Free Motion to Quash - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO a municipal corporation, Defendant. ______________________________________________________________________ DEFENDANT'S MOTION TO QUASH SUBPEONAS FOR ASSISTANT CITY ATTORNEYS JACK WESOKY AND JOHN REDMOND ______________________________________________________________________ Pursuant to Fed. R. Civ. P. 45(c)(3), Defendant, City and County of Denver (hereafter "Denver"), by its attorneys, moves to quash subpoenas served on Tuesday, June 13, 2006, on Assistant City Attorneys Jack Wesoky and John Redmond. In support of this motion, Denver states the following: 1. Assistant City Attorney ("ACA") Jack Wesoky is an employment

lawyer assigned to work in the Litigation Section of the City Attorney's Office. He has been primary trial counsel in this case (and the related administrative cases) for three years. Plaintiff has known of ACA Wesoky's involvement in this case for three years, yet Plaintiff failed to list ACA Wesoky as a potential witness in the Final Pretrial Order, which controls the "subsequent course of this action and the trial." Plaintiff has not moved to amend the Final Pretrial Order, nor can he establish "manifest injustice" which is required to amend the Final Pretrial Order, particularly at this late date (two business

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days from the trial date of June 19, 2006). See Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (issues and defenses not included in the final pretrial order are waived). Therefore, the subpoena should be quashed. 2. In addition to this flaw, service of subpoenas on ACAs Wesoky and

Redmond (the attorney in the Prosecution Section of the City Attorney's Office who tried the shoplifting case against Plaintiff) is tantamount to a motion to disqualify. See Williams v. District Court, 700 P.2d 549, 555 (Colo. 1985) ("the act of subpoenaing defense counsel is itself, in our opinion, the functional equivalent of a motion to disqualify"). Therefore, since Plaintiff bears the burden with respect to the pending motion to disqualify (which is based on his purported need to call ACAs Wesoky and Redmond at trial), he should not be able to shift the burden to Denver by serving subpoenas on ACA Wesoky and Redmond and compelling this motion to quash. In other words, to enforce his subpoenas, Plaintiff should be required to prove that the City Attorney's Office ("CAO") should be disqualified and that they are necessary witnesses, that he has not been dilatory in seeking redress of these issues and that Denver will not be prejudiced ­ none of which he can establish and therefore the subpoenas should be quashed.1
Denver recognizes that it did not follow the local rule by initially including its motion to quash the subpoenas in its opposition to Plaintiff's motion to disqualify. It is important to note, though, that Plaintiff's motion to disqualify the City Attorney's Office and this motion to quash the subpoenas served on ACAs Wesoky and Redmond go hand-in-hand, and therefore the legal analysis set forth in Denver's response to the motion to disqualify is relevant here. The Court must evaluate if Denver "is likely to suffer prejudice, the importance and probable tenor of the lawyer's testimony and the probability that the lawyer's testimony will conflict with that of other witnesses." Religious Technology Center v. F.A.C.T.Net, Inc., 945 F.Supp. 1470,1474 (D. Colo, 1996). This balancing test further requires the Court to evaluate that "even if there is a risk of such prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer's client." Id. (Emphasis added).
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3.

The subpoena served on ACA Wesoky should be quashed pursuant to

Fed. R. Civ. P. 45(c)(3)(A)(iii) because Plaintiff appears to seek to question ACA Wesoky about attorney-client communications (including legal advice) that he may have had related to Plaintiff's case. In Plaintiff's Motion to Disqualify the CAO, he claims that ACA Wesoky is a necessary witness, see disqualification motion at pp. 4-5, but he fails to explain what specifically ACA Wesoky can testify about related to the remaining claims of substantive due process and age discrimination. 4. Plaintiff claims that the CAO, apparently including ACA Wesoky, engaged in a "conspiracy" against Plaintiff. This serious charge of unprofessional, unethical and illegal conduct is yet another example of Plaintiff's counsel's baseless charges against the City, its agencies and any of its employees that touched Plaintiff. The support for this latest charge, "conspiracy," making ACA Wesoky a necessary witness is nothing more than two e-mails.2 5. Indeed, as fully addressed in Denver's response to the disqualification

