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worked. See, e.g., Ex. 14 (Express Forestry daily and weekly crew sheets, produced by
Weyerhauser pursuant to an identical subpoena). The Express-related documents produced by
other timber companies have enabled Plaintiffs to determine how Defendants recorded hours and
production, to understand the inaccuracies in these records, and to conduct more meaningful
depositions of Defendants’ supervisors.

Plaintiffs have taken extraordinary steps to unearth all relevant documentation and
information available despite Hurricane Katrina. See, e.g., Ex 13 (Order of Magistrate Judge
Knowles, February 16, 2006, ordering Defendants to allow Plaintiffs’ expert access to their
computer system for extraction of documents). Defendants have persistently maintained, over
several months of litigation, that most documents related to Plaintiffs’ work, such as weekly and
daily planting summaries, were completely destroyed by Hurricane Katrina. See Ex. 12, at 2-3.
Because Defendants are unable to produce broad categories of relevant documents, it is vital that
Plaintiffs be provided the relevant records possessed by Plum Creek.

I. Plum Creek’s Novel Invocation of Res Judicata is Unsupported by Case Law

Plum Creek also claims that the rights of the Plaintiffs in this action have been
compromised by a completely distinct action, brought by different Plaintiffs (employed by
different labor contractors) against different Defendants, in a different Court in the year 2000.
Plum Creek Opp.3;6; 8, 11-12; See'also Plum Creek Ex:B at 2-4; Ex.C at 3-4; Ex: Eat 3. ‘The
lynchpin of this theory seems to be that one of the four lawyers appearing on behalf of the
Plaintiffs in the instant case represented other Hispanic migrant workers in a 2000 case against

Georgia-Pacific, some of whose lands Plum Creek eventually acquired. Ids. Plum Creek’s

PLAINTIFFS’ MOTION TO ENFORCE Columbia Legal Services
COMPLIANCE BY PLUM CREEK WITH -5- 101 Yesler Way, Suite 300
SUBPOENA DUCES TECUM Seattle, WA 98104

(206)-464-5933



OIADAAWHE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 10“ day of March, 2006, a true and correct copy of the
foregoing document has been served on the following counsel via FAX and 1" Class U.S. Mail,
postage prepaid.

Attorneys for Plum Creek Timber Company, Inc.:
Rosemary Daszkiewicz

Cairncross & Hempelmann, P.S.

524 Second Avenue, Suite 500

Seattle, Washington 98104-2323

FAX (206) 587-2308

Robert Buckler

Evan H. Pontz

Troutman Sanders LLP

Bank of America Plaza

600 Peachtree Street, N.E., Suite 5200
Atlanta, Georgia 30308-2216

FAX (404)-962-6656

Attorney for Defendants Express Forestry, Rick Thomas, and Sandy Thomas:
J. Larry Stine

Wimberly, Lawson, Steckel, Weathersby, & Schneider, P.C.

3400 Peachtree Road, Suite 400

Atlanta, GA 30326

FAX (404)-261-3707

S

Kristi L. Graunke, Attorney for Movants



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production. The acres or miles you covered and passed inspection are listed and then adjusted by
the expenses used to run your crew. All [costs] are considered when figuring any bonus. You
must keep expenses low to keep pay high.”) Express’ pay system thus created strong incentives
for crew leaders to underreport hours in order to ensure that the Express profited from its
contracts. As such, the Plaintiffs are entitled to explore the correspondence between contract
rates and reported work hours for correlations that would indicate systematic underreporting of
employee hours in order to increase Express Forestry’s profit margin.

Contrary to Plum Creek’s assertion, Plaintiffs do not argue that their subpoena is valid
because “everybody else is doing it”. Plum Creek Opp. at 4. Rather, the fact that compliance
with identically phrased subpoenas issued to similarly situated companies has produced
important, admissible evidence indicates that the Plaintiffs’ subpoena is properly calculated to

lead to the discovery of admissible evidence. Fed. R. Civ. P. 26 (b)(1).

I. Plum Creek is Likely the Only Source for Many of the Documents Sought by
Plaintiffs’ Subpoena

Plaintiffs’ efforts at traditional discovery in this case were dealt a serious blow when
Defendants informed Plaintiffs that virtually all relevant documents sought by Plaintiffs’
requests for production had been stored in Defendants’ Mississippi beach home in August 2005
and were destroyed by Hurricane Katrina. Ex. 12 (Defendants’ Responses to Plaintiffs’ Second
Interrogatories, p. 2-3). Accordingly, Plum Creek is likely the only source of documents that
pertain to work performed by Express Forestry crews in satisfaction of Plum Creek contracts.

