Case 1:11-cv-01793-JLK-KLM Document 40 Filed 08/03/12 USDC Colorado Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 11-CV-01793-JLK- KLM SCOTSMAN INDUSTRIES, INC.; and MILE HIGH EQUIPMENT, LLC, Plaintiffs, v. JOHN A. BROADBENT, Defendant.

DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION TO COMPEL DISCOVERY RESPONSES

Defendant John A. Broadbent (Mr. Broadbent), through his attorneys, Bohn Aguilar, LLC, respectfully submits the following as his response in opposition to Plaintiffs Motion to Compel Discovery Responses from Defendant (the MTC): I. PRELIMINARY STATEMENT Although the MTC is replete with misstatements, mischaracterizations and inaccuracies, both as to the facts and why this controversy exists, the gravamen of Plaintiffs case, as they themselves have set forth in the Stipulated Scheduling and Discovery Order, is to address [Mr. Broadbents] accessing and downloading of electronic files containing a massive amount of Plaintiffs confidential information onto a portable hard drive in the days prior to the resignation of his employment Plaintiffs have not alleged, because there is no factual basis for such an allegation, that Mr. Broadbent somehow is using the downloaded information in his current employment or in an effort to gain a competitive advantage over Plaintiffs. Because Mr.

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Broadbent is not subject to any non-compete covenant and/or related post-employment restriction with regard to his employment with Plaintiffs, and because Plaintiffs Complaint does not allege that any information is being used in connection with Mr. Broadbents current work activities, this case is not about Mr. Broadbents post-employment activities and, therefore, any discovery directed to such matters is beyond the scope of permissible discovery in that it is not reasonably calculated to lead to the discovery of admissible evidence. In this regard, Plaintiffs requested discovery is nothing short of a fishing expedition. Moreover, Mr. Broadbent is prohibited from disclosing the nature and extent of his current services pursuant to the terms of a written consulting services agreement with his client. Accordingly, as set forth below, the discovery responses and objections provided by Mr. Broadbent to the disputed discovery requests are proper in all respects and are substantially justified. As a threshold matter, Mr. Broadbent strongly disputes Plaintiffs rendition of the facts surrounding this controversy and he has since the inception of these proceedings. (See, Defendants statement of claims and defenses set forth in the April 4, 2012 Scheduling Order). Indeed, Mr. Broadbent denied all material allegations of Plaintiffs Complaint and asserted a counterclaim alleging, in part, that Plaintiffs claims and related allegations asserted in their Complaint lack any evidentiary support and have been made needlessly and/or for an improper purpose such as to harass, intimidate or to coerce [Mr. Broadbent]. Plaintiffs MTC is yet another tactic designed to harass and intimidate Mr. Broadbent by seeking discovery that is simply well beyond the scope of these proceedings.

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Despite knowing that the key facts in this case are hotly disputed and that the evidentiary record is in dire need of development, the MTC reads as though Plaintiffs have already proven the essential elements of their case. In addition, the MTC spends a significant amount of effort to demonize Mr. Broadbent and inflame the Court. For example, the MTC claims that Mr. Broadbent secretly download[ed] to his own portable hard drive a massive stockpile of Plaintiffs electronic documents from Plaintiffs computer systems (the Copied Files) just days before his resignation Mr. Broadbent disputes that characterization. If Plaintiffs truly

believed that Mr. Broadbent had unlawfully copied or accessed massive amounts of Plaintiffs confidential electronic files and/or was somehow using such information to the competitive or other disadvantage of Plaintiffs, one would expect that Plaintiffs would have long ago sought immediate judicial intervention in the form of injunctive or related relief, but they never did. This lawsuit was filed on or around July 8, 2011, alleging facts of which Plaintiffs had knowledge as early as January 2011. Yet, Plaintiffs have done nothing to require Mr. Broadbent to do anything with the Copied Files. The reason for that is simple: Plaintiffs know that Mr. Broadbent is not and has not been using any of the Copied Files in connection with his postemployment activities and they are simply alleging facts without evidence in an effort to dupe the Court into assisting them with their harassment of Mr. Broadbent. What also is revealing about Plaintiffs true motives is that Plaintiffs argue that they want Mr. Broadbents employment information so that they can test his assertions that he has not used the Copied Files in his current work, yet Plaintiffs have known about the so-called New Venture (which Plaintiffs know is a actually a company by the name of Origin Technologies) as early as January 2011 but have not served any discovery on that entity to test Mr. 3

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Broadbents assertions. Importantly, the reason Plaintiffs knew of Mr. Broadbents work with Origin Technologies is because--when he resigned from Plaintiffs employment, and before Plaintiffs retained him for consulting work--Mr. Broadbent told Plaintiffs that he was going to be working for Origin Technologies to develop technology for ice machine equipment and to market that technology to ice machine equipment manufacturers, including Plaintiffs. Mr.

