Salazar v. Monaco Enterprises Inc et al

Filing 209

ORDER RE DISCOVERY MOTIONS; denying as moot 29 Motion for Protective Order; striking 33 Ex Parte Motion; granting in part and denying in part 43 Motion for Protective Order; granting 51 Motion to Compel; granting 55 Motion for Discovery ; granting in part 60 Motion to Strike; striking 68 Ex Parte Motion; granting in part and denying in part 90 Motion to Compel; granting in part and denying in part 170 Motion to Compel; denying as moot 187 Motion for Discovery; denying 21 Motion to Compel. Signed by Senior Judge Lonny R. Suko. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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MAXIMILLIAN SALAZAR III,

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Plaintiff,
-vs-

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MONACO ENTERPRISES, INC.; and
GENE MONACO and MARTI MONACO,
Husband and wife and the marital
community thereof; and ROGER
BARNO and NOELLE BARNO, Husband
and wife and the marital
community thereof; and STRATEGIC
ADVANTAGE, LLC; and STEVE CESARE
and JANE DOE CESARE, Husband and
wife and the marital community
thereof,
Defendants.

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NO.

CV-12-0186-LRS

ORDER RE DISCOVERY MOTIONS

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BEFORE THE COURT are multiple discovery motions, argued at the
scheduled motion hearing on February 26, 2014.
participated on behalf of the Plaintiff.
participated on behalf of the Defendants.

William A. Gilbert

Michael E. McFarland, Jr.
The Court having considered

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the oral and written argument of counsel, enters this Order to
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memorialize and supplement the oral rulings of the Court.
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ORDER RE DISCOVERY MOTIONS - 1

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Accordingly,

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IT IS HEREBY ORDERED:

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A.
B.

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Plaintiff’s First Motion to Compel, ECF No. 21, is DENIED.
Defendants’ Motion for Protective Order, ECF No. 29, is

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DENIED as MOOT.
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C.

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Defendants’ Motion for Protective Order Preventing the

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Depositions of Noelle Barno and Richard Barno, ECF No. 43, is granted

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in part and denied in part.

The motion is denied as to Richard Barno.

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The motion is granted as to Noelle Barno.

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the Court censure defendants and consider monetary sanctions is

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respectfully denied.

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D.

Plaintiff’s request that

Plaintiff’s Motion to Compel 30(b)(6) Deposition of Monaco

Enterprises, Inc., ECF No. 51, is GRANTED.

The Court ruled with

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specificity regarding “Topics of Examination” (items 1 through 28) of
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Plaintiff’s Third Notice for Deposition of Monaco Enterprises, Inc.
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The rulings are as follows:
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1.

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counterclaims:
2.

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Defendants’ answers, affirmative defense, and any
Defendants’ objection sustained for vagueness.

Identification of documents: Defendants will provide such

documents to the extent they exist and are deemed relevant.

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3.

The history of MEI: Plaintiff has withdrawn this topic.

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4.

The organizational structure and management of MEI from 2003-

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present: Defendants’ objection overruled.

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ORDER RE DISCOVERY MOTIONS - 2

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5.

MEI policies procedures, custom and practice:

Defendants’

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objection overruled in part and grant in part.

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sustained the objections to the topic of subsection 5-f (employee

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wages/salary/bonus) finding this topic was not a 30(b)(6) topic at

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Specifically the Court

this juncture and sustained Defendants’ objections to subsections 5-i,
5-j and 5-k (FMLA, ADA, ADEA).

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6.

Training provided to employees in regard to FMLA, ADA, ADEA

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and whistleblower laws:

Defendants’ objections to all training topics

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sustained except training re:

whistleblower laws.

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7.

The Salazar Employment Security Department hearing:

Defendants’ objection sustained and the Court found this was not a
30(b)(6) topic.
8.

All aspects of Salazar’s employment with MEI:

Defendants and

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Plaintiff concurred this was a relevant and discoverable 30(b)(6)

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topic.

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9.

MEI contracting and contracts with the Government:

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Defendants’ objections were overruled in part.

