Perkins et al v. Federal Fruit & Produce Company, Inc. et al

Filing 271

ORDER denying in part #260 MOTION for Sanctions filed by Federal Fruit & Produce Company, Inc., Michael Martelli. Evidentiary Hearing set for 9/30/2014 09:00 AM in Courtroom A 702 before Judge James A. Parker. By Judge James A. Parker on 9/5/2014. (trlee, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

RICHARD PERKINS and
RICHARD MILLER,
Plaintiffs,

vs.

No. 11 CV 542 JAP/KBM

FEDERAL FRUIT & PRODUCE COMPANY, INC. and
MICHAEL MARTELLI,
Defendants.
ORDER DENYING MOTION FOR SANCTIONS
AS TO ATTORNEY PAULA GREISEN
In Defendants’ MOTION FOR SANCTIONS (Doc. No. 260) (Motion), Federal Fruit &
Produce Company, Inc. (FFP) and Michael Martelli (Martelli) ask the Court to award sanctions
under Fed. R. Civ. P. 37 and 45(e) against: (1) Plaintiff Richard Perkins (Perkins), (2) the law
firm that represents Perkins in this case, Elkus, Sisson & Rosenstein (ESR), (3) Perkins’ former
counsel, Paula Greisen (Greisen), (4) Teamsters Local Union No. 455 (Union), (5) the Union’s
counsel, Linda Cote (Cote), and (6) Jesse Medina (Medina), the Union’s business
representative. 1 This Order concerns only the Defendants’ request for sanctions against Greisen.
On September 30, 2014, the Court will hold an evidentiary hearing on the Motion against

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This ruling is a denial of the Motion in part only as to attorney Paula Greisen. In ruling on the Motion the Court
considered the arguments and exhibits in GREISEN’S RESPONSE TO DEFENDANTS’ MOTION FOR
SANCTIONS (Doc. No. 265). Other responses were reviewed by the Court, and where necessary, they were used in
deciding Defendants’ claim against Greisen. See NON-PARTYS TEAMSTERS LOCAL UNION NO. 455, LINDA
COTE AND JESSE MEDINA’S RESPONSE TO DEFENDANTS’ MOTION FOR SANCTIONS (Doc. No. 267);
and PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SANCTIONS (Doc. No. 268).

Perkins, ESR, the Union, Cote, and Medina. Greisen has agreed to appear as a witness at the
evidentiary hearing.
Two documents are the subject of the Motion as it concerns Greisen. The first document
is a Union grievance allegedly filed by Perkins but allegedly lost by the Union. In the grievance,
Perkins complained about an incident at FFP on March 11, 2009 during which Defendant
Martelli called Perkins a “nigger.” The grievance will be referred to here as the “Lost
Grievance.” At trial, Perkins claimed to have prepared and filed the Lost Grievance with Union
representative Medina, but Medina admitted he cannot find it. 2 There is no evidence that the Lost
Grievance was ever in Greisen’s possession. The second document is a letter dated April 22,
2010 from Cote to Greisen. The April 22, 2010 letter, which Defendants failed to receive during
pre-trial discovery, is the primary concern of this Order.
I. BACKGROUND
A. Greisen’s Representation of Perkins.
Greisen represented Perkins in filing an EEOC Charge against FFP and Martelli alleging
that Perkins was discharged from employment at FFP for racially discriminatory reasons and in
retaliation for complaining about race discrimination. Perkins admitted at trial he did not sign his
EEOC Charge, but he authorized Greisen to sign it on his behalf. (Tr. 1082:5-11.) It was signed
and verified by Greisen and filed on November 5, 2009. On October 15, 2010, the law firm of
Elkus & Sisson, P.C., now ESR, began to represent Perkins. On November 17, 2010, Greisen
withdrew from representation of Perkins in the EEOC proceeding. On December 13, 2010, Reid
Elkus, on behalf of ESR, filed an entry of appearance for Perkins in the EEOC proceeding. On
March 4, 2011 the Complaint initiating this lawsuit was filed by ESR on behalf of Plaintiffs

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See Trial Tr. 376:1-377:7.

