Free Scheduling Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.01-CV-00075-DBS-PAC ORIN LOOS and TIMOTHY J. THOMPSON, for themselves and all others similarly situated, Plaintiffs, VS. LEVEL 3 COMMUNICATIONS, LLC, WILLIAMS COMMUNICATIONS, INC. SPRINT CORPORATION, and UNION PACIFIC RAILROAD COMPANY, Defendants. __________________________________________________________________ AMENDED SCHEDULING ORDER __________________________________________________________________ 1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL Scheduling conference date: July 8, 2005 Appearing for the Plaintiffs Orin Loos and Timothy J. Thompson: Karen Cody Hopkins Lilley & Garcia, LLP 1600 Stout Street, Ste. 1100 Denver, CO 80202 (303) 293-9800 Fax: (303) 298-8975 Scott D. Gilchrist Cohen & Malad, P.C. One Indiana Square, Suite 1400 Indianapolis, IN 46204 (317) 636-6481 Fax: (317) 636-2593

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Appearing for Defendant Williams Communications, Inc., now known as WilTel Communications, LLC: Daniel Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203 (303) 837-9222 Fax: (303) 837-0849 Pamela Anderson (by telephone) HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 (918) 594-0400 Fax: (918) 594-05050

Appearing for Defendant Sprint Corporation and Sprint Communications Company, LLP: Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 (303) 892-9400 Fax: (303) 893-1379 J. Emmett Logan STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 842-8600 Fax: (816) 691-3495

For Defendant Union Pacific Railroad Company: Ron Bodinson SHOOK, HARDY & BACON L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, KS 66210-1669 (913) 451-6060 Fax: (913) 451-8879

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2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiffs:

This case is a class action in which the named Plaintiffs represent a proposed class of Colorado landowners. Defendant Union Pacific Railroad Company ("UP") and other railroads own right-of-ways which exist on, over, or adjacent to the land of these landowners. UP entered into contracts with the other defendants ("Fiber Optic Companies") to allow Fiber Optic Companies to bury fiber optic cable beneath the rights-of-way of UP. Pursuant to these contracts, the Fiber Optic Companies have paid substantial compensation to UP, and have installed their fiber optic cable and related hardware in UP's right-of-ways in Colorado. Plaintiffs allege the property rights of the class members were ignored in connection with both the installation and continued use of this cable and related hardware, and the payment of compensation. Plaintiffs allege the right-of-ways of UP and other railroads are limited to railroad purposes only. Plaintiffs allege that their consent is necessary for the land beneath the right-of-ways to be used for any non-railroad purpose. On behalf of the class, Plaintiffs claim damages from trespass and unjust enrichment, and also seek punitive damages and injunctive relief. b. Defendants:

Union Pacific: This case is an alleged class action in which the named Plaintiffs purportedly own land adjacent to Defendant Union Pacific Railroad Company's ("UP") railroad right-of-way in Colorado. Defendants deny that class certification is appropriate under the facts and legal issues presented. Further, UP contends that it possesses the right to contract with telecommunications companies to install fiber optic cable on UP's railroad right-of-way in Colorado without the consent of adjoining landowners. Further UP utilizes the fiber optic cable on its right-of-ways in Colorado for railroad purposes. Finally, Union Pacific asserts that neither named Plaintiffs nor purported class members have asserted any viable claims and/or are entitled to any damages and/or injunctive relief as alleged. Common Defenses of Fiber Optic Companies: The Fiber Optic Companies operate nationwide fiber optic telecommunications systems, including fiber optic cable placed along railroad right-of-ways owned by UP in Colorado. The Fiber Optic Companies, sometimes through predecessors, obtained permission to place fiber optic cable in UP's right-of-ways under agreements with UP. Defendants assert that plaintiffs will be required to prove that UP does not own fee title the right-of-way adjacent to each parcel of property at issue in the litigation. Further, where the railroad does not own the fee title to the -3-

