CONTACTS 
0201 - Argus Const. Services              415 431 1420 fax 864 0787
020101 - Mr. Alan R. Howard; President
0202 - Goldfarb & Lipman                  415 788 6336 fax 0999
020201 - Mr. Barry R. Lipman, Esquire
0203 - Reuben & Cera                      415 567 9000 fax 399 9480
020301 - Mr. Joseph P. Breen, Esq.

SUBJECTS
Arbitration
AAA Westwood v. Nibbi-Lowe, 74 110 01436 92
Discovery
Primary Hearing
Administration
Aribtration Discovery Procedure

0608 -    ..
0609 - Summary/Objective
0610 -
061001 - The only witness who showed up today as set out in the ruling,
061002 - ref DRT 1 line 65, was Mr. Quasada, and he did not bring complete
061003 - documentation.  Mr. Breen said he did not serve all of the subpoenas
061004 - and that he spoke to a number of people and organizations who were
061005 - subpoenaed and agreed to examine their documents next week.
061006 -
061007 - WDG claimed that none of the documents it subpoenaed from NL have
061008 - been supplied.
061009 -
061010 - Made a new schedule for complinace with subpoenas.  The parties
061011 - stipulated to a procedure for obtaining documents at minimum time and
061012 - expense to their clients.  Initially Mr. Breen wanted both counsel to
061013 - go to each prospective witness to examine documents on location.  Mr.
061014 - Lipman wanted all witnesses to bring documents to the AAA hearing, as
061015 - intended for today.  The parties discussed the potential expense
061016 - involved and decided to work out among themselves procedures to obtain
061017 - documents they wish to use to present their cases.
061018 -
061019 -
061020 -
061021 -
0611 -
0612 -
0613 - Discussion of Discovery and Subpoena
0614 -
061401 - The arbitrators applied rule 10 and rule 31 to enable each party to
061402 - subpoena documents it needs.  Mr. Breen felt the rules of arbitration
061403 - do not disallow discovery.  He cited rule 31 as not indicating a party
061404 - is prohibited from subpoenaing classifications of documents, and
061405 - empowering the arbitrators to order those who posses documents which a
061406 - party wishes to examine, to permit the other party to examin documents
061407 - at their original location, rather than at the hearing room.
061408 -
061409 - Bill Last indicated there is a statue that specifically denies dis-
061410 - covery unless it is called for in the agreement between the parties
061411 - that specifies arbitration.  He reviewed the subpoena using his
061412 - notebook computer to show how its provisions comport with the statute,
061413 - ref DRT 1 line 37.
061414 -
061415 - The panel ruled its subponea is only intended for witnesses to produce
061416 - documents at a hearing.
061417 -
061418 -
061419 - Rule 31 and Rule 10
061420 -
061421 - During the discussion the definition and/or scope of discovery was
061422 - considered.
061423 -
061424 -    Rule 31 simply permits issuance of a subpoena.  Rule 10 permits the
061425 -    arbitrators to establish the extent of and schedule for the produc-
061426 -    tion of relevant documents and other information.
061427 -
061428 -    Rule 10 allows the arbitrators to expedite the hearing by requiring
061429 -    the parties to disclose and organize the evidence they intend to
061430 -    present.  In construction ligitation, this should be the evidence
061431 -    presented in making and determining claims under contract provi-
061432 -    sion.  Rule 10 encourages the parties to resolve their dispute by
061433 -    allowing them to evaluate opposing evidence.
061434 -
061435 -    I believe the subpoena provided under rule 31 is not intended to
061436 -    permit a party to discover evidence it does not already posses or
061437 -    know about in hopes of developing a reason for resisting a claim.
061438 -
061439 -        This position is supported by AAA publication "A Guide For
061440 -        Construction Industry Arbitrators" [3/93] on page 13 under the
061441 -        heading "Discovery", which states:
061442 -
061443 -           Although this rule [10] vests in the arbitrators the
061444 -           discretion to direct documentary exchanges, it does not
061445 -           contemplate full-blown, litigationlike discovery.
061446 -
061447 -        Rule 52
061448 -
061449 -        This provision cites rule 52 which says the arbitrator shall
061450 -        interpret and apply these rules insofar as they relate to the
061451 -        arbitrator's powers.
061452 -
061453 -
061454 -
0615 -
0616 -
0617 - Received Documents
0618 -
061801 - Received ref DRT 1 from Bill Last confirming the ruling we made at
061802 - ref SDS 1 line 060906.  This came in the mail.
061803 -
061804 - Received ref DRT 2 and 3 at the hearing.  Michele handed them to us
061805 - just prior to the start of the hearing.
