Free Reply to Response to Motion - 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,

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

DEFENDANT GEOSYNTEC' S REPLY TO PLAINTIFF' S RESPONSE TO MOTION TO STRIKE EXHIBITS
Defendant GeoSyntec Consultants , Inc. , formerly GeoServices , Inc. (" GeoSyntec

submits the following Reply to Plaintiff s Response to GeoSyntec s Motion to Strike Certain Exhibits to Plaintiff s Response to Motion for Summary Judgment.

Legal standards for admissibility of summary judgment exhibits.
In order to survive summary judgment , the nonmoving party must come forward with
admissible evidence creating a genuine factual issue for trial. Adams v.

American Guar. and

Liab. Ins. Co.

233 F. 3d 1242 , 1246 (10th Cir. 2000). Although the nonmoving party need not

produce evidence in a form that would be admissible at trial the content or substance of the
evidence must be admissible.

, citing Wright-Simmons

v.

City of Oklahoma City,

155 F.

1264 , 1268 (10th Cir. 1998). Thus , for example , a witness to a car accident could not submit his
testimony at trial via affidavit because that statement would be hearsay. Bryant v.

Farmers Ins.

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Exch. 432 F. 3d 1114 , 1122 (10th Cir. 2005). However , at the summary judgment stage , the
affidavit is proper because its content - the eyewitness account of the affiant - is admissible.

In opposing GeoSyntec s summary judgment motion in this case , Plaintiff Robert M.
Friedland (" Friedland" ) relied on a number of irrelevant , unauthenticated exhibits and

inadmissible prior testimony from a lawsuit to which GeoSyntec was not a party. Based on these
infirmities , GeoSyntec filed a Motion to Strike Certain Exhibits to Plaintiff s Response in

Opposition to Motion for Summary Judgment (the " Motion to Strike ) along with its summary

judgment reply. On March 24 2006 , Friedland filed a Response to the Motion to Strike (the
Response ), in which he failed to rebut GeoSyntec s objections and establish the admissibility
of the challenged exhibits.

Friedland has failed to establish the admissibility of the challenged exhibits, even for summary judgment purposes.
Friedland cannot introduce deposition testimony taken in the EP A Action, to which GeoSyntec was not a party, against GeoSyntec in this case.

Because the events upon which this lawsuit is based occurred over twenty years ago and
were the subject of at least two prior lawsuits , in which numerous witnesses were deposed who
are now difficult or impossible to locate , the admissibility of prior deposition testimony will be a
significant issue affecting the determination of this case. If Friedland' s claims survive summary

judgment , he will undoubtedly seek to introduce testimony from several EP A Action depositions

at trial. However , this testimony is inadmissible hearsay not subject to the exception in Fed. R.
Evid. 804(b )(1), because GeoSyntec was not a party to the action and had no opportunity to cross
examine the witnesses.

g.,

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Rule 804(b)( 1) allows the introduction of former testimony by an unavailable witness
only " if the party against whom the testimony is now offered , or, in a civil action or proceeding,

a predecessor in interest , had an opportunity and similar motive to develop the testimony by
direct , cross , or redirect examination. "
Fed. R. Evid. 804(b)(1). This

requirement is well-

founded , as clearly, the presence of counsel for parties with particular interests can significantly

impact the substance of testimony elicited at a deposition. The cross-examination requirement of
Rule 804(b)(1) " operates to screen out those statements , which although made under oath , were

not subject to the scrutiny of a party interested in thoroughly testing its validity.
v.

United States

Pizarro 717 F.2d 336 349 (7th Cir. 1983).
In the EP A Action , the defendants and third- party defendants spent a great deal of energy

trying to shift blame for the pollution at Summitville away from themselves and onto other
parties.

(See , e.

