Case 2:16-cv-00016-wks Document 44 Filed 04/26/16 Page 1 of 8

UNITED STATES DISTRICT COURT

FOR THE
DISTRICT OF VERMONT
VERMONT RAILWAY, INC.,
Plaintiff,

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v.
TOWN OF SHELBURNE and
JOE COLANGELO in his capacity
as Town Manager and
Zoning Enforcement Officer,
Defendants.

Civil Action No. 2:16-cv-16

EMERGENCY MOTION TO COMPEL PRODUCTION OF DOCUMENTS

FROM SCOTT BARRETT, JOSEPH BARRETT, AND BRIAN BARRETT,
AND FOR CONTEMPT
NOW COME Defendants, Town of Shelburne and Joe Colangelo in his capacity as
Town Manager and Zoning Enforcement Officer, by and through their attorneys, Monaghan
Safar Ducham PLLC, and hereby move the Court to compel the production of documents in
response to subpoenas issued and served on April 6, 2016, and for contempt. This motion is
made pursuant to Fed. R. Civ. P. 45, and in support thereof Defendants state the following, and
submit the attached Affidavits and following Memorandum of Law:
1. Defendants issued and served subpoenas to produce documents on Scott Barrett, Joseph
Barrett, and Brian Barrett (the Barretts) on April 6, 2016. Affidavit of Claudine C.
Safar (Safar Affidavit) 2.
2. Prior to the issuance and service of the subpoena, Defendants provided notice to Eric
Poehlmann, attorney for Plaintiff. Id. 3.

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3. The subpoenas commanded the production of certain documents to be produced at the

offices of Monaghan Safar Ducham PLLC (the Firm) or via email no later than 5:00
pm on April 20, 2016. Id. 4.
4. The subpoenas also commanded the Barretts to appear at depositions scheduled to
commence at 9:30 am on April 26, 2016. Id. 5.
5. On April 18, 2016 Carl Lisman, attorney for the Barretts and Barrett Trucking Co., Inc.
(the Corporation), informed the Firm that electronic mail responsive to Requests 5,
6, 7 and 8 have been deleted in the ordinary course and asked if the Town will
reimburse the Corporation the costs of expensive retrieval of deleted emails. Id. 6.
6. Attorney Lisman also informed the Firm that electronic mail responsive to Requests 9,
10, 11 and 12 would likely have been deleted too. Id. 7.
7. Claudine Safar was out of the country when this correspondence was sent and Brian
Monaghan, another attorney with the Firm, immediately contacted Attorney Lisman, by
telephone and email, to discuss, among other things, the retrieval of deleted emails. See
Safar Affidavit 8; Affidavit of Brian Monaghan (Monaghan Affidavit) 12.
8. On April 19, 2016 Attorney Safar also reached out to Attorney Lisman by email to
convey the urgent need to retrieve the deleted emails and stated that if the Town needed
to pay for the retrieval, it would. Safar Affidavit 9.
9. On April 21, 2016 Attorney Lisman once again inquired into whether or not the Town
would incur the fees for email retrieval. Monaghan Affidavit 3.
10. On April 21, 2016 Attorney Monaghan conferred with Gary von Stange, Town of
Shelburne Selectboard Chairman on this issue. Id. 4.

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11. At approximately 10:00 am on April 22, 2016 the Firm learned Plaintiff would be
producing some previously withheld emails. Id. 5.
12. At approximately 5:00 pm on April 22, 2016 the Firm learned Plaintiff would be
producing some additional documents pursuant to a confidentiality agreement. Id. 6.
13. At approximately 5:30 pm on April 22, 2016 the Firm informed Defendants they would
review the additional documents to see if the emails deleted by the Barretts had been
produced by Plaintiff. Id. 7.
14. On April 24, 2016, after the Firm determined that deleted emails had not been produced
by Plaintiff, Attorney Safar reached out to Attorney Lisman to see if the deleted emails
had been recovered. Safar Affidavit 10.
15. Attorney Safar informed Attorney Lisman that she needed the deleted emails before the
scheduled depositions and that she would contact a capable computer technician
immediately if he had not already done so. Id. 11.
16. Attorney Safar also told Attorney Lisman that she was available that day on her cell
phone and would be in the office the next morning. Id. 12.
17. Attorney Safar spoke with Attorney Lisman at approximately 8:30 am on April 25,
2016 and he informed her that Symquest was recovering the emails that day and that
she did not need to locate a capable computer technician to do this. Id. 13.
18. At approximately 11:30 am on April 25, 2016 Attorney Lisman told Attorney Safar it
would cost Symquest $150 per hour and take approximately eight hours to retrieve the
deleted emails. Id. 14.
19. Attorney Safar responded two minutes later and asked if Symquest had already started
on the retrieval. Id. 15.

