Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

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

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Filed 06/19/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv- 01263- PSF- MEH

ROBERT M. FRIEDLAND
Plaintiff,

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

Defendants.

STIPULA TED MOTION FOR MODIFICATION OF SCHEDULING ORDER AND RELATED RELIEF

Plaintiff Robert M. Friedland and Defendants TIC - The Industrial Company and
GeoSyntec Consultants , Inc. (together , the " Parties ), through their undersigned counsel , hereby

stipulate and join in this motion to modify the Scheduling Order and for other relief, and state as
follows:

Pursuant to the current Scheduling Order , as modified by the Magistrate Judge
Minute Order of March 28 2006 , discovery in this CERCLA contribution action is currently
scheduled to be completed by June 30 2006.
To date , the Parties have conducted numerous fact depositions related to liability,

have completed substantial written discovery, and have agreed upon a schedule to complete the

remaining liability fact witnesses by the end of this month. No trial date has been set.
On or about January 20 2006 , Defendant GeoSyntec filed a Motion to Bifurcate

Proceedings (" Motion to Bifurcate

), (Docket No. 52), seeking to bifurcate

discovery

and

trial

" " (" ("

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this case between liability issues and damage issues. Pursuant to the Motion to Bifurcate
discovery and trial of damage issues would proceed only after the Court decided the pending

Motions for Summary Judgment on the issue of liability. Plaintiff opposed the Motion to
Bifurcate and Defendant TIC - The Industrial Company neither joined nor opposed the motion.
The Motion to Bifurcate is fully briefed but has not been ruled upon.

With the Motion to Bifurcate pending, Plaintiff filed an "Unopposed Motion to Extend or Stay the Deadline for Submitting Expert Reports Motion to Stay ) asking that

Plaintiff s deadline for submitting expert reports on the damage issues should be 1) extended
until two weeks after the Court denies the Motion to Bifurcate , or 2) in the event the Court grants
the Motion to Bifurcate , stayed until an appropriate time during future proceedings on damages.
Because Defendants' deadline to file their expert reports on damages is triggered by the
submission of Plaintiffs
reports ,

Defendants ' deadline would likewise be extended or stayed.

On or about January 27 2006 , the Court issued an order granting Plaintiffs Motion to Stay
Stay Order ) (Docket No. 55).
Pursuant to the Stay Order , and because the Motion to Bifurcate remains pending,

the Parties have not exchanged expert reports regarding damages and allocation. Even if the
Stay Order were lifted today, or the Motion to Bifurcate were denied , it would be impossible for

the Parties to identify or complete expert reports and related discovery by the current discovery
cutoff of June 30 2006.

Discovery disputes have arisen between the Parties related to the Plaintiff s
damages methodology, and amounts potentially at issue , as evidenced by GeoSyntec s Motion to Compel Discovery Regarding Damages and for Sanctions

Motion to Compel" ).

All Parties

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have recently conferred at length and in good faith to resolve the current discovery disputes and

have agreed - subject to the conditions set forth below - upon the process set forth below that
will both facilitate the remaining discovery and relieve the Court of the burden of deciding
GeoSyntec s Motion to Compel , as well as other disputed discovery motions that the Parties

have refrained from filing in light of this proposed stipulation. This proposed stipulation has no
impact on the Motions for Summary Judgment which are pending before the Court.
In particular , the Parties have agreed to the following plan and conditions , and
seek the Court' s approval of same:

discovery of liability and damage issues , and the Parties will conduct and complete damages and allocation related discovery according to the schedule set forth below. The Motion to Bifurcate , however , to the extent it seeks trials separate on liability and damage will remain pending for resolution
The Motion to Bifurcate will be withdrawn only as it relates to

by the Court;

Provided the Court approves of the following conditions , which the Parties otherwise agree to , GeoSyntec will withdraw its Motion to Compel without prejudice , except that the Parties agree that the Motion to Compel shall remain pending as to GeoSyntec s right to compel the production of the settlement agreement between Friedland and USF&G and any other
settlement agreements not produced as provided in subparagraph 1 below.

Friedland will use his best efforts to produce , and/or secure permission to produce , all settlement agreements;
The conditions are as follows:

Plaintiff will provide to Defendants , by no later than June 20 2006 copies of the settlement agreements involving Robert Friedland and non- parties related to or arising from litigation or threatened litigation related to the Summitville Mine that he has
received requisite permission to produce. The production shall

include , for example , and without limitation , any such agreements between Friedland and Travelers Insurance , Bechtel , Bank of America , Burnett , Conveyor and/or Columbia. The agreements shall remain confidential under the Protective Order of April 27

(g)

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2006 , (Docket No. Ill),

and shall not be

disclosed to any

insurance company unless ordered by the Court.