Amended Third- Party Complaint Ex. A- to Mot. for Summ. 1.) Because

GeoSyntec was not a party to the action, and was not represented in any of the depositions
witnesses sometimes made speculative references to GeoSyntec s alleged authority and the

extent of its certifications. For example , in his deposition , David Loucks testified that
GeoServices approved " all" of his company s installation work, and that its " final certification

would have relied , to a certain degree , on their confidence in the work performed by ICC" which
GeoSyntec did not necessarily observe. (Dep. of David Loucks
Ex. 61

to Friedland' s Response
) at 148:20- 24.

in Opposition to GeoSyntec s Motion for Summary Judgment (the " Opposition

However , Mr. Loucks did not testify to having read the Final Reports containing the
actual certifications of GeoSyntec. Those reports reflected that

not all of the liner sections were

approved " and that GeoSyntec s certifications contained significant exclusions and

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qualifications. On cross-examination by GeoSyntec s counsel , Mr. Loucks could have been
confronted with the contents of those reports , perhaps requiring him to modify his testimony and
admit that he was speculating, not speaking from firsthand knowledge. (See

Final Reports

and

to Mot. for Summ. 1.) In fact , in its 1987 Final Report , the only certification

GeoSyntec provided was that the 1986 liner installation work was conducted in " substantial

accordance with available plans and specifications and with construction practices agreed to by
the owner. " (1987 Final Report
Ex. A- 7-

to Mot. for Summ. 1.

at 14. ) As this

example

reflects , it is unfair to allow the introduction of deposition testimony in which witnesses were

free to make unfounded assertions about GeoSyntec , perhaps to deflect blame for their own
defective work , without being subject to cross-examination by GeoSyntec s counsel.
(a)

GeoSyntec was not represented by a "predecessor in interest " at the depositions.
In response to GeoSyntec s objection , Friedland argues that all of the deposition

testimony in this case should be admitted because certain parties to the EP A Action could be
considered " predecessors in interest" to GeoSyntec who had a similar motive to cross-examine

the witnesses. (Response at 4-

) This

argument lacks merit. Although in this context , a

predecessor in interest" need not be in privity with or have a common property interest with the
party objecting to the testimony, there must at least be " a shared interest in the material facts
outcome of the case " to create such an interest.
197 F. 3d 96 ,
New Jersey Turnpike Auth. v.

and

PPG Indus. , Inc.

110 n.21 (3d Cir. 1999) (emphasis added).

In this case , the parties Friedland identifies as " predecessors in interest" to GeoSyntec -

contractors Klohn Leonoff, Gundle Liner Systems , and Columbia Geosystems - did not have a
common interest with GeoSyntec in the outcome of the case. To the contrary, they had a

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substantial incentive to shift blame for the leach pad leakage away from themselves and onto
other entities , including GeoSyntec. Klohn Leonoff, as the engineers who hired GeoSyntec

might have claimed they delegated total responsibility for the liner to GeoSyntec , and were not

responsible for its defects themselves. Gundle and Columbia might have exaggerated the extent
to which GeoSyntec allegedly " directed" their activities , to suggest that any defects in their work
were GeoSyntec s fault. Because none of the parties to the EPA Action had an incentive to
defend GeoSyntec s position , or to point out the limitations on GeoSyntec ' s role at the site

GeoSyntec had no " predecessor in interest" in the EP A Action.
in that case are inadmissible against GeoSyntec.

Therefore ,

the depositions taken

See New England Mut. Life Ins. Co.

Anderson 888 F.2d 646 651- 52 (10th Cir. 1989) (excluding prior testimony under Rule
804(b )(1), as alleged predecessor in interest had no motivation to clear the objecting party

name during previous trial).
(b)

GeoSyntec did not waive its hearsay objection by using EP A

Action testimony against

Friedland
Friedland also argues that GeoSyntec has waived its hearsay objection regarding EP A
Action depositions by attaching portions ofEP A Action depositions to its own summary

judgment motion. (Response at 3. )

This

argument lacks merit , both because the depositions may

be used by one party and not another , and because Friedland' s excerpts were not used to clarify
or "

complete " the excerpts cited by GeoSyntec.
(1)

The same evidence may be admissible against one party, but not against another in the same case.

Early cases interpreting the common law requirement of identity of parties imposed the
concept of mutuality, i. , both the party offering and the party against whom the former

,"

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testimony was offered had to have been parties to the former suit. 30B Charles Alan Wright
Arthur R. Miller
Me trap. St. Ry. Co. Federal Practice and Procedure Evidence 9 7073 (Interim ed. 2005),

citing

v.

