Free Motion for Order - District Court of Colorado - Colorado

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

Document 223

Filed 08/20/2007

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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 MOTION TO PROHIBIT PLAINTIFF'S UNTIMELY IDENTIFIED WITNESS, LEON HERZOG, FROM TESTIFYING AT TRIAL

Defendant Kerr-McGee Corporation ,1 through its attorneys, hereby moves to prohibit Leon Herzog, whom Plaintiff first identified as a trial witness on August 17, 2007, from testifying at trial. SUMMARY More than 9 months after the Court's deadline, and only 5 weeks before trial, Plaintiff impermissibly attempts to add Leon Herzog ("Herzog") to its list of "will call" trial witnesses. Plaintiff failed to identify Herzog in the Pretrial Order ("PTO"), filed in November 2006, notwithstanding the fact that discovery closed more than 3 years ago, in May 2004. The Court should exercise its discretion to prohibit Herzog from testifying at trial.
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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RELEVANT FACTS 1. The PTO, submitted by the parties on November 9, 2006 and entered by the Court

on November 22, included the parties' witness lists, as required by the Court. Herzog was not identified on Plaintiff's list as a "may" or "will" call witness. 2. For the first time on August 10, 2007, 9 months after the Court's deadline,

Plaintiff provided notice of its intent to call Herzog as a trial witness. See Exhibit A. 3. 4. The Final Trial Preparation Conference is set for September 5, 2007. Trial begins on September 17, 2007. LEGAL STANDARD Pretrial Orders are definitive and control the subsequent course of the litigation. Trujillo v. Uniroyal Corp., 608 F.2d 815, 817 (10th Cir. 1979). As the PTO states in this case, "This Pretrial Order supersedes the Scheduling and Discovery Order." See Pretrial Order at 9. It further states that the PTO cannot be amended "except by consent of the parties and approval of the court or by order of the court to prevent manifest injustice." Id. The Court may exercise its discretion to prohibit trial testimony from a person not identified in the PTO. In re Mellor, 226 B.R. 451, 457 (D. Colo. 1998)(citing Smith v. Ford Motor Co., 626 F.2d 784, 787 (10th Cir. 1980)). In exercising its discretion, the Court should consider 4 factors: (1) unfair prejudice or surprise; (2) ability to cure the prejudice; (3) disruption to the trial; and (4) bad faith or willfulness in the late disclosure. Id.

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ARGUMENT Applying the 4 factors above, Herzog's untimely disclosure as a trial witness ­ more than years after the close of discovery, 9 months after the disclosure deadline for trial witnesses, and 5 weeks before trial ­ weigh in favor of striking him as a trial witness. First, the last minute disclosure of Herzog causes unfair surprise and prejudice to Defendant, which was entitled to and did reasonably rely on the PTO as setting forth a definitive list of Plaintiff's trial witnesses. See Trujillo, 608 F.2d at 817. Considering the enormous amount of time ­ more than 3 years ­ between the close of discovery and the deadline to submit the PTO, Plaintiff should not be able to alter the witness list. Second, Defendant cannot cure the unfair prejudice and surprise. Discovery closed on May 3, 2004, more than 3 years ago, and Defendant cannot depose Herzog prior to trial. Further, although Plaintiff disclosed Herzog in an April 8, 2004 a supplemental Rule 26(a)(1) filing (see Exhibit B), this disclosure occurred just 3 weeks prior to the discovery deadline. Importantly, at that time, Special Master Peter J. Bjork had limited discovery to matters outside the scope of the issues described in Plaintiff's disclosure of Herzog. See Exhibit C (Orders limiting scope of discovery). Defendant was never given, and does not currently have, a fair opportunity to depose Herzog prior to trial. Third, Herzog's testimony will cause substantial disruption at trial. Based on Herzog's affidavit attached to Plaintiff's Sixth Supplemental Disclosures, it is clear that Herzog's knowledge of relevant facts is premised almost entirely on hearsay. See Exhibit B. Now that the pretrial motions deadline has come and gone, Defendant would be forced to rely on trial objections to argue the inadmissibility of Herzog's testimony.

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Finally, it appears that Plaintiff willfully decided to add Herzog as a trial witness, despite knowledge that it could do so only by amendment of the PTO. 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. Neither of these requirements are met. Defendant does not consent, and Plaintiff cannot establish manifest injustice. Plaintiff had more than 3 years to determine whether it wanted or needed Herzog's testimony, but failed to list Herzog as a trial witness by the Court-imposed deadline. WHEREFORE, Defendant respectfully requests that this Court GRANT its motion and prohibit Herzog from testifying at trial. Dated: August 20, 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 20, 2007, I electronically filed the foregoing Motion with the Clerk of Court using CM/ECF system, which will serve, via electronic mail, Defendant Kerr-McGee's Motion to Prohibit Leon Herzog From Testifying at Trial on: PELZ, BONIFAZI & INDERWISCH, P.C. Harlan P. Pelz Daniele W. Bonifazi [email protected] [email protected]

s/ Julie J. Winkler

3750707_2.DOC

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