Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-1263-PSF-MEH

ROBERT M. FRIEDLAN,
Plaintiff,
v.

TIC - THE INUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC.,
Defendants.

DEFENDANTS' JOINT NOTICE OF OUTSTANDING ISSUES AND REQUEST FOR FORTHWITH STATUS CONFERENCE
Defendants GeoSyntec Consultants, Inc. ("GeoSyntec") and TIC-The Industrial

Company ("TIC"), through their respective undersigned counsel, submit the following Notice of
Outstanding Issues and Request for Forthwith Status Conference.

CERTIFICATION OF COMPLIANCE WITH D.C.COLO.LCivR 7.1
Undersigned counsel hereby certify that they conferred with Plaintiff s counsel regarding

the relief requested herein. Plaintiff does not object to participating in a status conference, but
does not necessarily agree that such conference is necessary.
1. On January 25, 2007, the parties submitted a proposed Final Pretrial Order in

which they identified several outstanding issues regarding Plaintiff s late designation of experts,
untimely production of documents, pending discovery motions, and additional discovery to be
taken. See Proposed Final Pretrial Order dated 1/25/07, Doc. No. 215 at 13-14.

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2. On January 29, 2007, the parties appeared for the scheduled Final Pretrial

Conference. Due to the number of outstanding issues and incomplete status of discovery, the
Court determined that the case was not yet ready for trial, and rescheduled the Final Pretrial

Conference for March 22,2007 at 9:00 a.m. See Min. Order dated 1/29/07, Doc. No. 221. In
preparation for the conference, the Court ordered the parties to submit a revised Final Pretrial
Order on March 19, 2007. Id
3. Since the time of the initial pretrial conference, the parties have worked diligently

to complete depositions and conclude discovery. However, several of

the issues identified in the

proposed Final Pretrial Order remain unresolved, and additional issues have arisen which will

make it diffcult for the Defendants to prepare their final witness and exhibit lists by the current
deadline of

March 19, 2007. For example:
A. Recent Orders on Defendants' Motions to Compel Discovery.

On March 5,2007, the Court entered an Order on Defendant TIC's Motion to Compel
Discovery. See Order dated 3/5/07, Doc. No. 256. In this Order, the Court ordered Plaintiff

to

produce several categories of documents by March 19, 2007, including but not limited to the
following:
. Documents concerning communications between Plaintiff (or his related

companies) arising from or related to disputes with any insurance company that resulted in a lawsuit; (id at 2);
. Any indexes prepared by Plaintiff s counsel of documents obtained from third

parties that are responsive to TIC's document requests (id at 3-4);
. Responses to interrogatories regarding Plaintiff s ownership interest in Galactic

Resources, Ltd. (id at 4); and
. A substantive interrogatory response regarding Plaintiff s dealings with Ivanhoe

Capital Corporation (id at 5).

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On March 6,2007, the Court entered an Order on GeoSyntec's Motion to Compel
Discovery. See Order dated 3/6/07, Doc. No. 257. In this Order, the Court required Plaintiff

to

provide additional information to GeoSyntec by March 19, 2007, including but not limited to:
. Complete responses to GeoSyntec's interrogatories regarding Ivanhoe Capital
Corp., including business address, the amount of

Friedland's shares and its current

value (id at 2-4);
. All documents establishing the identity of the payor of the $28,144,048 Plaintiff

claims to have incurred in defense costs, including bank statements, cancelled checks, and wire transfers, as well as any reimbursements by Plaintiff to Ivanhoe of such costs (id at 5.)

As a result of these orders, Defendants will receive a substantial amount of new
information and documents on the same day they are currently scheduled to submit their final

exhibit and witness lists, March 19, 2007. Under the current schedule, Defendants will not have
an adequate opportunity to review the information or conduct any follow up discovery it may
generate, before preparing their final witness and exhibit lists.