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right-of-way, it is not necessarily the adjoining landowner that does. Determination of who owns what interests in the right-of-ways, therefore, will require individual chain of title searches that extend back to the middle of the nineteenth century, interpretation of multiple deeds in each chain, and, where appropriate, interpretation of Federal Land Grant Acts, and consideration of extrinsic evidence as to the parties' intentions. Even if plaintiffs could prove that they or any putative class members own an interest in the right-of-ways, the trespass and unjust enrichment claims alleged by plaintiffs, as well as any inverse condemnation claims, are barred by the statue of limitations, unless plaintiffs can demonstrate, on an individual basis, that the pertinent statute was tolled by the discovery tolling rule. Further, defendants assert that, if any plaintiff has a viable claim, his or her damages must be measured, on an individual basis, by any difference between the value of his or her property before the installation of the fiber optic cable and the value of the property after installation. As a result of these and other predominant individual issues, courts in more than 20 actions in federal and state courts across the country have held that a fiber optic right-of-way case may not be certified as a class action. Defendants assert that the court should follow those cases. Defendants also contend that, even where a railroad owns less than fee simple title in its right-of-way, it has authority to permit a telecommunications utility to use the right-of-way. This is so both under Colorado law and under the Federal Land Grant Acts that created the rights-of-ways adjacent to the property of the named plaintiffs and of certain other putative class members. Thus, defendants assert that neither plaintiffs nor the members of the class they seek to represent have a viable cause of action. In summary, defendants deny this case is appropriate for class certification, deny liability to plaintiffs and deny plaintiffs are entitled to any damages. Additional Defense of Sprint Corporation: Sprint Corporation ("Sprint") is a holding company that owns Sprint Communications Company L.P. ("SCCLP"). Sprint contends that it is not a proper party, as it owns no fiber optic cable, telecommunications facilities, or other assets in Colorado, and conducts no business in Colorado. The Court therefore has no jurisdiction over the person of Sprint and plaintiffs have no viable claims against Sprint. c. Other Parties: N/A -4-

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3. UNDISPUTED FACTS The following facts are undisputed: a. Defendant UP entered into contracts with the Fiber Optic Companies to bury fiber optic cable in the rights of ways of UP. b. Pursuant to these contracts, the Fiber Optic Companies have given consideration and paid compensation to UP. c. Pursuant to these contracts, the Fiber Optic Companies have installed fiber optic cable and related hardware in UP's right of-ways in the state of Colorado. 4. COMPUTATION OF DAMAGES All parties intend to utilize experts to compute damages of the class. The parties currently disagree upon the proper methodology to compute damages. Generally, plaintiffs submit that they are entitled to damages sufficient to compensate them for trespass damages, the mesne profits received from the use of the land beneath the right of ways, for punitive damages, and all other relief for which they are entitled. Plaintiffs anticipate the calculations and amount of damages will be disclosed with their expert's report on damages. Defendants contend that each plaintiff must prove the value of the subject property before the fiber optic cable was installed and the value of the property after installation and that damages are measured by any difference. 5. REPORT OF PRE-CONFERENCE DISCOVERY & MEETING UNDER F.R.C.P. 26(F) a. b. Date of Rule 26(f) meeting: July 1 and 5, 2005 Participants and parties represented:

For the Plaintiffs: Samuel D. Heins, Stacey L. Mills, and David Woodward, HEINS, MILLS & OLSON, P.L.C., 550 IDS Center, 80 South 8th Street, Minneapolis, Minnesota, 55402; and Scott D. Gilchrist, COHEN & MALAD, P.C., One Indiana Square, Suite 1400, Indianapolis, IN, 46204; For Defendant Level 3 Communications, LLC: Joseph E. Jones, FRASER, STRYKER, MEUSEY, OLSON, BOYER & BLOCH, P.C., 500 Energy Plaza, 409 South 17th Street, Omaha, Nebraska 68102-2663; For Defendant Williams Communications, Inc.: Kevin Hayes, HALL, ESTILL, -5-

