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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-CV-02098 REB-MJW

KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and those similarly situated, Plaintiff, vs. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants. Proceedings before MICHAEL J. WATANABE United

States Magistrate Judge, United States District Court for the District of Colorado, commencing at 9:34 a.m., on Tuesday, August 14, 2007, in the United States Courthouse, Denver, Colorado.

WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS ARE HEREIN TYPOGRAPHICALLY TRANSCRIBED...

APPEARANCES MR. L. DANIEL RECTOR, ESQ. and MR. LIEF GARRISON, ESQ. Appearing on behalf of the Plaintiffs. MR. CLIFTON J. LATIOLAIS, ESQ. Appearing on behalf of the Defendants. FINAL PRETRIAL CONFERENCE

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P R O C E E D I N G S (Whereupon, within the electronically recorded proceedings are herein transcribed, pursuant to order of counsel.) THE COURTROOM DEPUTY: All rise. Court is in

THE COURT:

You may be seated.

We're on the Kelly

record on Case No. 2000-CV-02098 REB-MJW.

Fincher, et al, plaintiffs, versus Prudential Property and Casualty Insurance Company, defendant. Counsel on

behalf of the plaintiff if you'd enter your appearance, please. MR. RECTOR: Your Honor, I'm Dan Rector with

Frank Azar and Associates and with me is Lief Garrison of the Kerry Law Firm. THE COURT: Thank you. Counsel on behalf of

MR. LATIOLAIS:

Good morning, Your Honor,

Cliff Latiolais on behalf of the defendant. THE COURT: Thank you. All right. This

matter is before the Court this morning for a final pretrial conference. The Court has reviewed the fourth

amended final pretrial order that was tendered to the parties -- from the parties. point. We'll go over that at this

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Pages 1 through and including page -- get to it here -- page 24 are approved as tendered by the parties. One thing I did not get. It indicated here --

were there separate exhibit logs or just as stated here? MR. RECTOR: question, Your Honor. THE COURT: Well, I just want to make sure, I'm sorry, I don't understand the

you didn't have any other attachments as far as a spreadsheet sort of designation, I just want to make sure if that's correct. MR. LATIOLAIS: MR. RECTOR: THE COURT: That is correct.

That is correct. Okay. So then pages 24 through

and including page 36 are approved as tendered relating to the exhibits. And actually the exhibits run through

the latter part of page 37 just above where it says Discovery Paragraph 8. Paragraph 8 on page 37 is fine as tendered. Discovery is done except for any updates on the Illinois Department of Social Service records. That's approved.

And you indicate -- plaintiff indicates that the PIP file has not been produced. MR. RECTOR: Your Honor, it's one thing I

think we need to clarify one last time with

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Mr. Latiolais and that is I think there was some difficulty given the history of the company having been bought and sold and bought and sold that I don't know that the PIP file itself has ever been actually identified. I'll stand corrected, but I'd like at least

some clarification. THE COURT: Mr. Latiolais. Yeah, Your Honor, I think we

MR. LATIOLAIS: have produced it.

In fact it was produced to counsel in And the PIP file was

the underlying tort case as well.

only opened for a short time but I'll double check and if there's some documents that he's missing, I don't have any problem providing them. THE COURT: Okay. Let me -- I'm dealing with

very experienced counsel, maybe I can have both counsel meet and confer and have Mr. Latiolais double check and if not -- if there's not a dispute perhaps you can just provide to plaintiff an additional copy or let them know where it's deficient if you have got an a portion of it. Paragraph 9 is approved as tendered, Other Special Issues. Paragraph 10 I'm going to skip over for

a moment, but I'll return to it. Paragraphs 11 and 12 on Offer of Judgment and Effect of Final Pretrial Order are approved, and paragraph 13, Trial and Estimated Trial Time, that's

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also approved as tendered. Give me just a moment here. (Whereupon, there was a pause in the proceedings at this time.) THE COURT: I want to go back to paragraph 10

for just a moment regarding the issue of settlement. Has there been any further discussions of settlement since the last conference that we had on May 30th, 2007? MR. RECTOR: THE COURT: No, sir. Okay. Would it be fruitful or

not -- and I'm aware of where the parties were back on May 30th, which was fairly substantial as the parties recall, so I guess the question is does either side think it might be fruitful or not? MR. RECTOR: Your Honor, only if as I think

the paragraph F indicates -THE COURT: MR. RECTOR: pending motions that -THE COURT: MR. RECTOR: Right. -- would probably cause us to Yeah. If -- if there were rulings on

reopen those discussions, but absent that it wouldn't benefit us. THE COURT: you're at as well? Mr. Latiolais, is that where

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MR. LATIOLAIS:

I don't -- no, Your Honor, I

-- we made an offer of judgment in an amount larger than had been discussed at the conference and -THE COURT: Okay. -- I don't think a resolution

MR. LATIOLAIS:

of the pending motions would make any difference from our perspective. I -- I will not rule that out, Your

Honor, I just don't think that the discussions would be -THE COURT: Well, then if that's the case --- productive.

MR. LATIOLAIS: THE COURT:

Without going into any figures,

I'm aware of the gap between the parties as far as settlement from the last conference on May 30th because I remember the case but also I take comp -- notes right afterwards and I have those with me in my personal file. So at this point I'm not going to set another conference but I will put, however, under paragraph 10(d), the following I'll add language to that sentence there that's listed. And I've added there under paragraph 10(d) the The parties may request a further settlement

conference by motion. All right. With that addition paragraph 10 in

its entirety with that minor amendment is approved.

