Free Motion in Limine - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

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EXHIBIT B

EXHIBIT B

Case 1:03-cv-01973-PSF-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-F-1973 (MJW) J.E.H. KNUTSON Plaintiff,
V.

WALKER GROUP, INC., Defendant.

PLAINTIFF J.E.H. KNUTSON'S RESPONSES TO WALKER GROUP INC.'S FIRST SET OF INTERROGATORIES

Plaintiff, J.E.H. Knutson, individually, through his attorneys, Fairfield and Woods, P.C., hereby responds to Defendant, Walker Group, Inc.'s, First Set of Interrogatories as follows:

INTERROGATORY NO. 1: Identify all agreements, contracts and understandings between you and First Layer Communications, Inc. since the inception of First Layer Communications, Inc., including, but not limited to, shareholder agreements. RESPONSE: I signed an employment agreement with First Layer. To the best ofmy recollection, I signed this agreement in the summer of2000. This agreement is no longer in my possession and I am uncertain ofits present location. INTERROGATORY NO. 2: Identify all agreements, contracts and understandings between you and Walker Group, Inc. and its subsidiaries. RESPONSE: The Guaranty, dated October 10, 2000, as amended, a copy of which is attached to the Complaint. The Guaranty would not be enforced. The Guaranty only ensured funds would be usedfor business purposes. INTERROGATORY NO. 3: Describewith particularity all communications, whether written or oral, between you and representatives ofWalker Group, Inc. regarding the guarantyand related loan documents that are the subject ofthis litigation. RESPONSE: Objection. Vague and overbroad with regard to the use of the term "related loan documents." Without waiving any objections, Plaintiff states as follows:

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While I do not have a complete recollection ofall the communications on this subject, I specifically recall the following conversations: (1) On or about August 9, 2000, in a conference call with Scott Stoll, Hal Schwem, Rick Walker, Mark Walker, Steve Fields, Doug Leckie, and myself, JeffSauter, Dave Menze[, and Roger Flint, it was discussed that personal Guarantees may be a requirement for Defendant to complete the deal; (2) On or about September 7, 2000, at a meeting in Welcome, North Carolina, attended by Scott Stoll, Hal Schwem, Rick Walker, Mark Walker, Steve Fields, Doug Leckie, Steve Fields, Dave Menzel, Roger Flint, and myself, Doug Leckie stated, "All the Guarantees are meant to do is to ensure the money is spent on what it was advanced for; I meanno trips to the Caribbean"; (3) On or about May 24, 2001, at a dinner in Denver, attended by Mark Walker and myself, Mark Walker stated words to the effect of, "I am not the type to call guaranties"; (4) On or about September 28, 2001, at a breakfast in Boulder, attended by Mark Walker and myself, Mark Walker stated words to the effect of, "I am not the type to call guaranties"; (5) On or about December 14, 2002, at a dinner attended by Mark Walker and myself, Mark Walker stated words to the effect of, "I am not the type to call guaranties"; (6) On or about May 28, 2002, at a dinner in Boulder, attended by Mark Walker and myself, Mark Walker apologized for firing me; when I asked to be formally released from the Guarantee, Mark Walker stated words to the effect of, "No, since we wouldn't call guaranties it didn't matter and he felt it would keep the others focused"; (7) On or about August 22, 2002, at a dinner at Outback Steak House in Boulder, attended by Mark Walker, Jeff Sauter, and myself, Mark Walker stated words to the effect of, "I am not the type to call guaranties." Documents relating to the Guarantee are attached to Plaintiffs responses to Defendant's Requests for Production. INTERROGATORYNO. 4: Describe with particularity all communications, whether written or oral, between you and representatives ofWalker Group, Inc. regarding your personal financial statement orpersonal financial status. RESPONSE: I recall general conversations regarding assets possessed by my family, but do not at this time recall any further details, such as the date, time, place, participants, or specific statements made. INTERROGATORY NO. 5: Ifyou contend that Walker Group, Inc. is not entitled to recover from you the balance due to Walker Group, Inc. from First Layer Communications, Inc. state the basis for such contention. RESPONSE: (1) The value ofassets seized by Defendant from First Layer pursuant to the note, including, but not limited to, customers, certifications and contracts which permitted Defendant to do business with a multitude of customers including