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HARDWICK, GABLE, GOLDEN & NELSON, P.C., 320 South Boston, #400, Tulsa, Oklahoma, 74103; For Defendant Sprint Corporation: Jonathan D. Bergman, DAVIS, GRAHAM & STUBBS LLP, 1550 17th Street, Suite 500, Denver, Colorado, 80202; and J. Emmett Logan, STINSON MORRISON HECKER, LLP, 1201 Walnut, Suite 2900, Kansas City, Missouri, 64106; For Defendant Union Pacific Railroad Company: Ron Bodinson, SHOOK HARDY & BACON, LLP, 84 Corporate Woods, 10801 Mastin, Suite 1000, Overland Park, KS 66210-1669 c. Changes to F.R.C.P. 26(a)(1) disclosures: The Court's March 27, 2001 Scheduling Order set forth the F.R.C.P. 26(a)(1) disclosures the parties were to make. d. The parties shall make any disclosures called for by the Court's March 27, 2001 Scheduling Order that have not previously been made and shall make any necessary supplements to previous disclosures on or before September 5, 2005. e. Informal discovery: Aside from the agreed disclosures set forth in the March 27 Order, the parties have not agreed to any informal discovery. 6. CONSENT All parties have not consented to the exercise of jurisdiction of a United States Magistrate Judge. 7. CASE PLAN AND SCHEDULE The Court's March 27, 2001 Scheduling Order provided for bifurcation of pretrial proceedings on class certification and the merits. The case was stayed before class certification proceedings were completed. The Court's determination on class certification will define the parameters of discovery and other pretrial proceedings on the merits. The parties therefore have proposed that the Court decide class certification before merits proceedings commence. On the basis of that request, the Court sets the following schedule: a. Deadline for Joinder of Parties and Amendment of Pleadings: To be set following decision on class certification. b. Discovery Cut-Off: October 1, 2005 on fact class certification issues. November 1, 2005 on class certification expert issues. .

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c. Dispositive Motion Deadline: To be set following decision on class certification. d. Expert Witness Disclosure: Procedures for expert witnesses on the merits will be set following decision on class certification. e. Deposition Schedule: Until defendants' class certification brief is due, the parties may depose any witness whom they assert, based on a reasonable, good faith belief, has information pertinent to the issue of whether the case should be maintained as a class action. Such depositions may include inquiry into merits issues and no party may request a second deposition of a witness who has been deposed during this phase of discovery, in the absence of good cause independent of discovery bifurcation. Procedures for depositions of other witnesses will be set following decision on class certification. f. Interrogatory Schedule: To be set following decision on class certification. g. Schedule for Request for Production of Documents: To be set following decision on class certification. h. Discovery limitations: To be set following decision on class certification. 8. SETTLEMENT The parties reached a Settlement Agreement that would have disposed of all of the claims asserted in this action. The United States District Court for the Northern District of Illinois certified a settlement class and preliminarily approved the Settlement Agreement. The United States Court of Appeals for the Seventh Circuit reversed the certification of the settlement class. Smith v. Sprint Communications Company L.P., 387 F.3d 612 (7th Cir. 2004). Since the Smith decision, counsel for the parties have engaged in negotiation for state-by-state settlements of the claims that were included in the nationwide Settlement Agreement. Those discussions have been mediated by Special Master James D. Wilson, whom the district court appointed to assist with settlement proceedings in Smith. 9. OTHER SCHEDULING ISSUES a. Class Certification Briefing: Plaintiffs' opening brief on class certification shall be filed by October 1, 2005. Defendants' briefs in opposition to class certification shall be filed by November 1, 2005. Plaintiffs' reply brief in support -7-

