Free Motion to Clarify - 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 MOTION FOR ORDER CLARIFYING SCOPE OF EXPERT TESTIMONY OF BART CHAVEZ ______________________________________________________________________________ Plaintiff, by and through her attorneys, Dietze and Davis, P.C., respectfully moves this Court for its Order clarifying that Plaintiff's expert Bart Chavez be permitted to express an opinion regarding the existence of an attorney-client relationship between Plaintiff and the Ross Defendants. In the alternative, Plaintiff requests that she be permitted to file an amended expert report on this issue. As grounds for her motion, Plaintiff states: 1. Pursuant to Local Rule 7.1, the undersigned has conferred with Dan S. Cross, counsel

for Defendant Lionbridge Technologies, Inc., and with John E. Bolmer, II, counsel for Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP. Both have indicated that they object to this Motion and the relief requested herein. 2. This matter is scheduled for trial commencing October 2, 2006. The expert discovery

deadline is December 15, 2005. The Final Pretrial Conference is set for April 26, 2006.

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3.

On December 17, 2004, Plaintiff took the deposition of attorney Sharryn E. Ross.

Ross testified that she considered both Lionbridge and Plaintiff to be her clients in the process of amending the Visa and attempting to obtain a green card (Deposition of Sharryn E. Ross, pertinent portion attached as Exhibit 1 to Plaintiff's Brief in Opposition to Defendant Sharryn E. Ross and Ross Martel and Silverman, LLP's Motion for Summary Judgment, 8:21-11:23). 4. In January 2005, Plaintiff moved to file an Amended Complaint, adding a claim for

legal malpractice against Ross and her firm. The Court granted that motion on March 16, 2005. 5. Consistent with Ross's deposition testimony and certain documentary evidence,

Plaintiff's Amended Complaint alleges that Defendant Sharryn E. Ross represented both Lionbridge and Plaintiff in the effort to obtain a green card for Plaintiff and that she acted negligently in that effort. See Amended Complaint, ¶¶ 15, 112-117. Among other things, Plaintiff has alleged that Ross failed to act appropriately after a conflict of interest developed between Plaintiff and Lionbridge. 6. On February 3, 2005, Ross apparently sent a Statement of Changes to her deposition

to the court reporter. Therein, she changed her testimony that "I considered both of them to be my client" to "I considered both would be my client if the matter went forward after assessing the case." In an affidavit filed with the Ross Defendants' September 12, 2005 motion for summary judgment, Ross claims that she understood the question and her answer to mean that had "the process" gone forward, she would be representing both Lionbridge and Plaintiff, but since Ross never filed an application to amend the Visa or to obtain a green card, she never acted as Plaintiff's attorney or otherwise represented her interests. 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

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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, that Ross engaged in discussions with governmental officials in an attempt to obtain a different prevailing wage determination, and that she provided information about the process and certain options to Lionbridge, knowing that it was being forwarded to Plaintiff.1 7. Although Ross apparently provided the court reporter with the Statement of Changes,

the court reporter did not provide the Statement of Changes to counsel for Plaintiff, who did not learn that there was a correction sheet until seeing a reference to one in the Ross Defendants' September 12, 2005 Motion for Summary Judgment.2 After a copy was requested on September 20, 2005, counsel for Ross faxed a copy of the Statement of Changes on September 23, 2005. 8. Plaintiff contacted expert Bart Chavez on March 23, 2005. In April 2005, the

undersigned contacted the court reporter and requested that the deposition of Ross be emailed to the undersigned so that it could be forwarded to Chavez for this review. On April 18, 2005, the court reporter emailed the aSCII version of the deposition, which then was forwarded to Chavez. The aSCII version did not include the correction sheet. 9. The Ross Defendants filed their Answer to the Amended Complaint on April 18,

2005. They denied the allegation of an attorney-client relationship. The undersigned does not

As alleged in the Amended Complaint, some of this information was not provided to Plaintiff until long after it had been shared with Lionbridge. While trying to find this correction sheet, the undersigned discovered that the court reporter also had not sent Ross's original deposition or the original depositions of Jenni Tymkovich and Barbara Peralta, which had been taken by Plaintiff in November 2004. 3
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recall reviewing the Answer in detail and does not remember whether he noted this denial. It is not unusual for parties to deny even those allegations that should be undisputed and, as of April 18, 2005, the undersigned was not aware of the change to Ross's deposition testimony. 10. On August 29, 2005, Plaintiff served its Expert Testimony Disclosures, pursuant to

F.R.C.P. 26(a)(2). Plaintiff identified Chavez as her expert and attached a copy of his report. See Exhibit A. The Disclosure states that Chavez will testify concerning immigration matters in

general, the handling of the effort to obtain a green card for Plaintiff, and Defendants' conduct in that effort. His report includes opinions that Defendants, including Ross, did not keep Plaintiff properly informed of the status of the effort to obtain a green card and of the options available to her, that Plaintiff should have been informed of the existence of the conflict between her interests and those of Lionbridge, and that the recommendation should have been made that she obtain separate counsel to protect her interests. Although the report does not expressly state that an attorney-client relationship existed between Plaintiff and Ross, it assumes and is based on its existence. 11. The Ross Defendants filed their motion for summary judgment on September 12,

