Malcolm v. Reynolds Polymer Technology, Inc.

Filing 98

ORDER by Magistrate Judge Kristen L. Mix on 08/23/19 GRANTING 70 Motion for Issuance of Issuance of Letters of Request. It is further ORDERED that The United States District Court for the District of Colorado respectfully requests the assistance of the Court of Session, Scotland in obtaining the trial evidence sought from HT Systems (UK) Ltd, a company registered in Scotland with company number SC199388 having its registered office at 53 High Street, Dumbarton, Glasgow, G82 1LS doing busines s in Scotland, as specified in Exhibit A [#70-1]. The documents identified in Exhibit A [#70-1] are necessary for the purposes of justice and for the due determination of the matters in dispute between the parties. It is necessary for the purposes of justice and for the due determination of the matters in dispute between the parties that the Court of Session, Scotland cause the following business entity, which is a company within the Scottish jurisdiction, to produce documents for trial. The nam e and registered office of the company is as follows: HT Systems (UK) Ltd, 53 High Street, Dumbarton, Glasgow, G82 1LSThe company also trades as HTS and has a place of business at 68 Whirlow Road,Ballieston, Glasgow, G69 6QE. The United States Distri ct Court for the District of Colorado respectfully requests the Court of Session, Scotland make an order for the recovery of the particular documents in Exhibit A [#70-1] according to your usual and proper processes. IT IS FURTHER ORDERED that, to the extent that documents listed in Exhibit A [#70-1] are produced by HT Systems, Defendants may re-depose Mr. Fraser for no more than two hours.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02835-WJM-KLM
STEVEN MALCOLM,
Plaintiff,
v.
REYNOLDS POLYMER TECHNOLOGY, INC., a foreign company,
Defendant,
v.
ACRYLIC TANK MANUFACTURING OF NEVADA, a Nevada corporation,
Intervenor-Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Issuance of Letters of
Request [#70]1 (the “Motion”).

Intervenor-Defendant Acrylic Tank Manufacturing of

Nevada (“ATM”) filed a Response [#85] in opposition to the Motion, to which Defendant
Reynolds Polymer Technology, Inc. (“Reynolds”) joins.2

Def.’s Joinder [#86].

Subsequently, Plaintiff filed a Reply [#93]. In the Motion, Plaintiff seeks the issuance of
letters of request to the appropriate Scottish Court to obtain documents from HT Systems

1

“[#70]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

Although Defendant Reynolds did not oppose Plaintiff’s Motion [#70] initially, Reynolds
advises the Court that it has changed its position and now opposes the Motion based on the
arguments raised in ATM’s Response [#85]. See Def.’s Joinder [#86].

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(UK) Ltd. (“HT Systems”), a company located in Scotland. See generally Motion [#70].
Plaintiff attaches Exhibit A [#70-1] to the Motion which lists the documents to be produced.
Plaintiff further provides the Court with a Proposed Order [#70-2] to be entered if the
Motion is granted. The Court has reviewed the Motion, the Response, the Reply, the
attachments thereto, and the applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#70] is GRANTED.
I. Background
The factual background relevant to the Motion [#70] is as follows. This case
concerns a 25,000 gallon, custom-made marine aquarium (the “Aquarium”) that collapsed
in Plaintiff’s home located in Scotland on November 30, 2015. See Order [#54] at 1-2.
Plaintiff entered into a written agreement with Intervenor-Defendant ATM on September
6, 2007, whereby ATM agreed to design, build, and install the Aquarium. Id. at 1. ATM
subsequently contracted with Defendant Reynolds to manufacture the Aquarium to ATM’s
specifications. Id.
According to the instant Motion, Plaintiff hired HT Systems to repair the damage
to Plaintiff’s home after the Aquarium collapsed. [#70] at 2. HT Systems is owned by
William Fraser (“Fraser”), who Plaintiff has designated as a non-retained expert in this
case to “to testify on his opinions as to the necessity of repairs and the reasonableness
of the cost of repair.” Id. On May 15, 2019, Defendant Reynolds and IntervenorDefendant ATM (collectively, “Defendants”) deposed Mr. Fraser, who appeared
voluntarily, in Glasgow, Scotland. Id. Pursuant to Defendants’ Deposition Notice [#93-1]
(the “Notice”), Mr. Frasier was “required to bring any documents related to [Plaintiff’s]
residence not previously produced to counsel or disclosed in this matter.” Joint Notice of

