Hancock Sandblast & Paint LLC v. Drax, Inc. et al

Filing 29

MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Carl W. Hoffman, on 12/8/2016. The Court has received Defendant Drax's motion for a subpoena 28 . Upon review, the court will GRANT the motion. A signed copy of the subpoena is attached to this order. (Copies have been distributed pursuant to the NEF - JK)

EXHIBIT B
SUBPOENA

EXHIBIT B

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JAMES E. SMYTH,II, ESQ.
Nevada Bar No.: 6506
JONI A. JAMISON, ESQ.
Nevada Bar No.: 11614
KAEMPFER CROWELL
1980 Festival Plaza Drive, Suite 650
Las Vegas, Nevada 89135
Telephone: [phone]
Facsimile: [phone]
„ism~(a~kcnvlaw.com
i iamison(a~kcnvlaw.com

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Attorneysfor Drax,Inc.

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UNITED STATES DISTRICT COURT

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I~
~~~[~7117~

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UNITED STATES OF AMERICA for the use
and benefit of HANCOCK SANDBLAST &
PAINT LLC, an Oregon limited liability
company,

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Plaintiff,
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vs.
DRAX, INC., a corporation; and TRAVELER
CASUALTY AND SURETY COMPANY OF
AMERICA, a corporation,

Case No. 2:16-cv-01326-JAD-CWH

SUBPOENA DUCES TECUM FOR
DEPOSITION AND TO PRODUCE
DOCUMENTS, INFORMATION, OR
OBJECTS OR TO PERMIT NSPECTION
OF PREMISES IN A CIVIL ACTION

Defendants.

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► D :~

UNITED STATES OF AMERICA for the use
and benefit of DRAX, INC., a corporation;

Date of Deposition: January 13, 2017
Time of Deposition: 9:00 a.m.

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Cross-Claimant,
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vs.
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, a corporation

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Cross-Defendant.
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UNITED STATES OF AMERICA for the use
and benefit of DRAX, INC., a corporation;
Third-Party Plaintiff,

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KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

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vs.
ANDERSON BURTON CONSTRUCTION,
INC.,

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Third-Party Defendant.
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ANDERSON BURTON CONSTRUCTION,
INC.,
Third Party Counterclaimant,

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vs.
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DRAX,INC., a corporation;
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Third-Party Counterdefendant.
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10 ' SUBPOENA DUCES TECUM FOR DEPOSITION AND TO PRODUCE DOCUMENTS,
INFORMATION,OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES
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IN A CIVIL ACTION
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TO:

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Gilbert R Cano, GS-13 USAF ACC 99 CONS/LGCA
Flight Chief/Contracting Officer
Infrastructure Sustainment
99th Contracting Squadron
Nellis AFB,Nevada 89191
c/o Jacquelyn C. Fiorello, Capt, USAF
Assistant Staff Judge Advocate
4428 England Ave., Bldg. 18
Nellis AFB,Nevada 89191

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Production: YOU ARE COMMANDED to appear and give testimony and produce at the time,
date, and place set forth below the following documents, electronically stored information, or
objects, and to permit inspection, copying, testing, or sampling ofthe material:

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See "Exhibit A" attached hereto.

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Place: KAEMPFER CROWELL
1980 Festival Plaza Drive,#650
Las Vegas, Nevada 89135
Telephone: [phone]

Date &Time:

January 13,2017 9:00 a.m.

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KAEMPFER CROWELL
1980 Festival Plaza Dnve
Suite 650
Las Vegas, Nevada 89135

I LIEU OF APPEARING at the aforementioned place and time to testify, you may copy the
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subpoenaed records and deliver the copies prior to January 13, 2017 to KAEMPFER
CROWELL, 1980 Festival Plaza Drive, #650, Las Vegas, Nevada 89135, along with an
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Page 2 of 7

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affidavit or other sworn declaration certifying the authenticity of the produced records and
materials.

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The following provisions of Fed. R. Civ. P. 45 are attached —Rule 45(c), relating to the place of
compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule
45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of
not doing so.

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December 8, 2016
DATE

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UNITED STATES MAGISTRATE JUDGE
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Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or
tangible things or the inspection of premises before trial, a notice and a copy of the subpoena
must be served on each party in this case before it is served on the person to whom it is directed.
Fed. R. Civ. P. 45(a)(4).

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Submitted by:
KAEMPFER CRO

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:
•
JANI~S E. SMYTH,II, ESQ.
Nevada Bar No.: 6506
JONI A. JAMISON,ESQ.
Nevada Bar No.: 11614
1980 Festival Plaza Drive, Suite 650
Las Vegas, Nevada 89135
Attorneysfor Drax,Inc.