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Perkins and Miller, and on March 24, 2011, an Amended Complaint was filed. (See Doc. Nos. 1
and 7.)
B. Events Related to Trial of this Case.
In May 2011 during pre-trial discovery, Defendants served Requests for Production on
Perkins asking for (1) all notes, memos, correspondence, or other documents “which record your
(or any other person’s) reaction or response to actions taken, or not taken, by Federal Fruit. . . .”
(Mot. Ex. B. at pp. 5-6.) Perkins submitted only handwritten notes. (Mot. Ex. C.) Defendants
asked for any and all statements written or recorded, sworn or unsworn, relating to the events
alleged in Perkins’ Amended Complaint or “related in any way to your employment at, discharge
from, or resignation from Federal Fruit, in possession of you or your attorneys and taken from
any person, including but not limited to statements made by you to Union representatives.” (Mot.
Ex. B at p. 6.) In response, Perkins stated, “no written or recorded statements were taken other
than those identified in Plaintiff’s 26(a)(1) Disclosures, which have been provided previously,
including the grievances filed . . . and the Arbitration Transcript.” (Mot. Ex. C. at p. 6.)
Defendants further requested from Perkins “documents related to your communications
with your Union representatives including but not limited to email communications, concerning
grievances filed by you or on your behalf at Federal Fruit.” (Mot. Ex. B. at pp. 6-7.) Perkins
responded that he had no such documents, “other than communications between his attorney and
Cote.” (Mot. Ex. C at p. 7.) Defendants asked Perkins for all documents and communications
with your Union representatives, including but not limited to email communications, concerning
allegations of race discrimination.” (Mot. Ex. B. at p. 7.) Perkins identified only communications
between his attorney and Cote. (Mot. Ex. C. at p. 7.)

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On August 1, 2011, Defendants served a subpoena on the Union requesting, “[a]ll files
notes, recordings, emails, and documents concerning Richard Perkins.” (Mot. Ex. A.) The Union
claimed attorney-client privilege and work product protection as to communications (1) between
its counsel Cote and Medina, (2) between Union counsel Rhett Dacus and Medina, (3) between
Cote and NLRB attorney Isabel Saveland, and (4) between Cote and Greisen. Defendants filed
DEFENDANTS’ MOTION TO COMPEL REPONSES TO DEFENDANTS’ REQUESTS FOR
PRODUCTION PURSUANT TO DEFENDANTS’ SUBPOENA DUCES TECUM (Doc. No.
42).
On December 30, 2011, United States Magistrate Judge Kristen L. Mix granted
Defendants’ Motion to Compel and ordered the Union to produce the requested documents by
January 6, 2012. Judge Mix determined that when the Union and Medina disclosed the
communications between the Union’s attorneys and Perkins, they waived their work product
privilege with respect to those communications. See ORDER GRANTING MOTION TO
COMPEL (Doc. No. 56) at p. 8. Judge Mix ordered all communications between Medina and
the Union’s attorneys produced. Judge Mix also found that the Union waived its privilege with
respect to communications among the Union’s attorney Cote, Greisen, and the NLRB attorney
Saveland. (Id.)
In response to Judge Mix’s order, the Union produced more than 1200 pages of
documents, but the Lost Grievance and the April 22, 2010 letter were not included in that
document production. The Union did not disclose any information about the Lost Grievance.
At trial in May 2012, Perkins and Medina testified that Perkins prepared and filed the
Lost Grievance, which Perkins described as a separate grievance complaining about being called
a “nigger” on March 11, 2009 by Martelli. Perkins stated he did not know what happened to the