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20. Attorney Lisman responded one minute later and said that Symquest would start
working on this as soon as the town agrees to pay the bill. [sic] Id. 16.
21. Approximately 15 minutes later Attorney Safar responded and told Attorney Lisman,
among other things, that [i]n the interest of getting the[ deleted emails], we will pay
for it, but we are not waiving our right to argue about it to the court. Id. 17.
22. Attorney Safar also proposed, in the interest of compromise, to split the cost with the
Corporation so that they did not need to each have the expense of arguing about it
before the court. Id. 18.
23. Approximately 15 minutes later Attorney Lisman said that he would discuss with his
client whether they would accept Attorney Safars offer. Id. 19.
24. Attorney Safar and Attorney Lisman exchanged a few additional emails over the next
couple of hours and Attorney Safar also offered to try to limit the period for which
email had been requested. Id. 20.
25. Attorney Safar did not hear from Attorney Lisman again on this matter on April 25,
2016 even though she requested an update late in the afternoon. Id. 21.
26. At approximately 7:20 am on April 26, 2016, just over two hours before depositions
were scheduled to start, Attorney Lisman emailed Attorney Safar to tell her that the
Corporation is unwilling to incur the cost. In addition, I now understand that Symquest
has never attempted to recover emails that were deleted deleted. Id. 22.
27. The Corporation provided some documents at the depositions, but there were no emails
sent prior to February 2016 in what was provided. Id. 23.

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28. Attorney Safar asked Joseph Barrett in his deposition if he had been told of the Towns
offer to pay for the retrieval cost, and he said that he had not been. Id. 24.1
29. Neither the Corporation, the Barretts, nor Plaintiff moved to quash the subpoenas. Id.
25.
MEMORANDUM OF LAW
I. Motion to Compel
Pursuant to the Federal Rules of Civil Procedure, a non-party may be subpoenaed for
the production of documents, including electronically stored information. See Fed. R. Civ. P.
45(a)(1)(A)(iii), 45(a)(1)(C), 45(e). Further, a party can move to compel a subpoena, and the
district court has wide discretion in ruling on these sorts of motions. See generally In re Fitch,
Inc., 330 F.3d 104 (2d Cir. 2003) (per curiam).
The Barretts have not moved to quash the subpoena, or formally challenged their ability
to respond because the deleted emails are not reasonably accessible because of undue burden
or cost. See Fed. R. Civ. P. 45(e)(1)(D). Had the Barretts made such a formal challenge, the
burden would now be on them to show that the information is not reasonably accessible
because of undue burden or cost. See id. Eight hours of retrieval time over the course of the
eight days between when Attorney Lisman wrote the Firm and the scheduled depositions is
hardly an undue burden. This time period does not even account for the 12 additional days
between when the subpoenas were served, and when Attorney Lisman responded. Nor is
$1,200 in retrieval costs an undue cost, especially when Defendants repeatedly stated they
would incur the cost at the outset and/or agree to split the cost with the Barretts.