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KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

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"EXHIBIT A"
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DEFINITIONS

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1.
As used herein, the term "DOCUMENT" means a "writing" or "recording' as
those terms are defined in the Nevada Rule of Evidence 52.225, and refers to those materials in
your actual or constructive possession, custody or control, including but not limited to originals,
copies, non-identical copies, and preliminary, intermediate, and final drafts or writings,
recordings of oral COMMUNICATIONS, correspondence, e-mails, books, pamphlets,
periodicals, bills, accounts, checks, check registers, letters, photographs, objects, telegrams,
notes, minutes, memoranda, inter-office and intra-office COMMUNICATIONS,reports, studies,
surveys, forecasts, analyses, indices, calendars, diaries, and recordings of every kind and
description, whether inscribed by hand or by mechanical, electronic (such as on a computer hard
drive or diskette), microfilm, phonic (such as tape recordings), photographic, or other means.
Handwritten or other notations of any kind on any copy of a DOCUMENT render it nonidentical.

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As used herein, "DOCUMENT" also includes but is not limited to any
electronically stored data or paper DOCUMENT. This includes but is not limited to, archived,
electronically stored data on magnetic storage media, optical storage media, and/or storage media
of any other kind as an "active file or files (readily readable by one or more computer
applications of forensics software); any data or files stored in and/or accessible through any type
of network or networking system of any kind; any electronic files saved as a backup; any
"
deleted" but recoverable electronic files on said media; any imaged copy created by imaging,
ghost imaging, or any other type of imaging process; any and all metadata, any electronic file
f
ragments (files that have been deleted and partially overwritten with new data); and slack (data
f
ragments stored randomly from random access memory [RAM] on a hard drive during the
normal operation of a computer [file slack and/or RAM slack], residual data left on the hard
drive after new data has overwritten some but not all of previously stored data; and/or any data
or files organized within, stored by, accessed through any type of software, application software
~ or operating system of any kind.
3.
As used herein, the term "relating to" means in whole or in part constituting,
containing, concerning, embodying, identifying, stating, consisting of, pertaining to, referring to,
dealing with, responding to, reflecting, supporting connected with, commenting on, discussing,
showing describing, mentioning, evidencing or having any logical or factual connection with the
persons, entities, andlor actions described herein.

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4.
As used herein, "Application Software," also known as an end-user program, is
software that comprises a set of electronic instructions, also known as a program, which instructs
a computer to perform a specific set of processes. Application software includes word
processing programs, spreadsheet programs, database programs, and other programs enabling an
end user to perform specific functions.

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KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

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5.
As used herein, "Archive" shall mean along-term storage area, often on magnetic
tape for backup copies of files for files no longer in active use; or the act of copying files to longterm storage medium for back up. An archive copy is typically maintained for historical
reference.

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As used herein, "Backup" shall mean a snapshot of data at a specific point in
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time,typically stored on a tape or disk.
7.
As used herein,"Computer" shall mean any programmable machine including but
not limited to, network servers, desktops, laptops, notebook computers, employees' home
computers, mainframes, PDAs, digital cell phones and pagers.
8.
As used herein, "Data" shall mean distinct pieces of information formatted in a
special way for reading, storage, or access on a computer.

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As used herein, "Hard Drive" shall mean the mechanism that reads and writes
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data on a hard disk. A hard drive is the primary hardware that a computer uses to store
information, typically magnetized media on rotating disks.

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10.
As used herein, "Imaging" shall mean a method of converting the contents of a
hard drive, including its configuration settings and applications, into an image, and then storing
the image on a server or burning it to a CD. Ghost Imaging is a popular application for this
method.

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As used herein,"Imaged Copy" shall mean a "mirror image" copy of a hard drive
(
i.e., a complete replication of the contents of the physical drive). Images can be created using
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12.
As used herein, "Magnetic Storage Media" shall include but is not limited to hard
drives (also known as "hard disks"), back up tapes, Jaz and Zip drives, and floppy disks.

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13.
As used herein, "Network" shall mean a group of one or more computer systems
enable people to share information and equipment (e.g., local area network [LAN],
