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

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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. FRIEDLAND, Plaintiff, v. TIC ­ THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC., Defendants. _____________________________________________________________________________ DEFENDANTS' JOINT MOTION FOR PROTECTIVE ORDER REGARDING DEPOSITION OF CHARLES RUSSELL IN GUERNSEY, CHANNEL ISLANDS AND REQUEST FOR EXPEDITED RULING _____________________________________________________________________________ Defendants GeoSyntec Consultants, Inc. ("GeoSyntec") and TIC-The Industrial Company ("TIC"), through their respective undersigned counsel and pursuant to Rule 26(c), Fed. R. Civ. P., move the Court for a protective order precluding Plaintiff from taking the deposition of Charles Russell pursuant to a Notice of Deposition served February 20, 2007. In support of this Motion, Defendants state as follows: CERTIFICATION OF COMPLIANCE WITH D.C.COLO.LCivR 7.1 Undersigned counsel hereby certify that they conferred with Plaintiff's counsel and requested that Plaintiff not attempt to take the deposition of Charles Russell in Guernsey, Channel Islands. Plaintiff's counsel would not agree to forego the deposition, and will oppose the relief requested in this Motion.

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I. INTRODUCTION Plaintiff Robert M. Friedland ("Friedland") seeks contribution for approximately $20 million paid to settle a CERCLA cost recovery action brought against him by the EPA and State of Colorado (the "EPA Action"). At relevant times, Friedland was an officer and director of the Summitville Consolidated Mining Company, Inc. ("SCMCI"), which operated the Summitville Mine between 1986 and 1992. See Pl. Robert Friedland's Br. in Supp. of Mot. for Summ. J. Regarding Pl.'s CERCLA Liability filed 10/30/06, Doc. No. 151 at 2. Friedland was also a director of Galactic Resources, Ltd. ("GRL"), a parent company of SCMCI that was extensively involved in its operations, from 1981 through 1990. Prop. Final Pretrial Order filed 1/25/07 at 7, Stip. No. 5; Defs. Mem. of Law in Opp. to Pl.'s Mot. for Summ. J. Regarding Pl.'s CERCLA Liability filed 11/29/06, Doc. No. 178 at 4, ¶ 4 (and testimony cited therein). While Friedland filed this action on June 18, 2004, he did not take his first deposition in the case until April 26, 2006. Friedland took eight depositions between April 26 and June 30, 2006, the cutoff date for fact discovery related to liability issues. See Order on Mot. for Modif. of Sched. Order and Related Relief dated 6/26/06. Beginning in December 2005, GeoSyntec's counsel sent correspondence to Friedland's counsel attempting to identify witnesses whose testimony was likely to be presented through prior depositions, as opposed to live at trial, so that the parties could determine what new depositions needed to be taken. See Letter from M. Carlson to K. Mueller dated 12/13/05, Ex. 1 (identifying Charles Russell as witness likely to be presented by GeoSyntec via deposition). By letter dated March 1, 2006, counsel confirmed that Friedland's counsel was "open to the possible use" of several identified depositions at trial, including that of Charles Russell, in lieu of live testimony. See Letter from M. Carlson to K.

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Mueller dated 3/1/06, Ex. 2. Friedland's counsel gave no indication that they intended to take a new deposition of Mr. Russell, rather than using his prior transcript, until shortly before the January 29, 2007 pretrial conference, in connection with the preparation of the pretrial order. On January 29, 2007, at the final pretrial conference, Plaintiff's counsel announced their intent to take the deposition of Charles Russell, who resides in Guernsey, Channel Islands, during the first week of March, 2007. Friedland later served a Notice of Deposition of Charles Russell, scheduling the deposition for March 9, 2007. Not. of Dep., Ex. 3. This deposition should not be allowed to proceed because it imposes undue burden and expense on Defendants, is unnecessary because Mr. Russell has already given multiple depositions on the issues involved in this case (transcripts of which the parties agreed, months ago, could be used at trial), and was not timely requested by Friedland. II. ARGUMENT Under the Federal Rules of Civil Procedure, "[t]he frequency or extent of use of the discovery methods otherwise permitted under these rules . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Rule 26(b)(2), Fed. R. Civ. P. In this case, all three sets of considerations support the entry of a protective order precluding the Russell deposition.

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A.

