HomeMy WebLinkAbout3. City of Renton's Opposition to Tracfone's Motion to Compel Audit File1
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RESPONDENT CITY OF RENTON’S OPPOSITION TO
TRACFONE’S MOTION TO COMPEL AUDIT FILE - 1
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON RE:
TracFone Wireless, Inc.
Administrative Appeal
RESPONDENT CITY OF RENTON’S OPPOSITION TO TRACFONE’S MOTION TO COMPEL PRODUCTION OF AUDIT FILE
I. INTRODUCTION
The City of Renton (“the City”) opposes the TracFone Wireless Inc.’s (“TracFone”) Motion to
Compel (“the Motion”). Without providing any authority for its litany of complaints, TracFone’s Motion
seeks to compel information already produced by the City and impermissibly seeks to limit relevant
testimony. For the reasons set forth below, the City requests that the Hearing Examiner deny TracFone’s
Motion.
II. STATEMENT OF THE FACTS
The City and Tax Recovery Services, LLC’s (“TRS”) have produced all reasonably relevant
materials to TracFone. Approximately 11 months ago, the City filed its Proposed Discovery Plan. In it,
it stated:
C. TracFone has requested, and the City has agreed to produce, the audit file for
TracFone maintained by Taxpayer Recovery Services, LLC for the City. The City
expects to provide the audit file as soon as possible.
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RESPONDENT CITY OF RENTON’S OPPOSITION TO
TRACFONE’S MOTION TO COMPEL AUDIT FILE - 2
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
Respondent City of Renton Proposed Discovery Plan, p. 2.
Shortly thereafter, the City produced TRS’s Audit File as it was kept in the ordinary course of
business. Declaration of Tamara Crisp (“Crisp Decl.”) at ¶ 3. Over the following months, TracFone
shifted its focus from the merits of this case to the format and contents of this Audit File. Despite
maintaining that TRS produced the full Audit File in the same manner in which it was created and
maintained, it repeatedly obliged by TracFone’s requests to add additional information, such as invoices
between TRS and the City, as well requests regarding the format of the materials, such as adding Bates
numbering. Crisp Decl. at ¶ 4. In total, the City supplemented the Audit File an additional six times
based on TracFone’s requests for additional files. Crisp Decl. at ¶ 5. TRS and the City have exceeded
its obligations under the rules of discovery. Despite this, TracFone continues to insist that more
information must exist, without any authority or any evidence to support it.
TracFone’s latest request on January 13, 2021, the subject of this Motion, sought (1) complete
copies of all correspondence to and from TracFone; and (2) the dates each version of different schedules
were created. Crisp Decl. at Ex. A. While the City and TRS were under no obligation to comply with
this request, in a showing of good faith and to move this matter forward, TRS responded to TracFone
with the information requested on January 22, 2021. See Crisp Decl., at Exs. B-D. TRS provided
TracFone with a narrative response, explaining the content and creation date of each Schedule, a chart
delineating all prior email issues with TRS’s explanation and timestamps, as well as all remaining emails
requested by TracFone. See Crisp Decl., ¶ 8 (explaining that TRS has produced all responsive
documents).
TRS and the City have produced all potentially relevant materials as well as the specific
information and materials sought in its Motion. Despite this, TracFone filed its Motion to Compel
seeking the information already produced by the City and TRS.
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RESPONDENT CITY OF RENTON’S OPPOSITION TO
TRACFONE’S MOTION TO COMPEL AUDIT FILE - 3
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
III. ISSUE PRESENTED
Should the Hearing Examiner deny TracFone’s Motion and refuse to grant the relief requested
therein where TracFone’s Motion seeks to compel information already produced by the City, where the
City has supplemented TRS’s Audit file six times to conform to TracFone’s litany of requests and
complaints, and where TracFone fails to cite any authority or law that authorizes its requests? Yes
IV. ARGUMENT AND LEGAL AUTHORITY
A. The City Has Fulfilled its Discovery Obligations and Provided TracFone with
Fulsome Responses and Information.
