Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1644-REB-CBS CARTEL ASSET MANAGEMENT, a Colorado corporation, Plaintiff, v. OCWEN FINANCIAL CORPORATION, a Florida corporation; and OCWEN FEDERAL BANK FSB, a subsidiary of OCWEN FINANCIAL CORPORATION , Defendants.

DEFENDANT OCWEN FEDERAL BANK'S RESPONSE TO PLAINTIFF'S MOTION TO CONDUCT ADDITIONAL DISCOVERY Defendant Ocwen Federal Bank FSB (the "Bank") respectfully submits the following response to plaintiff Cartel Asset Management's ("Cartel") Motion to (i) Conduct Limited Additional Discovery, (ii) Require Defendants to Supplement Disclosures and Discovery Responses, and (iii) Reserve the Right to Introduce Different and/or Additional Evidence at Retrial (docket no. 456) (the "Motion"). INTRODUCTION After six and a half years of litigation, including a seven-day jury trial and an appeal, the case returns to this Court for the retrial of a single narrow issue that Cartel was unable to prove during the first trial -- whether Cartel is entitled to an award of damages on its trade secret claim against the Bank and, if so, the amount of such

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damages.1 The second trial involves nothing more than a "redo" of a small portion of the first trial. Cartel, however, seeks to reopen discovery and to present new evidence it could not have introduced during the first trial. Although the Tenth Circuit concluded Cartel could take a small second bite at the apple, Cartel is not entitled to a fresh chomp at a different piece of fruit, in the hope of filling the evidentiary gaps that doomed its damages claim at the first trial. Cartel is limited at the second trial to the evidence listed in the Amended Final Pretrial Order (the "Final Pretrial Order") entered on June 4, 2004 (docket no. 281). For this reason, there is no need for further discovery, because the evidence at the second trial may not extend beyond the testimony and documents identified in the Final Pretrial Order. Accordingly, the Motion necessarily fails. BACKGROUND OF THE MOTION This case has followed a lengthy and tortuous path. Cartel filed its original Complaint on August 21, 2001. See Complaint (docket no. 1). Over the next thirty-four months, Cartel had a full and fair opportunity to take discovery and to muster its evidence. For example, this Court extended discovery deadlines in this case numerous times. See, e.g., Order Granting Unopposed Stipulation and Joint Mot. to Extend Time to Answer Disc. (docket no. 85); Minute Order (docket no. 94); Courtroom Minutes (docket no. 137). After Cartel's third set of attorneys entered their appearance on February 25, 2004, see Entries of Appearance (docket nos. 231 and 232), the Court,

1

The Bank has moved to substitute its successor-in-interest, Ocwen Loan Servicing, for the Bank, which has been dissolved. See the Bank's Mot. for Substitution of Party and for Amendment of Caption at 2-3 (docket no. 442).

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over the Bank's objections, granted Cartel permission to take preservation depositions of three Cartel witnesses and a Rule 30(b)(6) deposition of the Bank, see Order (docket no. 235), after the February 19, 2004 discovery cut-off date the Court had imposed only six weeks before. See Order Den. Mots. for Recons. of Rule 11 Order and Granting Mot. for Att'ys' Fees at 11 (docket no. 221). The original discovery cut-off date had been November 30, 2002. See Scheduling Order at 7 (docket no. 35). This Court further obliged Cartel's new legal team by modifying the pretrial order less than one month before trial, see Minute Order (docket no. 274), and by allowing Cartel's damages expert to submit a third report on the eve of trial. See Order Den. Defs.' Mot. to Strike Pl.'s Untimely Third Expert Report on Damages and Defs.' Mot. in Limine to Strike Irrelevant Test. of Cartel's Expert Witness Christine Teahan at 1-3 (docket no. 277). The Court gave Cartel every opportunity to obtain the discovery it sought, even after the original and amended discovery cut-off dates had passed. The Final Pretrial Order contains no indication that Cartel believed it had been denied any discovery Cartel deemed necessary to prepare for trial. To the contrary, in the Final Pretrial Order, Cartel described its claims in detail and listed three "will call" witnesses, see Final Pretrial Order at 12-13; eight "may call" witnesses, see id. at 13-16; two expert witnesses, see id. at 21-22; and twenty-two pages of exhibits, identified in single-spaced text. See id., Ex. 1. The Court conducted a jury trial in this matter from June 30, 2004 to July 9, 2004. On July 16, 2004, this Court set aside the jury verdict in favor of Cartel on the trade secret claim. See Order Granting New Trial on Damages at 10 (docket no. 328). Four