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Lost Grievance. Union representative Medina testified that Perkins prepared the Lost Grievance,
but Medina did not know what happened to it thereafter. (Tr. 1019:15-1020:12 (Perkins); 376:15; 377:1-7 (Medina)). The jury ruled in favor of Perkins on all of his claims against FFP and
Martelli and awarded Perkins damages for lost wages, emotional distress, and punitive damages.
Based on Perkins’ surprise testimony about the Lost Grievance, the Court, inter alia, ordered a
new trial under Fed. R. Civ. P. 60(b)(3) on Perkins’ retaliation claim against Martelli. (Doc. No.
194 at pp. 32-51.)
C. Post-Trial Discovery.
After the decision ordering a new trial, Defendants asked Perkins to supplement his
discovery responses. Perkins provided supplemental responses on March 28, 2014. Mot. Ex. D.
Perkins did not mention or provide a copy of the Lost Grievance. In addition to seeking
discovery related to the existence of and circumstances surrounding the Lost Grievance,
Defendants also sought to discover information related to the preparation of Perkins’ EEOC
Charge, which was prepared and filed by Greisen, as Perkins’ attorney. Defendants were allowed
to delve into the circumstances surrounding the preparation of Perkins EEOC Charge because
during Perkins’ trial testimony, Perkins refuted many of the allegations in the Charge. Discovery
disputes arose, and the Court referred all post-trial discovery matters to Magistrate Judge Mix.
Judge Mix allowed Defendants a one-hour deposition of Greisen and a one-hour deposition of
Union representative Medina. (See Doc. No. 228 at p. 9.)
1. Medina’s Post-Trial Deposition
Medina testified that his normal practice was to fax grievances to Federal Fruit. (Mot. Ex.
O at 8:17-20.) Medina testified that he kept all grievances in a file drawer and on his desk. (Id. at
8:24-9:10; 10:18-23.) Medina had no specific memory of faxing the Lost Grievance to FFP, and

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even after many attempts to locate it, he was unable to find it or the fax transmission sheet that
would have been printed at the time Medina faxed this grievance to FFP. (Id. at 8:21-23; 25:1326:2.) Medina testified that the Union would consider a grievance concerning a racial epithet to
be very serious and he had no reason to believe the Union would fail to pursue this type of
grievance. (Id. at 22:4-11.)
2. Greisen’s Post-Trial Deposition
Defendants sought discovery of Greisen’s file on Perkins. On March 7, 2014, Judge Mix
partially quashed Defendants’ subpoena duces tecum of Greisen’s file on Perkins. (Minute Order
Doc. No. 235.) But, Judge Mix ordered Greisen to produce any documents she reviewed prior to
her deposition. (Id.) On March 12, 2014, Greisen testified in her deposition that she did not
review her file and could not recall important details of documents she had received or what
information she gathered during her representation of Perkins. (Mot. Ex. P.) Greisen also
testified that although Perkins told her about the Lost Grievance, she never received a copy of it.
(Id.)
After the initial one-hour deposition of Greisen, Defendants moved a second time for
document discovery from Greisen. (See ORDER Doc. No. 244.) Judge Mix ordered Greisen to
appear and testify at another one-hour deposition. (Id. at p. 7.) Judge Mix ordered Greisen to
review her file related to Perkins prior to the second deposition and to produce all documents
related to certain topics. Greisen was ordered to provide a privilege log with respect to withheld
documents. (Id. at pp. 7-8.) Judge Mix also commented that Greisen had used Judge Mix’s
wording in the previous order (Doc. No. 228) to obstruct the discovery of any documents in
Greisen’s file by not reviewing them before her first deposition. Id.