Washington Civil Rule 34 applies the discovery and the production of documents. Specifically,
CR 34 (3)(F) states in pertinent part:
Producing the Documents or Electronically Stored Information. Unless otherwise
stipulated or ordered by the court:
(i) A party who produces things, electronically stored information, or
documents for inspection shall produce them as they are kept in the usual course of
business…
Civil Rule 34(3)(F).
The City has exceeded this requirement. It produced the Audit File as it was kept in the
usual course of TRS’s business. Despite this, TracFone requested additional information that TRS did
not keep in its Audit File. TRS and the City repeatedly agreed to TracFone’s expanded, follow-up
requests and updated its production an additional six times.
The arguments advanced by TracFone suffer from several flaws. Most notably, TracFone
seeks to compel information and materials that have previously been provided to TracFone by TRS on
January 22, 2021. As explained above, after a litany of requests by TracFone regarding the contents and
form of the Audit File, to which the City and TRS all obliged, TracFone most recently sought complete
copies of all correspondence to and from TracFone and the creation date of several Schedules. TRS
responded with the specific information requested:
Thank you so much for putting your requests in writing; it makes us able to
move forward and fulfill your requests in a much more thorough and timely way.
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RESPONDENT CITY OF RENTON’S OPPOSITION TO
TRACFONE’S MOTION TO COMPEL AUDIT FILE - 4
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
Regarding the schedules, hopefully the following will be helpful to you:
ExcelPrelim3Renton Tracfone.xls goes with the email that has the
timestamp Thu, Aug 10, 2017 at 12:27 PM. No other ExcelPrelim3Renton
Tracfone.xls spreadsheets were sent in the email trail between TracFone and TRS.
Since there are apparently multiple spreadsheets with this name, the proper
one shows interest in the amount of $114,308.43. It will show 50% for May 2013
denoting interest that is calculated through the end of August 2017. This one is in
Batch 5, in the Miscellaneous file, under the name "Attachments to emails between
TRS and TracFone 2."
There is a second ExcelPrelim3Renton Tracfone.xls spreadsheet uploaded
in the 5th Batch, outside of the subfolder, that has the same interest amount,
calculated from through the same month: No change between these two.
I am guessing that, in another batch, Renton provided an attachment
named ExcelPrelim3Renton Tracfone.xls because it was an attachment to an email
from TRS to Renton. You will be able to see on the date stamp for the email that
the interest update was done in early October 2019. Renton had requested that TRS
send them a copy with updated interest, and unfortunately TRS neglected to change
the name at that point. This interest amount is $152,556.67, the same as the
spreadsheet with the clarifying AA name I speak of below.
Regarding the schedules including the suffixes A and AA, as you may recall
from my second deposition, we created, for clarity, the spreadsheets below in order
to be able to have unique designations for spreadsheets that differ:
ExcelPrelim3Renton TracFoneA.xls has interest of $142,259.04, using 69%
for May 2013, denoting interest that is calculated through the month of March 2019.
I believe this is the spreadsheet sent out in hardcopy with the assessment.
ExcelPrelim3Renton TracFone (higher interest)AA.xls, with interest of
$152,556.67, using 76% for May 2013 denoting interest that is calculated through
the month of October 2019. I believe this is the spreadsheet (though renamed) that
was requested by Renton, but never sent to TracFone.
In response to the question regarding the dates the schedules were created,
all three of the above spreadsheets have creation dates early to mid-fall of 2020.
The reasons for this are mentioned above. When we changed the interest on the
spreadsheet, it was saved without changing the name, and this copied over the
earlier spreadsheet. Then, when we became aware of the confusion this caused, we
began downloading the earlier spreadsheets that had actually been sent out by email
(sent August 10, 2017, and on October 15, 2019), and renamed the one that matched
our assessment letter, giving it the suffix A. These processes improved the naming
convention, but gave the creation date for each to be in the fall of 2020.