Defendants will provide this excerpt from the deposition transcript as soon as
possible.
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Given the Barretts refusal to comply with the subpoenas and the impending May 2016
hearing, Defendants respectfully request that the Barretts, at their own expense, be forced to
produce the deleted emails by noon on April 29, 2016. In the interest in expediting the matter,
Defendants are willing to modify Requests 5, 6, 7, 9, 10, 11 and 12 to limit them to
correspondence since January 1, 2015.
II. Motion for Contempt
This Court may hold in contempt a person who, having been served, fails without
adequate excuse to obey the subpoena or an order related to it. Fed. R. Civ. P. 45(g). Not only
have the Barretts failed to obey the subpoenas, but they have obstructed justice by partaking in
stall tactics and out-right refusals. Joseph Barrett even testified, under oath, that he had not
been informed of the Towns offer to pay for the retrieval costs. This offer was initially made
on April 19, 2016, a full week before the scheduled depositions. Such an offer should have
been conveyed to the Barretts immediately. The Barretts, and their attorney, are fully aware of
the time constraints and knew about the April 26, 2016 depositions for twenty days. The Court
can, and should, order appropriate sanctions against the Barretts for their failure to obey the
subpoenas.
III. Independent Tort of Spoliation
Spoliation is the destruction or significant alteration of evidence, or the failure to
preserve property for anothers use as evidence in pending or reasonably foreseeable
litigation. West v. The Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir 1999).
Several jurisdictions have recognized the independent tort of spoliation as a cause of action
against a third-party. See Cook v. Childrens Natl Med. Ctr., 810 F. Supp. 2d 151, 157
(D.D.C. 2011) (As the court of appeals made explicit, the new tort of negligent or reckless

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spoliation of evidence was established only to fill an open space in the law where a plaintiff
otherwise would be left without a remedy.); Benson v. Penske Truck Leasing Corp., No. 032088 MA/V, 2006 WL 840419, *4 (W.D. Tenn. Mar. 30, 2006) (Provides an inventory of
jurisdictions recognizing, and not recognizing, evidence spoliation as a cognizable tort,
whether by a first-party or third-party.). Based on the Barretts egregious behavior, Defendants
will file a motion for leave to file a third-party claim for spoliation against the Corporation, and
the Barretts individually, if the deleted emails are not recovered by noon on April 29, 2016.
WHEREFORE, Defendants respectfully request that the Court:
A. Hold a hearing on April 27, 2016 to address the two outstanding Motions to
Compel;
B. Grant this Motion to Compel and order the retrieval of the deleted emails
responsive to subpoena Requests 5, 6, 7, 9, 10, 11 and 12 since January 1, 2015
issued to, and served on, Scott Barrett, Joseph Barrett and Brian Barrett by noon on
April 29, 2016, with the costs to be incurred by the Barretts;
C. Hold Scott Barrett, Joseph Barrett and Brian Barrett in contempt of this Court;
D. Issue appropriate sanctions against Scott Barrett, Joseph Barrett and Brian Barrett in
proportion to the deleted emails;
E. Grant any additional relief it deems equitable and just.
Dated at Burlington, Vermont this 26th day of April, 2016.
Respectfully Submitted,
TOWN OF SHELBURNE
By and through its counsel,
/s/Claudine C. Safar, Esq.
Claudine C. Safar, Esq.
Anthea Dexter-Cooper, Esq.
Monaghan Safar Ducham PLLC

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156 Battery Street

Burlington, VT 05401
(802) 660-4735
[email protected]
[email protected]

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
VERMONT RAILWAY, INC.,
Plaintiff,
v.
TOWN OF SHELBURNE and
JOE COLANGELO in his capacity
as Town Manager and
Zoning Enforcement Officer,
Defendants.

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Civil Action No. 2:16-cv-16-wks

CERTIFICATE OF SERVICE
I, Claudine C. Safar, Esq., attorney for the Town of Shelburne and Joe Colangelo in
his capacity as Town Manager and Zoning Enforcement Officer, hereby certify that on April
26, 2016 I electronically filed Emergency Motion to Compel Production of Documents from
Scott Barrett, Joseph Barrett, and Brian Barrett, and for Contempt with the Clerk of the
Court using the CM/ECF system which will send notification of such filings to the following:
Eric A. Poehlmann, Esq. and Marc B. Heath, Esq.
I further certify that Emergency Motion to Compel Production of Documents from
Scott Barrett, Joseph Barrett, and Brian Barrett, and for Contempt was served on Carl H.
Lisman, Esq., attorney for Scott Barrett. Joseph Barrett, and Brian Barrett, via email at
[email protected].
Dated this 26th day of April, 2016.
Respectfully Submitted,
TOWN OF SHELBURNE and
JOE COLANGELO
By and through its counsel,
/s/Claudine C. Safar, Esq.
Claudine C. Safar, Esq.
Monaghan Safar Ducham PLLC
156 Battery Street
Burlington, VT 05401
(802) 660-4735
[email protected]

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