At this time, Defendants anticipate that documents identifying the payor of all defense

costs will be voluminous. However, they have no way of knowing whether Plaintiff s initial
production of these documents will be complete, or whether it will require follow up inquiries of

Plaintiff. It is likely that Plaintiff s deposition will need to be re-convened, as the information to
be produced was not available to Defendants the last time Friedland was deposed. Depositions
of other witnesses, such as accounting or bank personnel, may also be necessary. In any event,

Defendants may require additional time to process the new information before preparing their
final witness and exhibit lists.

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B. Deposition of

Charles Russell in London, UK.
Deposition of

On February 20,2007, Plaintiff served a Notice of

Charles Russell,

scheduling his deposition for March 9, 2007 in Guernsey, Channel Islands. On February 27,

2007, Defendants fied a Joint Motion for Protective Order, requesting that the deposition be prohibited as unduly burdensome, unnecessary, and untimely. Mot. for Prot. Order dated 2/27/07, Doc. No. 251. The Court conducted an expedited telephonic hearing and denied the motion on March 2, 2007. Mr. Russell's deposition is now scheduled to be taken in London on
March 12 and 13,2007. As Defendants' counsel argued in the telephonic hearing, Mr. Russell's

testimony may identify new witnesses, documents or issues that will necessitate further
discovery. Defendants' lead counsel will be out of the country for most of the week of

March

12, 2007, and will be unable to conduct any follow-up discovery related to the Russell

deposition, or for that matter, to participate in the preparation of final exhibit and witness lists to
be submitted the following Monday, March 19, 2007.
C. Delayed Production of

Russell Deposition Exhibits and Other Documents.

On February 21, 2007, the day after Plaintiff served his initial notice of Mr. Russell's

deposition, Defendants began requesting copies of exhibits from two prior depositions taken of

Mr. Russell with regard to the Summitville Mine, in 1989 and 1999. See E-mail from D. Catt to
C. Vega dated 2/21/07, Ex.!. In response, a paralegal from the offce of

Plaintiffs counsel

indicated that all requests for documents would be referred to and responded to by Plaintiff s

counseL. Id Terence Ridley, counsel for GeoSyntec, then sent a message reiterating the request

for the Russell exhibits. See E-mail from T. Ridley to C. Vega dated 2/23/07, Ex. 2. Plaintiff s
counsel's offce responded that "Perry is in the process of reviewing the requested documents

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and will make them available for your vendor to pick up after he has completed his review

possibly by mid-week next week," even though this would only allow counsel access to these
documents approximately 7 days before leaving for the then-scheduled deposition overseas. See

zd After several further requests for the exhibits, and only after the Court ordered Plaintiff to
produce them promptly, Plaintiff s counsel finally produced the 1999 Russell exhibits,

comprised of several hundred pages, at the end of the day on March 2, 2007. i However, no
exhibits to the 1989 deposition of

Russell have yet been produced.

In addition to the new documents and information to be produced under the Court's
recent orders, Plaintiff recently produced an avalanche of documents, approximately 60

notebooks' worth containing over 40,000 pages, to TIC. GeoSyntec is in the process of
obtaining copies of

these documents from TIC, and will require additional time to review them

before finalizing its exhibit and witness lists. This delay has prejudiced Defendants' ability to prepare for Mr. Russell's deposition on March 12,2007.
D. Non-Completion of Stipulations.

The parties have been unable to complete their stipulations regarding the authenticity and

admissibility of certain third-party documents. If Defendants do not obtain Plaintiff s agreement
to stipulate not only to the authenticity of these documents, but to their status as "business
records" excepted from the hearsay rule, Defendants may need to take additional depositions.

i Because they are directly relevant to several opinions rendered in his previous report,
defense expert Luke Danielson is preparing a supplemental report based on the recentlyproduced Russell deposition exhibits.