Gum by,

99 Fed. 192 (2d Cir. 1900). Under the guidance of Wigmore , the

requirement of mutuality was abandoned at common law in favor of admissibility of former testimony against a party to the prior hearing in criminal cases and against a party to the former
suit or someone in privity in civil actions. , citing United States v. Henry,

448 F. Supp. 819
against

(D.

J. 1978); McCormick on Evidence , 9303 (5th ed. 2006). Thus , it is only the party
Id

whom the former testimony is offered that is significant.

As applied to this case , a

requirement of mutuality would have precluded GeoSyntec from introducing depositions in the
EP A Action ,

since it was not a party to that action. The absence of such requirement means that

GeoSyntec may introduce EP A Action depositions , even while Friedland may not.
Indeed , the admission ofEP A Action depositions is not prejudicial to Friedland , as it is to

GeoSyntec , because he was a party to the lawsuit. His counsel attended every deposition , and
had ample motive to cross-examine every witness.

It was in Friedland' s interest to shift blame

for the environmental disaster to

any persons other than himself, including non- parties such as

GeoSyntec. As reflected in the excerpts attached as

Exhibits A-

and

to GeoSyntec

Motion to Supplement Summary Judgment , Doc. No. 44 filed 12/22/05 , Friedland' s counsel
questioned witnesses extensively regarding GeoSyntec s role at the site, and sought to elicit
evidence of GeoSyntec ' s alleged " control" over liner installation activity.
1 In fact

, on at least one occasion Friedland' s counsel withdrew and moved to strike a question that elicited an answer negating GeoSyntec s potential liability. When asked did Geoservices have any authority to determine when cyanide leaching would begin at the heap leach pad?" Tom Krasovec answered (nJo , they didn t." (Krasovec Dep. Ex. 73 to Opposition
at 295: 15- 18.

g.,

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Evidence is frequently admissible as against one party to an action , but not as against
another.

See , e.

McCormick on Evidence 9 59 (5th ed. 2006) (citing cases);

Grimm

v.

Gargis

303 S. W.2d 43 51 (Mo. 1957). Thus , GeoSyntec is entitled to an order precluding Friedland

from introducing the EP A Action depositions , despite the fact that GeoSyntec may use this
testimony against Friedland. See United States v.

Salerno 505 US. 317 , 323- 24 (1992) (fact
)(1),

that United States could preclude defendant from introducing prior testimony under 804(b

yet introduce the testimony itself if it chose to , did not result in " adversarial unfairness
(2)

Friedland' s excerpts did not purport to clarify the excerpts cited by GeoSyntec

Friedland also argues that it is unfair to preclude him from offering excerpts from
depositions cited by GeoSyntec because his excerpts were offered "to demonstrate the
incompleteness " of GeoSyntec ' s evidence , and that it was taken out of context , not to prove the

truth of the matters asserted in the testimony. (Response at 3. ) However , a review of the
Opposition reflects that Friedland did not refer to GeoSyntec s exhibits when citing his own , and
a review of the attached deposition excerpts reflects that in most instances , they addressed
different points from those made in GeoSyntec ' s excerpts. A table comparing the deposition

excerpts cited by GeoSyntec to those cited by Friedland is attached hereto as " Exhibit A
As the table reflects , Friedland offered the objectionable deposition testimony of Clifford
Overton , Roger Leonard , David Loucks and Neil McLeod not to rebut or clarify specific

testimony cited by GeoSyntec , but as ostensible support for separate points. 2

While Friedland

cited two excerpts that matched excerpts cited by GeoSyntec , one in the McLeod deposition and
2 Because GeoSyntec did not cite any testimony from the Krasovec or Glowacky

depositions in its summary judgment motion , Friedland' s " opening the door" argument does not support his attempt to introduce those excerpts (Ex. 73 and to Opposition.

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one in the Loucks deposition, he made no comparison between the two citations in his
Opposition , nor did he even refer to the fact that GeoSyntec had cited that particular testimony.

