Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02579-RPM

Document 152

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I N T HE U NITED S TATES D ISTRICT C OURT F OR T HE D ISTRICT O F C OLORADO Civil Action No. 03-CV-02579-RPM-BNB VARCO, L.P., Plaintiff, vs. PASON SYSTEMS USA CORP., Defendant. PLAINTIFF VARCO'S BRIEF IN OPPOSITION TO DEFENDANT PASON'S MOTION TO STRIKE VARCO'S SUPPLEMENT IN SUPPORT OF ITS DESIGNATION OF DEPOSITION TESTIMONY

Plaintiff Varco, L.P. ("Varco"), by its counsel, respectfully submits this Brief in Opposition to Defendant Pason Systems USA Corp.'s ("Pason's") Motion to Strike Varco's Supplement in Support of its Designation of Deposition Testimony ("Motion to Strike," Doc. 150). Varco's Supplement in Support of its Designation of Deposition Testimony ("Supplement," Doc. 149) is responsive to the Court's instructions, provides relevant factual and legal context for the deposition excerpts submitted by the parties, and accurately portrays Pason's actions. For these reasons, Pason's Motion to Strike should be denied. I. V ARCO ' S S UPPLEMENT IS R ESPONSIVE TO THE C OURT ' S I NSTRUCTIONS AND P ROVIDES C ONTEXT FOR THE P ARTIES ' D ESIGNATIONS OF D EPOSITION T ESTIMONY . To assist in determining whether to require production of any of the documents listed on Pason's privilege log, the Court ordered both parties to file pertinent excerpts

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from depositions taken in the case. The submission of deposition excerpts was to provide relevant background for the Court's review of the documents submitted for its in camera inspection in connection with Pason's "reliance on advice of counsel" defense. (Motions Hearing 26:17-21, 29:15-30:7, Nov. 17, 2006) (Ex. 1). Both Varco and Pason submitted cover pleadings in the form of briefs with their respective deposition designations, to provide further context for the documents. (Pl. Varco's Designation of Dep. Testimony, Doc. 147); (Pason's In Camara Submission and Designation of Dep. Excerpts ("Pason Ex Parte Submission")). At 4:51 p.m. on the day that the deposition designations were due, Pason produced several documents that had previously been listed on Pason's privilege log, necessitating Varco's supplemental filing. (Supp., Ex. 1). Before Pason removed these undated documents from its privilege log and produced them to Varco, Varco had no substantive information about them. It was only after reviewing these documents that Varco was able to inform the Court of additional factual and legal issues critical to the Court's in camera review. II. V ARCO ' S S UPPLEMENT A CCURATELY P ORTRAYS P ASON ' S A CTIONS . Contrary to Pason's assertion, the description of Pason's actions in Varco's Supplement is not "scurrilous." Rather, the Supplement accurately states that Pason did not provide Varco with a full copy of the pleading 1 that Pason had submitted to the Court on Wednesday, January 10, 2007 until later in the week, on Friday, January 12,

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Varco never requested copies of the documents that Pason sent to the Court for in camera review.

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2007. (Supp., at 2 n.1). Because Pason's pleading had not been served on Varco, Varco specifically requested copies of "whatever [Pason] filed with the court (excluding the documents [listed on Pason's privilege log] themselves . . . )." (E-mail from Jane Michaels to Mark Haynes (Jan. 11, 2007, at 1:18 pm)) (Ex. 2). In response, Pason provided Varco with its pleading only, and not any of the exhibits to the pleading. Pason did not provide Varco with a copy of exhibits A through J until January 12, following a second explicit request from Varco. (E-mail from Jane Michaels to Mark Haynes (Jan. 11, 2007, at 3:59 pm)) (Ex. 3). While the documents on Pason's privilege log that were submitted to the Court for in camera review needed to be filed on an ex parte basis, pleadings containing argumentation, like Pason's Ex Parte Submission, should have been served on opposing counsel. See Rooks v. Zavares, No. Civ.A. 99-B-631, 2001 WL 34047959 at *3 (D. Colo. Jan. 25, 2001) (Ex. 4). The Court's statements during the November 17, 2006 hearing indicate the Court's expectation that the parties would consult with one another and inform one another about the content of their respective submissions: THE COURT: Yeah, work together on, you know, if there's a disagreement about whether some part of it is or isn't relevant, just go ahead and put it in so that if either side thinks it's relevant, I'll look at it. (Motions Hearing, 30:4-7). The Proposed Schedule for Submission of Privileged Documents and Deposition Designations provided that Pason would separately submit "all documents on its privilege log for in camera review" and that both parties would submit their respective deposition designations to the Court. (Doc. 136). The two types of submissions were to occur through different procedures.

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Pason argues in its Motion to Strike that even after Varco specifically requested copies of Pason's filing (excluding the privileged documents themselves), Pason was not required to provide Varco with the exhibits to its pleading because the deposition transcripts were already in Varco's possession. However, Varco did not have copies of Exhibit A (Defendant's newly revised Privilege Log) or Exhibit B (Defendant's Redaction Log) until Pason belatedly provided them on January 12, 2007. (Pason Ex Parte Submission, Ex. A & B). Moreover, it is improper for a party to refuse to serve its opponent with exhibits consisting of documentary evidence or deposition transcripts that have been filed with the court, merely because the opposing party could conceivably dig through the same documents or transcripts to locate the information itself. III. C ONCLUSION In summary, Varco's Supplement was necessitated by Pason's removal of important documents from its privilege log at the close of business on the same day that Varco filed its Designation of Deposition Testimony. Varco's Supplement provides relevant factual and legal context for the Court's in camera review of documents remaining on Pason's privilege log, and it accurately describes the parties' interactions. For all of these reasons, Pason's Motion to Strike should be summarily denied.

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Dated this 18th day of January, 2007. Respectfully submitted,

s/ Jane Michaels Jane Michaels H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Tel. (303) 295-8000 Fax (303) 295-8261 [email protected] Robert M. Bowick M ATTHEWS , L AWSON , B OWICK & A L -A ZEM , PLLC 2000 Bering Drive, Suite 700 Houston, Texas 77057 Tel. (713) 355-4200 Fax (713) 355-9689 [email protected] ATTORNEYS FOR PLAINTIFF VARCO, L.P.

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C ERTIFICATE O F S ERVICE I hereby certify that on January 18, 2007, 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 protected] [email protected]

s/Jane Michaels

3657182_3.DOC

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