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The Court will approve the fourth amended final pretrial order as amended this morning on the record. It is made an order of the Court and a copy of

the same will be provided to counsel and will get that through e-notice. Give me just a moment. (Whereupon, there was a pause in the proceedings at this time.) MR. LATIOLAIS: THE COURT: I have one issue, Your Honor.

Go ahead. When you're ready. With

MR. LATIOLAIS:

regard to the exhibits I note that the form that we used provides exhibits must be exchanged within five days after this conference -THE COURT: Right. -- and then objections.

MR. LATIOLAIS:

However, that's in conflict with -- I don't remember which of the rules now whether it's Judge Blackburn's rules or not, but I know also that the final submission of exhibits needs to be numbered only -THE COURT: Right. -- and set apart by those

MR. LATIOLAIS:

which are stipulated to and so on. THE COURT: Right. I was wondering, Your Honor,

MR. LATIOLAIS:

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if we might postpone the deadline for doing that. parties are familiar with all the exhibits.

The

I think the

only objections will be to some of them are hearsay and some of them are relevant, but when we get some rulings on some of the motions it might make a big difference on the exhibits themselves. And I was wondering if we

could wait until, you know, shortly before trial to submit that. trial. THE COURT: Well, except Judge Blackburn's I think the rule says five days before

trial practice procedure I think is contradictory to that. MR. LATIOLAIS: THE COURT: follow his practice. MR. LATIOLAIS: THE COURT: Okay. Okay.

Which -- which you'll need to

If there's a discrepancy. All right. Then --

MR. LATIOLAIS: THE COURT:

Okay.

And then if that's the case

you're going to need to file a motion because he may want to address that himself. MR. LATIOLAIS: As it stands now should we --

I see this particular form of the order -THE COURT: I would suggest you file the

motion forthwith and speak -- well, confer first and

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then if it's a joint request then file it jointly, or unopposed, either way. If it's not then I would file it

right away because there are certain deadlines set. Okay. Because he may end up deciding to rule on that

himself noting that it has to do with the trial prep, in essence, of the case. Okay. Okay.

MR. LATIOLAIS: THE COURT: motions.

Now, regarding the outstanding

All of those that are currently pending are

before Judge Blackburn, I don't have any pending before myself at this point. The Court did run a motions list

this morning on that issue. Okay. Anything further then on behalf of

plaintiff at this point? MR. RECTOR: THE COURT: No, Your Honor. On behalf of defendants? Nothing, Your Honor. Thank you for your

MR. LATIOLAIS: THE COURT: appearances.

Okay.

Have a good rest of the week. Thank you, Judge.

MR. LATIOLAIS: MR. RECTOR: THE COURT:

Thank you. I have only one question for you.

Did you whitelist the Court yet? UNKNOWN SPEAKER: THE COURT: I'm sorry, did I what?

Did your automation people

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whitelist the Court's domain name yet? UNKNOWN SPEAKER: come in -THE COURT: Automatically. Not be scanned as spam. Meaning that emails will

UNKNOWN SPEAKER: THE COURT:

Right. Oh, okay. Well, I'll make

UNKNOWN SPEAKER: sure that we do. THE COURT:

Yeah, because I issued -We're usually on top of that

UNKNOWN SPEAKER:

but I don't speak, technology, Your Honor. THE COURT: Oh, okay. So I apologize for my

UNKNOWN SPEAKER: ignorance. THE COURT:

Well, no, I issued a ruling with

one of your partners Mr. Bridges on that issue, but I just wanted to -UNKNOWN SPEAKER: I don't acknowledge

Mr. Bridges, but I will -- but I'll definitely check into that. THE COURT: Well, I was just curious. I think some of my partners

UNKNOWN SPEAKER:

have not been to federal court as frequently as I and so this -THE COURT: Well, that may be true, but --

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UNKNOWN SPEAKER: THE COURT:

Or at all.

I think that is true, actually,

but I just wanted to make sure because I did enter that ruling and I don't think they've appealed it, and they haven't, but I hope they whitelist the Court's domain name which is the -- do you know what I'm talking about? Cod.uscourts.gov. UNKNOWN SPEAKER: THE COURT: Uh-huh.

So that you get our emails because

otherwise our system will never operate. UNKNOWN SPEAKER: And that was a situation

where there wasn't -- notice was not received because it was intercepted by the spam is that -- (inaudible) THE COURT: Barracuda spam blocker they put

Actually, they increased the level of stuff it was

catching, but they never checked it. MR. RECTOR: I know personally I have not had

that problem, so I'll check on it for the others. THE COURT: Well, the other problem was, just

so you guys know, they whitelisted all the state domain names -- state court domains mains. MR. RECTOR: streamlined -UNKNOWN SPEAKER: THE COURT: It was discrimination. What it did, Judge, was it

Well, and I made that

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discrimination, but I was -MR. RECTOR: rather considerably. THE COURT: I mean, that hearing is over but It streamlined our practice,

when I heard your IT person testify in front of me and says, well,I didn't think -- you know, I think this was adequate. And I'm like, you didn't think it was I mean, come on.

adequate for the state court, did you?

And the other thing that was so stupid was, as you know, if you whitelist a domain name it automatically goes through regardless of your spam blocker. So anyway those are the perils of the Court, counsel. You guys have a good day. MR. RECTOR: Thank you, Judge.

(Whereupon, the within hearing was then in conclusion at 9:45 a.m. on this date.) I certify that the foregoing is a correct transcript, to the best of my knowledge and belief (pursuant to the quality of the recording) from the record of proceedings in the above-entitled matter. Kelly Mair Signature of Transcriber May 21, 2008 Date

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