The proposed deposition would impose undue burden and expense on Defendants. First, the proposed deposition should not be allowed to proceed because it will be unduly

burdensome and costly for the Defendants. Mr. Russell, who reported to Friedland as an officer of the companies that operated the Summitville Mine in the late 1980's, now resides in Guernsey, Channel Islands. Defendants are informed that it will take nearly a full day of travel to reach this destination, and consequently, at least three full days of attorney time in total, for a deposition that may last only a few hours. For example, counsel for GeoSyntec would be required to take a flight leaving Denver at 1:00 p.m. on March 7, 2007, and after changing planes in two different cities, would not arrive in Guernsey until approximately 10:00 a.m. on March 8, 2007. Because there are no earlier flights available, counsel cannot arrive the same day as the deposition, particularly given the need to allow a substantial margin for possible flight delays. To return to Denver, counsel will leave Guernsey at approximately 6:00 a.m. on March 10, 2007, and arrive in Denver at approximately 6:00 p.m. that same day. Including the six-hour time difference, travel time will take approximately 18 hours. In addition, airfare for this trip, not including hotel or other costs, will be over $2,000 for each attorney. Rule 26(c), Fed. R. Civ. P., provides that a court may make "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that the disclosure or discovery not be had." Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir. 1995) (emphasis added). The burden is on the person seeking the protective order to demonstrate good cause. Douponce v. Drake, 183 F.R.D. 565, 567 (D. Colo. 1998). On a motion for protective order, the court should balance the costs and burdens to each side. See Benchmark Design, Inc. v. BDC, Inc., 125 F.R.D. 511, 512 (D. Or.

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1989). In this case, a protective order precluding the Russell deposition is appropriate to protect the Defendants from the undue burden and expense that would result from the deposition, in both attorney travel time and travel costs. See Boughton, 65 F.3d at 829-30. B. The proposed deposition is unnecessary and duplicative. as Mr. Russell has already given multiple depositions on the issues involved in this case, when far less time had elapsed since the events at issue took place. Not only would the proposed deposition impose undue burden and expense on the Defendants, it is entirely unnecessary, as Mr. Russell has already been deposed in two prior cases on the same issues involved in this case. On January 19, 20 and 21, 1989, Mr. Russell was deposed in Summitville Consol. Mining Co., Inc. v. Klohn Leonoff Ltd. and GeoServices, Inc., an action brought by SCMCI in Vancouver, Canada (the "Vancouver Action"). In the Vancouver Action, SCMCI alleged that GeoSyntec and Klohn Leonoff were negligent with respect to the design and construction of the heap leach pad at the Summitville Mine.1 In this case, Friedland makes similar allegations, that GeoSyntec "fail[ed] to properly oversee and control the [leach pad] liner installation and repair process." Am. Compl. ¶ 29. Thus, Mr. Russell was deposed at length regarding the roles of GeoSyntec and Klohn Leonoff (with whom GeoSyntec contracted to perform services at the Mine), in an action in which SCMCI (of which Friedland was an officer and director) sought to prove virtually the same allegations Friedland is making in this case. Mr. Russell, who was then a Vice President of SCMCI and a Senior Vice President of GRL, testified that shortly after he was hired in 1987, he visited the Summitville Mine and on his

This case was ultimately settled, with no adjudication having been made regarding SCMCI's allegations. 5

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return, recommended that GRL obtain legal advice regarding possible claims against Klohn Leonoff. See Excerpts from Dep. of Charles Russell dated 6/19/89, Ex. 4 at 29:203 ­ 31:223. Mr. Russell testified that on multiple visits to the site during 1987, he did not discuss the leach pad problems with any representatives of GeoSyntec (formerly known as GeoServices), to the best of his knowledge. Id. at 33:230-231. He also testified that he reviewed daily reports of Klohn Leonoff, rather than those of GeoServices. Id. at 33:234. In 1999, Mr. Russell was again deposed, this time in the EPA Action against Friedland. In that case, the EPA and State of Colorado sought to prove, among other things, that Friedland was an "operator" under CERCLA due to his control over pollution-causing activities at the Summitville Mine. See Am. Compl. in Case No. 96-N-1213, Ex. 5 at ¶¶ 28-31. Mr. Russell was deposed for nearly two full days, on November 15 and 16, 1999, regarding his communications with Friedland, Friedland's involvement in major decisions related to the Summitville Mine's operation, and Friedland's control over the personnel who operated the Mine on a day to day basis. See, e.g., Excerpts from Dep. of Charles Russell dated 11/15/99, Ex. 6 at 51:18-22; 61:162:2; 134:7-13; 152:7-25. Throughout this deposition, Friedland's attorneys were present, and had every opportunity ­ and motive ­ to challenge this testimony through cross-examination. See id. at 2 (noting appearance of Lee Foreman on behalf of Friedland). For over a year, Defendants have communicated to Friedland their intent to present Mr. Russell's prior deposition testimony at trial. See, e.g., 12/13/05 Letter, Ex. 1. They also have agreed that Friedland may cross-designate portions of Mr. Russell's deposition testimony in response to any testimony designated by Defendants. Thus, there is no unfairness in presenting Mr. Russell's testimony at trial through his prior depositions. Given that a new deposition of Mr.