(Opposition , Doc. No. 50 at 13 , ~ 3 (McLeod testimony); at 22 ~ 24 (Loucks testimony).

Because Friedland did not offer , or even purport to offer the EP A deposition excerpts to
complete or clarify testimony cited by GeoSyntec , his argument that GeoSyntec " opened the
door" to this evidence must fail.
(c)

Thomas Krasovec gave similar testimony in a recent deposition does not support admission of the deposition he gave in the EP A Action.
The fact that
In defense of his

Exhibit 73

excerpts from the Deposition of Thomas Krasovec taken on

January 6 ,

2000 , Friedland points out that Mr. Krasovec gave a deposition in this case on March

, 2006 , at which he repeated some of the same testimony he gave in the EP A Action and

authenticated one of the Exhibits challenged by GeoSyntec. (Response at 5. ) However , the mere
fact that Mr. Krasovec gave similar testimony recently does not render his prior testimony
admissible. Indeed ,

Friedland had every opportunity to examine Mr. Krasovec and re-confirm

any prior testimony. Because this recent deposition was not only taken with GeoSyntec
counsel present ,

but in this very action , excerpts from this deposition are not objectionable for

summary judgment purposes. If Friedland seeks to substitute new Krasovec testimony for
Exhibit 73

to his Opposition , or introduce authenticating testimony, then he should file a motion

to that effect and specify the authenticating testimony. In any event , Mr. Krasovec s new
testimony does not render his EP A testimony admissible against GeoSyntec.
In fact

, having had the opportunity to examine Mr. Krasovec , GeoSyntec may also

supplement its summary judgment arguments with excerpts from his testimony. At his recent
deposition , Mr. Krasovec was questioned in much more detail regarding his work with

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GeoSyntec. Mr. Krasovec clarified the nature of the " supervision " he attributed to GeoSyntec in

his earlier deposition (as a role of observation and documentation), described the extensive
control that Friedland' s company had over all activities at Summitville , and testified to the lack

of authority both he and GeoSyntec s representative had over liner installation or leaching
activities at the site.
(d)

That Friedland has requested affidavits from Overton, Loucks and McLeod does not render their EP A Action depositions admissible.
Friedland further asserts that he has requested affidavits from Overton , McLeod , and

Loucks which will " cure any evidentiary impairment" to the Court' s consideration of their EP A

Action depositions. (Response at 5. )

It is

unclear what Friedland intends to accomplish through

these affidavits. If they are made on firsthand knowledge and contain otherwise admissible
information , then Friedland may file a motion to substitute these for the challenged deposition
excerpts. However , the mere representation that Friedland has " requested" affidavits does not

provide a ground to deny GeoSyntec ' s Motion to Strike these exhibits.
(e)

The residual hearsay exception provided in Fed R. Evid 807 does not apply to render
the EP A Depositions
admissible against GeoSyntec.

Finally, Friedland argues that all of the deposition testimony at issue should be

considered by the Court on the basis of Fed. R. Evid. 807. (Response at 5-

) Courts must use

caution when admitting evidence under Rule 807 , as an expansive interpretation of the residual
exception " would threaten to swallow the entirety of the hearsay rule.
United States v.

Tome

61 F. 3d 1446 , 1452 (10th Cir. 1995). Accordingly, it is applied to admit hearsay evidence only

in " extraordinary circumstances " where the court is satisfied that the evidence offers guarantees

of trustworthiness and is material , probative and necessary in the interest of justice.

Id

Rule

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807 itself sets out several requirements for admitting evidence under it. In addition to carrying
circumstantial guarantees of its trustworthiness , a statement must be: (1) material; (2) probative;
and (3) in the interests of justice to admit.

In this case , Friedland has failed to show any " extraordinary circumstances " supporting

the admissibility of the depositions under Rule 807 , which would essentially eradicate the crossexamination requirement of Rule 804(b )(1). While Friedland argues that the testimony was

given under oath , in a case based on similar facts (Response at 6), the same could likely be said
about most prior deposition testimony offered under Rule 804(b )(1). Friedland provides no

support for the notion that Rule 807 can be used to circumvent the cross-examination
requirement of Rule 804(b)(1), particularly under the circumstances of this case.