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Qwest, AT & T, WS, Eschelon, Southwestern Bell and others, which exceeds any amounts due under the note or the Guarantee; (2) Waiver and estoppel based on an agreement that the Guarantee would not be enforced. INTERROGATORY NO.6: Describe with particularity the basis for your allegation in Paragraph 9 of the Complaint that Walker Group, Inc. obtained "assets" of First Layer Communications, Inc. RESPONSE: Defendant obtained assets ofFirst Layer pursuant to the note, including, but not limited to, certifications and contracts, which permitted Defendant to do business with Qwest, Qwest, AT & T, Wireless Services ("AT & T, WS"), Eschelon, Southwestern Bell, and others. INTERROGATORY NO. 7: Identif~' ny documents that support your allegation in a Paragraph 9 ofthe Complaint that Walker Group, Inc. obtained "assets" ofFirst Layer Communications, Inc. RESPONSE: With the exception ofthe Guarantee, the note, and certifications and contracts, which permitted Defendant to do business with Qwest, Qwest, AT & T, WS, Eschelon, Southwestern Bell, and others, presently, I am unaware of any such documents. I will supplement my responseto this interrogatoryupon learning of any other documents responsive to this interrogatory. INTERROGATORY NO. 8: Identify all assets and accounts (including checking, savings and investment) in which you currently hold an ownership interest. RESPONSE: Objection. Not relevant and not reasonably calculated to lead to the discovery ofadmissible evidence. INTERROGATORY NO. 9: Identif~' ll assets and accounts (including checking, a savings and investment) in which you held an ownership interest on October 1, 2000. RESPONSE: Objection. Not relevant and not reasonably calculated to lead to the discovery ofadmissible evidence. INTERROGATORY NO. 10: Identify all real property in which you currently have an ownership interest, any encumbrance or lien on such property and the present valueof such property. RESPONSE: Objection. Not relevant and not reasonably calculated to lead to the discovery ofadmissible evidence.

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INTERROGATORY NO. 11: Identify all real property in which you had an ownership interest on October 1, 2000, any encumbrance or lien on such property and the value ofsuch property as of October 1, 2000. RESPONSE: Objection. Not relevant and not reasonably calculated to lead to the discovery of admissible evidence. INTERROGATORY NO. 12: Describe any claims ofwhich you are aware by Factor Partners I, LLC or any other entity, against First Layer Communications, Inc. RESPONSE: Objection. Not relevant and not reasonably calculated to lead to the discovery of admissible evidence. INTERROGATORY NO. 13: Describe with particularity any communications, whether written or oral, that you have had with David Menzel, Jeffrey Sauter, or Roger Flint regarding the guaranty that is the subject ofthis litigation or any guaranty signed by the co-guarantors for Walker Group's benefit from July 2000 through the present. RESPONSE: While I do not have a complete recollection of all the communications on this subject, I specifically recall the following conversations: (1) In the summer and fall of2000, there were conversations with these individuals wherein it was discussed that Defendant may require personal Guarantees to complete the deal; I do not presently have any recollection ofthe details ofthese discussions; (2) Dave Menzel related a conversation he had with Mark Walker, on or about January 4, 2002, in a meeting at Lisle II, wherein Mark walker stated words to the effect of, "I am not the type to call guaranties". INTERROGATORY NO. 14: Identify any writtencorrespondence that you exchanged with David Menzel, Jeffrey Sauter, or Roger Flint regarding the guaranty that is the subject ofthis litigation or any guaranty signed by the co-guarantors for Walker Group's benefit from July 2000 through the present. RESPONSE: Pursuant to F.R.C.P. 33(d), Plaintiff states that the answer to this interrogatory may be derived from the business records produced in response to Defendant's Requests for Production. INTERROGATORY NO. 15: Describe with particularity the basis for any claim for fraud or misrepresentation that you may believe or contend that you may have against Walker Group, Inc., Walker and Associates, Inc. andlor any ofthe officers and directors ofWalker Group, Inc. or Walker and Associates, Inc. in his or her corporate or individual capacity. RESPONSE: See Second Amended Complaint. In addition, Defendant knew ofthe agreement between my colleagues at First Layer and me and Telect, Inc., including Telect's funding $2,000,000 for a 90% ownership interest. I had forwarded Defendant a

