Free Motion for Trial - District Court of Colorado - Colorado

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

Document 269

Filed 01/23/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cv-2325-MSK-OES SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP., ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. and Civil Action No. 01-cv-2307-MSK-OES SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP., ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. ____________________________________________________________________________ MOTION SEEKING PRESENTATION OF TESTIMONY BY TELEPHONE ____________________________________________________________________________ Pursuant to Fed. R. Civ. P. 43(a) and II(F) of the Civil Actions Practice Standards of this Court, Plaintiffs seek approval for Kimberlee Dinn, the membership coordinator for Plaintiff Earthworks (formerly Mineral Policy Center), to present testimony by telephone at the trial in this matter from her offices in Washington, D.C. The trial is scheduled to begin on February 13, 2006. 1

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

Document 269

Filed 01/23/2006

Page 2 of 7

Ms. Dinn will authenticate membership records of the Plaintiff Earthworks which were provided to Defendants by affidavit over two years ago. Attached to Exh. 1, Bates #s 85-88. Ms. Dinn will also testify that Earthworks has members, and explain the role that members play in the organization. See Exh. 1. Pursuant to Local Rule 7.1, the undersigned conferred with opposing counsel, Robert Troyer, Esq. and Don Sherwood, Esq., on January 20, 2006, regarding this Motion. The undersigned had previously e-mailed a request for an agreement on January 8, 2006 (attached as Exh. 2) and followed up with telephone calls with Messrs. Troyer and Sherwood on January 20, 2006. Mr. Troyer represented to the undersigned that he does not object to telephonic testimony in principle, but does object to allowing this witness to testify since her name was not listed on an exhibit list submitted to the Court on April 8, 2005, despite the fact that Ms. Dinn was identified by Plaintiffs as a witness on the March 15, 2005 witness list submitted to the Court. On January 23, Mr. Sherwood stated that he was taking the position advanced by Mr. Troyer. 1. Ms. Dinn Should be Permitted to Testify Since Her Name was Contained on the First Witness List Provided to Defendants, Her Name was Omitted after Order of the Court of the Listing of "Absolutely Necessary" Witnesses, and There will be No Surprise or Prejudice to Defendants.

Ms. Dinn was listed as a witness on the exhibit list submitted to the Court on March 15, 2005 as an exhibit to the Final Pretrial Order proffered by the parties. Exh. 3 at 3. Her name was removed from the witness list submitted two weeks later, on April 8, 2005, after the Court explained that "particularly" for Plaintiffs, they did not need to list every witness to prove a particular fact in dispute, but that Plaintiffs would have the opportunity to present their backup documents and witnesses if the evidence was challenged at trial by Defendants: This is particularly true for plaintiffs (picking the "single best way" to present 2

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

Document 269

Filed 01/23/2006

Page 3 of 7

evidence), because you have the opportunity to put on a rebuttal case; and what that means is you put it on once and if it's not challenged by the defendants with contrary evidence, then your evidence is the only evidence on the issue. But if it is challenged by the defendants with contrary evidence, then you get an opportunity to call up that second witness or use the second document in order to corroborate what the first witness or first documents said. But we don't need to have all of the documents and all of the witnesses come in in the main case. Transcript of Court Hearing, March 25, 2005, at 18 (excerpts attached as Exh. 4). See also Exh. 4 at 19-20 and 35 (parties should provide in the revised witness list only those witnesses that get to "the guts of what your really need to present" and that the parties know are "what you absolutely need"). Plaintiffs, on April 8, 2005, did not anticipate that Ms. Dinn's testimony was "absolutely needed" and did not include her name on the revised exhibit list at the time. The Court never indicated that witnesses contained on the initial witness list could not be called at trial. Had Defendants advanced this interpretation at the time, Plaintiffs would never have agreed to so limit their witnesses. As the Court instructed, the revised April witness list was not intended to be exhaustive, but was Plaintiffs' best estimate of who was "absolutely necessary" for their main case at the time. However, Defendants' statements since April of last year, including recent assertions that Defendants will not foreclose any standing defenses, demonstrate that Ms. Dinn's brief testimony will be needed at trail. The situation involving Ms. Dinn is much like that found in Perry v. Winspur, 782 F.2d 893 895-9 (10th Cir. 1986), where Dr. Daniel Teitelbaum "was initially listed" on a pretrial order but left off of a subsequent amended pretrial order. The trial judge in Perry, as affirmed by the Tenth Circuit, permitted Dr. Teitelbaum to testify, because the plaintiffs' intentions were communicated prior to trial and there was "no surprise" to the defendants. Id. at 896.1

1

While Plaintiffs believe the Final Pretrial Order is sufficient to allow Ms. Dinn's testimony, to the

3

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

Document 269

Filed 01/23/2006

Page 4 of 7

Defendants had early and consistent notice of Ms. Dinn's role in the case. Plaintiffs provided Defendants with her affidavit concerning Earthworks' members and membership policies on October 22, 2003. Exh. 1. She was listed as a witness on the March 15, 2005 witness list. Exh. 3. Defendants had every opportunity to depose her during discovery, but chose not to. Accordingly, Ms. Dinn should be allowed to testify because her name was contained on the first witness list provided to Defendants, her name was only omitted after insistence by the Court of the listing of witnesses who were "absolutely necessary", and there will be no surprise, or prejudice, to the Defendants. 2. Ms. Dinn's Testimony Meets the Standards Set Forth For Telephonic Testimony.