Unsworn expert reports are inadmissible on summary judgment.
In its Motion to Strike , GeoSyntec objected to three exhibits on the ground that unsworn
expert reports are not competent evidence to oppose a summary judgment motion. Safford

Schindler Elevator Corp.

954 F. Supp. 1459 , 1462 (D. Colo. 1997). These included Friedland'
Exhibit 23

Exhibit 19 ,

a draft expert report dated 8/12/88 by an unknown author;

an expert

report supplement dated 2/1/00 by James A. Sittner; and

Exhibit 27 , an expert report by Kenneth

L. Myers dated July 3

2003. (Table Ex. 1

to Motion to Strike at 1Exhibit 19

Friedland offered no argument in defense of

a draft report which lacks any

indicia of authenticity, authorship, or reliability. One must therefore assume that Friedland
confesses the Motion to Strike as to that exhibit. With regard to

Exhibits 23

and

, Friedland

submitted affidavits by Mr. Sittner and Mr. Myers , stating that their reports are still accurate to

the best of their knowledge. (Ex.

2 and 3

to Response. )

Although Mr. Myers '

Affidavit appears

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to verify the report , GeoSyntec maintains its objection to that exhibit on the ground of relevance
as discussed more fully below.

However , Mr. Sittner s report is nonetheless inadmissible , because he has not been
designated as an expert in this case. (See

Plaintiffs Designation of

Expert Witnesses , Doc. No.

60 filed 2/8/06. )

A summary judgment

affidavit may not contain expert testimony unless the

affiant has first been designated as an expert witness under Fed. R. Civ. P. 26(a)(2).

Bryant 432

3d at 11222001),

citing Parker

v.

Cent. Kan. Med Ctr. 178 F. Supp.2d 1205 , 1210 (D. Kan.

aff' d, 57 Fed. Appx. 401 , 404 (10th Cir. 2003).

Friedland' s unauthenticated exhibits are inadmissible.

Among the twenty-six exhibits challenged in the Motion to Strike , GeoSyntec objected to

thirteen of them - all the exhibits other than the Sittner Declaration , the deposition excerpts , and
the six pleadings from the EP A Action - for lack of authentication. (Table
Strike , at 1) In order for a

Ex. 1

to Motion to

document to be considered by a court in ruling on a motion for

summary judgment ,

it " must be authenticated by and attached to an affidavit that meets the

requirements of (Fed. R. Civ. P. ) 56(e) and the affiant must be a person through whom the
exhibits could be admitted into evidence. " lOA Charles Alan Wright , Arthur R. Miller , Mary
Kay Kane
Federal Practice and Procedure Evidence

92722 at 58- 60 (2d ed. 1983);

Canada

Blain s Helicopters, Inc. 831 F.2d 920 , 925 (9th Cir. 1987). Unauthenticated documents may
not be relied on to defeat a motion for summary judgment.

Countryside Oil Co. ,

Inc.

Travelers Ins. Co.

928 F. Supp. 474 , 482 (D.

J. 1995);

Taylor

v.

Principi 141 Fed. Appx. 705

708 (10th Cir. 2005) (attached hereto as

Exhibit B

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In his Opposition , Friedland' s counsel attempted to provide a " quasi" authentication by

attaching an affidavit of Lauren Buehler , stating that the exhibits are true and correct copies of
documents produced to Friedland in the EP A Action. (Affidavit of Lauren C. Buehler , attached
to Opposition as

Ex. 20

at ~ 2. )

However , this affidavit by Friedland'

s counsel is insufficient to

authenticate the documents at issue. In order to comply with Rule 56( e), an authenticating
affidavit must be based on personal knowledge , identify the source of the document , and confirm
that it has not been altered.

Taylor 141 Fed. Appx. at 708. Because Ms. Buehler did not

identify the source of the documents , nor purport to have personal knowledge as to their potential
alteration , Exhibits 11 , 14, 16, 17, 19
stricken for lack of authentication.

