His Right To Seek Discovery At This Very Late Date

In the course of discovery, Defendant filed 17 very broad requests for production, the first nine in his Request For Production Of Documents And Tangible Things, served in November 2009, and the final eight in his Second Set Of Discovery Requests, served in February 2010. Those requests for production and Plaintiff's initial responses are found in Plaintiff Spacecon's Responses To Defendant Richard Bensinger's Request For Production Of Documents And Tangible Things (EXHIBIT A), served in December 2009, and Plaintiff Spacecon's Responses To Defendant Richard Bensinger's Second Set Of Discovery Requests (EXHIBIT B), served in March 2010.

Plaintiff's issues with Defendant's discovery responses are all related to the requests for production. Following a relatively modest initial request for additional responses in February 2009, with the majority of which Plaintiff agreed to comply, Defendant delivered two greatly expanded demands for broad categories of additional documents, all based on the assumption that all are covered by one of his 17 very broad requests for production.1 Those two demands are included in a letter dated February 23, 2010 (EXHIBIT C), page 2, and a second much broader letter dated May 7, 2010 (EXHIBIT D). Between the two letters, Defendant demanded over 70 categories of documents. Most of the categories of demanded documents were beyond the bounds of discovery, being neither relevant in this defamation claim nor likely to lead to any discoverable evidence. Moreover, the sheer volume of the demanded documents made most of the requests unduly burdensome. By return letter on February 23, 2010, Spacecon immediately made known its disputes with the demands for documents and suggested a conference between counsel and resort to the Court for any disputes which counsel were unable to resolve.

Defendant's continued failure to respond led Plaintiff to file its Motion For Leave To Unilaterally Set Discovery Hearing [Doc. No. 58]. That motion and exhibits thoroughly document Defendant's failure to pursue the resolution of disputes over those demands for almost three months, through May 21, 2010. That motion resulted in this Court's Minute Order of May 26, 2010 [Doc. 62], which required the parties to attempt to resolve their disputes and to bring any unresolved disputes to the Court. This Order, issued 20 days before the June 15 discovery cutoff2, allowed Defendant plenty of time to engage in a discovery conference and to schedule a hearing with the Court prior to the discovery cutoff. The parties conducted a Rule 7 conference call on June 4 but managed to cover only a small part of the 73 document categories at issue. Thereafter, Defendant took no action to address his discovery until July 26, 2010, two months after the Court's Order.

Because of the lack of progress in the June 4 conference, Plaintiff's counsel elected to try to expedite the discussions by making a package offer of generous compromises, conveyed in a letter dated July 30, 2010, attached as EXHIBIT E. The offer was expressly conditioned on acceptance of the package and made clear that any subsequent negotiations continued to be subject to the condition that all agreements were tentative and subject to a package resolution. In their response, Defendant rejected the package proposed in the letter but did not, as Defendant now suggests, "reject" Plaintiff's condition that all future negotiations were conditioned on reaching a package agreement on all issues. Defendant was not in a position to reject that condition. Moreover, in subsequent conversations, Plaintiff's counsel verbally confirmed that Plaintiff would only negotiate on a package or global basis. The fact that Defendant understood and did not reject Plaintiff's position is supported by Defendant's failure to raise this issue until the Final Pretrial Conference.

Subsequent to the July 30 letter, the parties held three teleconferences totaling over seven hours with little progress for the time spent. In the last meeting, on August 16, the parties agreed that Defendant's counsel would schedule a joint call to the Court to set a discovery hearing. On Monday, August 23, 2009, counsel for both parties called the Magistrate Judge's chambers, spoke with the law clerk, and tentatively scheduled the hearing for September 9. However, Defendant's counsel was not prepared to discuss the issues, as required, and it was agreed that Defendant's counsel would prepare for and initiate another call to discuss the issues with the law clerk. Defendant's counsel made no effort to do so before September 9, and the hearing was vacated, despite efforts by Plaintiff's counsel to contact her before the hearing.

Defendant's counsel finally contacted Plaintiff's counsel on September 10 and suggested contacting the Court on September 13 or 14 to reschedule the hearing. Plaintiff's counsel responded that he was available to do so on September 14. Defendant's counsel neither responded nor made any effort to schedule a hearing. See e-mail exchange, EXHIBIT F.

Almost 6 weeks later, on Thursday, October 21, Defendant's counsel left a voice mail asking for Plaintiff's availability to contact the Court to set the discovery hearing. Plaintiff's counsel e-mailed, offering to be available for the call the next day, Friday, October 22. Defendant's counsel responded that she was not available until Monday or Tuesday of the following week. Plaintiff's counsel responded with multiple times when he was available on Monday, October 25, and Tuesday, October 26. See e-mail exchange, EXHIBIT G. Plaintiff heard nothing further from Defendant's counsel on the subject.

