Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02315-LTB-CBS

Document 485-4

Filed 08/25/2005

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2315 (CBS)

Civil Case No. OIIn re:

HARVEY SENDER, TRUSTEE OF THE LIFEBLOOD BIOMEDICAL , INC. LIQUIDATION TRUST and HARVEY SENDER, TRUSTEE OF THE LIFEBLOOD BIOMEDICAL , INC. OPT- IN-TRUST
Plaintiffs

WILLIAM JEFFREY MANN, an individual , WILLIAM WELLS II , an individual, FREEBORN & PETERS, an lllinois partnership, MICHAEL SABIAN, an individual , DARWIN J. POYFAIR, an individual , MERKLE & MAGRI , a Florida professional association, JAMES R. LEONE , a Florida professional association, JAMES R. LEONE, an individual , and THE WILLIAM & ELAINE WELLS FAMILY LIMITED PARTNERSHIP , a Florida limited partnership,
Defendants.

PLAINTIFF' S RESPONSE TO FREEBORN DEFENDANTS' MOTION TO STRIKE AND PRECLUDE PLAINTIFF' S WITNESSES AND EXHIBITS
Plaintiff Harvey Sender, Trustee ofthe Lifeblood Biomedical Inc. Liquidation and Opt-

Trusts (" Plaintiff' or " Trustee ), by his coWlsel , submits the following response to the Freeborn
Defendants ' Motion to Strike and Preclude Plaintiffs Witnesses and Exhibits Not Previously or

Properly Disclosed (" Motion ) and the Supplement to the Motion.

I. INTRODUCTION
The Freeborn Defendants' Motion illustrates the merits oftbe meet and confer provisions
of Local Rule 7. 1. Had the Freeborn Defendants made reasonable , good- faith efforts to confer

1 The Freeborn Defendants are Darwin J. Poyfair, Michael Sabian and Freeborn & Peters.

EXHIBIT
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Case 1:01-cv-02315-LTB-CBS

Document 485-4

Filed 08/25/2005

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to Plaintiffs counsel and came into Plaintiff's possession during the preparation of his response
to the Freeborn Defendants ' motion for summary judgment. The documents were produced with

that response. Trial Exhibit 333 was part of Plaintiffs expert disclosures , as they were among
the documents relied u

Peter Schulman, CPA, one ofPlaintifI's eE'erts. Trial Exhibits

406- 7 and 410 were produced by Merkle & Magri in January 2004 , when the parties were taking
Laura Royal's deposition.

Plaintiff Properly Disclosed the Investor and Broker Witnesses.
With the guidance of the Court, Plaintiff has significantly revised his witness list.

(Exhibit 4 , attached. )

All of the

broker and investor witnesses designated on the revised list were
more than a year ago.

identified in Plaintiffs initial disclosures on January 23 , 2003

The Freeborn Defendants ' first set of discovery asked PlaintifIto describe any and all

communications between any " individuals who purchased Lifeblood promissory notes , as
identified in your Rule 26 disclosures and any of these Defendants. "
In Plaintiffs

Supplemental

Responses to that interrogatory, Plaintiff identified the information available to him at that time.
(Exhibit 5, attached. See a/so

Exhibit 6, attached. ) 2

In preparing the final pretrial order and later in preparing a response to the Freeborn
Defendants ' motion for summary judgment , counsel for Plaintiff interviewed a number of

2 The Freeborn Defendants ignore the first supplemental response in their Motion, attaching

instead Plaintiffs Third Supplemental Responses (Motion Ex. F). The Third Supplemental Responses , which clarified Plaintiffs damages theories , inadvertently reverted back to Plaintiffs original answers to Interrogatories 17 and 18, which were based on a misreading of the interrogatory in question. Exhibit 7 , attached. ) Prior to filing the Motion, the Freeborn (See Defendants ' sought clarification of this error, noting that counsel for the Freeborn Defendants could not locate Plaintiffs Second Supplemental Response. Counsel for the Freeborn
Defendants did not divulge that the information was sought for purposes of filing a motion limine. (See Exhibit 8 , attached. ) Counsel for the Freeborn Defendants subsequently advised that she had located the Second Supplemental Response. In any event, the Motion was filed before Plaintiffs counsel had the opportunity to respond to the Freeborn Defendants ' inquiry.

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