Opinion
Case No. 3:12-cv-06041-EMC
05-10-2013
ELECTRICAL INDUSTRY SERVICE BUREAU, INC.; NORTHERN CALIFORNIA ELECTRICAL WORKERS PENSION TRUST; SAN FRANCISCO ELECTRICAL INDUSTRY APPRENTICESHIP AND TRAINING TRUST; ELECTRICAL WORKERS HEALTH AND WELFARE TRUST; NATIONAL ELECTRIC BENEFIT FUND; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 6 VACATION FUND; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 6; and TIM DONOVAN as Trustee of each of the Plaintiff Trust Funds except the National Electrical Benefit Fund and as agent for Plaintiff National Electrical Benefit Fund, Plaintiffs, v. FARZAD GAUSI dba EUROPEAN QUALITY ELECTRIC, Defendants.
Richard K. Grosboll, State Bar No. 099729 Eileen M. Bissen, State Bar No. 245821 NEYHART, ANDERSON, FLYNN & GROSBOLL Attorneys for Plaintiffs
Richard K. Grosboll, State Bar No. 099729
Eileen M. Bissen, State Bar No. 245821
NEYHART, ANDERSON, FLYNN & GROSBOLL
Attorneys for Plaintiffs
[PROPOSED] ORDER COMPELLING
PRODUCTION OF DOCUMENTS
Plaintiffs ELECTRICAL INDUSTRY SERVICE BUREAU, INC.; NORTHERN CALIFORNIA ELECTRICAL WORKERS PENSION TRUST; SAN FRANCISCO ELECTRICAL INDUSTRY APPRENTICESHIP AND TRAINING TRUST; ELECTRICAL WORKERS HEALTH AND WELFARE TRUST; NATIONAL ELECTRIC BENEFIT FUND; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 6 VACATION FUND; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 6; and TIM DONOVAN as Trustee of each of the Plaintiff Trust Funds except the National Electrical Benefit Fund and as agent for Plaintiff National Electrical Benefit Fund (hereafter, collectively, "Plaintiffs") brought the present action to compel an audit of Defendant FARZAD GAUSI dba EUROPEAN QUALITY ELECTRIC (hereafter "European Quality Electric"). As trustees, Plaintiffs have the right to audit certain of European Quality Electric's books and records to determine if European Quality Electric has paid all sums due to the NORTHERN CALIFORNIA ELECTRICAL WORKERS PENSION TRUST; SAN FRANCISCO ELECTRICAL INDUSTRY APPRENTICESHIP AND TRAINING TRUST; ELECTRICAL WORKERS HEALTH AND WELFARE TRUST; NATIONAL ELECTRIC BENEFIT FUND; and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 6 VACATION FUND (hereafter "Trust Funds"). Plaintiffs have chosen the certified public accounting firm of MILLER, KAPLAN, ARASE & CO. (hereafter "Miller Kaplan") to act as their agents for purposes of performing the audit.
Plaintiffs' counsel has contacted European Quality Electric's counsel and requested that European Quality Electric produce certain records for purposes of an audit pursuant to the Employee Retirement Income Security Act (ERISA). In their discovery letter, filed with this Court on May 2, 2013, Plaintiffs indicated that European Quality Electric, to date, has produced only partial certified payroll records. (See, Dckt. No. 24.) Plaintiffs also indicated that European Quality Electric has failed to produce any documents for the other seven (7) categories of necessary documents. (See, Dckt. No. 24.) Specifically, European Quality Electric has not produced any of the following: (1) Quarterly State Tax Forms (DE-9s) for the years 2008, 2009, and 2010; (2) W-2s for the years 2008, 2009, and 2010; (3) A copy of all/any Project Labor Agreements (PLAs) to which European Quality Electric was signatory and/or agreed to be bound for the years 2008, 2009, and 2010; (4) IBEW Local 6 dispatch notices for all employees dispatched to European Quality Electric in 2008, 2009 & 2010; (5) IBEW Local 6 transmittals for 2008, 2009 & 2010; or (7) A list of all PLA jobs worked by European Quality Electric in IBEW Local 6's jurisdiction during the years 2008, 2009 & 2010. (See, Dckt. No. 24.)
Pursuant to their discovery letter, filed with this Court on May 2, 2013, Plaintiffs have requested that this Court order the production of the documents necessary to conduct the audit of European Quality Electric.
[PROPOSED] ORDER
Having reviewed and considered Plaintiffs' [Proposed] Order Compelling Production of Documents, and GOOD CAUSE appearing therefore,
IT IS HEREBY ORDERED:
1. European Quality Electric is ordered to provide to Miller, Kaplan, Arase & Co., the auditor designated by Plaintiff Trustees, the records requested. Specifically, these consist of the following documents:
a) Any and all certified payroll submitted by European Quality Electric from the period of January 2008 through April 2009 & February 2010 through December 2010 for all jobs worked within International Brotherhood of Electrical Workers (IBEW) Local 6's jurisdiction;
b) Any and all Quarterly State Tax Forms (DE-9s) submitted and/or filed by European Quality Electric for the years 2008, 2009, and 2010;
c) Any and all W-2s European Quality Electric provided to its employees for the years 2008, 2009, and 2010;
d) A copy of any and all Project Labor Agreements (PLAs) to which European Quality Electric was signatory and/or agreed to be bound for the years 2008, 2009, and 2010;
e) Any and all International Brotherhood of Electrical Workers (IBEW) Local 6 dispatch notices for all employees dispatched to European Quality Electric in the years 2008, 2009 & 2010;
f) Any and all transmittals submitted by European Quality Electric to International Brotherhood of Electrical Workers (IBEW) Local 6 during the years of 2008, 2009 & 2010; and
g) A list of all PL A jobs worked by European Quality Electric in International Brotherhood of Electrical Workers (IBEW) Local 6's jurisdiction during the years 2008, 2009 & 2010.
These documents must be produced within fourteen (14) days of this signed Order.
3. European Quality Electric, having expressed its belief, by and through its counsel, that the W-2s referenced in section 2(c), above, contain information which implicates the privacy rights of European Quality Electric's employees, European Quality Electric may produce those documents to Miller Kaplan pursuant to the Protective Order in this case.
4. In the course of the audit, Miller Kaplan may request additional documents and information from European Quality Electric. European Quality Electric shall promptly provide such information and/or documents as is reasonably necessary to complete the audit, as determined by Miller Kaplan.
5. Counsel shall jointly file a notice of compliance, or separate statements as to why this Order has or has not been complied with, within 21 days from this signed Order.
___________
HON. EDWARD M. CHEN
U.S. District Court Judge
PROOF OF SERVICE
I, the undersigned, declare:
I am employed in the City and County of San Francisco, State of California. I am over the age of 18 years and not a party to the within action. My business address is 369 Pine Street, Suite 800, San Francisco, California 94104. On May 9, 2013,1 served the within document(s):
[PROPOSED] ORDER COMPELLING PRODUCTION OF DOCUMENTS
[X] by causing an electronic copy of the document(s) listed above to be delivered to the person at the email address(es) set forth below, confirmation transmission in Sender's file. Harold M. Jaffe
Law Offices of Harold M. Jaffe
3521 Grand Avenue
Oakland, CA 94610
Email: Jaffe510@aol.com
I declare under the penalty of perjury that the foregoing is true and correct, and that this declaration was executed on May 9, 2013, at San Francisco, California.
___________
Eileen M. Bissen