, 31 , 35 , 55 , 65 , and 71 to the Opposition must be

Friedland also argues that the Motion to Strike is premature , and that he should be
allowed to conduct further discovery pursuant to Rule 56(f) to obtain more information and

locate authenticating witnesses for his exhibits. (Response at 7. ) This request is ill- founded

under the circumstances of this case. Friedland has been involved in litigation related to the
Summitville site since 1996 (Am. Compl. ~ 2. ) In the course of that litigation , he received the

exhibits at issue (Buehler Aff. , attached to Opposition as Ex. 20 at ~~
case on June 2004.

2-

) Friedland

filed this

(Compl. at 1.) A Scheduling Order has been in place for over a year
1/19/05

since January 19 , 2005. (Scheduling Order filed

at 1.) Yet , to date , Friedland has failed

to take a single deposition in this case.

Friedland and his counsel have had years to authenticate his documentary exhibits , both

in the EP A Action and in this case. Although a district court should generally apply Rule 56(f)
liberally, "

the court need not employ the rule to spare litigants from their own lack of diligence.

);

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Marcin Eng., LLC

v.

Founders at Grizzly Ranch, LLC 219 F. RD. 516 , 521 (D. Colo. 2003).

Because Friedland has not been diligent in pursuing discovery to authenticate his exhibits , his
request for additional time to do so should be denied.
Many of Friedland' s exhibits contain no relevant information at all.

GeoSyntec also objected to certain exhibits as irrelevant to the issues raised in its
summary judgment motion:

Exhibits 19

(Draft Geocon Report),

(Sittner Declaration),

(Sittner Report),

(Myers Report), ll,

and

(handwritten notes),

(liner production
In

report), and

81-

(EPA pleadings). (Table

Ex.

to Motion to Strike at 1-

response to this

objection , Friedland argues that the relevance of exhibits cannot be challenged at the summary

judgment stage. (Response at 2Friedland supports this assertion with dicta from a single case
Supp. 693 ,
Powers v.

Runyon 974 F.

697 (S. D. Ind. 1997). (Response at 2. ) In Powers the court entered summary

judgment against a plaintiff who failed to submit admissible evidence in opposition to the
defendant's motion. Id

at 701- 02. After striking all of

the plaintiffs exhibits in

opposition to

summary judgment for lack of authentication, the court merely commented that relevance was
not typically used as a ground to strike summary judgment exhibits. Id

at 696- 97. However , in

other cases ,

courts have evaluated the relevance of an opposing party s exhibits in ruling on a
See , e. g., Guy
v.

summary judgment motion.

LaRosa 2006 WL 689127 at *2 (ED. Wisc. Mar.

, 2006) (" it is incumbent on the parties to explain the relevance of any (summary judgment)

exhibit presented"
Okla. 1988); Butler

Dean

v.

Kerr-McGee Refining Corp.

714 F. Supp. 1155 ,

1157- 58 (W.

v.

Best 478 F. Supp. 377 , 382 (ED. Ark. 1979).

In

this case , the cited

exhibits are irrelevant for the following reasons:

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No.

Description Draft report of GeoCon dated
8/12/88

Basis for relevance objection Incomplete; discusses certain work performed by Klohn Leonoff at the site , with no attribution of any particular activities to GeoServices (merely refers to GeoServices as subconsultant); alleges a design
deficiency, but provides no evidence regarding

GeoServices ' alleged control over pollution-causing activity, the lack of which is the basis for GeoSyntec summary judgment motion.
Declaration of James A. Sittner an expert retained by Friedland the EP A Action
Sittner states that some portions of Gundle-installed liner remained on the site and were not properly seamed , which may have accounted for leaks. The declaration attributes no particular conduct to GeoServices , other than inspecting portions of liner and provides no evidence regarding GeoServices

alleged control over pollution-causing activity.
Supplement to Expert Report of James A. Sittner dated 2/1/00
Sittner opines , among other things , that work performed by GeoServices adversely impacted the integrity of the HLP liner containment system (p. 5). However , these assertions of negligence are irrelevant as they provide no evidence regarding GeoServices

alleged control over pollution-causing activity.
Moreover , both the Declaration and the Report of Sittner are madmissible , as Sittner was not designated
Farmers Ins. Exch. 432 F. 3d 1114 , 1122 (10th Cir. 2005).
as an expert in this case. See Bryant v.