2005. This motion argued that there was no attorney-client relationship between Plaintiff and Ross, basing this position in part on Ross's Statement of Changes. As noted above, this was the first time the undersigned was aware that Ross had changed her deposition testimony to deny that Plaintiff was her client. 12. Defendants took Chavez's deposition on November 30, 2005. Under questioning

by counsel for the Ross Defendants, Chavez stated that his report assumed that an attorney-client relationship existed between Plaintiff and Ross. After defense counsel had completed their

examination, counsel for Plaintiff asked Chavez whether, based on his review of the evidence, he

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believed that an attorney-client relationship existed between Plaintiff and Ross. Counsel for the Ross Defendants objected, stating that he believed that the question was beyond the scope of Chavez's report. Chavez testified that he believed that such a relationship existed. He is prepared to elaborate on this question and explain that immigration attorneys commonly represent both the employer and the employee with respect to applications for Visas, Visa amendments, and green cards, so long as a conflict does not develop. 13. After the November 30, 2005 deposition, the undersigned communicated with

defense counsel on the issue of the scope of Chavez's expert testimony. Counsel for Plaintiff stated that Chavez's report included the unstated but implied opinion that an attorney-client relationship existed and stated that the reason why the report did not expressly state an opinion on this subject was because neither Chavez nor the undersigned was aware of Ross's change of testimony. Counsel for Plaintiff asked Defendants to agree that Chavez could provide this opinion at trial and stated that, absent such agreement, Plaintiff would ask the Court to decide the issue. Counsel also stated that if the Court determined that such an opinion was beyond the scope of Chavez's written report, he would ask that Plaintiff be permitted to file an amended report with an opinion on this subject. The undersigned told defense counsel that Plaintiff would agree to allow the Ross

Defendants' expert, Denyse Sabagh, to express an opinion on the issue and to allow the parties to redepose both experts on the existence of the attorney-client relationship. 14. Counsel for the Ross Defendants responded to Plaintiff's counsel's inquiry by stating

that his clients would not consent to allowing Chavez to express an opinion on the existence of an attorney-client relationship. It is the Ross Defendants' position that such opinion is not included in Chavez's report, that Plaintiff's lack of knowledge of Ross's change of testimony is irrelevant

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because the Ross Defendants' Answer put Plaintiff on notice of their denial of the existence of an attorney-client relationship, and that the existence of an attorney-client relationship is not a proper subject of expert testimony. 15. Plaintiff believes that Chavez should be permitted to express an opinion on the

existence of an attorney-client relationship. Such opinion is implied in his existing report and the failure to expressly state such opinion arose from the fact that Plaintiff was not aware of the change in Ross's deposition testimony at the time Chavez prepared his report. Further, the existence of an attorney-client relationship is a proper subject of expert testimony. Brown v. Slenker, 220 F.3d 411, 422 (5th Cir. 2000), footnote 10 (holding that it was "plain error" for the district court to attempt to bar expert testimony on the existence of an attorney-client relationship). See also Cornelius v. Helms, 461 S.E.2d 338, 340 (N.C.App. 1995)(trial court permitted expert testimony on the existence of attorney-client relationship); Mays v. Askin, 585 S.E.2d 735, 737-8 (Ga. App. 2003)(trial court permitted expert testimony on the existence of attorney-client relationship); Garrett v. Fleet Finance, Inc. of Georgia, 556 S.E.2d 140, 145 (Ga. App. 2001) (recognizing that expert testimony on the existence of attorney-client relationship can be given, but finding that testimony on the issue by non-lawyer witnesses was inappropriate). 16. Since counsel have not been able to agree, Plaintiff requests this Court's ruling on

her ability to present at trial Chavez's opinion on the existence of an attorney-client relationship between Plaintiff and Ross. In the event that the Court determines that such an opinion is beyond the scope of Chavez's written report, Plaintiff requests that she be allowed to file an amended report addressing this specific issue. Under such circumstances, the Ross Defendants should be permitted

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to file an amended report addressing the same issue.

Thereafter, both parties should be allowed

to conduct limited re-examinations of the other party's experts relating to this question. 17. This matter is not set for trial until October 2, 2006. The Final Pretrial Conference The requested relief will not result in any delay in these proceedings.

is set for April 26, 2006.

WHEREFORE, Plaintiff respectfully requests that this Court enter an Order that Bart Chavez may express an opinion at trial on the existence of an attorney-client relationship between Plaintiff and Ross. If the Court determines that Chavez cannot express such opinion under his current report, Plaintiff requests that she be permitted to file an amended report addressing such issue. Plaintiff requests such other and further relief as the Court deems just and proper. Dated this 13th day of December, 2005. 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

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CERTIFICATE OF SERVICE I hereby certify that on December 13, 2005, 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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