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of class certification shall be filed by November 15, 2005. THERE WILL BE NO EXTENSIONS OF THESE DEADLINES. b. Class Certification Expert: Plaintiffs intend to designate a witness to testify concerning categorization of railroad source documents in connection with class certification. They shall serve, with their opening brief, a report from that expert that complies with F. R. Civ. P. 26(a)(2). Defendants shall have until November 1, 2005 to depose the expert. c. Remaining Merits Discovery. Within 14 days of the Court's decision on class certification, the parties shall submit a joint stipulation regarding the schedule for discovery and other pretrial matters on the merits. If the parties cannot agree on a stipulated schedule, they shall submit proposed schedules separately. 10. DATES FOR FURTHER CONFERENCES Any additional conferences will be set following the Court's decision on class certification. 11. OTHER MATTERS IN ADDITION TO FILING AN APPROPRIATE NOTICE WITH THE CLERK'S OFFICE, COUNSEL MUST FILE A COPY OF ANY NOTICE OF WITHDRAWAL, NOTICE OF SUBSTITUTION OF COUNSEL, OR NOTICE OF CHANGE OF COUNSEL'S ADDRESS OR TELEPHONE NUMBER WITH THE CLERK OF THE UNITED STATES MAGISTRATE ASSIGNED TO THE CASE. WITH RESPECT TO DISCOVERY DISPUTES, PARTIES MUST COMPLY WITH D.C. COLO. L.R. 71. THE PARTIES FILING MOTIONS FOR EXTENSION OF TIME OR CONTINUANCES MUST COMPLY WITH D.C. COLO. L.R. 7.1(C) BY SUBMITTING PROOF THAT A COPY OF THE MOTION HAS BEEN SERVED UPON THE MOVING ATTORNEY'S CLIENT, ALL ATTORNEYS OF RECORD, AND ALL PRO SE LITIGANTS. 12. AMENDMENTS TO SCHEDULING ORDER The Scheduling Order may be altered or amended only upon a showing of good cause. * * * * DATED this 18th day of July, 2005.

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BY THE COURT: s/Patricia A. Coan Patricia A. Coan United States Magistrate Judge SCHEDULING ORDER TENDERED FOR REVIEW: s/ Charles W. Lilley Charles W. Lilley, #9443 Moses Garcia, #26397 LILLEY & GARCIA LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 (303) 293-9800 Fax: (303)298-8975 Irwin B. Levin Scott D. Gilchrist, #027774 COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, Indiana 46206-0627 (317) 636-6481 Fax: (317)636-2593 Samuel D. Heins HEINS MILLS & OLSON, P.L.C. 550 IDS Center 80 South 8th Street Minneapolis, Minnesota 55402 (612) 338-4605 Fax (612) 338-4692 Attorneys for Plaintiffs

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s/ Marc D. Callipari Marc D. Callipari, No. 28136 1025 Eldorado Blvd. Broomfield, CO 80021 Joseph E. Jones Mark C. Laughlin FRASER, STRYKER, MEUSEY, OLSON, BOYER & BLOCH, P.C. 500 Energy Plaza 409 South 17th Street Omaha, Nebraska 68102-2663 (402) 341-6000 Fax: (402) 341-8290 Attorneys for Defendant Level 3 Communications, Inc. s/ Daniel F. Warden Daniel F. Warden BOND & MORRIS, P.C. 303 17th Ave. #888 Denver, CO 80203 (303) 837-9222 Fax: (303) 837-0849 J. Kevin Hayes Pam Anderson HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 (918) 594-0400 Fax: (918) 594-0505 Attorneys for Defendant WilTel Communications, Inc. s/ Jonathon D. Bergman Jonathon D. Bergman DAVIS, GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 -10-

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(303) 892-9400 Fax: (303) 893-1379 J. Emmett Logan STINSON MORRISON & HECKER 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 842-8600 Fax: (816) 691-3495 Attorneys for Defendant Sprint Corporation s/ Steven E. Napper Steven E. Napper UNION PACIFIC RAILROAD COMPANY 1331 17th Street, #406 Denver, CO 80202 (303) 964-4579 Fax: (303) 964-4585 Ron Bodinson Gregory T. Wolf SHOOK, HARDY & BACON L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, KS 66210-1669 (913) 451-6060 Fax: (913) 451-8879 Attorneys for Defendant Union Pacific Railroad Company

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