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RESPONDENT CITY OF RENTON’S OPPOSITION TO
TRACFONE’S MOTION TO COMPEL AUDIT FILE - 5
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
You can get an approximate idea of the dates for these spreadsheets by
looking at the months of interest charged, and the date stamps of any emails
involved.
We have also included two attachments. One is a PDF named, because I
started work on it on the 17th, "TracFone TRS Renton More Emails 1-17-21.pdf".
It is a PDF of all of the emails I found that were left out of the already submitted
"TracFone TRS Renton Audit Emails All.doc." None had attachments. In all but
one of these, I was able to do the redacting in the manner you requested without
unnecessarily revealing inappropriately other business.
The other attachment is a table of "Email Issues, Explanations and Notes."
This table was made as I looked over the Documentation Sheet (ie the updates
combined) very carefully to see if there were emails referenced that were mis-dated,
or had some other issue which might have led to confusion if it was not cleared up.
Crisp Decl. at Ex. B. TRS ended this communication by stating: “If you have questions or issues
regarding any of these submittals, please contact me and CC Kari Sand.” Crisp Decl. at Ex. B. TracFone
did not follow up. Now, in its Motion, TracFone appears to allege that TRS’s thorough and complete
response is somehow insufficient. TRS and the City have produced all information and materials it has
within its possession that is reasonably responsive to TracFone’s request. Crisp Decl. at ¶ 8.
The City has thus fulfilled its requirements under the discovery rules and is not in
possession of any other reasonably responsive information. Crisp Decl. at ¶ 8. While TracFone may be
frustrated by this fact, the City and TRS cannot produce information or materials that do not exist or are
not in its possession or control.
B. TracFone’s Request to Limit TRS From Testifying is Improper and Unwarranted.
Finally, as an “alternative” request not offered until the last sentence of its motion, TracFone
seeks to preclude relevant testimony from TRS in both the Hearing and from other Motions practice.
TracFone offers no legal authority for such an extreme request. This request is not authorized under the
law nor is it appropriate given the City’s and TRS’s compliance with TracFone’s litany of requests. The
City therefore requests that the Hearing Examiner deny this request.
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RESPONDENT CITY OF RENTON’S OPPOSITION TO
TRACFONE’S MOTION TO COMPEL AUDIT FILE - 6
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
V. CONCLUSION
Given the City has fully satisfied its discovery obligations and previously produced the specific
documents and information sought in TracFone’s Motion to Compel, this Motion is unjustified and
frivolous, and therefore must be denied.
DATED this 12th day of February 2021.
OGDEN MURPHY WALLACE, PLLC
By /s/Kari L. Sand
Kari L. Sand, WSBA #27355
Julia Norwood, WSBA #52876
Attorneys for Respondent City of Renton
ksand@omwlaw.com
901 Fifth Avenue, Suite 3500
Seattle, WA 98164-2008
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RESPONDENT CITY OF RENTON’S OPPOSITION TO
TRACFONE’S MOTION TO COMPEL AUDIT FILE - 7
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
CERTIFICATE OF SERVICE
I, Kenya Owens, an employee of Ogden Murphy Wallace, PLLC, certify that on the date below,
I filed and served the Respondent City of Renton’s Opposition of Tracfone’s Motion to Compel Audit
File via email on the following parties:
TracFone Wireless, Inc.
Scott Edwards
Lane Powell, PC
1420 5th Avenue, Suite 4200
Seattle, WA 98101
EdwardsS@LanePowell.com
Grant S. Degginger
Lane Powell, PC
1420 5th Avenue, Suite 4200
Seattle, WA 98101
DeggingerG@LanePowell.com
I declare under penalty of perjury under the laws of the State of Washington that the foregoing
is true and correct.
Executed at Seattle, Washington this 12th day of February, 2021.
/s/Kenya Owens
Kenya Owens
Legal Assistant