February 19, 2005
(Via Email and Fax)
Beth Doherty Quinn, Esq.
BAIRD LAW FIRM, LLC
2036 E. 17th Avenue
Denver, CO 80206-1106
Tele: 303-813-4500 main
Tele: 303-322-5334 direct
Tele: 303-507-4007 cell
(Beth Doherty Quinn, Esq.)
Yesterday, I received "Defendant's initial
Disclosure Statement" filed with the Clerk of the Court in the case of
Phelps v. Qwest Employee Benefits Committee, Civil Action No.
04-B-2042 (OES), District of Colorado. Thank you for having Sara in
your office fax and email that paper to me. My understanding is that
your client will not give me any of the papers and I am expecting you
will object to the outstanding written discovery requests and seek a
protective order. Am I correct? I believe the deadline for a discovery
response falls on Monday, March 7, 2005.
Regardless, I believe that pursuant to Rule
26(a)(1)(A) of the Federal Rules of Civil Procedure, the following
matters should be made part of "Defendant's Initial Disclosure
Statement." Please advise whether your client will comply with the
1) The list of "investment guidelines"
needs to be expanded to set forth the actual name of each document and
the applicable date;
2) Defendant identifies only one officer of the Qwest
Asset Management Company. Defendant should disclose the identity of the
other officers, including those serving at any time during year 2001;
3) Defendant refers to at last three
committees: a "Proxy Policy Committee of Mellon Financial Corporation,"
a "Qwest Asset Management Committee" and an "Investment Committee of
Qwest Communications International, Inc." Defendant should provide
disclosure about the identity of the persons on the three identified
4) Defendant states "[e]ach individual Investment Manager
managing a portfolio or account that is part of the Qwest Pension Trust
is subject to investment guidelines that relate solely to that specific
Investment Manager and a specific portfolio." Defendant should provide
disclosure about the identity of each individual Investment Manager and
the specific portfolio managed; and
5) Defendant has not identified internal communications
relating to the decision to deny Mr. Phelps' request for the documents.
We expect there should be internal email, memos and other notes
reflecting communications between and among members of Defendant and
legal counsel. To the extent Defendant contends the documents are
subject to a privilege, a privilege log should be prepared and
Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure
provides that a party must disclose, without awaiting a formal discovery
request, “the name . . . of each individual likely to have discoverable
information that the disclosing party may use to support its claims or
defenses, unless solely for impeachment, identifying the subjects of the
information.” Albeit, there are very few cases that address the degree
of specificity required under Rule 26(a)(1). However, some guidance can
be gleaned from the purposes underlying the Rule itself. Rule 26(a)(1)
disclosures are designed to accelerate the exchange of basic information
and “help focus the discovery that is needed, and facilitate preparation
for trial or settlement.” See Advisory Committee Notes to 1993
Amendments to Fed.R.Civ.P. 26(a). Initial disclosures should provide
the parties “with information essential to the proper litigation of all
relevant facts, to eliminat[e] surprise, and to promot[e] settlement.”
Windom v. FM Industries, Inc., 2003 WL 21939033 (D. Neb. 2003)
(quoting Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 145
F.R.D. 92, 94 (S.D. Iowa 1992)). See also City and County of San
Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal.
2003) (noting that Rule 26(a) seeks to “‘accelerate the exchange of
basic information’ that is ‘needed in most cases to prepare for trial or
make an informed decision about settlement’”). To that end, initial
disclosures should be “complete and detailed,” and should “give the
opposing party information as to the identification and location of
persons with knowledge so that they can be contacted in connection with
the litigation.” Crouse Cartage Co. v. National Warehouse Investment
Co., 2003 WL 23142182 (S.D. Ind. 2003) (quoting Biltrite Corp.
v. World Road Markings, Inc., 202 F.R.D. 359, 362 (D. Mass. 2001)).
“Indicating briefly the general topics on which such persons have
information should not be burdensome, and will assist other parties in
deciding which depositions will actually be needed.” See Advisory
Committee Notes on the 1993 Amendments to Fed.R.Civ.P. 26(a).
In short, the Rule 26(a)(1) disclosure requirements should “be
applied with common sense in light of the principles of Rule 1, keeping
in mind the salutary purposes that the rule is intended to accomplish.
The litigants should not indulge in gamesmanship with respect to the
disclosure obligations.” See Advisory Committee Notes to 1993 Amendments
to Fed.R.Civ.P. 26(a). See also Fitz, Inc. v. Ralph Wilson Plastics
Co., 174 F.R.D. 587, 589 (D.N.J. 1997) (Rule 26 disclosure
requirement should be applied with common sense). Counsel who make the
mistake of treating Rule 26(a)(1) disclosures as a technical formality,
rather than as an efficient start to relevant discovery, do their
clients no service and necessarily risk the imposition of sanctions.
Plaintiff''s side contends that Defendant Qwest Employee
Benefits Committee's Rule 26(a)(1) disclosures served yesterday are
deficient. Yesterday, Defendant disclosed the names of only two
persons purportedly “hav[ing] knowledge regarding the documents in
dispute. Notably, Defendant's initial disclosures do not even bother to
identify with any greater specificity those Investment Managers who
allegedly have knowledge of specific "investment guidelines" applicable
to his or her specific investment portfolio.
Rule 26(a)(1) requires initial disclosures based upon
information then reasonably available to the disclosing party. Rule
26(g) states that the attorney or party making disclosures pursuant to
Rule 26(a)(1) must sign those disclosures, thereby certifying that “to
the best of the signer's knowledge, information, and belief, formed
after a reasonable inquiry, the disclosure is complete and correct as of
the time it is made.” See Fed.R.Civ.P. 26(g)(1) (emphasis added).
Pursuant to Local Rule 7.1, this is a request for Defendant's
compliance with the letter and spirit of Rule 26(a)(1). Please
send me an email note to confirm you received this request and will
provide me with a response. Thank you.
Curtis L. Kennedy
8405 E. Princeton Ave.
Denver, CO 80237-1741
c: Nelson Phelps