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E. Pending Motion to Strike Plaintiff s "Rebuttal" Experts.
Finally, as indicated in the proposed Final Pretrial Order, Defendants object to Plaintiff s
late designation of

two experts allegedly offered for rebuttal purposes. See Proposed Pretrial

Order dated 1/25/07, Doc. No. 215 at 13-14. On February 5,2007, Defendants fied a Joint

Motion to Strike Plaintiff s Designation of Rebuttal Expert Witnesses. Plaintiff fied his
response to this motion on February 26,2007, and Defendants' reply is due on March 13, 2007.
If this motion is denied, Defendants will require the opportunity to depose the two individuals
who were untimely designated as experts by Plaintiff.
4. In short, due to Plaintiffs late decision to depose Charles Russell in the United

Kingdom, his belated endorsement of rebuttal experts, his belated production of tens of
thousands of documents, and the Court's recent Orders granting Defendants' respective motions

to compel, Defendants will have diffculty finalizing their witness and exhibit lists in time for the
scheduled pretrial conference on March 22, 2007. Defendants will be significantly prejudiced in
their trial preparation if

they are not allowed additional time to fully review, evaluate, and

conduct discovery on the newly received-information and testimony, either prior to the Final

Pretrial Conference or pursuant to provisions in the Final Pretrial Order allowing specified
discovery after the Final Pretrial Conference.

WHREFORE, Defendants respectfully request that the Court conduct a forthwith status
conference to determine how best to address these outstanding issues prior to the Final Pretrial
Conference.

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Respectfully submitted this 9th day of

March, 2007.

By: s/ Marian L. Carlson Terence M. Ridley Marian L. Carlson Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202-2617
Telephone No.: 303-244-1800
Telecopier No.: 303-244- 1 879

Email: carlson(£wtklaw.com
Paul 1. Sanner Hanson, Bridgett, Marcus, Vlahos & Rudy LLP 333 Market Street, Suite 2100 San Francisco, CA 94105-2122 Telephone No.: 415-995-0517
Telecopier No.: 415-541 -9366

Attorneys for Defendant GeoSyntec Consultants, Inc.

and
s/ Colin C. Deihl Colin C. Deihl, Esq. Faegre & Benson LLP
3200 Wells Fargo Center

1700 Lincoln Street Denver, CO 80203
Telephone: (303) 607-3651

FAX: (303) 607-3600
E-mail: cdeihl(£faegre.com

Delmar R. Ehrich, Esq. Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402
Attorneys for Defendant TIC - The Industrial Company

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CERTIFICA TE OF SERVICE

I hereby certify that on March 9, 2007, I electronically fied the foregoing DEFENDANTS' JOINT NOTICE OF OUTSTANDING ISSUES AN REQUEST FOR

Court using the CM/CF system which will send notification of such fiing to the following email addresses:
FORTHWITH STATUS CONFERENCE with the Clerk of

. Jon Bernhardt

bernhardt(£ballardspahr. com, halboths(£ballardspahr. com, hoefler(£ballardspahr. com
. Lauren C. Buehler

Ibuehler(£fognanilaw. com, cvega(£fognanilaw. com
. Marian Lee Carlson

carlson(£wtklaw. com, carpenter(£wtklaw. com
. Colin Christopher Deihl

cdeihl(£faegre. com,j sullivan(£faegre. com
. Leslie Ann Eaton

eaton(£ballardspahr. com,hoefler(£ballardspahr. com, dethlefs(£ballardspahr. com
. Perry L. Glantz

pglantz(£fognanilaw. com, cvega(£fognanilaw. com
. Steven Matthew Kelso

kelso(£wtklaw. com, chavez(£wtklaw. com
. Kristina I. Mattson

kmattson(£fognanilaw. com, cvega(£fognanilaw. com
. Richard Kirk Mueller

rmueller(£fognanilaw. com, cvega(£fognanilaw. com
. Terence M. Ridley

ridley(£wtklaw. com, norris(£wtklaw. com

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and I hereby certify that a copy of the document has been served to the following non-CM/CF participants via E-Mail:
Paul

1. Sanner - psanner(£hansonbridgett.com Delmar R. Ehrich - dehrich(£faegre.com

By: s/ Marian L. Carlson Marian L. Carlson Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202
Telephone No.: 303-244-1800
Telecopier No.: 303-244- 1 879

E-Mail: carlson(£wtklaw.com

Attorney for Defendant GeoSyntec Consultants, Inc.

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