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the topic would be allowed to the extent it relates to general

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The Court found that

contract practices (drafting, bidding, review, approval, negotiations,
pricing, completion) however, without reference to any specific

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contract.
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10.

MEI training and management knowledge of U.S. Government

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contracting rules/regulations that apply specifically to MEI in their
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contracting with U.S. government entities.

ORDER RE DISCOVERY MOTIONS - 3

The Court rewrote the

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topic description as follows: ”MEI training and knowledge of U.S.

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Government contracting rules and regulations that apply to per diem

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rates, completion dates, and rates allegedly billed by the defense,

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related to any complaints that the plaintiff in this case made.”

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11.

MEI training and management knowledge of the False

Claims Act.

The Court rewrote the topic description as follows: MEI

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knowledge and training of the False Claims Act.
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12.

MEI company finance and accounting: Defendants’ objection

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sustained.
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13.

MEI employment of Noelle Barno. Defendants’ objection

sustained.
14.

MEI employment of Richard Barno.

Defendants’ objection

sustained as this employee can be deposed.
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MEI employment of Marti Barno. Defendants’ objection

sustained as this employee can be deposed.
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MEI employment of Roger Barno. Defendants’ objection

sustained as this employee can be deposed.
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Dividends paid for the years 2007-present: Defendants’

objection overruled.
18.

Bonuses paid to individual employees in 2011 and 2012:

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Defendants’ objection overruled.
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19.

The employment history and termination to include job

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function, performance history, job description, wage history,
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absences, age, and any record of concerns or complaints raised by the

ORDER RE DISCOVERY MOTIONS - 4

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26 listed employees regarding fraud or corruption in MEI government

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contracting:

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of concerns or complaints raised regarding fraud or corruption in MEI

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government contracting by any of the 26 employees listed in paragraph

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Defendants’ objections sustained except as to any record

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20.

Issues, concerns, complaints oral or otherwise, concerning

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any question, allegation, or suggestion of misrepresentation, fraud,
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or corruption in MEI contracting with the Government raised by any
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individual named in topic 6 [sic] 19:

Defendants’ objection

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overruled.
21.

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MEI training on Okinama: Defendants’ objection sustained and

this topic is stricken.
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Wage and hour policies specific to contracts with the

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government as well as subcontracts:

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and this topic is stricken.

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Wage and Hour/per diem laws:

Defendants’ objection

overruled.

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Defendants’ objection sustained

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Cost information:

Defendants’ objection sustained and this

topic is stricken.

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Pricing data:

Defendants’ objection sustained and this

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topic is stricken.
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Systems integration:

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this topic is stricken.
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ORDER RE DISCOVERY MOTIONS - 5

Defendants’ objection sustained and

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27.

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Defendants’ objection

sustained and this topic is stricken.

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Contractor verification requirements:

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Timeliness of contract completion and extensions of time

requested on all government contracts entered into since 2007:
Defendants’ objection sustained and this topic is stricken.

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E.

Plaintiff’s Motion for Discovery Leave to Serve Additional

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Interrogatories, ECF No. 55, is GRANTED.

An additional 15

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interrogatories are allowed.
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F.

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Defendants’ Motion to Strike Declaration in Opposition to

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Motion (Portions of Declaration), ECF No. 60, is GRANTED in part to

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the extent hearsay is raised within the declaration.
G.

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Plaintiff’s Motion to Compel, ECF No. 90, is GRANTED in part

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and DENIED in part.

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an additional 15 interrogatories, for a total of 45 interrogatories,

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As indicated on the record, Plaintiff shall have

including related subparts under the Federal Rules of Civil Procedure.
To the extent Plaintiff will be using the original 30 interrogatories

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served upon Defendants, the Court makes the following rulings on the
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interrogatories objected to:
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1.

Interrogatory 15:

List of all employees past or present

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authorized to sign off on bids: Objection sustained.
2.

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Interrogatory 16:

All employees authorized to sign off on

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any negotiated contracts with government agencies on behalf of MONACO:

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Objection sustained.

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ORDER RE DISCOVERY MOTIONS - 6

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3.

