Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 08/28/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S AMENDED MOTION TO PROHIBIT PLAINTIFF'S UNTIMELY IDENTIFIED WITNESS, LEON HERZOG, FROM TESTIFYING AT TRIAL and MOTION TO AMEND THE FINAL PRE-TRIAL ORDER ALLOWING PLAINTIFF TO SUPPLEMENT PLAINTIFF'S EXHIBIT LIST ______________________________________________________________________________ COMES NOW the Plaintiff, M.D. Mark, Inc., by and through its attorneys, Pelz, Bonifazi & Inderwish, P.C., and hereby submits this Response to Defendant's Amended Motion to Prohibit Plaintiff's Untimely Identified Witness, Leon Herzog, from Testifying at Trial and as grounds therefore, Plaintiff shows unto this Court the following: CONFERRAL UNDER LOCAL RULE 7.1 On Friday August 17th 2007, Plaintiff's counsel and Defendant's counsel met to go over exhibits and witnesses. Defendants' counsel did not confer with counsel for the Plaintiff, M.D. Mark, Inc. regarding Defendant's intention to file a motion to prohibit Leon Herzog from testifying at trial claiming that Mr. Herzog was not listed on Plaintiff's Witness List attached to

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the Pre-Trial Order signed by the Court on or about November 22, 2006. Defendant's counsel contended that they were intending to file a motion prohibiting Leon Herzog from testifying at trial because Plaintiff had not disclosed Mr. Herzog pursuant to FRCP 26(a)(1). On Friday afternoon, Plaintiff's counsel facsimiled Defendants' counsel with Plaintiff's FRCP 26(a)(1) disclosure of Mr. Herzog confirming that this disclosure was made over three years ago, served on April 8, 2004. This timely disclosure caused Defendants' strategy to strike this testimony to change once it discovered to Defendants' dismay that Plaintiff did in fact properly disclose Mr. Leon Herzog. Had the Defendants' counsel properly conferred with Plaintiffs' counsel relating to their intention to move to prohibit Mr. Herzog from testifying at trial because Mr. Herzog was not listed on the witness list, the Plaintiff would have opposed their motion as it does by this pleading. RELEVANT FACTS 1. On April 8, 2004, Plaintiff made a disclosure of Leon Herzog. Mr. Herzog was

identified as a person with personal knowledge regarding the licensing of PGI seismic data, demands made by PGI for transfer fees from companies merging, the cost of acquiring seismic data and knowledge of the intention of the PGI license agreements relative to mergers. In addition it was disclosed that Mr. Herzog might testify regarding the inspection of the data at Kerr-McGee and that he might testify to all matters contained in his affidavit dated November 21, 2003. A copy of the facsimile sent to the Defendants' attorneys on August 17th, 2007 following the conference with counsel, is attached hereto as Exhibit 1.

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2.

After the affidavit of Leon Herzog was provided to Defendants on or about

November 21, 2003, it was obvious that he was a person with information concerning the facts of this case. On January 21, 2004, Mr. Goldberg wrote of Mr. Bonifazi, counsel for Plaintiff, requesting the availability of Mr. Herzog for a deposition. See Exhibit 2 attached hereto. On January 29th, 2004 Mr. Bonifazi wrote to Mr. Goldberg informing him that Mr. Herzog would be available during a Houston trip scheduled for March 2nd 2004 and asked when Mr. Goldberg wanted to take his deposition during that week. See Exhibit 3 attached hereto. 3. On February 24th 2004 Mr. Goldberg was advised that Mr. Herzog would be

available for his deposition on Friday March 12, 2004. Arrangements were even made for a court reporter to assist the Defendants' counsel in taking Mr. Herzog's deposition. See Exhibit 4 attached hereto. 4. No deposition of Mr. Herzog occurred despite assistance give by Plaintiff to

make Mr. Herzog available. 5. Despite Defendants' protests to the contrary, the Plaintiff's last complaint raised

the bootleg seismic data issue. The discovery set forth in the Special Master Peter J. Bjork's orders was directed to the bootleg seismic data issues. 6. not hearsay. A. . ARGUMENT The Defendants contend that they can not cure unfair prejudice and surprise of the last Leon Herzog's knowledge of relevant facts is premised upon actual knowledge,

minute disclosure of Mr. Herzog as a trial witness. They contend that discovery following the