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Videotaped Deposition of William Fraser [#93-1] at 2. During the deposition, Mr. Fraser
produced HT Systems’ invoices for the repair work to Plaintiff’s home. Motion [#70] at 2.
However, it was revealed during the deposition that Mr. Frasier had also hired subcontractors to do certain repair work on the home and that he was unable to produce
those invoices from the sub-contractors. Id.
In the Motion, Plaintiff states that “[i]t does not appear that Mr. Fraser will voluntarily
produce the sub-contractor invoices[.]” Id. For this reason, Plaintiff seeks an order from
the Court that requests assistance from the appropriate Scottish Court to obtain
documents from HT Systems. Id. Specifically, as set forth in Exhibit A [#70-1], Plaintiff
seeks the following documents from HT Systems:
1.

All documents relating to invoices or other costs incurred for the
repair to the home of Mr. Steven Malcolm located at 8, The Queens
Crescent, Gleneagles (the “Home”) in December 2015 – 2018.

2.

All invoices obtained from sub-contractors HTS worked with for the
building reinstatement of Mr. Steven Malcolm located at 8, The
Queens Crescent, Gleneagles (the “Home”) in December 2015 –
2018.

3.

All record of payment from HTS to a sub-contractor showing the
sub-contractor invoices were paid by HTS.

Pl.’s Ex. A, Request for Documents from HT Systems (UK) Ltd. [#70-1] at 2. According
to Plaintiff, the above documents are required for this litigation and will be used for trial
purposes. Motion [#70] at 2.
In opposition, Defendants argue that Plaintiff’s Motion [#70] should be denied for
the following three reasons.
First, Defendants assert that the Motion [#70] is “untimely and requests documents
that were not contemplated when the parties agreed to extend discovery deadlines.”

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Response [#85] at 2. Defendants note that, on May 17, 2019, the parties filed their Joint
Motion for 45-Day Extension of Discovery Deadlines [#66] (the “Joint Motion”) seeking to
extend the discovery deadline in this case in order to obtain testimony of GR3 and AFP
and their representatives in London, England “and to evaluate the need for additional
discovery following the trial testimony.” Id. at 2; Joint Motion for 45-Day Extension of
Discovery Deadlines [#66] at 2. The Court granted the parties’ Joint Motion [#66] on May
20, 2019, extending the fact and expert discovery cut-off until July 1, 2019. Minute Order
[#68]. Approximately a month later, Plaintiff filed the instant Motion [#70] on June 13,
2019.

According to Defendants, the Joint Motion [#66] “did not contemplate any

additional time to conduct discovery regarding either Plaintiff’s non-retained expert
William Fraser or his company, [HT Systems], and certainly did not request a time frame
outside of July 1, 2019 to do so.” Response [#85] at 3. In light of this, Defendants argue
that Plaintiff should have moved to (or indicated his intention to) obtain the documents
from HT Systems in the Joint Motion [#66] and that it is untimely for Plaintiff to do so now.
Id. at 3.
Second, Defendants argue that the Motion should be denied because Plaintiff has
failed to show why Mr. Fraser, Plaintiff’s own non-retained expert, is unable to provide the
documents at issue without Court intervention. Response [#85] at 3. Defendants allege
the following in support of this argument:
During his deposition, Mr. Fraser testified that he had not provided the
invoices to anyone, despite being asked for them, because of a “lack of
time” and because the documents were extensive. This obviously does
not excuse him from providing them. Interestingly, during his deposition,
Mr. Fraser also testified that he had met with Plaintiff’s counsel the day
prior to the deposition, during which time he apparently reviewed “his
own documents” with Plaintiff’s counsel. Mr. Fraser confirmed at his