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Russell would be duplicative, as well as burdensome, the Court should preclude Friedland from proceeding with the deposition. See, e.g., Consol. Rail Corp. v. Primary Indust. Corp., 1993 WL 364471 * 1 (S.D.N.Y. Sept. 10, 1993), Ex. 7 (in some instances, it may be appropriate to preclude a redundant deposition); Cumberland Corp. v. McLellan Stores Co., 27 F. Supp. 994, 995 (S.D.N.Y. 1939) (denying request to take deposition duplicative of that taken in another case); Rule 26(b)(2), Fed. R. Civ. P. (court may limit discovery that is unreasonably cumulative or duplicative). C. Friedland's request to depose Russell should be denied as untimely, as he had ample opportunity to take the deposition before the final pretrial conference. In addition, Friedland should not be permitted to take the Russell deposition because his request, first announced in late January 2007, is untimely. As discussed supra, GeoSyntec's counsel made clear their intent to present Mr. Russell's testimony by deposition for over a year before the pretrial conference. Yet, Friedland's counsel never attempted to schedule a new deposition of Mr. Russell until late January, 2007. To justify their tardiness in seeking Mr. Russell's deposition, Plaintiff's counsel argues that new testimony is required from Mr. Russell in response to certain testimony by defense expert Luke Danielson, who gave a deposition on January 10, 2007. See E-mail from P. Glantz to T. Ridley et al. dated 2/17/07, Ex. 8. Counsel asserts that Mr. Russell's testimony is necessary to rebut Mr. Danielson's "unfounded claims that Robert Friedland made several key decisions himself and that corporate formalities were not observed allowing Mr. Friedland free reign to rule as he pleased." Id. However, Mr. Russell already testified to Friedland's role in key decisions, as well as his extensive control over the Mine's operations, in prior depositions. In reality, Friedland does not seek any new testimony from Mr. Russell, but rather, to have him 7

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qualify or neutralize his prior deposition testimony, which was extremely damaging to Friedland's case. In any event, counsel's excuse ­ that "new" testimony by Mr. Danielson justifies an eleventh-hour deposition of Mr. Russell ­ fails for several reasons. First, Mr. Danielson disclosed the same opinions he testified to on January 10, 2007 in his expert report of October 16, 2006, served over four months before Plaintiff noticed the Russell deposition. See Cover Page to Danielson Report, Ex. 9. Despite having been fully apprised of Mr. Danielson's opinions on Friedland's control, Plaintiff made no effort to schedule a deposition of Charles Russell. Secondly, the Defendants specifically apprised Plaintiff of their intended use of Charles Russell's prior testimony on November 29, 2006, through their brief in opposition to Friedland's Motion for Summary Judgment Regarding Plaintiff's CERCLA Liability. In that brief, Defendants cited Russell's testimony extensively, and attached several excerpts from his deposition. See, e.g., Defs. Mem. of Law in Opp. to Pl.'s Mot. for Summ J. Regarding Pl.'s CERCLA Liability filed 11/29/06, Doc. No. 178 at 16-31, ¶¶ 63, 66, 110, 121 and "Ex. L" thereto. Still, Friedland's counsel made no effort to schedule a deposition of Mr. Russell. This brief also reiterated Mr. Danielson's opinions, attached his October 16 Report, and included an affidavit by Mr. Danielson addressing precisely the issues Mr. Glantz cites as necessitating Mr. Russell's deposition. See, e.g., Affidavit of Luke Danielson, Ex. HH to Opp. Brief at ¶12 (regarding transient nature of Friedland entities); ¶17 ("Friedland was still clearly running the show" and was the "dominant player"); ¶ 41 ("Friedland clearly had the authority to `direct management' of environmental and other issues, as stated in his own words.") Under these circumstances, counsel's suggestion that Plaintiff could not have anticipated the need for

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Mr. Russell's deposition before mid-January 2007 is simply not credible. There is no excuse for their delay in noticing the deposition. This delay is prejudicial to the Defendants. For example, if Mr. Russell's testimony raises new issues, or new areas of testimony that should be sought from other witnesses, Defendants will have no time to pursue further discovery before either the March 15, 2007 discovery cutoff or the Final Pretrial Conference set for March 22, 2007. See Min. Order dated 1/29/07, Doc. No. 221. Because Plaintiff has been aware of the testimony he purportedly seeks to controvert through Mr. Russell's deposition since at least October 16, 2006, when Luke Danielson's report was issued, there is no excuse for his delay. Having had ample opportunity to obtain the deposition, Friedland's efforts to take this burdensome deposition at the eleventh hour should be rejected. See Fed. R. Civ. P. 26(b)(2); Lore v. City of Syracuse, 232 F.R.D. 155, 159 (N.D.N.Y. 2005) (discovery should not be extended when party had ample opportunity to pursue the evidence during discovery). D. If the Russell deposition is allowed to proceed in Guernsey, Plaintiff must comply with the Hague Evidence Convention to protect the Defendants. Plaintiff's counsel has apparently secured Mr. Russell's agreement to appear for deposition informally, without having taken any steps to secure jurisdiction over him or the deposition proceeding. If the deposition is allowed to proceed, Defendants could incur substantial expense, and lose at least two days of travel time for nothing, if Mr. Russell chooses not to appear or if he appears and declines to answer questions. At the very least, if Mr. Russell's deposition is allowed to proceed, Friedland's counsel should be required to conduct the deposition pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial

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Documents in Civil or Commercial Matters (the "Hague Convention"), to allow some protection against a non-appearance or refusal to testify. Under the terms of the Hague Convention, 28 U.S.C. § 1781, depositions are conducted by a letter of request where the evidence to be addressed at such deposition is intended for use in a judicial proceeding. See Evanston Ins. Co. v. OEA, Inc., 2006 WL 1652315 * 3 (E.D. Cal. Jun. 13, 2006) (Ex. 10.) Both the United States and Great Britain are signatories to the Hague Convention. Id. In this case, neither this Court nor the courts of Great Britain will have any control over the deposition proceedings, in the absence of compliance with the Hague Convention. No party will have recourse if the witness refuses to testify, nor will any court have the ability to enforce the applicable rules of procedure. In fact, it is unclear what rules of procedure would apply to such a deposition in any event. To provide some mechanism for assuring Mr. Russell's attendance and compliance with applicable rules, the Court should order Friedland to comply with the Hague Convention, if the Russell deposition is to proceed at all. See In re Vivendi Universal, S.A. Securities Litig., 2004 WL 3019766 (S.D.N.Y. Dec. 30, 2004) (Ex. 11) (courts are free to determine, based on the facts of a particular case, that it is more appropriate to take discovery abroad under the Hague Convention). III. CONCLUSION It is difficult to conceive of any legitimate reason Friedland might have for re-taking Russell's deposition at the eleventh hour of this case, particularly as he gave extensive testimony on the same issues involved in this case in both 1989, as related to GeoServices, and in 1999, as related to Friedland's control over the Summitville Mine. His memory of relevant facts and events can only have deteriorated in the years since these depositions.

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Most likely, the reason Friedland is so eager to re-depose Mr. Russell is not because his prior depositions were inadequate to address the issues raised in this action, but because the testimony he gave is damaging to Friedland's case. In his prior depositions, Mr. Russell testified to Friedland's extensive control over the Summitville Mine, and to many facts that belie Friedland's protestations that he had virtually no involvement in or knowledge of the Mine's operations. Understandably, Friedland would like to "muddy the water" regarding this damaging testimony, and have him revise his testimony as it relates to Friedland. However, Friedland should not be permitted to do so, given that the proposed deposition is unduly burdensome, unnecessary, and untimely. Therefore, Defendants respectfully request that the Court enter an order prohibiting Plaintiff from proceeding with the deposition of Charles Russell pursuant to their Notice of Deposition dated February 20, 2007. In the alternative, Defendants request that the Court either (a) compel Plaintiff to secure Mr. Russell's attendance in a less burdensome location, such as London or some location in the United States for the deposition, or (b) require Plaintiff to comply with the Hague Convention if the deposition is to proceed in Guernsey, Channel Islands. DEFENDANTS REQUEST EXPEDITED CONSIDERATION OF THIS MOTION. Dated this 27th day of February, 2007. Respectfully submitted, 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.: 303-244-1879 11

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Paul J. 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: [email protected] 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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CERTIFICATE OF SERVICE I hereby certify that on February 27, 2007, I electronically filed the foregoing DEFENDANTS' JOINT MOTION FOR PROTECTIVE ORDER REGARDING DEPOSITION OF CHARLES RUSSELL IN GUERNSEY, CHANNEL ISLANDS AND REQUEST FOR EXPEDITED RULING with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
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Jon Bernhardt [email protected] [email protected] [email protected] Lauren C. Buehler [email protected] [email protected] Marian Lee Carlson [email protected] [email protected] Colin Christopher Deihl [email protected] [email protected] Leslie Ann Eaton [email protected] [email protected] [email protected] Perry L. Glantz [email protected] [email protected] Steven Matthew Kelso [email protected] [email protected] Kristina I. Mattson [email protected] [email protected] Richard Kirk Mueller [email protected] [email protected] Terence M. Ridley [email protected] [email protected]

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and I hereby certify that a copy of the document has been served to the following non-CM/ECF participants via E-Mail: Paul J. Sanner - [email protected] Delmar R. Ehrich - [email protected] 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.: 303-244-1879 E-Mail: [email protected] Attorney for Defendant GeoSyntec Consultants, Inc.

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