061806 -
061807 - Ref DRT 2, indicates the parties are to each deposit an additional
061808 - $8,100 with AAA prior to 930701.
061809 -
061810 - Ref DRT 3, is the revised hearing schedule requested by the parties
061811 - at ref SDS 1 line 060903.
061812 -
061813 -
061814 -
0619 -
0620 -
0621 - Joe Breen explains status of NL Subpoenas
0622 -
062201 - DRE will submit documents next week.
062202 -
062203 - Harding lawson will supply documents next Wed Jun 16, 1930 after 0930
062204 - at their offices.
062205 -
062206 - Richard Brown from Hutch Center has not responded.
062207 -
062208 -
062209 - Allen Whiteside said he could not find subpoena.
062210 -
062211 -
062212 - Lee will submit 930615 1000.
062213 -
062214 -
062215 - Josphine Lee will produce everything.
062216 -
062217 -
062218 - BOC will produce docs next week at their office.
062219 -
062220 -
062221 - Union Bank will produce next week at their office.
062222 -
062223 -
062224 -
062225 - He has not heard from Brown at Hutch Center
062226 -
062227 -
062228 - Lee
062229 -
062230 -
062231 - Fitzpatrick said he has no docs.
062232 -
062233 -
062234 - Cal O'Dourghty's son said his father has no documents except those in
062235 - the possession of Quasada.
062236 -
062237 -
062238 - PG&E refuesed to accept subpoena by mail.  Joe Breene will arrange
062239 - for personal service.
062240 -
062241 -
062242 - WDG had a consultant show up to copy the documents from NL, but there
062243 - are none.  They may copy the documents produced by Mr. Quasada today.
062244 -
062245 -
062246 - Mr. Quasada appeared and requests clarification of scope because it
062247 - is very burdensome to find all the documents requested.
062248 -
062249 -     Mr. Breene said for WDG that they would be willing to examine the
062250 -     documents at warehouse so Quasada would not have to cull them.
062251 -
062252 -     Quasada objects because documents are commingled, and it is not
062253 -     feasible to examine documents in warehouse, i.e. no facilities.
062254 -
062255 -     Bill Last asked if Quasada keeps log of shop drawings, and
062256 -     Quasada said he keeps some logs, but is unsure of exactly what
062257 -     was done in the WDG project.
062258 -
062259 -     Mr. Breene asked if Quasada has correspondence in one place.  Mr.
062260 -     Quasada said he brought those files with him today, then seemed to
062261 -     clarify his testimony to indicate that what was brought today is
062262 -     only for the period since the litigation/arbitration began.
062263 -
062264 -
062265 - Mr Lipman asked Mr. Breene, if he brought any further documents to
062266 - comply with WDG's subpoena?
062267 -
062268 -     Mr. Breene said he did not bring any documents today.  He said he
062269 -     has already produced everything they have.
062270 -
062271 -
062272 -
062273 - Mr. West, asked if Quasada would agree to permit Mr. Breene to inspect
062274 - documents at his office?
062275 -
062276 -     Mr. Quasada said his documents have been dispersed because he went
062277 -     out of business, and some of them are at his house.  Mr. Quasada
062278 -     feels some of the documents are in possession of contractor.
062279 -
062280 -     Mr. Lipman feels NL's subpoena is unclear, because ...
062281 -
062282 -
062283 - Mr. Last asked Mr. Quasada to show the correspondence he brought with
062284 - him to the hearing today.
062285 -
062286 -     He said the ones he brought with him were from his house.  One of
062287 -     them has the documents on this claim "...for the past few months."
062288 -     Counsel for both parties examined the file folders brought by Mr.
062289 -     Quasada.
062290 -
062291 -
062292 - Mr. Breene asked Mr. Quasada about a telephone discussion they had
062293 - earlier today or in recent days, in which Mr. Breene recalled that Mr.
062294 - Quasada indicated the project documents were readily available, rather
062295 - than difficult to assemble, as Mr. Quasada seemed to say today?
062296 -
062297 -     Mr. Quasada said today the documents are in Casey's moving company
062298 -     on 3rd street.  Uhaul in Bayshore. Documents are stored under his
062299 -     name.  Documents are in boxes or filing cabinets labeled with
062300 -     project name.
062301 -
062302 -     Mr. Last advised Quasada he is legally obligated to produce the
062303 -     documents and should have done so today.  He suggested Quasada
062304 -     bring the documents to Mr. Lipman's office.  Mr. Breene insists
062305 -     he wants documents in arbitrator's ruling.
062306 -
062307 -     Mr. Last indicated that since Mr. Quasada is unclear about the
062308 -     scope, he clarified the requirement.