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Prior to her second deposition, Greisen produced 127 pages of documents. Out of those
documents, two are important to this Motion because they were not produced prior to the first
trial. The first document was an EEOC draft charge regarding Perkins’ claim of discrimination
against FFP which purported to describe relevant events that occurred from February 28, 2009 to
March 15, 2009. (Mot. Ex. E.) The EEOC draft charge did not mention the Lost Grievance. (Id.)
Greisen testified that she did not think her office drafted this document. (Mot. Ex. P. at 62:1363:4.)
The second important document out of the 127 pages was the April 22, 2010 letter from
Cote to Greisen, which indicates a “cc” to Perkins and a “cc” the Union. (Mot. Ex. F.) The April
22, 2010 letter was in response to an April 5, 2010 letter from Greisen, produced pre-trial, in
which Greisen asked Cote to provide “a complete listing of all of the grievances filed on Mr.
Perkins’ behalf.” The April 22, 2010 letter listed “Mr. Perkins’ grievances, in chronological
order by infraction alleged.” (Mot. Ex. F.) The second grievance listed is described as
“Grievance #111014 – manager used the term ‘nigger’” Id. In fact, Grievance #111014 does not
contain the word “nigger” and instead complains only that Perkins was “wrongly discipline[d].”
(Mot. Ex. H.)
In a subsequent letter dated April 27, 2010 from Cote to Greisen, produced to Defendants
pretrial, Cote corrects her description of Grievance 111014: “[o]n closer inspection, I note that
grievance number 111014 is not EEO related, as it involved discipline for ‘standing around
doing nothing,’ or something like; the term ‘nigger’ was used later in comment by a supervisor.”
(Mot. Ex. I.) Defendants assert that the April 22, 2010 letter was a crucial document in a string of
correspondence regarding Perkins’ grievances. According to Defendants, the April 22, 2010
letter, along with other evidence, proves that the Lost Grievance never existed. The April 22,

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2010 letter was crucial to Defendants’ preparation and presentation of their primary defense, that
Martelli never called Perkins a “nigger” and that no racial discrimination or retaliation against
Perkins occurred at FFP. More importantly, the Lost Grievance was an important protected
activity that supported Perkins’ claim against Martelli for retaliatory discharge. Defendants
contend that the damage from this withheld document and surprise testimony warrants the
imposition of sanctions and even an order vacating Perkins’ entire judgment against FFP and
Martelli. In that regard, Defendants seek to hold to account whoever is responsible for failing to
disclose the April 22, 2010 letter. Be that as it may, the Court believes that Defendants have
failed to come forward with enough evidence that Greisen is that responsible person.
In her second deposition, Greisen testified that when ESR began its representation of
Perkins in this litigation, her “instructions would have been to copy and send her entire file” to
ESR. (Mot. Ex. P at 71:25-72:6.) Greisen testified that she was unaware of “any reason why the
April 22 letter would not have been sent to ESR.” (Id. at 72:7-9.) After Defendants notified Cote
of the existence of the letter in post-trial discovery, Cote produced an unsigned copy of the letter.
(Mot. Exs. J and K.) On July 27, 2014, Cote produced twelve additional emails previously
undisclosed, one of which had the April 22, 2010 letter attached. Cote called the Union’s failure
to produce the April 22, 2010 letter “an oversight.” (Mot. Ex. L.) 3