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months later, the Court entered a final judgment for two dollars on such claim. See Order on Pending Mots. at 15-16 (docket no. 379). Cartel appealed the Court's ruling to the Tenth Circuit, which rejected Cartel's argument for reinstatement of the verdict on the trade secret claim. See Cartel Asset Mgmt. v. Ocwen Fin. Corp., 249 F. App'x 63, 87 (10th Cir. 2007) (the "Tenth Circuit Decision"); Tenth Circuit's Order dated Nov. 21, 2007 (the "November 21 Order"), at 1. On November 29, 2007, the Tenth Circuit remanded the case for a new trial on the damages portion of Cartel's trade secret claim. See November 21 Order at 1 (case remanded to determine "[t]he amount of actual damages (if any) and the amount of punitive damages (if actuals are proven)"). Thus, the second trial is simply a narrowly circumscribed replay of a portion of the first trial. It does not concern any claims or legal theories that Cartel did not assert at the first trial. Even though the second trial is a "redo," and even though Cartel received every opportunity to muster the evidence in support of its damages claim before the first trial began on June 30, 2004, Cartel now seeks to expand the evidentiary scope of the second trial and, consequently, to reopen discovery for up to seventy-five days. The Motion is filled with a lengthy wish list revealing Cartel's intent to seek new facts, testimony, and documents in support of its damages claim: · Up to ten additional interrogatories per defendant;2

2

All of Cartel's original claims against Ocwen Financial Corporation ("OFC") were resolved at trial in favor of OFC. See Cartel's Mot. to Join Ocwen Fin. Corp. as a Party Def. under Fed. R. Civ. P. 18(b) & 20(a) at 1 n.1 (the "Joinder Motion") (docket no. 453). Cartel now seeks to bring OFC back into the case, however, in OFC's capacity as guarantor of the Bank's obligations, see id. at 3-4, and to take substantial discovery from OFC. See Motion at 5-6. The Bank opposes Cartel's motion to join a new party
(footnote continued on next page)

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· · · · · ·

Up to ten additional document requests per defendant; Up to four additional depositions of fact witnesses; New depositions of each of the Bank's experts; Supplementation of all prior disclosures; Modification of the Final Pretrial Order to include new exhibits and new witnesses; and Expansion of the scope of the second trial to include "additional and/or different evidence" from that presented at the first trial.

See Motion at 5-6. As demonstrated below, there is no basis for expanding the scope of the case and reopening discovery. The Final Pretrial Order reflects the only evidence Cartel should be permitted to present at the second trial. ARGUMENT I. CARTEL IS SEEKING TO MODIFY THE PRETRIAL ORDER. The Motion is, in effect, a request to modify the Final Pretrial Order. See Motion at 6. Because the second trial merely involves a "do over," and not adjudication of a new claim, the Final Pretrial Order governs the new trial, just as it governed the last time Cartel tried to prove its claim for damages.3 As explained in Section II below, Cartel may not expand the evidentiary scope of the second trial beyond the testimony of the witnesses and documents identified in the Final Pretrial Order unless it proves that
(footnote continued from previous page)

and a new claim at this late date. See the Bank's Resp. to Mot. to Join Ocwen Fin. Corp. as a Party Def. at 1-9 (docket no. 459).
3

The Bank acknowledges that the form of the Final Pretrial Order will need to be changed to reflect Judge Blackburn's requirements for pretrial orders. See REB Civ. Practice Standard IV.A.2.

