February 19, 2005
(Via Email and Fax)
Beth Doherty Quinn, Esq.
2036 E. 17th Avenue
Denver, CO 80206-1106
Tele: 303-813-4500 main
Tele: 303-322-5334 direct
Tele: 303-507-4007 cell
Fax:  303-813-4501
bquinn@bairdlawfirm.com (Beth Doherty Quinn, Esq.)
Yesterday, I received "Defendant's initial Disclosure Statement" filed with the Clerk of the Court in the case of Phelps v. Qwest Employee Benefits Committee, Civil Action No. 04-B-2042 (OES), District of Colorado.  Thank you for having Sara in your office fax and email that paper to me.  My understanding is that your client will not give me any of the papers and I am expecting you will object to the outstanding written discovery requests and seek a protective order.  Am I correct?  I believe the deadline for a discovery response falls on Monday, March 7, 2005.
Regardless, I believe that pursuant to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure, the following matters should be made part of "Defendant's Initial Disclosure Statement."  Please advise whether your client will comply with the following requests:
    1)    The list of "investment guidelines" needs to be expanded to set forth the actual name of each document and the applicable date;
    2)    Defendant identifies only one officer of the Qwest Asset Management Company.  Defendant should disclose the identity of the other officers, including those serving at any time during year 2001;
    3)    Defendant refers to at last three committees:  a "Proxy Policy Committee of Mellon Financial Corporation," a "Qwest Asset Management Committee" and an "Investment Committee of Qwest Communications International, Inc."  Defendant should provide disclosure about the identity of the persons on the three identified committees;
    4)    Defendant states "[e]ach individual Investment Manager managing a portfolio or account that is part of the Qwest Pension Trust is subject to investment guidelines that relate solely to that specific Investment Manager and a specific portfolio."  Defendant should provide disclosure about the identity of each individual Investment Manager and the specific portfolio managed;  and
     5)    Defendant has not identified internal communications relating to the decision to deny Mr. Phelps' request for the documents.  We expect there should be internal email, memos and other notes reflecting communications between and among members of Defendant and legal counsel.  To the extent Defendant contends the documents are subject to a privilege, a privilege log should be prepared and disclosed.
Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure provides that a party must disclose, without awaiting a formal discovery request, “the name . . . of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information.”  Albeit, there are very few cases that address the degree of specificity required under Rule 26(a)(1).  However, some guidance can be gleaned from the purposes underlying the Rule itself.  Rule 26(a)(1) disclosures are designed to accelerate the exchange of basic information and “help focus the discovery that is needed, and facilitate preparation for trial or settlement.”  See Advisory Committee Notes to 1993 Amendments to Fed.R.Civ.P. 26(a).  Initial disclosures should provide the parties “with information essential to the proper litigation of all relevant facts, to eliminat[e] surprise, and to promot[e] settlement.”  Windom v. FM Industries, Inc., 2003 WL 21939033 (D. Neb. 2003) (quoting Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 145 F.R.D. 92, 94 (S.D. Iowa 1992)).  See also City and County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003) (noting that Rule 26(a) seeks to “‘accelerate the exchange of basic information’ that is ‘needed in most cases to prepare for trial or make an informed decision about settlement’”).  To that end, initial disclosures should be “complete and detailed,” and should “give the opposing party information as to the identification and location of persons with knowledge so that they can be contacted in connection with the litigation.” Crouse Cartage Co. v. National Warehouse Investment Co., 2003 WL 23142182 (S.D. Ind. 2003) (quoting Biltrite Corp. v. World Road Markings, Inc., 202 F.R.D. 359, 362 (D. Mass. 2001)). “Indicating briefly the general topics on which such persons have information should not be burdensome, and will assist other parties in deciding which depositions will actually be needed.” See Advisory Committee Notes on the 1993 Amendments to Fed.R.Civ.P. 26(a).
In short, the Rule 26(a)(1) disclosure requirements should “be applied with common sense in light of the principles of Rule 1, keeping in mind the salutary purposes that the rule is intended to accomplish. The litigants should not indulge in gamesmanship with respect to the disclosure obligations.” See Advisory Committee Notes to 1993 Amendments to Fed.R.Civ.P. 26(a). See also Fitz, Inc. v. Ralph Wilson Plastics Co., 174 F.R.D. 587, 589 (D.N.J. 1997) (Rule 26 disclosure requirement should be applied with common sense). Counsel who make the mistake of treating Rule 26(a)(1) disclosures as a technical formality, rather than as an efficient start to relevant discovery, do their clients no service and necessarily risk the imposition of sanctions.
Plaintiff''s side contends that Defendant Qwest Employee Benefits Committee's Rule 26(a)(1) disclosures served yesterday are deficient.  Yesterday, Defendant disclosed the names of only two persons purportedly “hav[ing] knowledge regarding the documents in dispute.  Notably, Defendant's initial disclosures do not even bother to identify with any greater specificity those Investment Managers who allegedly have knowledge of specific "investment guidelines" applicable to his or her specific investment portfolio.
Rule 26(a)(1) requires initial disclosures based upon information then reasonably available to the disclosing party. Rule 26(g) states that the attorney or party making disclosures pursuant to Rule 26(a)(1) must sign those disclosures, thereby certifying that “to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.” See Fed.R.Civ.P. 26(g)(1) (emphasis added).
Pursuant to Local Rule 7.1, this is a request for Defendant's compliance with the letter and spirit of Rule 26(a)(1).  Please send me an email note to confirm you received this request and will provide me with a response.  Thank you.

Curtis L. Kennedy
8405 E. Princeton Ave.
Denver, CO  80237-1741
Tele: 303-770-0440
Fax: 303-843-0360

c:    Nelson Phelps