Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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Filed 08/29/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-K-0413 M.D. MARK, INC., Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. DEFENDANT'S COMBINED REPLY BRIEF IN SUPPORT OF AMENDED MOTION TO PROHIBIT LEON HERZOG FROM TESTIFYING AT TRIAL AND RESPONSE IN OPPOSITION TO MOTION TO AMEND THE FINAL PRETRIAL ORDER

Defendant Kerr-McGee Corporation,1 through its attorneys, hereby submits its reply brief in support of its amended motion to prohibit Leon Herzog ("Herzog") from testifying at trial, and its response in opposition to Plaintiff's motion to amend the Pretrial Order. I. PLAINTIFF MISCHARACTERIZES DEFENDANTS' OPPORTUNITY TO DEPOSE HERZOG.

Plaintiff gives the false impression that Defendant had ample opportunity to depose Herzog. The parties discussed the possibility of taking Herzog's deposition in February 2004. What Plaintiff fails to mention is that the last correspondence in this discussion memorializes

1

Oryx ceased to exist on February 26, 1999, at which time it became Kerr-McGee as a result of a statutory corporate merger.

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Plaintiff's opposition to Herzog's deposition on the basis that it was prohibited by the Special Master's order limiting the scope of discovery. (Exhibit A.) This directly contradicts Plaintiff's assertion that it "offered Leon Herzog to the Defendants on a platter." (See Plaintiff's Response to Defendants Amended Motion to Prohibit Plaintiff's Untimely Disclosed Witness, Leon Herzog, From Testifying at Trial ("Plaintiff's Response") at 4.) Quite the opposite, Plaintiff actively opposed Herzog's deposition after it had purportedly arranged to make him available. At the time Plaintiff resisted Herzog's deposition, Plaintiff had not yet supplemented its Rule 26(a)(1) disclosures to even identify Herzog. Defendant thus had appropriate and reasonable assurances, pursuant to Fed. R. Civ. P. 37(c)(1), that Herzog could not be called as a witness at trial. See Wood Worker's Supply, Inc. v. Principal Mut. Life Ins., 170 F.3d 985, 993 (10th Cir. 1999); Smith v. Ford Motor Co., 626 F.2d 784, 797-99 (10th Cir. 1980). Thus, without the appropriate a disclosure, it made no sense for Defendant to expend resources pursuing a deposition of Herzog. Now, at the eleventh hour, Plaintiff attempts to slip him into the witness lineup. Plaintiff amended its disclosures to identify Herzog three weeks before the close of discovery. The scope of Herzog's purported knowledge of relevant facts was limited to "the licensing of PGI seismic data, demands made by PGI for transfer from companies merging, the cost of acquiring seismic data and knowledge of the intention the PGI license agreements relative to merger." (Plaintiff's Response at 2.) Each of these areas relate to issues raised in Plaintiff's initial Complaint, thus feeding Plaintiff's prior argument that a deposition of Herzog would be prohibited by the Special Master's order limiting the scope of discovery. For all of these reasons, Plaintiff's argument that Defendant had a reasonable opportunity to depose Herzog is incorrect.

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II.

PLAINTIFF HAS NOT ALLEGED, NOR CAN IT SHOW, "MANIFEST INJUSTICE" IF THE PRETRIAL ORDER IS NOT AMENDED.

In its relevant portion, the PTO provides: Hereafter, this Pretrial Order will control the subsequent course of this action and the trial and may not be amended except by consent of the parties and approval of the court or by order of the court to prevent manifest injustice. See Pretrial Order at 9. Defendant does not consent to Plaintiff's proposed amendment. Further, Plaintiff's Motion does not make a single assertion to show that amendment of the Pretrial Order to add Herzog as a trial witness is necessary "to prevent manifest injustice." Given the manner in which Plaintiff opposed Herzog's deposition, it is doubtful that Plaintiff can make such a showing. WHEREFORE, Defendant Kerr-McGee Corp. respectfully requests that the Court GRANT its Amended Motion to Prohibit Plaintiff's Untimely Disclosed Witness, Leon Herzog, From Testifying at Trial and ORDER that Leon Herzog may not testify at trial. In the alternative, should the Court be inclined to allow Herzog to testify at trial, Defendant requests that it be permitted to take Herzog's deposition prior to the commencement of trial. Defendant further requests that the Court DENY Plaintiff's motion to amend the Pretrial Order

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Dated: August 29, 2007. Respectfully submitted, s/ M. Antonio Gallegos Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8361 Fax: (303) 295-8261 [email protected] [email protected] [email protected] A TTORNEYS F OR D EFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on August 29, 2007, I electronically filed Defendant's Combined Reply Brief in Support of Amended Motion to Prohibit Leon Herzog from Testifying at Trial and Response in Opposition to Motion to Amend the Final Pretrial Order with the Clerk of Court using CM/ECF system, which will be served via electronic mail on the following: PELZ, BONIFAZI & INDERWISCH, P.C. Harlan P. Pelz Daniele W. Bonifazi [email protected] [email protected]

s/ Sally A. Walter

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