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copy ofthe outline, which was later memorialized as a Memorandum ofUnderstanding. To get my colleagues at First Layer and me away from Telect, Rick Walker promised an "abundance ofready-to-go work," that Defendant would "bury" First Layer with work, that Defendant had approximately 20 sales representatives actively selling installation services, that First Layer would need "up to eight full time crews to keep up," that First Layer would control its own destiny with a "minor back end to Walker." After First Layer had signed the note and after I had signed the guaranty and started working with Defendant, I learned that this information was not correct. In fact, Defendant did not have ready to go work, could not "bury" First Layer with work, and did not have approximately 20 sales representatives selling installation services. Indeed, I learned that, even one year afterthe note and guaranty had been signed, only two of Defendant's sales representatives had made any efforts to sell installation services. Had I known ofthese misrepresentations, I never would have signed the guaranty or supported First Layer executing the note and working with Defendant. By doing so, I gave up a lucrative deal with Telect. I had no reason to suspect that Defendant would have misrepresented the facts in this way. My due diligence indicated Defendant and its representatives were ethical and truthful. INTERROGATORY NO. 16: Identify each person you expect to call as an expert witness at trial. State the following with respectto each experts: a. b. c. d. e. The subject matter on which the expert is expected to testify; The substance ofthe facts and opinions to which the expert is expected to testify; A summary of the grounds for each opinion; All documents and/or things the expert has reviewed in forming his/her opinion; The qualifications of each expert.

RESPONSE: I have not yet determined whether I will offer expert testimony, but will disclose any such experts in compliance with the Federal Rules ofCivil Procedure. INTERROGATORY NO. 17: Ifyou have ever been a party to a civil lawsuit, list the state, county and court in which each action was filed, the caption and file number of each action, the nature ofeach action, and the final or most recent disposition ofeach. RESPONSE: Telect, Inc. v. Jay Knutson, a/k/a J.E.H. Knutson, Superior Court, State ofWashington, County ofSpokane, Case No. 0308250-8. The subject matter is enforcement ofa Guarantee. The Complaint was filed on December 17, 2003 and served on me on March 1,2004. INTERROGATORY NO. 18: Identify all personal guaranties that you have executed since January 1999 in which you guaranty payment ofany debt.

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RESPONSE: The guarantee at issue in this lawsuit and a guarantee in favor of Telect, Inc., dated June 15, 2000, which is the subject ofthe lawsuit referenced in response to the previous interrogatory. Respectfully submitted this /~Iay ofMarch, 2004. AS TO OBJECTIONS FAIRFIELD AND WOODS, P.C.

By:

__________

Mic ael R. Mc~irdy~N'~ Cohn A. Walker ATTORNEYS FOR PLAINTIFF VERIFICATION STATE OF COLORADO COUNTY OF DENVER

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I swear under the penalties ofperjury that the answers to the questions given above are true and complete to the best ofmy knowledge and belief.

J.E.H. SUBSCRIBED and sworn to me this and official seal.

uts n ay ofMarch, 2004. Witness my hand

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I~ycocnmIss~on 11/22/2004 Expires

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CERTIFICATE OF SERVICE
~,,

The undersigned certifies that a copy ofthe foregoing was served as follows, this Via US. Mail

/~~ay ofMarch, 2004: Joshua Maximon Stuart D. Mann 12202 Airport Way, Suite 170 Broomfield, CO 80021 Facsimile: 303. Richard S. Gottlieb Kilpatrick Stockton LLP 1001 West Fourth Street Winston Salem, NC 27101-2400 e-mail:[email protected]

Via E-mail

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