This Court's Practice Standards set forth the procedures for obtaining approval for telephonic testimony. These factors favor allowing Ms. Dinn to testify by telephone. As previously noted, Defendants have represented that they do not oppose the taking of telephonic testimony, should Ms. Dinn be permitted to testify. A(1). Reasons such testimony should be taken by telephone. Ms. Dinn resides in Washington, D.C., the home office of Plaintiff Earthworks. She is scheduled to testify for threequarters of an hour (direct: one-half hour; cross: one-quarter hour). Exh. 3 at 3. Her testimony will reiterate statements made in her affidavit provided to Defendants on October 22, 2003. See Exh. 1, ¶¶ 5-10. She may also be called in rebuttal, if Defendants raise additional arguments about Earthworks' membership policies. Her testimony is amply suited for telephone. A(2). Description of all testimony to be taken by telephone. As an offer of proof, Ms. Dinn

extent this Court requires its amendment of its pretrial order to allow Ms. Dinn to testify, Plaintiffs hereby so move. The proposed Order accompanying this Motion includes such relief.

4

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

Document 269

Filed 01/23/2006

Page 5 of 7

will testify that Earthwork's members were in good standing when the Complaint was filed. She will testify that they are still members in good standing. She will testify that Earthworks is a membership organization. She will testify that the members receive certain benefits and other indicia of membership. She may also rebut arguments Defendants may raise that Earthworks is not a membership organization based on the wording of organizational documents. See Exh. 5. A(3). Documents. Ms. Dinn's testimony will refer to membership records attached to Exh. 1, and policies set forth in Exh. 5. C(1). Statutory Right. Plaintiffs know of no statutory right or restriction to Ms. Dinn's testimony by telephone. C(2). Cost Savings. The cost savings to have Ms. Dinn testify by telephone is approximately $2,000 for airline tickets, meals, and perhaps hotel accommodations. This is a substantial amount for Earthworks, a non-profit, public interest organization. C(3). Equipment. A courtroom clerk has confirmed that the Court has available the equipment necessary to conduct the examination by telephone. C(4). Availability. Ms. Dinn would have to forego one, and possibly two, days worth of duties in Washington, D.C. to testify for three-quarters of an hour in Denver. She is available, but it would pose a hardship to the organization. C(5). Importance. Defendants refuse to disclose the extent to which the subjects of Ms. Dinn's testimony plays in their trial strategy. Their position is that they do not wish to limit any challenges to Plaintiffs' standing. Thus, while Plaintiffs believe that her testimony is of moderate importance, that may change depending on Defendants' trial tactics. C(6). Credibility. Testimony concerning the authenticity of membership records and

5

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

Document 269

Filed 01/23/2006

Page 6 of 7

membership policies and practices is unlikely to hinge on witness credibility. As noted, the membership records have already been provided. See Exh. 1. Defendants have not chosen to depose Ms. Dinn, and have not put her credibility at issue. C(7). Bench vs. Jury Trial. The fact that this is a bench trial militates in favor of allowing testimony by telephone. There is less likelihood for jury confusion. The Court is in a position to issue ongoing orders to protect the integrity of the proceedings. C(8). Cross-Examination. Defendants will not be unreasonably inhibited in their ability to cross-examine the witness. The membership documents have already been provided to Defendants. Finally, Plaintiffs will have a notary or other authorized person present at the location of the witness to ascertain the witness' identity. For the reasons set forth, this Court should allow Kimberlee Dinn to testify by telephone during the trial on this matter. Testimony in this manner, scheduled to take less than one hour, will provide a significant cost and time saving to Plaintiffs, with no material hardship to Defendants. A proposed Order is attached. Respectfully submitted this 23rd day of January, 2006.

CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of January, 2006, I electronically filed the foregoing MOTION SEEKING PRESENTATION OF TESTIMONY BY TELEPHONE AND ALL EXHIBITS THERETO with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Eugene Riordan Vranesh & Raisch P.O. Box 871 Boulder, CO 80306 [email protected] Don H. Sherwood 10861 West 28th Place Denver, CO 80215 [email protected] 6

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

Document 269

Filed 01/23/2006

Page 7 of 7

[email protected] Craig R. Carver Carver, Kirchhoff, Schwartz McNab & Bailey, P.C. 1600 Stout Street, Suite 1700 Denver, CO 80202 [email protected] John M. Barth P.O. Box 409 Hygiene, CO 80533

Robert C. Troyer Hogan & Hartson L.L.P. 1200 17th Street, #1500 Denver, CO 80202 [email protected] Roger Flynn Jeff Parsons Western Mining Action Project P.O. Box 349 Lyons, CO 80540

s/ Randall M. Weiner ________________________________

7