motion, ACA Wesoky is not a necessary witness; that is, one whose "proposed testimony is relevant, material, not merely cumulative, and unattainable elsewhere." See Merrill Lynch Bus. Financial Services, Inc. v. Nudell, 239 F.Supp. 2d 1170, 1173 (D. Colo.2003). ACA Wesoky's involvement at the administrative level before the Civil
One deals with a telephone scheduling conference for the Commission hearing in which he advises Karen McNeil of the Fire Department administrative staff that she need not be present on the teleconference. The second e-mail which is not from Mr. Wesoky simply advises Ms. McNeil to keep Mr. Wesoky apprised of the status of Plaintiff's "retirement." These are both administrative communications not going to the substance of any legal issue and accordingly are not relevant or material for the issues in this case: age discrimination in Plaintiff's termination and a substantive due process claim based on the Commission's decision that Plaintiff could not be reinstated. These e-mails do not make Mr. Wesoky a "necessary witness" under Rule 3.7.
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Service Commission was his representation of the Manager of Safety in that disciplinary appeal. Certainly an attorney's representation and advocacy in one legal venue does not automatically transform the attorney into a "necessary witness" in subsequent proceedings. Also that Mr. Wesoky dealt with Plaintiff during the Civil Service Commission proceedings at a time when Plaintiff was unrepresented cannot make him a necessary witness. 6. Similarly, with respect to ACA Redmond, he is not a "necessary witness" for this trial. Although he was listed in the Final Pretrial Order as a "may call" witness by Plaintiff, none of the issues about which he allegedly has knowledge, "the investigation of criminal allegations against Plaintiff; the prosecution of Plaintiff; the dismissal of charges against Plaintiff; communications with or between representatives or employees of Defendant and others concerning criminal allegations against Plaintiff or civil or criminal proceedings related thereto; Michael Brown's admitted commission of perjury and obstruction of justice and the City's failure to prosecute Brown," are irrelevant to the remaining two claims in this case: age discrimination and substantive due process violation. 7. These purported areas of testimony go to ACA Redmond's mental

processes and work product and the prosecution (and ultimate dismissal of) the criminal case, and do not relate to the remaining two claims. As explained in Denver's opposition to Plaintiff's proposed jury instructions, this is not a malicious prosecution

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case, nor is it a case against Michael Brown.3 There is no evidence to show how any of ACA Redmond's decisions are relevant to prove that these decisions were the "determinative factor" in Plaintiff proving his age claim against Denver. The irrelevancy of ACA Redmond's role is underscored by the fact that the decision to terminate Plaintiff was made on January 3, 2003 ­ a full four months before ACA Redmond presented the criminal case before a jury on May 7, 2003. ACA Redmond's testimony is neither relevant nor material to Plaintiff's age claim and therefore he is not a necessary witness under C.R.P.C. 3.7, the controlling rule on attorney-witnesses. 8. ACA's Redmond's testimony is also irrelevant and immaterial to prove

Plaintiff's substantive due process claim. As the parties have stipulated in the Final Pretrial Order, the Civil Service Commission is the final policy-maker for the Plaintiff's substantive due process claim. See PTO, p.16, ¶4. See also Second Amended Complaint, Third Claim for Relief, pp. 30-34. Aside from ACA's Redmond's testimony during the administrative hearing before the Civil Service Commission Hearing Officer, Plaintiff offers nothing to show that ACA Redmond had any communications with the Hearing Officer or the Commission urging either not to reinstate Plaintiff. Moreover, a review of both the Hearing Officer's and Commission's decisions show that they were based on the state's old firefighter's pension statute which is a question of law on which ACA Redmond, as a prosecutor, is not qualified to opine.4
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Malicious prosecution is a tort claim for which Denver, and its agencies and employees, are immune from liability under the Colorado Governmental Immunity Act, C.R.S. § 24-10-106 (2002) ("CGIA").

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Although the CAO originally endorsed Mr. Redmond as a witness, it quickly remedied its error by notifying counsel by telephone and later by notifying Magistrate Judge Shaffer in April that Denver would not be calling him as a witness.

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9.

