Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE DerKEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP Defendants. ______________________________________________________________________________ PLAINTIFF'S REPLY TO ROSS DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR ORDER CLARIFYING SCOPE OF EXPERT TESTIMONY OF BART CHAVEZ ______________________________________________________________________________ Plaintiff, by and through her attorneys, Dietze and Davis, P.C., respectfully submits the following Reply to the Ross Defendants' Response to Plaintiff's Motion for Order Clarifying Scope of Expert Testimony of Bart Chavez. 1. Plaintiff acknowledges that Mr. Chavez's report does not expressly state a belief that

an attorney-client relationship existed between Plaintiff and Ross. However, as detailed in Plaintiff's motion, Mr. Chavez was not asked to make such a statement because Ross had testified under oath that she had acted as Plaintiff's attorney and neither the undersigned nor Mr. Chavez was aware that she later had changed that testimony. This change was not discovered until after Mr. Chavez's report was filed on August 29, 2005. 2. Had the undersigned been aware of Ross's correction sheet prior to the filing of the

report, the report would have included an additional sentence, expressly stating Mr. Chavez's opinion that Ross was acting as Plaintiff's attorney.

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3.

As noted in Plaintiff's motion, Mr. Chavez has testified under questioning by Ross

counsel that his report assumed the existence of an attorney-client relationship. Ross counsel did not ask Mr. Chavez the basis for his assumption, but Mr. Chavez is prepared to testify that, aside from Ross's initial deposition testimony, it was based on pre-application conduct of Ross and her office and on the fact that immigration attorneys commonly represent both the employer and the employee with respect to applications for Visas, Visa amendments, and green cards. It is undisputed that Ross's office agreed to handle the process of amending Plaintiff's Visa and obtaining a green card for Plaintiff, that her office gathered information from Plaintiff for these purposes, that in anticipation of requesting a Visa amendment, Ross filled out, but did not file, an application stating that she was the attorney for both Plaintiff and Lionbridge, that as part of the process Ross obtained a prevailing wage determination relating to Plaintiff's job, and that Ross engaged in discussions with governmental officials in an attempt to obtain a different prevailing wage determination 4. It is obvious from the report that Mr. Chavez believes that there was an attorneyHe is critical of the failure to notify and communicate with Plaintiff about the

client relationship.

status of Ross's efforts to amend the Visa and obtain a green card. These deficiencies would be irrelevant but for a duty to notify and communicate and Ross would have no such duty if she had not acted as Plaintiff's attorney. Similarly, the report refers to the attorney's duty in the event of a conflict between the interests of the employer and employee and criticizes the failure to recommend that Plaintiff "obtain separate counsel to protect her interests." Such a conflict of interest is relevant only if Ross was representing Plaintiff as well as Lionbridge. Further, the need to "obtain separate counsel," as opposed to "obtain counsel," is a clear reference to the fact that Ross was representing Plaintiff during the process.

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5.

Although the undersigned became aware of Ross's change of testimony when the

Ross Defendants filed their motion for summary judgment, it was presumed that Mr. Chavez would be able to testify concerning the basis for his unstated, but obvious, opinion that Ms. Ross had acted as Plaintiff's attorney. Therefore, no attempt was made to amend the report to expressly state that there was an attorney-client relationship. It was not until Mr. Chavez's November 30, 2005 deposition that the undersigned understood that Ross counsel would attempt to bar such testimony. 6. Ross Defendants argue that the existence and scope of a duty are to be determined

by the Court and that it is not appropriate for an expert to provide an opinion on such matters. They cite authority for the proposition that expert testimony is admissible only when the subject matter is such that a jury cannot be expected to draw correct inferences from the facts. Plaintiff's motion cites several cases from other jurisdictions indicating that expert testimony is admissible on the existence of an attorney-client relationship. One case states that it would be an abuse of discretion to deny it. Further, Plaintiff believes that this is a case where expert testimony may be essential to the correct determination of this issue. As noted, Mr. Chavez is prepared to testify that immigration attorneys commonly represent both the employer and the employee in these types of matters and that Ross was acting as Plaintiff's attorney even though no application was filed. Even after changing her testimony, Ross indicated that she would have represented both Plaintiff and Lionbridge had an application been filed. Ross presumably will offer trial testimony that she did not consider herself to be acting as Plaintiff's attorney when she agreed to handle the process of amending Plaintiff's Visa and obtaining a green card for Plaintiff, her office gathered information from Plaintiff for these purposes, she obtained a prevailing wage determination relating to Plaintiff's job, and she engaged in discussions with

