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

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

Document 219

Filed 02/16/2007

Page 1 of 5

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. ______________________________________________________________________________ REPLY TO PLAINTIFF'S SECOND MOTION IN LIMINE ______________________________________________________________________________ COMES NOW the Plaintiff, M.D. Mark, by and through its attorneys, Pelz, Bonifazi & Inderwish, P.C., and hereby submits this Reply to Plaintiff's Second Motion in Limine, which as grounds therefore, Plaintiff shows unto this Court the following: 1. Defendant Kerr-McGee in their Response states that "M.D. Mark's records of

seismic data licenses may not be a reliable means of determining whether or not Kerr-McGee wrongfully obtained the `Torch Data.'" This statement is incorrect evidenced by Plaintiff's Fifth Supplemental F.R.C.P. 26(a)(1), (attached hereto as Exhibit A), in which Plaintiff identified each and every license agreement or letter of transmittal by Bates Number relating to all PGI Seismic licensed. Therefore, Plaintiff's records are a reliable means of determining whether or not KerrMcGee wrongfully obtained the Torch Data, especially in light of fact that Defendant KerrMcGee cannot produce any such records of its own.

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

Document 219

Filed 02/16/2007

Page 2 of 5

2.

Defendant Kerr-McGee continues to claim that Plaintiff destroyed PGI

accounting records despite being completely contradicted by Ms. Davies' deposition testimony which unequivocally confirms that the only documents destroyed related to Seis Pro a former wholly owned subsidiary of PGI as well as other seismic data properly and lawfully returned by other licensees of the PGI seismic data base. Nowhere in Defendant Kerr-McGee's Response to this Motion is any support of the statement that "PGI accounting" records relating to the PGI seismic data at issue in this case were destroyed or that any of the documents destroyed have any relation to Defendant Kerr-McGee, Oryx, Sun Oil, as well as any of each companies' respective wholly owned subsidiaries. The documents destroyed are no more relevant to this case as any documentation the Defendant Kerr-McGee has destroyed as part of its day to day business during this case. 3. In an attempt to confuse the issue further, Defendant Kerr-McGee next claims that

"there are, in fact, license agreements to support Kerr-McGee's lawful possession of several lines of `Torch Data' because M.D. Mark's inventory of so-called `Torch Data' overlaps with its inventory of data it concedes was properly licensed to Kerr-McGee." This statement is just untrue. The PGI seismic data is licensed by shot point ranges. A given seismic line may be over one hundred miles long and have a shot point range such as 1 to 2800. An oil company may license from shot point 1 through shot point 255 or may license any range of shot points. The records of M.D. Mark and PGI clearly set forth the shot point ranges of the seismic lines properly licensed to Kerr-McGee Corporation. None of the lines 3191/15 miles of PGI

Bootlegged seismic data(s), "Torch Data" shot point ranges match with what M.D. Mark can show conclusively was licensed and delivered to Kerr-McGee Corporation. To state that this 2

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

Document 219

Filed 02/16/2007

Page 3 of 5

fact supports Kerr-McGee's lawful possession of several lines of Torch Data is a fabrication or evidence of a complete lack of understanding as to how seismic lines are licensed. It is

undisputed that Plaintiff's records confirm that Defendant Kerr-McGee never licensed the "Torch Data". It is undisputed that Defendant Kerr-McGee's records, or lack thereof, confirm that Defendant Kerr-McGee never licensed the "Torch Data". 4. Contrary to Defendant Kerr-McGee's Response, Plaintiff will be severely

prejudiced if Defendant Kerr-McGee is allowed to admit these irrelevant and untrue statements as any irrelevant and untrue statements by their very nature are prejudicial. 5. Finally, Defendant Kerr-McGee has provided no evidence that any witness

possesses the requisite personal knowledge that Defendant Kerr-McGee lawfully acquired the "Torch Data". Defendant Kerr-McGee has never, nor can it now, produce a single person, including Dan Miller, Tom Schultz, or Darren Helm, who can state when this "Torch Data" was obtained, from whom this the "Torch Data" was obtained, from where this "Torch Data" was obtained, what the terms of the acquisition of the "Torch Data" were, the cost of the licensing of the "Torch Data". WHEREFORE, Plaintiff requests that this Court order Defendants not to present their reverse spoliation theory and/or testimony that Plaintiff is to blame for Defendants inability to

3

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

Document 219

Filed 02/16/2007

Page 4 of 5

provide documentation in support of their claim that they acquired the 3191 miles of seismic data lawfully. DATED: February 16, 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

4

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

Document 219

Filed 02/16/2007

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on the 16th day of February, 2007, a true and correct copy of the foregoing REPLY TO PLAINTIFF'S SECOND MOTION IN LIMINE 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/ Dee A. Shaffer____ Dee A. Shaffer

5