Myers Expert Report dated
7/3/03

Myers states that the most probable source of cyanide leakage at the leach pad was the steel well can system and details connecting that system to the geosynthetic liner. The report does not describe any conduct by GeoSyntec , let alone any conduct suggesting control
over pollution-causing activities.

Handwritten notes dated 3/22/86 These notes merely refer to a meeting including D. Loucks, J. McLeod , J. Orchin , Lorne Drake , Ted Floon , Jeffre: bottom well layout , seaming and schedule. They do not describe the roles of the parties or the degree of participation in the meeting, and provide no evidence regarding GeoServices ' alleged control over pollution-causing activity.

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Handwritten notes dated 6/9/86

These notes merely reflect a discussion between Lorne , Cliff, Terral , Tom , and Jamie " regarding an erosion problem and its solution. They do not describe the roles of the parties or the degree of
participation in the meeting, and

provide no evidence

regarding GeoServices '

alleged control over

pollution-causing activity.

Handwritten notes dated 5/27/86 These notes merely reflect recommendations by Lorne " presumably, Laurin Drake of GeoSyntec.

provide no evidence regarding GeoServices alleged control over pollution-causing activity.
They

Handwritten notes dated 6/2/86

These notes merely reflect that a GeoSyntec representatIve , who was momtoring testmg activity, did not accept a particular extruder test and " made (the provide no evidence tester) do another. " They regarding GeoServices ' alleged control over pollution-causing activity.
Reflects liner placement activity on a particular date;
makes no reference to GeoSyntec.

SCMCI Daily Liner Production
Report dated 1/29/86

81-

Documents filed in EP A Action

Ostensibly offered to show that any prejudice to GeoSyntec through Friedland' s failure to join GeoSyntec in the EP A Action is offset by his successes in reducing the parties ' overall liability to the EP A. (Oppposition at 29- 31. ) However , the amount for which the EP A settled its claims is irrelevant to whether Friedland' s claims are barred by res judicata as. argued by GeoSyntec. the doctrine of

As the contents of these documents reflect , GeoSyntec s relevance objections are well- founded.

The cited documents have no probative value regarding any issue raised in the summary
judgment motion ,

or for that matter , any other aspect of Friedland' s claims against GeoSyntec.

Many of the documents do not even mention GeoSyntec. Even under the liberal standards of
relevance applied to summary judgment exhibits , these documents are inadmissible.

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Friedland' s has failed to refute GeoSyntec s hearsay objections.

GeoSyntec objected to a number of exhibits on the ground of hearsay, including letters
notes and reports that were not prepared by GeoSyntec , Nos. 11 , 14, 16, 17 , 31 , 35 , 55 , 65 , and
71. (Table Ex. 1

to Motion to Strike at 1-

) It is

well established that hearsay testimony that

would be inadmissible at trial cannot be used to defeat a motion for summary judgment , because
a third party s description of a witness ' supposed testimony is " not suitable grist for the summary
judgment mill."

Adams 233 F. 3d at 1246. Given Friedland' s failure to offer any argument that

these exhibits are either non- hearsay or subject to a hearsay exception , they should be stricken on
this ground , as well.
See Thomas v.

Int' l Bus. Mach. 48 F. 3d 478

485 (10th Cir. 1995).

Friedland has failed to refute GeoSyntec

s objections for lack of foundation.

GeoSyntec also objected to certain deposition testimony offered by Friedland for lack of
foundation , because the substance of the proffered testimony was insufficient to establish
personal knowledge on the part of the witness. These included:
Exhibit 21

Testimony by Neil McLeod that he " assumed" GeoSyntec made

the decision as to whether liner laid by Gundle , the company that preceded McLeod' s company
as liner installer , was acceptable. (Ex.
Exhibit 61

21

at 49:8- 13.

