Free Motion for Leave - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 281

Filed 09/12/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-01067-MSK-CBS

WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

PLAINTIFF'S MOTION FOR LEAVE TO PURSUE ADDITIONAL DISCOVERY AND TO DESIGNATE EXPERT WITNESS AND TESTIMONY CONCERNING DAMAGES

Plaintiff William R. Cadorna ("Plaintiff") hereby moves for leave to conduct limited additional discovery concerning damages and documents previously withheld from discovery by Safeway, Inc., and to designate an expert witness or witnesses concerning damages, taxes, and mitigation of damages. As grounds for this motion, Plaintiff states: 1. Over two years have passed since the previous trial of this action, and the

date of retrial has not yet been set. 2. Plaintiff requires an opportunity to take further discovery from the City and

the Firefighters and Police Pension Association concerning past or future earnings and pension accruals until the date of trial, and thereafter.

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3.

The calculation or estimation of lost wages and benefits in this case is

complicated by the existence of a Deferred Retirement Option Program ("DROP") in which Plaintiff would have been entitled to participate had he not been terminated, by issues concerning rates of return on deposits over time into a DROP account, and by the tax effects of his receipt of back pay, front pay, and or liquidated damages in a lump sum as opposed to over time. 4. An expert in economics and accounting would be extremely helpful to a

jury of laypeople in sorting through such esoteric complexities about which those who are not professionals in the fields of economics, investing, and accounting lack much knowledge. 5. Defendant has indicated that it intends to seek leave to designate an

expert witness in economics, damages, and labor market issues related to Plaintiff's degree of mitigation of damages since his termination. It would be inequitable and prejudicial to permit Defendant to do so without also permitting Plaintiff to do so. 6. In the previous trial, former Safeway Security Investigator David Schuetz

testified (Tr. 1067-1101) that he obtained or prepared a number of documents, including but not limited to a handwritten statement by Michael Brown and a complete investigative file, that Safeway never produced in response to pretrial discovery, though it was requested in subpoenas, depositions and written discovery. This evidence may be crucial to proving Plaintiff's claims, and Plaintiff will be prejudiced if he is denied the right to discover it.

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7.

In compliance with D.C. COLO.LCivR. 7.1(A), the undersigned certifies

that he consulted with opposing counsel concerning this motion, and that opposing counsel stated Defendant's opposition to it. WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this honorable Court grant Plaintiff leave to take additional discovery concerning damages and the whereabouts of documents previously withheld or destroyed by Safeway, Inc., and to designate an expert or experts to testify concerning damages, mitigation of damages, and tax effects of lump sum payments. DATED this 12th day of September, 2008. Respectfully submitted, /S/

Mark E. Brennan

Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 552-9550 (office) (303) 797-7687 (cell) [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this 12th day of September, 2008, he served a copy of the foregoing Motion for Leave to Take Additional Discovery, etc., on the following person(s) via electronic mail: Frank Nachman, Esq. Chris Lujan, Esq. 210 W. Colfax, Dept 1108 Denver, CO. 80202 S/

Mark E. Brennan

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Case 1:04-cv-01067-MSK-CBS

Document 281

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Case 1:04-cv-01067-MSK-CBS

Document 281

Filed 09/12/2008

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