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deposition that Plaintiff’s counsel did not represent him, but it appears
that the documents were available, but for some reason not produced at
the time of his UK deposition.
Response [#85] at 3. Based on the foregoing, Defendants assert that “[a]lthough it is
unclear why Mr. Fraser will not provide the invoices, . . . the reasoning is irrelevant [given
that] Mr. Fraser is not cooperative, to the detriment of [Defendants].” Id. at 4.
Third, Defendants argue that if Plaintiff’s Motion [#70] is granted, Defendants will
be prejudiced given that they have already deposed Mr. Fraser, at great expense, without
having the benefit of reviewing the invoices beforehand. Id. at 4. In other words,
Defendants argue that, if the invoices at issue are obtained, they will be “prejudiced by
their late disclosure, as [Defendants] could not use them when they were most valuable:
at the time of Mr. Fraser’s deposition.” Response [#85] at 4 (noting that “[a] second
deposition of Mr. Fraser in the UK might also be required.”).
II. Legal Standard
A letter of request is simply a request by a “domestic court to a foreign court to
take evidence from a certain witness.” Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241, 247 n.1 (2004) (quotations and citation omitted). “United States courts have
inherent authority to issue letters of request to foreign tribunals.” In re Urethane Antitrust
Litigation, 267 F .R.D. 361, 364 (D. Kan. 2010). The Hague Convention on the Taking of
Evidence Abroad in Civil Commercial Matters (the “Hague Convention”), of which both
the United States and England are signatories, provides the mechanism by which
evidence is obtained abroad through the issuance of a letter of request. See 23 U.S.T.
255; 28 U.S.C. § 1781 (permitting “the transmittal of a letter rogatory or request directly
from a tribunal in the United States to the foreign or international tribunal, officer, or

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agency to whom it is addressed and its return in the same manner” and reprinting the
Hague Convention); see also In re Urethane, 267 F.R.D. at 364; Fed. R. Civ. P.
28(b)(1)(A)-(B) (“A deposition may be taken in a foreign country under an applicable treaty
or convention [or] under a letter of request.”). “When determining whether to exercise its
discretion, a court will generally not weigh the evidence sought from the discovery request
nor will it attempt to predict whether that evidence will actually be obtained.” Barnes &
Noble, Inc. v. LSI Corp., No. C 11-02709 EMC LB, 2012 WL 1808849, at *2 (N.D. Cal.
May 17, 2012); see also In re Urethane, 267 F.R.D. at 364 (D. Kan. 2010) (noting that a
party seeking foreign assistance under the Hague Convention need not show that the
evidence sought will actually be attained.). Finally, where a motion for letters of request
is opposed, the opposing party “must demonstrate [ ] good cause or good reason why a
letter request should not issue.” United States v. Badger, No. 2:10-cv-00935, 2013 WL
1309165, at *7 (D. Utah Mar. 31, 2013) (citing B & L Drilling Electronics v. Totco, 87
F.R.D. 543, 545 (W.D. Okla. 1978) (”[T]here must be some good reason for the Court to
deny a party the judicial assistance requested by means of a letter rogatory. Ordinarily
on a motion for the issuance of a letter rogatory, the Court will not weigh the evidence
that is to be adduced by deposition and will not attempt to predict, whether, in fact, the
witnesses will be able to give the testimony which is sought.”)).
IV. Analysis
In light of the above, and after reviewing the parties’ briefing on the Motion [#70],
the Court finds that Defendants have failed to show good cause for why Plaintiff’s letters
of request should not issue.

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With respect to Defendants’ timeliness concerns, this issue is now moot given that
on July 3, 2019, after the Motion was filed, the Court granted the parties’ joint request to
further extend the discovery deadline in this case and reset the Final Pretrial Conference
to December 5, 2019. See Minute Order [#88]. In doing so, the Court extended the fact
and expert discovery cut-off until October 29, 2019, “for the limited purpose and scope of
completing international testimony and evidence[,]” which clearly encompasses Plaintiff’s
effort to obtain documents from HT Systems in Scotland. Id. at 1.
As to Defendants’ second contention regarding Mr. Fraser’s unwillingness to
provide the sub-contractor invoices himself, the Court notes that Defendants’ Notice [#931] was dated May 7, 2019, five business days prior to Mr. Fraser’s May 15, 2019
deposition, and broadly sought from Mr. Fraser “any documents related to [Plaintiff’s]
residence not previously produced to counsel or disclosed in this matter.” [#93-1] at 2.
Plaintiff argues that Defendant’s request did not comply with the Federal Rules of Civil
Procedure given that Mr. Fraser is a non-party located in Scotland and is unrepresented
by counsel, and given that “the only means of obtaining documents from a witness
residing in Scotland is by way of Letters of Request.” Reply [#93] at 3-4. Plaintiff’s
argument appears to have some merit given the vague scope of Defendants’ document
request, the time at which it was served, and given the fact that, generally speaking, “28
U.S.C. § 1783 governs issuing and serving a subpoena directed to a United States
national or resident who is in a foreign country.” Fed. R. Civ. P. 45(b)(3). However, in
light of the fact that Plaintiff cites no legal authority for this contention and Defendants
have not had an opportunity to respond to this particular argument, the Court does not
address the issue here.

