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

Case 1:01-cv-02199-MSK-MEH

Document 452

Filed 03/14/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

PLAINTIFFS' REPLY RE: MOTION FOR EXPEDITED BRIEFING

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Reply Re: Motion for Expedited Briefing, and in support thereof, state as follows: 1. Exclusion of evidence for failure to supplement discovery is a "self-executing"

sanction that does not require a special motion or briefing. It is an evidentiary objection that may be raised at trial or a hearing. For example, defendants successfully objected at trial to portions of Dillon's testimony for failure to disclose. However, plaintiffs thought it would be better for all concerned if the issue were briefed prior to the hearing. For this to occur, and for defendants to have a chance to respond to the motion in writing prior to the hearing, an expedited briefing schedule is required.

Case 1:01-cv-02199-MSK-MEH

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2.

Defendants complain that plaintiffs' motion to exclude evidence for failure to

supplement disclosures was not filed immediately after the court entered the January 24, 2007, order. However, plaintiff counsels' first priority was to attempt to contact the plaintiffs, and then to ensure evidence was available for the hearing. Plaintiffs counsel also had to review a substantial amount of discovery and correspondence, both to prepare for the hearing, and to prepare the motion for discovery sanctions. This took time to accomplish. Expedited briefing still appears to be a better option than only having an oral motion and oral argument on the issue. It also allows defendants, and the court, to be forewarned of the issue. 3. Defendants allege that plaintiffs are trying to take a second bite of the apple, so

there is no reason to allow expedited briefing. The duty to supplement discovery responses is a separate and independent duty from failure to disclose. This is not a second argument on the same subject. Additionally, defendants' argument was that plaintiffs had not conducted discovery on the subject of the number of employees, excusing defendants from their duty to disclose. This argument was made in the reply brief, giving plaintiffs no chance to address it. Also, plaintiffs could not anticipate that the court would accept the defendants' argument. 4. Although plaintiffs could have awaited the hearing to object to the exclusion of

evidence that was not provided in supplementation to discovery, it was felt that there were a number of advantages to doing it in writing. One, the court would be better informed of the authorities on the subject. Two, the parties would be forewarned of the issue and would have a better opportunity to marshal their arguments. Three, the hearing would be more productive if it was not taken up by substantial argument on the subject of plaintiffs' motion. Four, the parties will be able to formulate back up plans in the event the motion is granted, or denied, so that the 2

Case 1:01-cv-02199-MSK-MEH

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hearing time is not wasted because a party was not prepared to deal with an unexpected ruling. However, these benefits of a written motion and briefing will not be achieved without an expedited briefing schedule. For all of the above reasons plaintiffs respectfully request that the court grant the motion for expedited briefing. RESPECTFULLY SUBMITTED this 14th day of March, 2007.

s/Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

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Case 1:01-cv-02199-MSK-MEH

Document 452

Filed 03/14/2007

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 14th, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

s/Keith Killian Damon Davis Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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