062309 -
062310 -     Quasada says they keep a business file that shows relationship
062311 -     between Quasada and WDG, including extra work that is part of
062312 -     WDG's claim.  This file is called "Steiner & Sutter/WDG".
062313 -
062314 -     Mr. Last asked him to produce the field order file.
062315 -
062316 -     It appears the contract files are here today.  Mr. Quasada said
062317 -     that as far as he knows, it is.  Mr. Quasada said there was no
062318 -     written agreement for him to continue to provide architectural
062319 -     services during the extended period of the work.
062320 -
062321 -     Mr. Qasada said he has no information or records about costruction
062322 -     costs.  The section pertaining to cost of construction was crossed
062323 -     out.
062324 -
062325 -     Bank required certification of payments called a "701" form. This
062326 -     was signed by Mr. Quasada.  He said it related to quantities.  Mr.
062327 -     Allen Howard on behalf of NL asked for support documentation
062328 -     related to the 701 form.  Mr. Quasada will look to see if they
062329 -     have a file on this.
062330 -
062331 -     Mr. Breen asked Mr. Quasada if he had an agreement with WDG prior
062332 -     to 8710...  Mr . Quasada said his records when his agreement
062333 -     occurred.
062334 -
062335 -
062336 - Mr. Lipman gave the documents brought by Mr. Quasada to his copy
062337 - service, who is in the building today.  Mr. Breen agreed to have them
062338 - make copies for NL as well, which NL will pay for it.
062339 -
062340 -
062341 - Mr. Last explained the panel's ruling does not permit "discovery," but
062342 - merely implements the subpoenas requested by the parties.  Reviewing
062343 - and obtaining documents at the witnesses' location is part of discov-
062344 - ery, which can only be accomplished through stipulation by the part-
062345 - ies.  The arbitration panel has ruled subpoenas require documents to
062346 - be produced by witnesses at a hearing.  Mr. Breen said he is repre-
062347 - senting the interests of his client, NL.  Mr. Last advised that the
062348 - panel's determination is to permit both sides the opportunity to
062349 - present their case within the rules of arbitration, as called for in
062350 - the agreement between the parties.
062351 -
062352 - The CCP specifically says there is no discovery.
062353 -
062354 -
062355 -
062356 - Mr. Lipman will be out of town the last week of June.  We could set
062357 - it for
062358 -
062359 -
062360 - Quasada will produce documents at Lipman's office prior to 930618.
062361 -
062362 -
062363 - The parties then stipulated to a mutually agreeable procedure for
062364 - executing the subpoenas.  Mr. Breen will prepare and distribute the
062365 - stipulation to Mr. Lipman, and send a copy to the arbitrators for
062366 - information.
062367 -
062368 -
062369 - Set hearing for 930702 1300 to produce all documents that have been
062370 - subpoenaed.
062371 -
062372 -
062373 -
062374 -
062375 -
0624 -
0625 -
0626 - Mr. Lipman explains status of WDG's Subpoenas
0627 -
062701 - He said they have received no documents pursuant to its subpoenas.
062702 -
062703 -
062704 - Mr. Breene said NL has produced all documents they have that have been
062705 - subpoened by WDG.
062706 -
062707 -
062708 - Mr. Lipman said he has not received any detailed calculations for
062709 - change orders 4, 7, 10, 17, 20, 22 and 25. He wants to know how NL
062710 - calculated its change orders to see if they have in fact been paid
062711 - under approved change orders for funds NL is seeking in its claims
062712 - against WDG through the arbitration.
062713 -
062714 -
062715 - Lipman wants to see the bid commparisons between Lowe's framing bids
062716 - to NL for which he was awarded the work going back to 1982.
062717 -
062718 - Mr. Breen feels these have been produced.  Mr. Alan feels the
062719 - arbitrators have made a clarification.
062720 -
062721 - Mr. Last asked that NL produce a copy of the JV agreement between Lowe
062722 - and Nibbi Brothers. There is also a subcontract between NL and Lowe.
062723 - He wants the articles of incorporation for NL.  He has not seen the JV
062724 - agreement. This will be produced on 930618.
062725 -
062726 -
062727 - WDG wants records of projects NL and/or Nibbi was working on during
062728 - the period NL worked on WDG's projects.  Joe Breen agreed to produced
062729 - these documents on 930618.
062730 -
062731 - Lipman wants employment agreements among NL key employees, because
062732 - WDG was required to produce the employment agreement for Art May with
062733 - WDG.  NL will produce such agreements if they exist.
062734 -
062735 -
062736 - He has no notes from Mr. Sport and Mr. D'Encole.
062737 -
062738 -
062739 - Lipman wants promotional documents from NL for ???
062740 -
062741 -
062742 -
062743 -
062744 -
062745 -
0628 -