United States District Court, D. Colorado
ORDER
Kristen L. Mix, United States Magistrate Judge.
This
matter is before the Court on Plaintiff's Motion
for Issuance of Letters of Request
[#70][1] (the “Motion”).
Intervenor-Defendant Acrylic Tank Manufacturing of Nevada
(“ATM”) filed a Response [#85] in opposition to
the Motion, to which Defendant Reynolds Polymer Technology,
Inc. (“Reynolds”) joins.[2] Def.'s Joinder
[#86]. Subsequently, Plaintiff filed a Reply [#93]. In the
Motion, Plaintiff seeks the issuance of letters of request to
the appropriate Scottish Court to obtain documents from HT
Systems (UK) Ltd. (“HT Systems”), a company
located in Scotland. See generally Motion [#70].
Plaintiff attaches Exhibit A [#70-1] to the Motion which
lists the documents to be produced. Plaintiff further
provides the Court with a Proposed Order [#70-2] to be
entered if the Motion is granted. The Court has reviewed the
Motion, the Response, the Reply, the attachments thereto, and
the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Motion [#70]
is GRANTED.
I.
Background
The
factual background relevant to the Motion [#70] is as
follows. This case concerns a 25, 000 gallon, custom-made
marine aquarium (the “Aquarium”) that collapsed
in Plaintiff's home located in Scotland on November 30,
2015. See Order [#54] at 1-2. Plaintiff entered into
a written agreement with Intervenor-Defendant ATM on
September 6, 2007, whereby ATM agreed to design, build, and
install the Aquarium. Id. at 1. ATM subsequently
contracted with Defendant Reynolds to manufacture the
Aquarium to ATM's specifications. Id.
According
to the instant Motion, Plaintiff hired HT Systems to repair
the damage to Plaintiff's home after the Aquarium
collapsed. [#70] at 2. HT Systems is owned by William Fraser
(“Fraser”), who Plaintiff has designated as a
non-retained expert in this case to “to testify on his
opinions as to the necessity of repairs and the
reasonableness of the cost of repair.” Id. On
May 15, 2019, Defendant Reynolds and Intervenor-Defendant ATM
(collectively, “Defendants”) deposed Mr. Fraser,
who appeared voluntarily, in Glasgow, Scotland. Id.
Pursuant to Defendants' Deposition Notice [#93-1] (the
“Notice”), Mr. Frasier was “required to
bring any documents related to [Plaintiff's] residence
not previously produced to counsel or disclosed in this
matter.” Joint Notice of Videotaped
Deposition of William Fraser [#93-1] at 2. During the
deposition, Mr. Fraser produced HT Systems' invoices for
the repair work to Plaintiff's home. Motion
[#70] at 2. However, it was revealed during the deposition
that Mr. Frasier had also hired subcontractors to do certain
repair work on the home and that he was unable to produce
those invoices from the sub-contractors. Id.
In the
Motion, Plaintiff states that “[i]t does not appear
that Mr. Fraser will voluntarily produce the sub-contractor
invoices[.]” Id. For this reason, Plaintiff
seeks an order from the Court that requests assistance from
the appropriate Scottish Court to obtain documents from HT
Systems. Id. Specifically, as set forth in Exhibit A
[#70-1], Plaintiff seeks the following documents from HT
Systems:
1. All documents relating to invoices or other costs incurred
for the repair to the home of Mr. Steven Malcolm located at
8, The Queens Crescent, Gleneagles (the “Home”)
in December 2015 - 2018.
2. All invoices obtained from sub-contractors HTS worked with
for the building reinstatement of Mr. Steven Malcolm located
at 8, The Queens Crescent, Gleneagles (the
“Home”) in December 2015 - 2018.
3. All record of payment from HTS to a sub-contractor showing
the sub-contractor invoices were paid by HTS.
Pl.'s Ex. A, Request for Documents from HT Systems
(UK) Ltd. [#70-1] at 2. According to Plaintiff, the
above documents are required for this litigation and will be
used for trial purposes. Motion [#70] at 2.
In
opposition, Defendants argue that Plaintiff's Motion
[#70] should be denied for the following three reasons.
First,
Defendants assert that the Motion [#70] is “untimely
and requests documents that were not contemplated when the
parties agreed to extend discovery deadlines.”
Response [#85] at 2. Defendants note that, on May
17, 2019, the parties filed their Joint Motion for 45-Day
Extension of Discovery Deadlines [#66] (the “Joint
Motion”) seeking to extend the discovery deadline in
this case in order to obtain testimony of GR3 and AFP and
their representatives in London, England “and to
evaluate the need for additional discovery following the
trial testimony.” Id. at 2; Joint Motion
for 45-Day Extension of Discovery Deadlines
[#66] at 2. The Court granted the parties' Joint Motion
[#66] on May 20, 2019, extending the fact and expert
discovery cut-off until July 1, 2019. Minute Order
[#68]. Approximately a month later, Plaintiff filed the
instant Motion [#70] on June 13, 2019. According to
Defendants, the Joint Motion [#66] “did not contemplate
any additional time to conduct discovery regarding either
Plaintiff's non-retained expert William Fraser or his
company, [HT Systems], and certainly did not request a time
frame outside of July 1, 2019 to do so.”
Response [#85] at 3. In light of this, Defendants
argue that Plaintiff should have moved to (or indicated his
intention to) obtain the documents from HT Systems in the
Joint Motion [#66] and that it is untimely for Plaintiff to
do so now. Id. at 3.
Second,
Defendants argue that the Motion should be denied because
Plaintiff has failed to show why Mr. Fraser, Plaintiff's
own non-retained expert, is unable to provide the documents
at issue without Court intervention. Response [#85]
at 3. Defendants allege the following in support of this
argument:
During his deposition, Mr. Fraser testified that he had not
provided the invoices to anyone, despite being asked for
them, because of a “lack of time” and because the
documents were extensive. This obviously does not excuse him
from providing them. Interestingly, during his deposition,
Mr. Fraser also testified that he had met with
Plaintiff's counsel the day prior to the deposition,
during which time he apparently reviewed “his own
documents” with Plaintiff's counsel. Mr. Fraser
confirmed at his deposition that Plaintiff's counsel ...