Moreover, the Final Pretrial Conference was reset 4 times to accommodate Plaintiff's expressed need to obtain the demanded discovery: (1) from September 1, 2010, to October 6, 2010, per joint motion [Doc. No. 80] and Minute Order [Doc. No. 82]; (2) from October 6, 2010, to October 21, 2010, per Defendant's motion [Doc. No. 119] and Minute Order [Doc. No. 124]; (3) from October 21, 2010, to December 2, 2010, per Defendant's motion [Doc. No. 133] and Minute Order [Doc. No. 137]; and (4) from December 2, 2010 to January 6, 2011, per Defendant's motion [Doc. No. 154] and Minute Order [Doc. No. 157].3 In each case, Defendant recited as part or all of the justification for rescheduling the Final Pretrial Conference its need to obtain the discovery in question, but Defendant took no action after August 23, 2009, to secure that discovery and aborted even that action. Despite those representations, Defendant did nothing on this issue for five months.

In its order granting Defendant's last motion to reschedule the Final Pretrial Conference [Doc. No. 157], the Court noted Defendant's reasons for seeking to reschedule, including "substantial documents subject to discovery ... have not yet been produced," and granted a 34-day delay, with the admonition that "It is important that the parties be prepared to finalize a complete Pretrial Order at the Final Pretrial Conference." (Emphasis in original.) Defendant's effort in the Final Pretrial Conference to obtain this discovery demonstrates that Defendant ignored that admonition.

Allowing Defendant to review thousands of pages of documents and presumably, to amend the Final Pretrial Order to add numerous exhibits and witnesses after the Trial Preparation Conference (February 11, 2011) and presumably within no more than a week or two of trial would prejudice Plaintiff, both by insinuating into the case new exhibits and witnesses for which Plaintiff would have no time to prepare and by disrupting Plaintiff's preparation for what is already going to be a difficult trial.

Defendant offers no explanation and certainly no valid reason for his five months delay in seeking the discovery in question. By his failure to act over a period of many months and until immediately before trial, Defendant has waived his right to seek further discovery. Buttler v. Benson, et al., 193 F.R.D. 664, 666 (D.C.Colo. 2000)("A party cannot ignore available discovery remedies for months and then, on the eve of trial, move the court for an order compelling production."); Lobato v. Ford, et al., Civil Action No. 05-cv-01437-LTB-CBS, 2007 U.S.Dist. LEXIS 98121, **22-24 (D.Colo. 2007) (Copy of opinion attached as EXHIBIT H).

C. Even Had Defendant Not waived Its Right To Discovery At This Late Date, The Productions Which Defendant Now Seeks Should Be Denied As Irrelevant And Not Discoverable And Burdensome

In accord with the Court's request that these preliminary briefs be kept short, Plaintiff will reserve its argument on discoverability of the documents now requested by Defendant for hearing and assuming the Court finds that any discovery at this late date might be allowable. Defendant does make two assertions which should be addressed in advance.

(1) Defendant assets that it does not have contact information for the "overwhelming majority" of the witnesses listed in its section of the Final Pretrial Order because Spacecon has refused to provide that information. Defendant asserts that these witnesses are or were employees of Spacecon or Leno & Company and that Spacecon has their contact information. Defendant is, simply, wrong.

The witnesses listed in Plaintiff's section of the Final Pretrial Order as employees of Spacecon, Leno or Swinerton number 114 of their approximately 360 witnesses. Of those 114, 82 were included in Bensinger's Initial Disclosures. At the time these disclosures were received, Spacecon reviewed them to determine who and how many were current or former employees of Spacecon. Other than four Spacecon management employees, Spacecon was able to identify only four individuals who were or had been employed by Spacecon. All had been employed by Leno before coming to work for Spacecon, and Spacecon delivered their personnel files to Defendant. None of the remaining witnesses in that list had ever worked for Spacecon. Most had worked for Leno & Company, a subcontractor, but because they were employees of Leno, not Spacecon, Spacecon has no contact information for them.

(2) Defendant describes its current requests as "limited." The project files sought by Defendant for each of the five Spacecon projects comprise all the documents from bid to completion for each of five major projects. They are voluminous, comprising multiple bankers boxes of material, and information from those boxes which might have any bearing on this case has been provided to Defendant. Defendant's request is nothing more than a "fishing" expedition.

CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of February, 2011 a true and correct copy of the foregoing PLAINTIFF SPACECON'S BRIEF REGARDING PRODUCTION OF DOCUMENTS was served by e-mail on the following.