connected to
wide area network [WAN],home area network,[HAN], metropolitan area network [MAN],etc.).

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14.
As used herein "Operating System" shall mean software that directs the overall
activity of a computer (e.g., MS-DOS, Windows, Linux), the software platform on which all
other software operates.

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15.
As used herein, "Optical Storage Media" shall include but is not limited to CDROMs and DVD-ROMs.
16.
As used herein, "Network Operating System" shall mean a software system that
includes special functions for connecting computers and devices into a network.

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KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

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As used herein, "Software" shall mean a set of instructions stored on a computer
readable media that tells a computer what to do, this includes operating systems and applications.

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18.
As used herein,"Storage Media" shall mean any removable object on which data
be stored such as a magnetic tape or CD.
can

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19.
As used herein,"COMMUNICATION" shall mean any contact, oral or written
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ormal or informal at any time or place and under any circumstance whatsoever, in which
information of any nature was transmitted or received.

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20.
As used herein, "person" refers to any natural individual, government entity or
business entity, including a corporation or partnership, association, joint venture, co-venture or
other entity, or any combination thereof and ALL corporations, divisions or entities affiliated
with, owned or controlled directly or indirectly by any such entities as well as the directors,
officers employees, agents, attorneys, other representatives thereof, and/or third parties retained
or employed by any ofthe above.
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"THE PROJECT" shall mean and refer to the design build project to Repair
Water Tanks and Coat Interiors at Multiple Facilities at Nellis Air Force Base situated in Clark
County, and generally described and known by all pursuant to Base Contract Agreement
#FA4861-14-C-A002 per RFP# FA4861-14-B-A002-0004, including Amendment O1, dated
05/14/14; Amendment 02, dated 05/22/14; Amendment 03, dated 06/11/14; Amendment 04,
dated 06/19/14, contracted by or through 99th Contracting Squadron for Nellis Air Force Base
on or about September 18, 2014 and during the time from September 2014 through to the current
date and which is the subject of this action.

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22.
"THIS ACTION" refers to the above-captioned case, filed in the United States
District Court of Nevada on or about June 14, 2016 and involving disputes among the parties
regarding claims for breaches of contract, non-payment, unjust enrichment and action on Miller
Act Payment Bond. Parties to the litigation include the design-builder, subcontractors, suppliers
and payment bond surety.

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DOCUMENTS REQUESTED

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KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1. All items and records in your possession or control and which relate to your complete
and entire job file for THE PROJECT that is the subject of THIS ACTION,including,
but not limited to, all records, documents, communications and materials related to
a. construction and payment documents,
b. records of communications relating to THE PROJECT, whether letters, reports,
notes, e-mails, orders, correspondence, internal communication, proposals,
payment applications, contracts, invoices, purchase orders, change orders,
submittals, payroll, time sheets, sign-in sheets, lien waivers, receipts, work orders,
summaries, logs, drawings, graphic depictions, memoranda and/or other
communications regarding THE PROJECT;
c. all contracts and agreements, including all additions, changes, modifications, and
amendments,
d. minutes of meetings, logs, time sheets,
e. diaries,journals, daily reports,

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f. inspection records and reports;
g. records constituting, referring to or relating to a schedule for performing any
aspect of the work on THE PROJECT,
h. schedules,
i. records reflecting commencement and completion dates of work at THE
PROJECT,
j. status reports,
k. Requests For Information and responses to Requests For Information,
1. requests and notices regarding extensions of time for performance of work,
m. requests and notices regarding shortening of time for performance of work,
n. requests and notices regarding delays,
o. purchase orders,
p. delays, terminations,
q. deficient work,
r. correction work,
s. repair work, extra work,
t. photographs,
u. notices to proceed, completion notices,
v. records relating to any change regarding scope of work,
w. invoices, costs, expenses, etc.

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2 All pleadings and papers in or related to any litigation, dispute, mediation, arbitration or
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settlement proceedings between the United States Air Force and Anderson Burton
Construction, Inc. related to THE PROJECT.

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KAEMPFER CROWELL
1980 Festival Plaza Drive

Suite 650
Las Vegas, Nevada 89135

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AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45(c),(d),(e), and (g)(Effective 12/1/13)
