Free Declaration - 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. FRIEDLAND, Plaintiff, v. TIC - THE INDUSTRIAL COMPANY; and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC., Defendants. ______________________________________________________________________________ DECLARATION OF JON BERNHARDT ______________________________________________________________________________ I, Jon Bernhardt, pursuant to 28 U.S.C. § 1746(1), declare under penalty of perjury that the following is true and correct. All of the following statements are made on my personal knowledge except where specifically indicated in Paragraphs 7, 10, and 11. I am a lawyer with Ballard Spahr Andrews & Ingersoll, LLP, counsel for The Travelers Indemnity Company ("Travelers"). For convenience, the paragraph numbering in this Declaration follows the paragraph numbering in the Factual Background section of the Motion by The Travelers Indemnity Company to Quash Subpoena Issued to Zeeb & Co. 1. Plaintiff Robert M. Friedland earlier brought a lawsuit against Travelers

(the "Travelers Lawsuit") in which Mr. Friedland sought insurance coverage from Travelers for amounts paid by Mr. Friedland to settle lawsuits brought against him by the United States

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Environmental Protection Agency relating to environmental damage at the Summitville Mine, and for legal fees and costs incurred by Mr. Friedland in those lawsuits. The Travelers Lawsuit was brought in the District Court for the City and County of Denver and was captioned, Friedland v. The Travelers Indemnity Co., Case No. 02-CV-4435. 2. accountant. 3. In the course of defending the Travelers Lawsuit, Travelers retained Zeeb Zeeb & Co.'s ("Zeeb") principal, Michael Zeeb, is an expert forensic

as a consulting expert to assist counsel for Travelers in analyzing the legal fees and costs for which Mr. Friedland sought insurance coverage. (A copy of the retainer letter with Zeeb is Exhibit 2 to this Declaration.) Travelers also retained Daniel S. Hoffman, Esq. as an expert to assist counsel for Travelers in assessing the reasonableness of particular legal fees and costs that Mr. Friedland sought to recover. Zeeb was to assist Mr. Hoffman in that regard. 4. Zeeb reviewed materials provided to it by Travelers, including copies of

invoices for legal fees and costs produced in discovery by Mr. Friedland. Zeeb identified potential accounting issues relating to those invoices. Zeeb attempted to reconcile the legal fees and costs that Mr. Friedland sought to recover to the invoices produced by Mr. Friedland. In the course of that work, Zeeb selected documents of particular interest distilled from the universe of documents provided to Zeeb by Travelers. Zeeb also prepared spreadsheets summarizing the accounting issues that Zeeb had identified and its reconciliation efforts. 5. Zeeb also worked with counsel for Travelers and with Mr. Hoffman to

prepare a database. That database contains a record for every individual time entry for legal services separated and extracted by Travelers from the invoices produced by Mr. Friedland.

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Each such record contains the impressions of Mr. Hoffman regarding the reasonableness of the corresponding legal fee. 6. Because Zeeb was a consulting expert, Travelers never made an expert

disclosure or produced an expert report relating to the work performed by Zeeb. Travelers identified Mr. Hoffman as an expert witness, but did not produce a report by Mr. Hoffman relating to the work of Zeeb because the Travelers Lawsuit settled before any such report would have been due. 7. I understand from Zeeb and from Terence Ridley, counsel for Geosyntec,

that, in connection with this case, counsel for Geosyntec has retained Zeeb to assist Geosyntec. 8. In February 2006, counsel for Geosyntec asked Travelers to provide

Geosyntec with Zeeb's work product from the Travelers Lawsuit. Travelers declined that request. 9. In June 2006, counsel for Geosyntec again asked Travelers to provide

Geosyntec with Zeeb's work product from the Travelers Lawsuit. Travelers again declined that request. 10. The Subpoena and accompanying affidavit of service reflect that, on

June 13, 2006, counsel for Geosyntec caused the Subpoena to be served on Zeeb. (A copy of the Subpoena is Exhibit 1 to this Declaration.) The Subpoena is returnable on June 19, 2006 at 9:00 a.m. 11. I understand that Zeeb has materials in its files that are responsive to the

Subpoena. Attached as Exhibit 3 to this Declaration is a line-item inventory prepared by Zeeb of the materials that it has it its files relating to Zeeb's work as a consulting expert in connection

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with the Travelers Lawsuit. (Zeeb's inventory also reflects various correspondence and billing materials relating to its work for Travelers counsel. I understand that Geosyntec has agreed that these materials are not responsive to the Subpoena.) The responsive materials can be divided into the following categories: a. Various copies of a data base that contains one record for each separate legal fee or cost reflected in the invoices produced by Mr. Friedland. That data base includes an initial assessment by Travelers expert, Mr. Hoffman, regarding the reasonableness of each time entry. b. Results of various queries made of the data base. The queries were specified by various combinations of Zeeb, Travelers counsel, and Mr. Hoffman. c. A notebook containing documents selected by Zeeb from the documents provided to it by Travelers, including documents produced by Mr. Friedland. These documents were selected to illustrate accounting issues identified by Zeeb in its review of the invoices produced by Mr. Friedland. d. Spreadsheets prepared by Zeeb in its efforts to reconcile Mr. Friedland's claims to the invoices produced by Mr. Friedland. e. Spreadsheets prepared by Zeeb to summarize selected invoice data by various categories to assist in the evaluation of the invoices.

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13.

On June 15, 2006, I contacted Terence Ridley, counsel for Geosyntec, and

requested that the Subpoena be withdrawn on the ground that all of the materials requested were protected work product of Travelers expert consultant. Mr. Ridley declined that request. DATED: June 16, 2006

By_s/ Jon Bernhardt________________ Jon Bernhardt

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CERTIFICATE OF SERVICE I hereby certify that on June 16, 2006, I electronically filed the foregoing DECLARATION OF JON BERNHARDT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: R. Kirk Mueller, Esq. Lauren C. Buehler, Esq. Perry L. Glantz, Esq. Kristina I. Mattson, Esq. Fognani & Faught, PLLC 1700 Lincoln St., Suite 2222 Denver, CO 80203 Terence M. Ridley, Esq. Marian Lee Carlson, Esq. Steven Matthew Kelso, Esq. Wheller Trigg Kennedy LLP 1801 California St., Suite 3600 Denver, CO 80202 Colin Christopher Deihl, Esq. Michael Stephen Freeman, Esq. Faegre & Benson, LLP 3200 Wells Fargo Center 1700 Lincoln St. Denver, CO 80203 [email protected] [email protected] [email protected] [email protected]

[email protected] [email protected] [email protected]

[email protected] [email protected]

and I served a copy via U.S. Mail, first-class postage prepaid, to: Paul J. Sanner, Esq. Hanson Bridgett Marcus Vlahos & Rudy, LLP 333 Market St., Suite 2100 San Francisco, CA 94105-2122

s/ Darlene Dethlefs

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