Thanks to other timber companies’ cooperation with identical subpoenas, Plaintiffs can

piece together some fragments of the record that underlies Defendants’ accounts of hours

PLAINTIFFS’ MOTION TO ENFORCE Columbia Legal Services
COMPLIANCE BY PLUM CREEK WITH 4. 101 Yesler Way, Suite 300
SUBPOENA DUCES TECUM Seattle, WA 98104

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creative theory is utterly unsupported by law. Plum Creek’s attempt to bully these Plaintiffs
(who performed most of their work after the issuance of the Georgia-Pacific decision) into
executing waivers of claims in exchange for Plum Creek’s basic compliance with the mandates
of Rule 45 is at once absurd and abusive. See Plum Creek Ex. E at 3 (“We would be willing to
discuss with you some arrangement in which you would recognize the preclusive effect of this

Order [Lizarraga-Ruiz v. Georgia-Pacific] and ensure that our client would not be subjected to

litigation over these or related matters, if that would assist in helping us reach an agreement over
these subpoenas.”)

Moreover, Plum Creek willfully misreads the holding of the Lizarraga-Ruiz decision to
indicate that “prior litigation shows that Plum Creek’s actions are not relevant to an action such
as the one Plaintiffs’ counsel brought against a contractor such as Express” is unjustified. Plum
Creek Opp. 8.; Plum Creek Ex. A at 28. To the contrary, the Lizarraga-Ruiz Court recognized
that timber company representatives are often present to observe tree planting work. Plum Creek
Ex. A at 18-19. In this case, Plum Creek personnel were the lone neutral third party witnesses to
the work Plaintiffs performed on their land. The records sought by Plaintiffs’ subpoena are
patently relevant to Plaintiffs’ claims arising from work performed on Plum Creek’s land.

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court enter an order

requiring Plum Creek to comply with their subpoena duces tecum.

Respectfully Submitted,
PLAINTIFFS’ MOTION TO ENFORCE Columbia Legal Services
COMPLIANCE BY PLUM CREEK WITH -6- 101 Yesler Way, Suite 300
SUBPOENA DUCES TECUM Seattle, WA 98104

(206)-464-5933



SCIAAKHAWNE

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Bo
Oo

HUGO MARTIN RECINOS-RECINOS, et al. Case No. C06-307-MAT
PLAINTIFFS,
PLAINTIFFS’ MOTION TO
ENFORCE COMPLIANCE BY
PLUMCREEKTIMBER
COMPANY, INC. WITH
SUBPOENA DUCES TECUM

NOTE ON MOTION
CALENDAR:
FRIDAY MARCH 10, 2006

EXPRESS FORESTRY, et al.

DEFENDANTS.

OO

REPLY SUPPORTING PLAINTIFFS’ MOTION TO ENFORCE
COMPLIANCE BY PLUM CREEK TIMBER COMPANY, INC.
WITH SUBPOENA DUCES TECUM

Third party Plum Creek Timber Company, Inc. (hereinafter “Plum Creek”) objects to
Plaintiffs’ documentary subpoena. Plum Creek’s objections are unwarranted and do not justify
non-compliance with the subpoena duces tecum served by Plaintiffs.

I Plaintiffs’ Subpoena is Properly Tailored and Seeks Relevant Documents

As set forth fully in Plaintiffs’ initial briefing, the information sought by the subpoenas is
plainly relevant to underlying litigation against Defendants Express Forestry, Rick Thomas, and

Sandy Thomas (hereinafter “Defendants”). Pl. Mot. to Enforce Subpoena 4-8. Wages due, work

PLAINTIFFS’ MOTION TO ENFORCE Columbia Legal Services
COMPLIANCE BY PLUM CREEK WITH “lL 101 Yesler Way, Suite 300
SUBPOENA DUCES TECUM Seattle, WA 98104

,

(206)-464-5933



weIAADAARKWHN

roy

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HUGO MARTIN RECINOS-RECINOS

s// Nicholas B. Straley, Esq.
Nicholas B. Straley
Washington State Bar No. 25963
Columbia Legal Services
101 Yesler Way, Suite 300
Seattle, WA 98104
206-464-5933
206-382-3386 (fax)