The subpoenas served on ACAs Wesoky and Redmond are another ploy

by Plaintiff to delay the trial and cause Denver substantial hardship because of legal fees it would have to incur for alternative counsel to represent Denver in this case. In other words, Denver would be subjected to "undue burden" pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iv). 10. The CAO is prepared to represent Denver at trial scheduled to start on

Monday, June 19, 2006. The CAO has handled the administrative appeals in front of the Commission as well as all pretrial matters in this litigation ­ discovery, motion practice, settlement discussions and conferences. Disqualification of the CAO from further representation in this case would pose a "substantial hardship" to Denver because it would be forced to spend thousands of dollars for outside counsel fees and costs so close to trial. 11. C.R.P.C. Rule 3.7 (a) (3) provides that where "disqualification of the

lawyer would work substantial hardship on the client," disqualification is not appropriate. Contrary to Plaintiff's allegation that Denver's "massive bureaucracy" and penchant for "wasteful expenditures" forecloses it from claiming "substantial hardship," Denver maintains a budget for outside counsel. See Exhibit No. 3 to Defendant's Response to Plaintiff's Motion to Disqualify, Affidavit of Deputy City Attorney Michelle Lucero, incorporated by this reference. To retain outside counsel at this point on the eve of trial after all trial preparation has been completed would cost at least $100,000 in public funds and unnecessarily deplete Denver's and the CAO's budget. Id. The impact of a disqualification and the concomitant expenditure on outside counsel clearly places

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disqualification of the City Attorney's Office within Rule 3.7(a)(3)'s category of "substantial hardship." 12. It appears that Plaintiff is using two related devices (the motion to

disqualify and the subpoenas on ACAs Wesoky and Redmond) in an inappropriate attempt to gain an advantage in this litigation. By his own admission, Plaintiff states in his motion to disqualify that he knew about these issues at the April pre-trial conference (Magistrate Judge Shaffer instructed him to file a motion to disqualify if he was going to persist in trying to call ACA Redmond at trial, see April 17, 2006 Courtroom Minutes) but he chose not to pursue them because he did not want to delay trial. So what has changed since April? Plaintiff claims that he since became aware of "recent disclosures" regarding the Stan Ford criminal case and Civil Service Commission Chairman Chris Olson's involvement in a sex discrimination lawsuit in Englewood. Yet, as established in Denver's opposition to Plaintiff's motion to continue the trial and reopen discovery, these matters have been pending since well before April and Plaintiff could have followed up on them long ago. 13. Instead, what has happened since April is two of Plaintiff's claims were

dismissed on summary judgment and his remaining claims of substantive due process and age discrimination are on shaky ground and therefore he is trying to salvage an unsalvageable case by filing numerous inappropriate, last-minute motions and serving subpoenas on lawyers (and quasi-judicial officers and other inappropriate witnesses). Denver does not make this charge lightly but it would submit that all of this last-minute maneuvering ­ including these subpoenas ­ are a "contrivance to disqualify opposing

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counsel" and perhaps even a "technique of harassment." See Williams, 700 P2d at 554 ("We emphasize, however, that DR 5-102(B) was neither intended nor designed as a procedural device for permitting a lawyer to subpoena opposing counsel as a witness for the sole purpose of disqualifying the subpoenaed lawyer as counsel in the pending action . . . . Indeed, the use of subpoena power solely as a contrivance to disqualify opposing counsel could itself constitute unprofessional conduct prejudicial to the administration of justice . . . .") (citations omitted); Guillen v. City of Chicago, 956 F. Supp. 1416, 1421 (N.D. Ill. 1997) ("Moreover, both judicial opinions and the Rules of Professional Conduct themselves recognize that motions for disqualification `should be viewed with extreme caution for they can be misused as techniques of harassment.'") (citing Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982)). 14. In compliance with D.C. Colo.LCivR. 7.1 (A), the undersigned certifies that

Plaintiff's counsel opposes this motion. WHEREFORE, the subpoenas served on Assistant City Attorneys Jack Wesoky and John Redmond should be quashed and Denver awarded its attorney's fees in connection with this motion Respectfully submitted this 14th of June, 2006. CHRISTOPHER M.A. LUJAN Assistant City Attorney By: s/ Christopher M.A. Lujan_______ Christopher M.A. Lujan Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720-913-3100

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Facsimile: 720-913-3190 E-Mail: [email protected] ATTORNEY FOR DEFENDANT CERTIFICATE OF MAILING I certify that on June 14th, 2006, I electronically filed the foregoing DENVER'S MOTION TO QUASH SUBPOENAS FOR ASSISTANT CITY ATTORNEYS JACK WESOKY AND JOHN REDMOND with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee ST. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204 s/ Yvonne Harris_______________ Yvonne Harris OFFICE OF THE CITY ATTORNEY

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