Broadbent even facilitated a meeting between Plaintiffs and Origin Technologies. Contrary to Plaintiffs contentions, neither Mr. Broadbent nor his counsel have ever represented to Plaintiffs counsel that Defendant has not been working in any way in the ice equipment industry. Additionally, the MTC attempts to taint the Court by improperly addressing settlement and discovery resolution discussions between the parties. At the initial scheduling conference in this case, Plaintiffs counsel was admonished by Judge Kane not to inject the Court in such discussions. Despite such advisement by the Court, Plaintiffs counsel again, in the MTC, references settlement communications exchanged between the parties, further maligning the character of Mr. Broadbent and his counsel in an effort to inflame the Court instead of focusing on the merits of the MTC. Another reason such conduct is highly improper, is that Plaintiffs mischaracterization of the parties settlement communications compels Mr. Broadbent to respond in kind to correct the record with descriptions of Mr. Broadbents extensive efforts to resolve this matter before and after litigation commenced, but Mr. Broadbent cannot do so without further enmeshing the Court in settlement communications. Mr. Broadbent will not respond to each and every mischaracterization of what has occurred to date, but it is worth noting the following: Despite Plaintiffs authorization to Mr. Broadbent in January 2011 to have access to and to use files (which Plaintiffs now claim are confidential) in order to perform the 4

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consulting work that Plaintiffs had hired him to perform, Mr. Broadbent agreed to sign a Declaration (drafted by Plaintiffs counsel) to verify that he did not retain or copy any confidential information which might belong to Plaintiffs. Because Plaintiffs refused to negotiate the Declaration in good faith and/or correct the Declaration to make it accurate, Plaintiffs filed suit against Mr. Broadbent.1 Moreover, Mr. Broadbent has fully responded to written discovery that is directed at his use of the Copied Files and he has confirmed therein that he has not transmitted, provided, or allowed access to any Copied File for any third party at any time on or after December 27, 2010, the date Plaintiffs claim Mr. Broadbent downloaded the files. Finally, Plaintiffs MTC fails to provide the Court with a true account of the types of documents that constitute the Copied Files, many of which are Mr. Broadbents personal documents (like family photos, music, expense reports, etc.) that are not the property of Plaintiffs and most certainly are not confidential. Rather than detail here the types of files, attached hereto as Exhibit A is Mr. Broadbents counsels February 8, 2012 letter to Plaintiffs counsel which demonstrates that most all of the information is either not the property of Plaintiffs and/or not confidential to Plaintiffs. Because Exhibit A contains settlement discussions, such information has been redacted. II. ARGUMENT A. Discovery responses directed at Mr. Broadbents employment activities subsequent to his resignation are not reasonably calculated to lead to the discovery of admissible evidence.
Further, within one month after this lawsuit was filed, Mr. Broadbent voluntarily made available for inspection his personal laptop computer subject to certain terms and conditions that were agreed to by Plaintiffs. In various discussions with Plaintiffs counsel, she represented to Mr. Broadbents counsel that, Plaintiffs do not have any problem with Mr. Broadbents current employment; they simply want[] to confirm that [Mr. Broadbent] does not have confidential information. That representation was confirmed in Defendants counsels letter to Plaintiffs counsel dated August 2, 2011.
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Given the nature of this case, including the fact that Plaintiffs cannot restrict Mr. Broadbents employment opportunities, Plaintiffs would arguably only be entitled to discovery directed to whether Mr. Broadbent damaged or provided confidential information belonging to Plaintiffs or whether and what extent Mr. Broadbent transferred such information to a third party. Plaintiffs did just that in their written discovery when they inquired: Identify each person and entity (other than Plaintiffs and its employees) to whom you transmitted, provided, or allowed access to any Copied File at any time on or after December 27, 2010. See Interrogatory No. 5 in Exhibit 5 to the MTC. And Mr. Broadbent, under oath, responded: OBJECTIONS: Defendant objects to the discovery request as being vague, ambiguous, overly broad and unduly burdensome. Additionally, Defendant objects to this interrogatory to the extent that it or its defined terms assumes or implies that Defendant copied files without Plaintiffs permission and authorization, and, by answering as required by Plaintiffs definition(s) Defendant is not admitting that he copied any file without full permission and authorization of Plaintiffs. RESPONSE: Subject to and without waiver of his general and specific objections, None. The above Interrogatory and the verified response of None adequately provided Plaintiffs with information to which they are entitled. The MTC wrongly assumes: (1) that the Copied Files constitute property belonging to Plaintiffs; (2) that the Copied Files contain confidential or proprietary information; and (3) that Mr. Broadbent has shared the Copied files with Plaintiffs competition. Plaintiffs have presented no evidence or good faith basis for believing that Mr. Broadbent has shared any confidential information of Plaintiffs with his employers. Without any such 6