( Place of Compliance.
c)
( For a Trial, Hearing, or Deposition. A subpoena may command a
1)
person to attend a trial, hearing, or deposition only as follows:
( within 100 miles of where the person resides, is employed, or
A)
regulazly transacts business in person; or
( within the state where the person resides, is employed, or regularly
B)
transacts business in person, if the person
( is a party or a party's officer; or
i)
( is commanded to attend a trial and would not incur substantial
ii)
expense.

(ii) disclosing an unretained expert's opinion or information that does
not describe specific occuttences in dispute and results from the expert's
study that was not requested by a party.
( Specifying Conditions as an Alternative. In the circumstances
C)
described in Rule 45(d)(3)(B), the court may,instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
( shows a substantial need for the testimony or material that cannot be
i)
otherwise met without undue hazdship; and
( ensures that the subpoenaed person will be reasonably compensated.
ii)
( Duties in Responding to a Subpoena.
e)

( For Other Discovery. A subpoena may command:
2)
( production of documents, electronically stored information, or
A)
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
( inspection of premises at the premises to be inspected.
B)
( Protecting a Person Subject to a Subpoena; Enforcement.
d)
( Avoiding Undue Burden or Expense;Sanctions. A party or attorney
1)
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney's fees~n a party or attorney who
f to comply.
ails

( Producing Documents ar Electronically Stored Information. These
1)
procedures apply to producing documents or electronically stored
information:
( Documents. A person responding to a subpoena to produce documents
A)
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
( Fornzfor Producing Elecu~onically Stored /nformation Not Specified.
B)
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
( Electronically Stored /nformation Produced in Only One Form. The
C)
person responding need not produce the same electronically stored
information in more than one forn~.
( Inaccessible Electronically Stored Information. The person
D)
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources ifthe
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.

( Command to Produce Materials or Permit lnspeclion.
2)
( Appearance Not Required. A person commanded to produce
A)
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appeaz in person at the place of
production or inspection unless also commanded to appeaz for a deposition,
heazing, or trial.
( Objections. A person commanded to produce documents or tangible
B)
things or to permit inspection may serve on the party or attorney designated
( Claiming Privilege or Protection.
2)
in the subpoena a written objection to inspecting, copying, testing, or
( Information Withheld. A person withholding subpoenaed information
A)
sampling any or all ofthe materials or to inspecting the premises~r to
under a claim that it is privileged or subject to protection as trial-prepazation
producing electronically stored information in the form or forms requested.
material must:
The objection must be served before the earlier of the time specified for
( expressly make the claim; and
i)
compliance or 14 days after the subpoena is served. If an objection is made,
( describe the nature ofthe withheld documents, communications, or
ii)
the following rules apply:
tangible things in a manner that, without revealing information itself
( At any time, on notice to the commanded person, the serving party
i)
privileged or protected, will enable the parties to assess the claim.
may move the court for the district where compliance is required for an
( Information Produced. if information produced in response to a
B)
order compelling production or inspection.
subpoena is subject to a claim of privilege or of protection as
( These acts may be required only as directed in the order, and the
ii)
trial-preparation material, the person making the claim may notify any party
order must protect a person who is neither a party nor a party's officer from
that received the information ofthe claim and the basis for it. After being
significant expense resulting from compliance.
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
( Quashing or Modifying a Subpoena.
3)
until the claim is resolved; must take reasonable steps to retrieve the
( When Required. On timely motion,[he court for the district where
A)
information if the party disclosed it before being notified; and may promptly
compliance is required must quash or modify a subpoena that:
present the information under seal to the court for the district where
( fails to allow a reasonable time to comply;
i)
compliance is required for a determination of the claim. The person who
( requires a person to comply beyond the geographical limits
ii)
produced the information must preserve the information until the claim is
specified in Rule 45(c);
resolved.
iii)
( requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
( Contempt.
g)
( subjects a person to undue burden.
iv)
The court for the district where compliance is required—and also, after a
( When Permitted To protect a person subject to or affected by a
B)
motion is transferred, the issuing wort—may hold in contempt a person
subpoena, the court for the district where compliance is required may,on
who, having been served, fails without adequate excuse to obey the
motion, quash or modify the subpoena if it requires:
subpoena or an order related to it.
( disclosing a trade secret or other confidential research,
i)
development, or commercial information; or

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).