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filing of the Third Amended Complaint limited their ability to inquire of Mr. Herzog. Actually, the last amended complaint was the Fourth Amended Complaint which rose for the first time, the additional claim for misappropriation of trade secrets by Kerr-McGee Corporation, (the bootleg seismic data). The Defendants knew that Leon Herzog inspected all the Kerr-McGee seismic data including the bootleg data at Kerr-McGee's office in Oklahoma City on March 8th, 2004 well before the discovery cut-off and during a time when they were provided the opportunity to depose him. The Defendants further argue that they are unfairly prejudiced and surprised because they cannot depose him prior to trial. That argument is at best disingenuous. The Defendants chose not to depose Leon Herzog when they had the opportunity to do so. Indeed, Defendants have has over three years in which to depose Mr. Herzog, apparently choosing not to do so. Long ago, Plaintiff agreed to make Leon Herzog available for his deposition and even arranged for a court reporter to take the deposition. In essence, the Plaintiff offered Leon Herzog to the Defendants on a platter and the Defendant for what ever reason chose to not depose him. They may have made a risky tactical decision, but it was their choice and they cannot with a straight face claim prejudice, surprise, disruption of trial or bad faith or willfulness in a late disclosure. Put in other words, if any prejudice or disruption results from Mr. Herzog testifying at trial, it is Defendants, not Plaintiff's, doing. Regardless, it is inexplicable how unfair prejudice to Defendant could exist when it is undisputed that Defendant was given ample opportunity (years, not months) in which to depose Leon Herzog. There may be surprise to Defendant, but the surprise is not unfair given the

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Defendants' failure to take Mr. Herzog's deposition when given the opportunity to do so. Nor can they claim disruption to the trial since they knew what Mr. Herzog was disclosed to testify long ago. There is no bad faith or willfulness because they knew about Mr. Herzog being called as a witness despite his name inadvertently omitted from the Plaintiff's witness list. However, Plaintiff's Witness List marked as Exhibit "A" the final Pre-Trial Order does contemplate Mr. Herzog's testimony as it identifies "Plaintiff reserves the right to call as a witness [any witness] disclosed in . . . [any] disclosures." Therefore, Defendants had actual notice that anyone identified in any of Plaintiff's disclosures could be called at trial to testify. Therefore, there can be no bad faith or willfulness on the part of Plaintiff. The Defendant's claimed they objected to Leon Herzog testifying at trial because he allegedly had not been disclosed as a witness under Rule 26(a)(1). That argument fails as more specifically detailed herein, Plaintiff has complied fully with F.R.C.P. 26(a)(1) evidenced by the following: 1) he was properly disclosed in a timely fashion to Defendants; 2) Defendants had amply opportunity to be deposed including, but not limited to Plaintiff actually making him available for his deposition and arranging for a court reported; and 3) Defendants knew that Mr. Herzog and Marilyn Davies inspected the seismic data in the possession of Kerr-McGee at its offices in Oklahoma City and from this fact again memorized in the disclosure of Mr. Herzog. The fact remains that for over three years Defendants knew or should have known that Mr. Herzog had information concerning that inspection including the seismic data illegally in Kerr-McGee's possession.

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B.

PLAINTIFF REQUESTS THAT IT BE ALLOWED TO AMEND THE FINAL PRE-TRIAL ALLOWING PLAINTIFF'S TO SUPPLEMENT ITS WITNESS LIST In accordance with the Court's Memorandum detailing Pre-Trial and Trial Procedures,

Plaintiff respectfully requests that it be allowed to supplement the Final Pre-Trial Order by specifically identifying Mr. Leon Herzog as a "will call" witness to be call upon to testify in Plaintiff's case in chief. As more specifically provided above, Plaintiff did reserve the right to call any person identified in either parties' disclosures. Mr. Herzog was disclosed in Plaintiff's Sixth Supplemental Disclosure on April 8, 2004. Therefore, Plaintiff requests leave of Court to amend Plaintiff's final witness list. WHEREFORE, Plaintiff respectfully requests that this Court DENY the Defendant's Motion to Prohibit Herzog from Testifying at Trial and in the alternative, ALLOW Plaintiff to specifically identify Mr. Leon Herzog as a "will call" witness to be call upon to testify in Plaintiff's case in chief. DATED: August 28, 2007. Respectfully submitted, PELZ, BONIFAZI & INDERWISH, P.C. /s/ Dan Bonifazi Harlan P. Pelz Daniele W. Bonifazi 1873 South Bellaire Street, Suite 1401 Denver, CO 80222 Telephone: 303-691-5600 Facsimile: 303-691-5606 ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on the 28th day of August, 2007, a true and correct copy of the foregoing PLAINTIFF'S RESPONSE TO DEFENDANT'S AMENDED MOTION TO PROHIBIT PLAINTIFF'S UNTIMELY IDENTIFIED WITNESS, LEON HERZOG, FROM TESTIFYING AT TRIAL was placed in the United States Mail, postage prepaid, addressed as follows: Scott S. Barker, Esq. Gregory E. Goldberg, Esq. Antonio Gallegos, Esq. HOLLAND & HART, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749

/s/ Allison E. Goldstein_____ Allison E. Goldstein

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