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evidence to contravene Mr. Broadbents sworn response that he has not share such information, Plaintiffs probe into Mr. Broadbents current and confidential employment matters are beyond the scope of Plaintiffs Complaint, beyond the scope of discovery and can only be serve to harass Mr. Broadbent. Additionally, allowing Plaintiffs to inquire about the scope, nature and extent of Mr. Broadbents work (whether he is in the ice machine equipment business or not) would allow Plaintiffs to impermissibly gain commercially sensitive and proprietary business information belonging to non-parties that is simply none of Plaintiffs business. B. Mr. Broadbent is prohibited from disclosing for whom he works and the work that he is undertaking, pursuant to the terms of a written consulting services contract which contains a confidentiality provision. Mr. Broadbent is currently providing consulting services to a client under the terms of a written consulting services agreement that expressly prohibits him from disclosing the nature and scope of his work for the client. See Mr. Broadbents responses to the disputed discovery requests. Thus, Mr. Broadbent has a contractual obligation/legal duty to a third-party client to honor the express terms of confidentiality. The third-party client was not a party or privy to the terms of the Stipulated Protective Order entered by the Court on July 8, 2012. That protective order does not afford third parties, such as Mr. Broadbents client, an opportunity to object to disclosure of confidential information and/or otherwise protect its interests. Likewise, and more importantly, the protective order does not protect Mr. Broadbent from the termination and civil liability to which he would expose himself by breaching the terms of his agreement with his client. The case of Centurion Industries, Inc. v. Warren Steurer and Associates, 665 F.2d 323 (10th Cir. 1981), relied upon by Plaintiffs does not address the situation where a party in 7

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litigation is confronted with facing civil liability for breaching a confidentiality provision by producing information that is confidential to the third party. Also, the third party in the Centurion case was provided with an opportunity to object to the requested discovery. The Centurion case does instruct, however, that the Court must not compel Mr. Broadbent to imperil himself by disclosing a third partys confidential information without first issuing a protective order tailored to protect Mr. Broadbent: It is within the sound discretion of the trial court to decide whether trade secrets are relevant and whether the need outweighs the harm of disclosure. Likewise, if the trade secrets are deemed relevant and necessary, the appropriate safeguards that should attend their disclosure by means of a protective order are also a matter within the trial courts discretion. 665 F.2d at 326. Although Mr. Broadbent believes, as argued above, that his current work is not relevant to these proceedings, should the Court disagree, then Mr. Broadbent respectfully requests that the Court: (1) allow the third party to be notified of these proceedings and Plaintiffs request for discovery; (2) conduct an in camera inspection of the consulting agreement after notice to the third party; and (3) fashion an appropriate protective order so as to adequately protect the rights of the third party and Mr. Broadbent. III. CONCLUSION Based upon the foregoing, the discovery responses provided by Mr. Broadbent were proper in all respects. The current work activities of Mr. Broadbent are not relevant to these proceedings. Moreover, Mr. Broadbent is prohibited from disclosing the identity of his current client under the express terms of a written consulting/confidentiality agreement and the existing protective order does not address or afford Mr. Broadbent or his client adequate protections, for 8

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disclosing the requested information. Although Plaintiffs request attorneys fees and other costs that they claims was incurred in attempting to obtain the discovery that is the subject of the MTC, Fed.R.Civ.P. 37(a)(5)(A) provides that sanctions are not appropriate where: (1) the movant filed the motion before attempting in good faith to obtain the discovery without court action; (2) the opposing party's nondisclosure, response, or objection was substantially justified or (3) other circumstances make an award of expenses unjust. Here, all three of those conditions precluding sanctions apply. Accordingly, Mr. Broadbent requests that Plaintiffs MTC be denied, that Mr. Broadbent be awarded his costs and reasonable attorney fees associated with having to respond to the MTC, and for such other and further relief the Court deems appropriate or as requested herein. Respectfully submitted this 3rd day of August 2012. BOHN AGUILAR, LLC By: s/ Michael G. Bohn Michael G. Bohn 1670 Broadway, Suite 3000 Denver, Colorado 80202 Phone: (303) 832-2494 Email: mbohn@bohnaguilar.com ATTORNEYS FOR DEFENDANT JOHN A. BROADBENT CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of August 2012, I electronically filed the foregoing DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION TO COMPEL DISCOVERY RESPONSES with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Linda K. Stevens 9 Nina Wang

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Kevin J. Byrne SCHIFF HARDIN LLP 233 S. Wacker Drive, Suite 6600 Chicago, IL 60606 lstevens@Schiffhardin.com kbyrne@Schiffhardin.com

FAEGRE & BENSON LLP 1700 Lincoln Street, Suite 3200 Denver, Colorado 80203 nwang@faegre.com

s/Michael G. Bohn Michael G. Bohn

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