Testimony by David Loucks speculating that GeoSyntec certified
61

installation work it did not observe , and relied on confidence in the work of others. (Ex.
148: 14- 24.
Exhibit 73

Testimony by Thomas Krasovec speculating that GeoSyntec

supervised , inspected and approved the connection between the liner and the well cans , despite

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

Document 101

Filed 04/10/2006

Page 17 of 19

Krasovec s admission that he was not employed at the site when they were installed.
294: 18- 295:8.

Ex. 73

Friedland has failed to offer any argument in response to GeoSyntec s objections for lack

of foundation. Because the deposition excerpts cited above do not reflect that the witnesses had
personal knowledge of the " facts " to which they testified, these excerpts cannot be considered in
Friedland'
s Opposition to the summary judgment motion.

See , e. g., United States
United States v.

v.

Conserv.

Chem. Co. 653 F. Supp. 152 , 171- 72 (W. D. Mo. 1986);

Davis

815 F. Supp.

1202 , 1205 (ED. Wis. 1993),

aff' d, 34 F. 3d 417 (7th Cir. 1994),

citing

Fed. R Civ. P. 56(e) and

Fed. R Evid. 602.

Conclusion
In order to survive summary judgment , a party must come forward with evidence that
would be admissible at trial , at least in substance if not in form. Documentary exhibits must be

authenticated; hearsay is inadmissible; testimony must show a proper foundation and basis for
the witnesses ' knowledge; and , while the standard may be liberal , the evidence must have at least

some relevance to the issues raised in the summary judgment motion. Friedland failed to meet
this standard , with regard to nearly a third of the exhibits submitted in his Opposition. Because

the specified exhibits are inadmissible , they should be stricken , and disregarded in the Court'
ruling on GeoSyntec ' s Motion for Summary Judgment.

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

Document 101

Filed 04/10/2006

Page 18 of 19

Respectfully submitted this 10th day of April , 2006.

s/

Marian L. Carlson

Marian L. Carlson
Terence M. Ridley Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , CO 80202- 2617 Telephone No. : 303- 292- 2525 Telecopier No. : 303- 294- 1879 Mail: carlson~wtklaw. com

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 Mail: psanner~hansonbridgett. com

Attorneys for Defendant
GeoSyntec Consultants , Inc

()
( )

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

Document 101

Filed 04/10/2006

Page 19 of 19

CERTIFICA TE OF SERVICE
I hereby certify that on April 10 , 2006 , I electronically filed the foregoing Reply to

Plaintiff s Response to Motion to Strike Exhibits with the Clerk of Court using the CM/ECF
system which will send notification of such filing to the following email addresses:
. Lauren C. Buehler

lbuehler~fognanilaw. com cvega~fognanilaw. com
. Marian Lee Carlson

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

Kristina I. Mattson
kmattson~fognanilaw. com cvega~fognanilaw. com
Richard Kirk Mueller

carlson~wtklaw. com carpenter~wtklaw. com
. Colin Christopher Deihl

cdeihl~faegre. com j sullivan~faegre. com
. Michael Stephen

Freeman

rmueller~fognanilaw. com cvega~fognanilaw. com
Terence M. Ridley

mfreeman~faegre. com cdaniels~faegre. com dcopeland~faegre. com

ridley~wtklaw. com norris~wtklaw. com

and I hereby certify that a copy of the document has been served to the following non- CM/ECF
participant in the manner indicated by the non- participant's name:

Paul J. Sanner Counsel for GeoSyntec Consultants , Inc. Hanson, Bridgett , Marcus , Vlahos & Rudy, LLP 333 Market Street , #2100 San Francisco , CA 94105- 2122

Mail Hand Delivery Facsimile Overnight Delivery (X) E- Mail
( ) First Class

s/

Marian L. Carlson by Cindy Carpenter

Marian L. Carlson
Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , CO 80202- 2617 Telephone No. : 303- 244- 1800 Telecopier No. : 303- 244- 1879 Mail: carlson~wtklaw. com Attorney for Defendant GeoSyntec Consultants , Inc.