Interrogatory 17:

List of all employees past or present who

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are or were authorized to make changes to price mark-ups and other

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cost and pricing data used by MEI in their contracting with the U.S.

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Government:

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4.

Objection sustained.

Interrogatory 18:

List of all employees, past or present,

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who are or were authorized to determine prices and cost/pricing
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mark-ups that were submitted to any U.S. Government agency by MEI.
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The list should include the employee name, dates of service with
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Monaco and contact information if available. This request is limited
in time to the period between January 1, 2007 and the date of this
Objection overruled.

request.
5.

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Interrogatory 19:

Identify with specificity, the reason or

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reasons why MEI terminated Plaintiff’s employment.

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overruled.

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RFP1 134:

Objection

Documents related to Interrogatory 19.

Objection

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overruled.
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7.

RFP 132:

All discovery exchanged in McGillen v. Monaco case.

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Objection sustained.
8.

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RFP 133:

Produce training materials, employment manuals, job

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descriptions, and other employee guidance materials provided to

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Plaintiff during his tenure with MEI.

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“RFP” is Request For Production.

ORDER RE DISCOVERY MOTIONS - 7

Objection overruled.

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Interrogatory 20:

Plaintiff.
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Objection overruled.

RFP 135:

Plaintiff.

Request for discipline information on
Relevant.

Produce discipline related information on

Objection overruled.

Relevant.

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Interrogatory 21:

Identify all compensation MEI paid to

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Eugene Monaco in calendar years 2006, 2007, 2008, 2009 and 2010, 2011,
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and 2012, including, but not limited to, salary, bonuses and benefits.
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Objection sustained.
12.

RFP 136:

Produce documents and information related to

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compensation paid to Eugene Monaco-2006 through 2012.

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Objection

sustained.

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Interrogatory 22:

Identify all compensation MEI paid to

Roger Barno in calendar years 2006, 2007, 2008, 2009, 2010, 2011,
2012.

Objection sustained.

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RFP 137:

Produce documents and information related to

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compensation paid to Roger Barno.

Objection sustained.

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Interrogatory 23:

Identify all compensation MEI paid to

Noelle Barno in calendar years 2006, 2007, 2008, 2009, 2010, 2011, and
2012.

Objection sustained.

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RFP 138:

Produce documents and information related to

compensation paid to Noelle Barno.
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Interrogatory 24:

Objection sustained.

Identify all compensation MEI paid to all

other family, and household members (people who reside in a residence
occupied by Barno or Monaco), of Eugene Monaco and/or Roger Barno not
ORDER RE DISCOVERY MOTIONS - 8

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specifically identified above in calendar years 2006, 2007, 2008,

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2009, 2010, 2011 and 2012.

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RFP 1:

Objection sustained.

Produce documents and information related to

compensation paid to household members of Eugene and Roger Barno.
Objection sustained.

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19.

RFP 2:

All data related to every Employee Opinion Survey

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(EOS) and all EOSs correspondence and notes from January of 2000
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through January 31, 2011.

MEI responds that there are no EOSs from

November of 2010 to present and objects based on irrelevant,

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confidential, proprietary, overly broad as to time frame.

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overruled.

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Objection

2007 through the date of the RFP-they are to be produced.

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20.

To the extent EOSs exist for the time period January 1,

RFP 3:

"Manager Notebooks" for Lynnae McGuillen and for any

other managers from January 1, 2007 to present:

Objection overruled

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in part and granted in part.

Only manager notebooks for those

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managers with supervisory authority over Mr. Salazar need to be
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provided.
order.
21.

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Any issues of confidentiality may require a protective

RFP 142:

All MEI affirmative actions plans since 2000,

including each draft.
22.

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Objection overruled.

Interrogatories 25:

Identify each employee terminated or

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"laid off” from MEI from January 18, 2010 through the date of

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answering these Interrogatories; identify by name, position(s) held,

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ORDER RE DISCOVERY MOTIONS - 9

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date of termination and reason for termination.

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Any issues of confidentiality may require a protective order.

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RFP 143:

Objection overruled.

All terminated/laid off employees since January

18,2010 and produce all data related to the terminations and lay offs.
Objection sustained.