Kristi Graunke

Pro Hac Vice

Georgia Bar No. 305653
Mary C. Bauer

Pro Hac Vice

Virginia Bar Number 31388
Andrew H. Tumer

Pro Hac Vice

Virginia Bar Number 48853
Inumigrant Justice Project
Southern Poverty Law Center
400 Washington Avenue
Montgomery, Alabama 36104
334-956-8200

334-956-8481 (fax)

Attorneys for Movants

PLAINTIFFS’ MOTION TO ENFORCE
COMPLIANCE BY PLUM CREEK WITH -7T-
SUBPOENA DUCES TECUM

Columbia Legal Services
101 Yesler Way, Suite 300
Seattle, WA 98104
(206)-464-5933



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performed and hours worked by migrant agricultural workers are the central issues of dispute in
that litigation. See Ex. 1. As Plum Creek acknowledges, this work occurred on lands they owned
or controlled. Plum Creek Opp. at 6.

Documents showing the location, timing, and type of work performed on Plum Creek’s

land are directly relevant to determining the lawful prevailing wage due to Plaintiff class

members. Pl. Mot. to Enforce Subpoena 5-6; see also U.S. Department of Labor Employment &
Training Administration, Foreign Labor Certification Data Center, www.flcdatacenter.com.
Without specific information concerning where Plaintiffs worked, what kind of work they did
and when such work was performed, there is no way to determine the prevailing wage they
should have been paid. Plaintiffs have successfully discovered this information from Defendants’
other timber company customers. Such information is typically contained in planting contracts
and other written agreements between timber companies like Plum Creek and contractors like the
Defendants. See Ex. 9 (timber company contracts discussing work to be performed by Express
Forestry and locations). For this reason, Plaintiffs’ subpoena of these and other documents
evidencing location, dates, and type of work performed is tailored to seek relevant information.
Plaintiffs’ allegations that the Defendants’ records of hours worked are false and
inaccurate is at the heart of the underlying case. Ex. 1 at 8-15. It is for precisely this reason that
Plum Creek’s offer to forward to Plaintiffs the payroll documents Express Forestry provided to
Plum Creek pursuant to 29 U.S.C. § 1821(d-e) is, by itself, inadequate. Rather, the Plaintiffs seek
to probe the validity of these records of “officially reported” hours by checking records produced

by Defendants against those of independent sources other than Defendants. The start and stop

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COMPLIANCE BY PLUM CREEK WITH -2- 101 Yesler Way, Suite 300
SUBPOENA DUCES TECUM Seattle, WA 98104

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times of work and the duration of interruptions in the work day are hotly disputed in this case.
Timber company documents such as inspection reports or summaries often record the dates and
times at which a particular timber company inspector was in the field with a particular crew, or
the times during which particular work took place. See, e.g., Ex. 10 (inspection reports filled out
by Weyerhauser inspector showing field location, crewleader name, and time of herbicide
application). Plaintiffs thus look to inspection and summary documents produced by Defendants’
customers, like Plum Creek, as a source of neutral information to corroborate Plaintiffs’ accounts
of their work hours, to impeach the Defendants’ records of hours worked, and to identify which
crews were working at which locations on what days during a given time period.

In addition, Plaintiffs assert that they should have been paid for time spent performing
various preparation or clean-up tasks. Plaintiffs’ subpoenas to other timber companies have

unearthed documents which show that, under the terms of their contracts with timber companies

like Plum Creek, Defendants’ crews had to pick up tree seedlings at coolers before the planting
day began, return leftover trees to the coolers, and dispose of trash at the end of the workday.
See, e.g., Ex. 9. Such evidence is corroborative of Plaintiffs’ claims that preliminary and
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postliminary work lengthened their compensable workday.

Plum Creek’s assertion that the per-acre pricing information contained in such contracts
is irrelevant to this wage litigation is incorrect. Plum Creek Opp. 8. Express’ company policy
indicates that crew supervisors’ bonus pay was tied to achievement of the profit margin written

into their contracts with customers like Plum Creek. See, e.g., Ex. 11 (Express Forestry

Company Policy for Foreman, p. 1-2 (“Your record will be examined for profitability and

PLAINTIFFS’ MOTION TO ENFORCE Columbia Legal Services
COMPLIANCE BY PLUM CREEK. WITH -3- 101 Yesler Way, Suite 300
SUBPOENA DUCES TECUM Seattle, WA 98104

(206)-464-5933