Free Motion to Stay - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

Document 203

Filed 09/15/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-PAC-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ EXPEDITED MOTION TO STAY THE JOINT SUBMISSION UNDER FED.R.EVID. 702 PENDING A RULING ON PLAINTIFFS' CONTEMPORANEOUSLY FILED MOTION TO EXCLUDE UNDER FED.R.CIV.P. 37(C) ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby file this Expedited Motion To Stay the Joint Submission Under Fed.R.Evid. 702 Pending a Ruling on Plaintiffs' Contemporaneously Filed Motion to Exclude Under Fed.R.Civ.P. 37(c). In support, Plaintiffs state as follows: On August 30, 2006, the Court issued a Minute Order [#200] requiring the parties to file jointly by September 19, 2006 a statement of the expert opinions each party intends to proffer, and challenges to the other party's proferred opinions, and the names and qualifications of any witnesses that will be called to testify at the two-day evidentiary hearing under Fed.R.Evid. 702 scheduled for October 3 and 4, 2006. In preparing the joint statement, on September 13, 2006,

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Case 1:01-cv-02163-BNB-MEH

Document 203

Filed 09/15/2006

Page 2 of 3

Defendant notified Plaintiffs for the first time of its intention to call an expert witness that had not been previously disclosed as a potential expert witness in the case. Plaintiffs contend in the Expedited Motion Under Fed.R.Civ.P. 37(c) to Exclude Testimony of Defendant's Previously Undisclosed Expert Witness Art O'Hayre filed herewith that this new identification of a previously undisclosed expert witness violates the Court's scheduling order in this case, as well as Fed.R.Civ.P. 26(a)(2). Further, Defendant has not made any of the disclosure required by Fed.R.Civ.P. 26(a)(2)(B), including any written report or information as to the opinions sought to be offered. Thus, as a result of this untimely identification and failure to disclose, Plaintiffs expect to have great difficulty in realistically identifying challenges to these undisclosed opinions. Regardless, Plaintiffs represent that if the Motion Under Fed.R.Civ.P. 37(c) filed herewith is granted, they can complete the joint statement ordered by the Court in the August 30, 2006 Minute Order [#200] within three (3) days of a ruling on this Motion. In this manner, should the Court be able to resolve this issue quickly, the Fed.R.Evid. 702 hearing set for Oct 3 and 4, 2006 can proceed without a delay. II. CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1A The undersigned certifies that he consulted with Defendant's counsel and Defendant opposes this Motion.

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Case 1:01-cv-02163-BNB-MEH

Document 203

Filed 09/15/2006

Page 3 of 3

Respectfully submitted by, September 15, 2006 s/ John Barth _________________________ John M. Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738 COUNSEL FOR PLAINTIFFS CERTIFICATE OF SERVICE I do hereby certify that on this 15th day of September 2006 a true and accurate copy of PLAINTIFFS EXPEDITED MOTION UNDER FED.R.CIV.PRO. 37(C) TO EXCLUDE TESTIMONY OF DEFENDANT'S PREVIOUSLY UNDISCLOSED EXPERT WITNESS ART O'HAYRE was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ John Barth __________________________ John Barth 3