HomeMy WebLinkAboutTracFone's Reply in Support of Motion to Compel1
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125110.0002/8365698.1
REPLY IN SUPPORT OF TRACFONE’S MOTION TO
COMPEL - 1
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
RE: TracFone Wireless, Inc. Administrative Appeal
TRACFONE’S REPLY IN SUPPORT OF MOTION TO COMPEL
The City does not dispute its obligation and agreement to produce the complete record
of the audit. Nor does the City dispute the deficiencies in that production called out in
TracFone’s motion to compel. Rather than correcting the deficiencies or even offering to
correct them, the City attempts to defend TRS’s failures by presenting the demonstrably false,
self-serving statement from TRS’s Tamara Crisp that “TRS produced TRS’s audit file as it
was kept in the ordinary course of business.” T. Crisp Declaration re Motion to Compel, ¶ 3
(emphasis added), cited in City Compel Opp. at 2. That is simply not true.
There can be no question that Edwards Decl. Ex. 63, the 165 page word document that
Tamara Crisp produced on December 10, 2020, which is represented to contain excerpts from
more than 120 emails spanning a multi-year period is not a document that was kept by TRS
“in the ordinary course of business.” Ex. 63 was recently created by Ms. Crisp specifically for
production in this appeal.
Moreover, Ex. 63 contains numerous deletions from and alterations to the text of the
documents that were actually maintained “in the ordinary course.” And while some alterations
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125110.0002/8365698.1
REPLY IN SUPPORT OF TRACFONE’S MOTION TO
COMPEL - 2
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
and deletions are indicated by the use of brackets, Ms. Crisp has admitted in deposition that
there are also numerous deletions and alterations that are not indicated by brackets. T. Crisp.
Dep. Tr. pp. 238-246, Edwards Decl., Ex. 102. Ms. Crisp’s self-serving assertion in opposition
that she “believes in good faith” that the alterations and deletions did not “chang[e] the content
in any material way” is not an acceptable substitute for production of the actual documents.
TracFone’s motion asks the hearing examiner to compel TRS to do the same thing it has
already done on January 20 for an additional 100+ emails: produce PDF images of the actual
emails, redacting only the name of any TRS clients other than the City of Renton.
This proceeding is an appellate review of the assessment prepared by TRS and
approved by the City. The credibility and integrity of TRS’s conduct of the audit and TRS’s
reporting of their activities and information to the City are very much at issue. It simply isn’t
up to Ms. Crisp to determine whether the alterations or deletions she made to the actual record
are material or not.
Unfortunately, we know that some of the statements that TRS made to the City claiming
to describe emails between TRS and TracFone are untrue. The production of the actual
communications is necessary to evaluate the truth of statements TRS made to both the City
and to TRS. For example, the very first report TRS submitted to Renton states “TRS sent an
email dated June 6, 2013 to TracFone informing them that our company would be conducting
an audit on their company.” Edwards Decl., Ex. 6. No such email has been produced and
Tamara Crisp has now testified both that (a) the date has to be wrong (TracFone requested
permission from the City to audit TracFone on June 5, but did not receive permission until at
least June 13) and (b) that TRS did not actual notify TracFone of audit by email, but by leaving
a voicemail message. T. Crisp. Dep. Tr. p. 33.
Additionally, all of the electronic copies of the audit schedules produced to date bear
“created on” dates that post-date the filing of this appeal. Multiple files bearing the same name
have different content. The manner in which they have been produced makes it impossible to
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125110.0002/8365698.1
REPLY IN SUPPORT OF TRACFONE’S MOTION TO
COMPEL - 3
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
determine when each was actually produced, when they were revised, what revisions were
made, and whether any of them are actually unaltered copies of email attachments TRS sent to
the City (therefore documents that the City presumably reviewed before approving the
assessment).1
CONCLUSION
For the reasons set forth above, and in TracFone’s Motion to Compel, TracFone
respectfully requests that the Hearing Examiner order the City and TRS to, within 3 days (1)
produce PDF images of all of the emails contained in Ex. 63, redacting only the names of TRS
clients other than the City of Renton, (2) identify any attachments to the emails produced
(producing any attachment not already produced) and (3) produce each specific version of the
assessment schedules provided to the City of Renton, specifying when each of the different
assessment schedule files produced was created by actual date of creation, when each was
revised, and the revisions made.
DATED: February 19, 2021.
LANE POWELL PC
By Scott M. Edwards, WSBA No. 26455 edwardss@lanepowell.com Grant S. Degginger, WSBA No. 15261 deggingerg@lanepowell.com Attorneys for TracFone Wireless, Inc.
1 Though it is difficult to believe that the City actually reviewed any of the “excel” files TRS forwarded to it,
since the files were created in a free software program called LibreOffice and, though saved in “excel format”,
cannot be opened in Excel without error messages and failure to display the computed taxes. Mot. to Compel at
2.
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125110.0002/8365698.1
REPLY IN SUPPORT OF TRACFONE’S MOTION TO
COMPEL - 4
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
CERTIFICATE OF SERVICE
I hereby certify under penalty of perjury of the laws of the State of Washington and the
United States that, on the date listed below, I caused to be served a copy of the attached
document to the following persons via electronic mail:
Kari L. Sand Ogden Murphy Wallace P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, WA 98164 ksand@omwlaw.com Cynthia Moya Renton City Clerk 1055 So. Grady Way Renton, WA 98057 cmoya@rentonwa.gov olbrechtslaw@gmail.com
Executed on the 19th day of February, 2021, at Seattle, Washington.
s/ Barbara LaBelle Barbara LaBelle, Legal Assistant