In addition to the underlying damages and cost documents at issue in this case , Plaintiff will provide Defendants with a summary of the defense and other costs incurred by Mr. Friedland , and hereby represents that all such costs have been paid in full. Plaintiff is not waiving any attorney- client or work product privilege beyond that which may be comprised of the summary itself. Except as set forth herein , the Parties will supplement their discovery responses , if appropriate , by no later than June 28 2006.
(c)

The Parties agree that the Court should vacate the Stay Order of January , 2006 (provided the Court approves of the other components of this Stipulation);
Fact discovery related to liability issues will be completed by

(d)

June 30

2006;
(e)

than

All expert discovery related to liability issues will be completed no later August 15 2006;

(f)

Plaintiff s expert reports on damage and allocation issues , and all documents considered by Plaintiff s expert( s) in the preparation of such reports , will be served no later than August 11 2006;
Defendants ' expert reports on damages and allocation issues , and all documents considered by Defendants ' expert(s) in the preparation of such reports , will be submitted no later than October 15 2006;

(h)

All discovery related to damages and allocation issues shall be completed , 2006. Written discovery related to damages shall on or by November , 2006. be served by no later than October

The dispositive motion deadline is currently set for July 15 , 2006. Given that

damages discovery and expert reports has not yet commenced, the Parties agree that the
dispositive motions deadline for damages issues should be put back to

October 30 ,

2006.

No trial date has been set , but a preliminary pretrial conference has been ordered
for September 7 2006. Given that damages discovery will not be completed by September 7 , the

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Parties respectfully request that the September 7th pretrial conference and proposed pre-trial
order be limited to liability issues , with the Parties supplementing the proposed pretrial order by
December 1 ,
2006

(subject to any decision by the Court regarding GeoSyntec s Motion to

Bifurcate).
10.

The forgoing modification of the Scheduling Order would promote fairness

economy, and reduce the burden on judicial resources by resolving various complex and disputed

issues including - in whole or in part - the Motion to Bifurcate and GeoSyntec s Motion to
Compel - and would provide a date certain for completion of all discovery in this matter.

WHEREFORE the Parties respectfully submit that the Scheduling Order and
dispositive motions deadline be modified , that the Stay Order be vacated , and that the

Preliminary Pretrial Conference and Pretrial Order requirements be modified , as set forth above.
If such relief is fully granted , GeoSyntec agrees to withdraw its Motion to Compel , except as set
forth above.

Respectfully submitted this 19th day of June , 2006.

s/ R. Kirk Mueller R. Kirk Mueller Perry L. Glantz Fognani & Faught , PLLC 1700 Lincoln Street , Suite 2222 Denver , Colorado 80203 Telephone: (303) 382- 6200 Facsimile: (303) 382- 6210 Mail: rmueller~fognanilaw. com pglantz~fognanilaw. com

s/ Terence M. Ridley Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202
Telephone: (303) 244- 1800
Facsimile: (303) 244- 1879

Mail: ridley~wtklaw. com

Attorney for Defendant
GeoSyntec Consultants , Inc.

Attorneys for Plaintiff

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s/ Colin Deihl Colin Deihl Faegre & Benson LLP 1700 Lincoln Street , Suite 3200 Denver , Colorado 80203- 4532 Telephone: (303) 607- 3500 Facsimile: (303) 607- 3600 Mail: cdeihl~faegre. com

Attorney for Defendant TIC - The Industrial Company

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CERTIFICA TE OF SERVICE
I hereby certify that on June 19 2006 , I electronically filed the foregoing Stipulated Motion for Modification of Scheduling Order and Related Relief with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Jon Bernhardt
bernhardt~ballardspahr. com; myersr~ballardspahr. com

Perry L. Glantz
pglantz~fognanilaw. com; cvega~fognanilaw. com

Lauren C. Buehler lbuehler~fognanilaw. com; cvega~fognanilaw. com

Steven Matthew Kelso kelso~wtklaw. com; hand~wtklaw. com

Marian Lee Carlson
carlson~wtklaw. com;

Kristina I. Mattson
kmattson~fognanilaw. com;

carpenter~wtklaw. com
Colin Christopher Deihl
cdeihl~faegre. com; j sullivan~faegre. com

cvega~fognanilaw. com
Richard Kirk Mueller

rmueller~fognanilaw. com; cvega~fognanilaw. com
Terence M. Ridley
ridley~wtklaw. com;

Leslie Ann Eaton
eaton~ballardspahr. com; dethlefs~ballardspahr. com; hoefler~ballardspahr. com

norris~wtklaw. com

Michael Stephen Freeman
mfreeman~faegre. com;

cdaniels~faegre. com; dcopeland~faegre. com

- 7-

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and I hereby certify that a copy of the document has been served to the following non- CM/ECF
participant via e-mail:

Paul 1. Sanner - psanner~hansonbridgett.com
s/ Terence M. Ridley Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202
Telephone: (303) 244- 1800
Facsimile: (303) 244- 1879

Mail: ridley~wtklaw. com

Attorney for Defendant
GeoSyntec Consultants , Inc.