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United States of America v. Sierra Pacific Industries

June 24, 2011



On June 6, 2011, Sierra Pacific Industries filed an amended motion for leave to take additional depositions; for additional time for the depositions of Special Agent Diane Welton and Battalion Chief Ron Heinbockel; to compel the production of Special Agent Marion Matthews for the conclusion of her deposition; to compel production of documents; and to compel supplemental responses and verifications to interrogatories.*fn1 Dckt. No. 214.

This motion is the eighth discovery motion brought by the parties in this case in the last ten months. See Dckt. No. 68 (motion for protective order to bar improper ex parte contacts; to preserve and produce evidence of ex parte contacts; and prohibit use of evidence obtained from ex parte contacts); Dckt. No. 69 (motion for leave to take more than 10 depositions and take depositions in excess of seven hours); Dckt. No. 86 (motion to compel personnel records and for sanctions); Dckt. No. 119 (motion to compel compliance with court order and production of documents, and sanctions); Dckt. No. 168 (motion to compel production of documents and answers to deposition questions); Dckt. No. 184 (request for discovery conference and stay of responding to defendants' written discovery); Dckt. No. 190 (motion for protective order). A ninth discovery motion is currently set for hearing on July 13, 2011. See Dckt. No. 217. In addition, defendants have filed a motion to recuse the undersigned and three motions for reconsideration of the undersigned's rulings, all of which have been denied. See Dckt. No. 83 (motion to recuse); Dckt. Nos. 102, 106, 142.

Some of the parties' motions have presented legitimate issues for judicial review. Other motions have been an waste of the court's and counsel's time, at the unfortunate expense of their clients. See Dckt. No. 152 (transcript of January 21, 2011 hearing where the undersigned stated: "I want to talk a little bit about further discovery in this matter, because it seems to me that this entire motion could have been eliminated with communication between counsel. I think this motion is entire[ly] unnecessary. When the government first filed its request for clarification back in December, it could have been very easily resolved at that time, and I don't know how to improve the communications between the parties in this case, but it's got to improve. The fact that SPI was handed a bill for what I understand to be roughly $20,000 for this entirely unnecessary motion is dismaying to me . . . we can't continue this way").

It appears that the professional relationship between lead counsel for SPI and the United States has so degraded that the meet and confer process has been largely futile. Deposition transcripts demonstrate a pattern of unprofessional and immature behavior. Examples of this behavior include:

[Witness:] ... And [I] may have talked--and I want to emphasize "may"--Ms. Taylor: Don't guess. If you have a sense or if you know.

Mr. Warne: Please. Ms. Taylor, your actions in this case from the start have been to suppress information. We all know that. Eventually your supervisors are going to know that too. But I have already told the witness what I'm entitled to and your constant attempts to keep us from the truth are nauseating.

Heinbockel Dep., lodged June 15, 2011, at 77:7-19.

Mr. Warne: Ms. Taylor, you're making hand gestures to your colleague. I would appreciate it, because you're distracting me and the witness--

Ms. Taylor: It's just because you took your hands...and rubbed them across your eyes like you can't believe the answer you're getting. Your frustration--I appreciate you're frustrated. It's coming out in nonverbal cues and it's inappropriate. ...

Mr. Warne: If I rub my eyes and you mimic me in the context of me rubbing my eyes, you are doing a disservice to your position as an Assistant U.S. Attorney. I would ask that you not mimic me when I engage in whatever gestures I do engage in. As a human being it is absurd. ...

Mr. Warne: You're embarrassing.

Ms. Taylor: It's distracting and inappropriate, Mr. Warne.

Mr. Warne: You're wasting my time.

Ms. Taylor: And I have asked you multiple times with this witness and with other witnesses to please stop.

Mr. Warne: I want you to write this. You're embarrassing.

Welton Dep., lodged June 15, 2011, at 234:21-236:1.

Mr. Warne: I don't understand your answer, Chief. I'm asking a pretty particular question.

Witness: And I'm giving a very ...

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