Free Motion for Protective Order - District Court of Colorado - Colorado

Case 1:00-cv-02325-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 2000-cv-2325-MSK-OES
SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION,

Defendants, and Case No. 2001-cv-2307-MSK-OES
SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION,

Defendants. _____________________________________________________________________ THE COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT AND THE COLORADO DIVISION OF MINERALS AND GEOLOGY OF THE COLORADO DEPARTMENT OF NATURAL RESOURCES' UNOPPOSED MOTION FOR PROTECTIVE ORDER AND FOR LEGAL REPRESENTATION

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CERTIFICATION UNDER D.C. COLO. LR 7.1 A The undersigned counsel certifies that he has consulted with counsel for Plaintiffs and Defendants and that he is authorized to state that they do not oppose this motion. The Colorado Department of Public Health and Environment ("CDPHE"), and the Colorado Division of Minerals and Geology of the Colorado Department of Natural Resources ("CDMG"), by Colorado Attorney General John W. Suthers and the undersigned counsel, pursuant to Fed. R. Civ. P. 45(c)(3), respectfully move the Court for an order protecting state employees from testifying about privileged information and from giving unretained expert testimony. CDPHE and CDMG also move for an order allowing legal representation of the state employees during their testimony. As grounds for the motion, CDPHE and CDMG state as follows: 1. 2. Neither CDPHE nor CDMG are parties to this action. Counsel for the parties in this case have indicated that they desire to elicit testimony from

one or more of the following state employees: Dave Akers, Carla Lenkey, Gary Soldano, Tom Boyce, Susan Nachtrieb, Christopher Gates, and Berhan Keffelew. 3. CDPHE, CDMG, and the undersigned counsel have cooperated with Plaintiffs and

Defendants in making said state employees available to give factual testimony in this case. The undersigned counsel understands that the parties seek only factual testimony from said state employees. In order to prevent privileged or unretained expert testimony from being elicited from said state employees, however, an order limiting their testimony to factual, non-privileged testimony is necessary.

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4.

Fed. R. Civ. P. (45)(c)(3)(B) provides for the protection of witnesses from having to

provide unretained expert testimony. None of the above state employees has been retained to testify in an expert capacity in this case. 5. Colorado law prohibits state employees from engaging in any "activity which creates a

conflict of interest with his duties as a state employee." Colo. Rev. Stat. § 24-50-117 (2005). The personnel rules implementing this provision prohibit any "outside employment or activity that is directly incompatible with the duties and responsibilities of the state employee's position." 4 Colo. Code Regs. § 801, 1-13B. "Incompatibility" includes the occurrence or "reasonable inference" of "preferential treatment, impediment of government efficiency or economy, loss of complete independence and impartiality, decision making outside official channels, disclosure or use of confidential information acquired through state employment." 4 Colo. Code Regs. § 801, 1-13B. 6. Colorado law also prohibits state employees from using "state time [or] property . . . for .

. . . private use or any other purpose not in the interests of the State of Colorado." 4 Colo. Code Regs. § 801, 1-16B. Indeed, it is the "duty" of every state employee not to use their time for any purpose not in the interests of the state. Id. 7. "[A]dvance written approval" is required for such engagements and is to be determined

on the basis of "whether the outside employment interferes with the performance of the state job or is inconsistent with the interests of the state, including raising criticism or appearance of conflicts." 4 Colo. Code Regs. § 801, 1-14B. No such approval has been sought or given in this case.

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8.

Under Colo. Rev. Stat. § 25-1-114(3)(a) (2005), an employee of the CDPHE is prohibited

from performing "any work, labor or other services other than the duties assigned to him by or on behalf of the department during the hours such officer or employee is regularly employed by the department." Colo. Rev. Stat. § 25-1-114(3)(a) (2005). 9. Further, expert witnesses should not be compelled to testify because such testimony is a

matter of contract. Young v. U.S., 181 F.R.D. 344 (W.D. Tex 1997), citing Karp v. Cooley, 349 F. Supp. 827 (S.D. Tex. 1972). Compelling expert opinion amounts to involuntary servitude. State employees should not be compelled to give expert testimony against their will, particularly when the litigants can hire their own experts to testify as to the same issues. Ondis v. Pion, 497 A.2d 13, 18 (R.I. 1985); Mason v. Robinson, 340 N.W.2d 236, 242 (Iowa 1983); Shelby County v. Kingsway Greens of America, Inc., 706 S.W.2d 634, 637 (Tenn. App. 1985). 10. The federal rules of civil procedure also provide for the protection of privileged

information. Fed. R. Civ. P. 45(c)(3)(A). 11. In addition to protecting privileged attorney-client information, CDPHE and CDMG seek

to protect deliberative process information as privileged. The deliberative process privilege is recognized in both state and federal law. City of Colorado Springs v. White, 967 P.2d 1042 (Colo. 1998); EPA v. Mink, 410 U.S. 73 (1973); Rodgers v. Hyatt, 91 F.R.D. 399 (D. Colo. 1980). Thus, although the state employees are available to provide relevant factual testimony, they should not be examined on privileged matters, including deliberative process privileges. 12. Finally, CDPHE and CDMG request that the state employees be allowed to have legal

representation during their testimony in order to protect the rights and privileges of the State of Colorado, CDPHE, and CDMG.

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13.

The undersigned counsel have consulted with counsel for plaintiffs and defendants

regarding this motion and is authorized to state that they do not oppose this motion. WHEREFORE, CDPHE and CDMG respectfully request an order limiting the testimony of state witnesses to non-privileged, non-expert, factual testimony, and allowing legal representation of the state employees during their testimony. RESPECTFULLY SUBMITTED this 1st day of February, 2006.

JOHN W. SUTHERS Attorney General

s/ Cheryl A. Linden CHERYL A. LINDEN* First Assistant Attorney General Natural Resources and Environment Section
Attorneys for the Colorado Division of Minerals and Geology 1525 Sherman Street, 7th Floor Denver, Colorado 80203 Telephone: (303) 866-5127 FAX: (303) 866-3558 *Counsel of Record

s/ Jerry W. Goad JERRY W. GOAD* Senior Assistant Attorney General Natural Resources and Environment Section
Attorneys for the Colorado Department of Public Health and Environment

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1525 Sherman Street, 7th Floor Denver, Colorado 80203 Telephone: (303) 866-5110 FAX: (303) 866-3558 *Counsel of Record

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on February 1, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
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John M. Barth [email protected] Craig R. Carver [email protected] Roger Flynn [email protected] Lisa Claire Ledet [email protected] Jeffrey C. Parsons [email protected] Eugene J. Riordan [email protected] [email protected] Don Hugh Sherwood [email protected] Robert Campbell Troyer [email protected] [email protected] Randall M. Weiner [email protected]

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and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the nonparticipant's name: Bruce C. Kirchhoff Carver, Kirchhoff, Schwarz, McNab & Bailey, LLC 1600 Stout Street #1700 Denver, CO 80202 Paul Zilis Vranesh & Raisch, L.L.P. 1720 14th Street, #200 P.O. Box 871 Boulder, CO 80306-0871 Michelle Carton Carmody Michelle Carmody, Atty at Law 766 Holly Street Denver, CO 80220
s/ Jerry W. Goad by JERRY W. GOAD Senior Assistant Attorney General Natural Resources and Environment Section Attorneys for the Colorado Department of Public Health and Environment, State of Colorado, Office of the Attorney General 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-5110 FAX: (303) 866-3558 [email protected]