Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

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Filed 03/20/2006

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Affidavit of Patrick T. Markham

Case 1:03-cv-02669-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-02669-MSK-PAC

LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; BIG-D CORPORATION, a Utah corporation; BIG-D CAPITAL CORP., a Wyoming corporation; and Does 1-100, inclusive, Defendants/Counterclaimants,

BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant.

MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

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AFFIDAVIT OF PATRICK T. MARKHAM IN SUPPORT OF LEPRINO FOODS COMPANY' OPPOSITION TO BIG-D' MOTION IN LIMINE NO. 5 S S

I, Patrick T. Markham, testify as follows: 1. I am an attorney at law licensed to practice before the United States District Court

for the District of Colorado and am a partner with the law firm of Jacobson Markham, L.L.P., one of the attorneys of record for plaintiff Leprino Foods Company ("Leprino"). This office is associated with Campbell Bohn Killin Brittan & Ray, LLC, in representing Leprino in this matter and has joined in filing the opposition to Big-D motion in limine no. 5. 2. I make this Declaration in support of Leprino Foods Company' opposition to s

Big-D motion in limine no. 5. I have personal knowledge of all facts stated in this Affidavit and would competently testify under penalty of perjury thereto if called as a witness. 3. We e-mailed Mr. Groves 100 page expert witness report and his rebuttal report

timely. The documents he reviewed and considered in generating the report consisted of boxes of back up. Therefore e-mailing was impractical. During the weeks prior to the deposition of Leprino' principal expert Bob Groves, Big-D indicated a desire to review documents Mr. s Groves reviewed considered or relied on to render his opinion. Given the volume of documents, I offered a day in Mr. Groves office in advance of the deposition where all of the material could be reviewed. Neither Big-D nor the third party defendant accepted the offer. Mr. Groves assembled all of the materials and they were available in his office at his deposition. He also provided four binders at his deposition with back up data. I am aware of the binders, but I do not know how the binders differ from his opinions as suggested in Big-D' motion. I took the s deposition of Big-D' damages expert Paul Regan. He did not produce any documents that he s

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relied upon prior to the deposition. Mr. Regan did what is common in depositions with massive documents, he produced his records at the deposition. Big-D never gave me an opportunity to review Mr. Regan' files before the deposition. s 4. I have reviewed my e-mail communications and confirmed Mr. Groves was made

available (as was his conference room facility) for deposition two full days on February 13-14 in San Francisco. On February 8, 2006, Big-D and UMM began indicating they wanted to begin and finish Mr. Groves deposition in one day. We agreed, but indicated that if the deposition was not completed, it could be conducted on the second day, February 14, 2006. Because of the stipulation that shortened the time between the expert reports, rebuttal and completion of discovery (the latter we insisted Big-D and UMM follow the scheduling order), the time was very compressed and depositions took place, replies to motions were being written and schedules were being refines during the week between the rebuttal reports (February 6) and Mr. Groves deposition. 5. I was contacted either during or after the deposition regarding certain data that

Big-D wanted to review further. I did not understand then, nor do I understand now why this was needed. However, we offered Mr. Groves for two days deposition, and continued to be willing to do so. He had the time set aside on his schedule and was prepared to proceed. I did not attend the deposition, but was contacted in my office. I suggested Big-D and UMM review the materials further and take a second day of deposition and ask all questions they want. However, Big-D' expert was set to take place the next day, and Big-D wanted to proceed with s Mr. Gudgel' deposition. I participated in Mr. Gudgels' deposition in San Jose on February 14, s

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and was not asked for a date or time to re-open Mr. Groves deposition. I checked my e-mails and found neither and e-mail, nor do I recall being asked to re-open Mr. Groves deposition. I testify under penalty of perjury the foregoing is true and correct, except as to matters set forth in information I believe in, and as to those matters I am informed to believe that they are true and correct. Executed this 20th day of March, 2006, at Sacramento, California.

/s/ Patrick T. Markham Patrick T. Markham

CERTIFICATE OF SERVICE I hereby certify that on the 20th day of March 2006, I electronically filed the foregoing AFFIDAVIT OF PATRICK T. MARKHAM IN SUPPORT OF LEPRINO FOODS COMPANY' OPPOSITION TO BIG-D' MOTION IN LIMINE NO. 5 with the Clerk of S S Court using the CM/ECF system which will send notification of such filing to the following email addresses: Christopher J. Hersey of [email protected] Francis (Frank) J. Hughes of [email protected] Patrick Quinn Hustead of [email protected] Peter J. Ippolito of [email protected] Richard Carl Kaufman of [email protected] John David Mereness of [email protected] C. Michael Montgomery of [email protected] Daniel James Nevis of [email protected] Laurence R. Phillips of [email protected] N. Kathleen Strickland of [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

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