Names required in response to Interrogatory 25.

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24.

RFP 144:

All documents showing all money paid by MEI to

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independent contractors and all 1099s 2007 through 2012.
sustained.
25.

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RFP 145:

1, 2010-present.

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Objection

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All payments made to Pro Tech by MEI from January
Objection sustained.

RFP 146:

All documents regarding Noelle Barno’s actual

work performed from January of 2010-present.

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27.

RFP 147:

Objection sustained.

Noelle Barno's job description.

Objection

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sustained.
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28.

RFP 148 and 149:

Same information (actual work performed

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from January of 2010-present and job description) as to Richie Barno.
Objection sustained, except job description shall be provided.
29.

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RFP 150:

Provide copies of all Form 1099 and/or other

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documentation reflecting payments made by MEI to John Ames

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(maintenance person) from January 2009 through the date of this

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request.

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30.

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Objection sustained.
RFP 151:

BGLL’s (financial consultants) information.

Objection sustained.

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ORDER RE DISCOVERY MOTIONS - 10

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31.

All documents to and from accountant John Tisdale

(MEI's accountant) from January of 2009-present.

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RFP 4:

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Interrogatory 26:

Objection sustained.

A list of persons involuntarily
Objection sustained.

terminated by MEI since January 18, 2011.

This

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inquiry is covered by Interrogatory 25 referenced above.
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33.

Interrogatory 27 and RFP 152:

Information and copies of any

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Federal False Claims Act complaints or claims related to MEI since
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January 1, 2001.

Objection overruled, however limited to any

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complaints which are filed in court and are publicly available as well

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as any unfiled or informal claims of which Defendant has knowledge.
34.

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Copies of all bids and documents submitted on any

federal project since January 1, 2006.

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RFP 153:

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Interrogatory 27 and RFP 154:

Objection sustained.
Any complaints or claims (and

all documents related to this request) under the Federal False Claims
Act, 31 U.S.C. § 3729-3733, related to MEI brought at anytime since
January 1, 2001.

Objection sustained.

Information sought is largely

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duplicative of Interrogatory 27 and RFP 152.
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36.

Interrogatory 28 and RFP 155:

List of former employees who

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have quit or been terminated that MEI has contacted to inform them of
confidentiality of all documents and information learned while at MEI
(and all documents related to this request).
37.

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Interrogatory 29:

Objection sustained.

Specify all information that MEI deems is

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confidential, proprietary, or a trade secret.

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ORDER RE DISCOVERY MOTIONS - 11

Objection sustained.

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RFP 156 and RFP 157:

All "Spy Cobra" (surveillance devices)

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information and every mechanism from January 10, 2010.

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sustained.

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Interrogatory 30:

Objection

Information on all employees who left MEI

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since January 1, 2010.

Objection sustained, except overruled as to

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employees who left on their own who were not earlier named, including
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names, dates of employment and last known contact address.
H.

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Plaintiff’s Third Motion to Compel Discovery, ECF No. 170, is

GRANTED in part and DENIED in part.

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RFP 158:

Produce a complete copy of each and every document

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or "information" which MEI suggests Mr. Salazar "has accessed and/or

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misappropriated" to form the basis for his allegations in the

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Complaint that MEI targeted specific individuals for termination.

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Objection overruled to the extent that MEI has accused Plaintiff

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Salazar of accessing information without authorization.

Such

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information claimed by MEI to have been so accessed, if known, shall
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be produced.
2.

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RFP 159:

Produce all documentary evidence including all

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electronics regarding high level decisions leading to termination of

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employees since January 1, 2011.
3.

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RFP 161:

Objection sustained.

Produce all handwritten notes or memos exchanged

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between Lynnae McGuillen, Roger Barno and Gene Monaco from October 1,

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2010-March 1, 2011.

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MEI indicates it will make such documents

ORDER RE DISCOVERY MOTIONS - 12

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available as to Plaintiff, but objects as to other employees.

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Objection sustained as to other employees.

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4.