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Rather, the Court finds Defendants’ contention, that Mr. Fraser should willingly
provide these documents without letters of request simply because he is a non-retained
expert, plainly refuted by the fact that Plaintiff has filed the instant Motion [#70]. It is clear
that neither Plaintiff nor Defendants have been able to obtain these documents despite
their best efforts. Moreover, Plaintiff represents that he has made attempts to obtain the
sub-contractor invoices from Mr. Fraser following his deposition, but that Mr. Fraser is “no
longer responding to Plaintiff’s counsel’s ongoing requests that he produce the entirety of
his file[.]” Reply [#93] at 3-4. Thus, letters of request directed toward HT Systems, Mr.
Fraser’s company, appear to be an eminently reasonable means of obtaining documents
that all parties appear to agree are necessary for this litigation.
Regarding Defendants’ third argument, the Court finds that any potential prejudice
to Defendants may be avoided if Defendants are provided an opportunity to re-depose
Mr. Fraser or examine Mr. Fraser at trial.

Plaintiff raises no disagreement with

Defendants’ statement that, if documents are obtained from HT Systems, “[a] second
deposition of Mr. Fraser in the UK might also be required.” Response [#85] at 4; see
generally Reply [#93]. Moreover, although Mr. Fraser has apparently been unresponsive
to Plaintiff’s counsel regarding the request for documents, he did indicate during his
deposition that he would be willing to travel to the United States to testify at trial. Pl.’s Ex.
B, Dep. of William Fraser [#93-2] at 102:10-11. Accordingly, to the extent that the
appropriate Scottish Court compels production of the documents listed in Exhibit A and
HT Systems provides said documents, the Court grants Defendants the opportunity to redepose Mr. Fraser for not more than two hours.

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Finally, as to the merits of Plaintiff’s Motion, Defendants do not contest Plaintiff’s
assertion that the letters of request are necessary to obtain the documents listed in Exhibit
A from HT Systems, a foreign non-party. Motion [#70] at 2; see generally Response [#85].
Further, it is undisputed that HT Systems is located in Scotland and possesses these
documents which are necessary for trial. See generally Response [#85]. Given that the
invoices sought speak to the cost of repairs to Plaintiff’s home following the Aquarium’s
collapse, they appear relevant to claims and defenses in this case pursuant to Fed. R.
Civ. P. 26(b). Accordingly, the Court finds good cause to grant Plaintiff’s request pursuant
to Fed. R. Civ. P. 28(b) and 28 U.S.C. § 1781(b)(2).
IT IS HEREBY ORDERED that the Motion [#70] is GRANTED.
IT IS FURTHER ORDERED that:
1.

The United States District Court for the District of Colorado respectfully

requests the assistance of the Court of Session, Scotland in obtaining the trial evidence
sought from HT Systems (UK) Ltd, a company registered in Scotland with company
number SC199388 having its registered office at 53 High Street, Dumbarton, Glasgow,
G82 1LS doing business in Scotland, as specified in Exhibit A [#70-1].
2.

The documents identified in Exhibit A [#70-1] are necessary for the

purposes of justice and for the due determination of the matters in dispute between the
parties.
3.

It is necessary for the purposes of justice and for the due determination of

the matters in dispute between the parties that the Court of Session, Scotland cause the
following business entity, which is a company within the Scottish jurisdiction, to produce
documents for trial. The name and registered office of the company is as follows:

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HT Systems (UK) Ltd
53 High Street
Dumbarton
Glasgow
G82 1LS
The company also trades as HTS and has a place of business at 68 Whirlow Road,
Ballieston, Glasgow, G69 6QE.
4.

The United States District Court for the District of Colorado respectfully

requests the Court of Session, Scotland make an order for the recovery of the particular
documents in Exhibit A [#70-1] according to your usual and proper processes.
IT IS FURTHER ORDERED that, to the extent that documents listed in Exhibit A
[#70-1] are produced by HT Systems, Defendants may re-depose Mr. Fraser for no
more than two hours.
Dated: August 23, 2019

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