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Defendants assert that Cote made various representations to Defendants’ counsel, Ms.
Keimig, about Cote’s reaction to the subpoena issued to the Union in 2011. This included Cote’s
statement that Cote did not search her own files for documents concerning Perkins because she
thought the subpoena needed to be issued to Cote personally to obtain any Union files from her
office. Defendants contend Cote stated that she believed a personal subpoena was necessary to
order her to produce even the documents from her file written on the Union’s behalf and
maintained in the Union’s file at Cote’s office. (Mot. at pp. 8-9.) Defendants assert that Cote
further explained she did not oversee Medina’s search and production of documents other than to
tell him to produce “everything.” Id. Defendants represent that after Defendants notified ESR
that they were concerned about the failure to produce the April 22, 2010 letter from Cote to
Greisen, a representative from ESR conferred with Cote about Perkins’ receipt and knowledge of
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II. DISCUSSION
Under the Colorado Rules of Professional Conduct when a lawyer ends a representation
of a client, the lawyer must “. . . take steps to the extent reasonably practicable to protect a
client’s interests, such as giving reasonable notice to the client, allowing time for employment of
other counsel, surrendering papers and property to which the client is entitled and refunding any
advance payment of fee or expense that has not been earned or incurred.” Rules of Prof.Cond.
Rule 1.16 (d). Failure to turn over a client’s file to new counsel in a timely manner, violates this
rule. People v. Crews, 901 P.2d 472 (Colo. 1995). The fact that Defendants did not receive the
April 22, 2010 letter in pretrial discovery does not prove that Greisen failed to turn over the April
22, 2010 letter to ESR. Therefore, under the circumstances, it does not appear that Greisen
violated Rule 1.16 (d).
Greisen did not represent Perkins in this lawsuit; therefore, she had no duty under Fed. R.
Civ. P. 26 (a) to provide pre-trial disclosure of documents in her possession regarding the subject
matter of this action. Under Rule 45(g), a non-party can be held in contempt for failure without
adequate excuse to obey a subpoena or an order relating to a subpoena. In 2014, Greisen was
subpoenaed for a deposition, and she appeared for a deposition. A subpoena duces tecum issued
for all documents related to her representation of Perkins was partially quashed by Magistrate
Judge Mix. (See Minute Order (Doc. No. 235)). Greisen did not follow the spirit of Judge Mix’s
ruling partially quashing the subpoena duces tecum, and this caused the Defendants to have to
seek further discovery and take a second deposition of Greisen. For this reason, the Court will
deny Greisen’s request for an award of her attorney fees incurred in responding to the Motion for

the April 22, 2010 letter. (Id. at p. 9.) Defendants imply that Cote and ESR should have included
one of their representatives in this conference. The Court hopes that this and other circumstances
outlined in the Motion will be sorted out at the evidentiary hearing on the Motion.
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Sanctions. However, the Court will not impose sanctions on Greisen. There is no evidence that
she “failed without adequate excuse to obey” the subpoena duces tecum or the order related to it.
Therefore, sanctions under Rule 45(g) are inappropriate.
Defendants further contend that Greisen and the others who are the subjects of this
Motion are liable for sanctions due to spoliation of evidence. Spoliation is the destruction or
significant alteration of evidence or the failure to preserve property for another’s use as evidence
in pending or reasonably foreseeable litigation. Asher Assocs. v. Baker Hughes Oilfield
Operations, No. 07 CV 1379, 2009 WL 1328483, * 5 (D. Colo. May 12, 2009). Spoliation
sanctions are proper when “(1) a party has a duty to preserve evidence because it knew, or should
have known, that litigation was imminent, and (2) the adverse party was prejudiced by the
destruction of the evidence.” Turner v. Public Service Co. of Colo., 563 F.3d 1136, 1149 (10th
Cir. 2009) (citing Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir.
2001). But if the aggrieved party seeks a remedy for spoliation, it must also prove bad faith.
“Mere negligence in losing or destroying records is not enough . . . .” Turner, 563 F.3d at 1149
(citing Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 2007)).
In this instance, there is no evidence that Griesen failed to preserve the April 22, 2010
letter. In fact, she produced the April 22, 2010 letter, albeit in 2014, showing that it had not been
destroyed, altered, or misplaced. Id. As for the Lost Grievance, if it existed, it was mishandled by
the Union, Cote, Medina, Perkins, and/or ESR. Greisen testified she heard about, but never saw,
the grievance, and the Court sees no evidence that ties Greisen to the mishandling, destruction, or
misplacement of the Lost Grievance.
IT IS ORDERED that the MOTION FOR SANCTIONS (Doc. No. 260) is denied in part
as to Paula Greisen. The other parties and non-parties that are the subject of the Motion will

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appear at the evidentiary hearing on September 30, 2014 at 9:00 a.m., United States Courthouse,
Courtroom #702, Denver, Colorado.
Dated this 5th day of September, 2014.

SENIOR UNITED STATES DISTRICT JUDGE

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