RFP 162:

All financial information from CNA Insurance policy

No. 425361471 (a claims made, "wasting" policy with a $1,000,000.00
employment practices liability limit) and all attorneys hours, hourly

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Objection sustained, except

rates, etc., for MEI and all documents.
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that Defendants will provide a summary of coverages and a copy of any
liability provisions in such policy(s) implicated by the litigation
which would be pertinent to payment of claims asserted by Plaintiff.
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RFP 163:

Produce a copy of the most recent memo, letter,

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statements, invoice, ledger, email, or other document which sets forth

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the balance remaining on the CNA policy.

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6.

RFP 164:

Objection sustained.

Copy of all documents that MEI sent to CNA giving

it notice of claims being made against MEI.

Objection sustained.

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7.

RFP 165:

All documents regarding any requests MEI has made

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requiring current employees to fill out papers with nondisclosure or
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confidentiality clauses.
8.

RFP 166:

All documents relating to MEI transferring or

liquidating assets.
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RFP 167:

Objection sustained.

Objection sustained.

MEI has been working with other entities or

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individuals in anticipation of opening a business using MEI

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proprietary and confidential information, and products.

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documents or things that have been gathered or created in anticipation

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of opening this business(s).

Objection sustained.

ORDER RE DISCOVERY MOTIONS - 13

Produce all

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RFP 168:

In June of 2013 MEI laid off several employees.

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Produce any existing list which sets forth which employees were laid

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off (with contact information) as well as all documents which serve to

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give notice to each employee of their status as being laid off and any

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documents or emails which discuss the layoffs and any formal documents
identifying the layoff as a RIF.

Objection sustained except that

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names of employees laid off in June of 2013 along with contact
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information shall be produced.
11.

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RFP 169:

Same as RFP 168 but regarding employees given

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notice of reduction in pay as a result of MEI's current financial

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concerns. Objection sustained except names of employees given notice

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of reduction in pay during June 2013 along with contact information

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will be provided.

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12.

RFP 170:

All documents between MEI and government agencies

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informing agencies that MEI was laying off and cutting pay of
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employees.

Objection sustained.

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13.

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Interrogatory 6 and

RFP 15:

Have you (Roger Barno) ever

been named as an executor, trustee, trustor, grantor, donor, creator,

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or beneficiary in any Trust?

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Objection

sustained.

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If so, provide all documents.

Interrogatory 8 and RFP 17:

Requests information regarding

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Roger Barno’s engagement in the foundation of any business since March

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29, 2012.

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Objection sustained.

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ORDER RE DISCOVERY MOTIONS - 14

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15.

Interrogatory 9:

Whether Roger Barno is aware of any sale,

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liquidation, forfeiture, transfer of title or deed, gifting, or other

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transfer of any property or asset by his employer, Monaco Enterprises,

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Inc., occurring since the date of this lawsuit (March 29, 2012).

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Objection sustained.

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16.

Interrogatory 7 and RFP 15:

Have you (Gene Monaco) ever

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been named as an executor, trustee, trustor, grantor, donor, creator,
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or beneficiary in any Trust?

If so, provide all documents.

Objection

sustained.
17.

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Interrogatory 10:

Are you (Gene Monaco) aware of any sale,

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liquidation, forfeiture, transfer of title or deed, gifting, or other

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transfer of any property or asset by your employer, Monaco

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Enterprises, Inc., occurring at any time since the date this lawsuit

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was filed (March 29, 2012).

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I.

Objection sustained.

Plaintiff’s Motion for Discovery re Extend Duration of

Deposition of Gene Monaco, ECF No. 187, is denied as moot based on the

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parties’ stipulation communicated to the Court on February 27, 2014
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that an additional two weeks was agreed upon.
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J.

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Plaintiff's Ex Parte Motions, ECF Nos. 33 and 68, are

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STRICKEN as improperly filed ex parte.

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ORDER RE DISCOVERY MOTIONS - 15

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IT IS SO ORDERED.

The District Court Executive is directed to

enter this Order.
DATED this 27th day of March, 2014.

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s/Lonny R. Suko
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LONNY R. SUKO
SENIOR UNITED STATES DISTRICT JUDGE

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ORDER RE DISCOVERY MOTIONS - 16