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governmental officials in an attempt to obtain a different prevailing wage determination. Absent expert testimony, the jury may incorrectly believe that no attorney-client relationship can exist until something is filed, despite Ross's numerous pre-application actions in pursuit of Plaintiff's interests. The jury also may not know that it is common for immigration attorneys to represent both the employer and the employee and may incorrectly think that Ross could not have acted as attorney for both Plaintiff and Lionbridge. If the Court determines that the existence of an attorney-client relationship is an issue is for the jury, Plaintiff must be allowed to present expert testimony to counter Ms. Ross's anticipated position that an attorney can agree to pursue a Visa amendment and green card for an employee and thereafter take action towards that goal without acting as the employee's attorney and without any duty to the employee to not engage in negligent conduct harmful to the employee's interests. 7. Contrary to Ross Defendants' argument, Mr. Chavez does not have to practice law

in Colorado to provide an opinion on the conduct of attorneys causing consequences in Colorado. The Ross Defendants' own expert does not practice in Colorado. Further, the subject of Mr. Chavez's opinions is federal immigration law and practice. As pertinent to this motion, Mr. Chavez will testify about immigration law in general, the general practices of attorneys handling applications to amend Visas and to obtain green cards for employees, and Ross's handling of Plaintiff's effort in particular. Plaintiff is not aware of any authority suggesting that an attorney practicing immigration law on a national level must practice in Colorado to express an opinion, based on knowledge and experience in immigration matters, about the relationship between another national attorney and an employee with respect to the attorney's handling of immigration matters relating to that employee.

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8.

This Court previously has ruled with regard to the standard to be applied with regard

to requests for modification of the Scheduling Order to extend the deadline for disclosure of expert testimony. Strozier v. United States Postal Service, 2005 WL 2141709 (D. Colo.). The trial court should consider the explanation offered by the delinquent party, the importance of the testimony in question, the potential prejudice in allowing the testimony, and the availability of a continuance to cure that prejudice. Id. at 2. Exclusion of evidence is a drastic sanction. Id. at 3. 9. To the extent that Mr. Chavez's report is not sufficient to allow him to state an

opinion with regard to the existence of an attorney-client relationship, Plaintiff has explained the reason for this omission. This testimony is important, since the existence of such a relationship is the basis for Plaintiff's claims against the Ross Defendants and, without expert testimony on this issue, the jury may be led to believe that an attorney-client relationship cannot arise unless something is filed and that an attorney cannot represent both an employer and employee in immigration matters. Although the Ross Defendants may incur expense in taking additional deposition testimony from Mr. Chavez and asking their own expert to provide an opinion on this question, this expense should be minimal, given the limited subject matter. There will be no actual prejudice to the Defendants' ability to defend the claims. Although Mr. Chavez's report did not expressly state that he believed that Ross was acting as Plaintiff's attorney, Defendants cannot be surprised by that opinion, given his statements about the obligations of attorneys and the duties owed to Plaintiff. Further, to the extent that Ross Defendants limited their own expert's report in reliance on their belief that Mr. Chavez would be barred from expressing an opinion on the attorney-client relationship, there is sufficient time for them to file an amended report and conduct any additional

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discovery. This matter is not set for trial until October 2, 2006 and the Final Pretrial Conference is set for April 26, 2006. No continuance will be necessary. 10. Justice requires that the Scheduling Order be amended to allow the filing of an

amended report and to allow the Ross Defendants to file an amended report should they so desire. Plaintiff requests that the expert discovery deadline be extended, if any Defendant desires to depose Mr. Chavez with regard to the amendment to his report. If Ross Defendants elect to file an amended expert report, Plaintiff requests that she be allowed to depose their expert with regard to any such amendment. WHEREFORE, Plaintiff respectfully requests that this Court (1) enter an Order that Bart Chavez may express an opinion at trial on the existence of an attorney-client relationship between Plaintiff and Ross or, in the alternative, (2) enter an Order amending the Scheduling Order in the manner requested above. Plaintiff requests such other and further relief as the Court deems just and proper. Dated this 20th day of January, 2006. Respectfully submitted, DIETZE and DAVIS, P.C. By: "s/ Joel C. Maguire" Joel C. Maguire Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected] Attorney for Plaintiff Isabelle DerKevorkian CERTIFICATE OF SERVICE 6

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I hereby certify that on January 20, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: John Edwin Bolmer, II [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected] By: "s/ Susan J. Armour" Susan J. Armour, Legal Assistant Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected]

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