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"manifest injustice" would result if the Final Pretrial Order were not substantively modified. If the evidence in the second trial is indeed limited to that listed in the Final Pretrial Order, there is no reason to reopen discovery. A pretrial order "measures the dimensions of the lawsuit." Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002). Its purpose is to "insure the economical and efficient trial of every case on its merits without chance or surprise." Id. (quoting Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir. 1987)) (emphasis added). A pretrial order is "definitive," "sharpen[s] and simplifie[s] the issues to be tried," and "represents a complete statement of all the contentions of the parties." Trujillo v. Uniroyal Corp., 608 F.2d 815, 817 (10th Cir. 1979) (internal citations omitted). Moreover, while the pretrial order defines the issues and defenses of the lawsuit, a district court "may more strictly construe such an order when the party favoring a liberal construction has had ample opportunity to refine the order and when the final order is properly drawn and substantially specific." Koch v. Koch Indus., Inc., 203 F.3d 1202, 1220-21 (10th Cir. 2000) (emphasis added). Here, Cartel was given every opportunity to prepare its case, was allowed to take untimely discovery, and was even permitted to amend the pretrial order on the eve of trial. As explained below, the Motion fails because Cartel cannot meet its heavy burden for modifying the Final Pretrial Order, which governed the first trial and governs the remainder of this case.

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II.

CARTEL CANNOT PROVE THAT MANIFEST INJUSTICE REQUIRES MODIFICATION OF THE FINAL PRETRIAL ORDER. A. Cartel's Motion Fails to Explicate the Applicable "Manifest Injustice" Standard.

The Final Pretrial Order may be modified only to "prevent manifest injustice." See Fed. R. Civ. P. 16(e). The "manifest injustice" standard applies when a claim is retried at a second trial. See Cleveland v. Piper Aircraft Co. 985 F.2d 1438, 1450 (10th Cir. 1993). "The same principles [under Rule 16(e)] should govern the trial court's discretion in managing a second new trial in any given case." Id. (citing Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir. 1971)). "[T]he burden of demonstrating manifest injustice falls upon the party moving for modification." Koch, 203 F.3d at 1222; see also Final Pretrial Order at 24 (any party seeking to amend the Final Pretrial Order must demonstrate manifest injustice). Cartel may not expand the parameters of the evidence it believes supports its damages claim beyond the testimony and documents identified in the Final Pretrial Order, because Cartel cannot prove that manifest injustice would result if the Final Pretrial Order is not substantively modified. The Motion should be denied because Cartel failed even to argue, let alone prove, that manifest injustice would result if the Final Pretrial Order were not substantively revised. B. Cartel's Proffered Reasoning for Reopening the Case Fails to Satisfy the "Manifest Injustice" Standard.

The Motion fails, even if Cartel's arguments for expanding the evidentiary scope of the case are construed as an attempt to meet the "manifest injustice" standard. In the context of an attempt to add a new witness late in the case, the Tenth Circuit

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adopted a four-factor analysis in determining whether the pretrial order must be amended to avoid manifest injustice: (1) the prejudice or surprise in fact to the party against whom the proposed new witness would testify; (2) the ability of that party to cure such prejudice; (3) the extent to which allowing the addition of the witness would disrupt the orderly and efficient trial of the case or of other cases in court; and (4) bad faith or willfulness by the moving party to comply with the court's pretrial order. See Koch, 203 F.3d at 1222. Paramount among these factors is the assurance of "full and fair litigation of claims." Joseph Mfg. Co. v. Olympic Fire Corp., 986 F.2d 416, 420 (10th Cir. 1993). This reasoning would apply to any untimely attempt to inject new evidence into a case. Cartel advances three reasons for amending the Final Pretrial Order and, therefore, for reopening discovery: (1) the absence of evidence in support of Cartel's damages case because of the Bank's alleged failure to produce certain data; (2) the death of Judge Figa; and (3) the jury's finding that the Bank was liable to Cartel for misappropriation of trade secrets. None of these factors establishes the "manifest injustice" necessary for modification of the Final Pretrial Order. 1. The Bank Produced All Relevant Information and Documents During Discovery Prior to the First Trial.

Cartel's assertion that it should be permitted to take new discovery because "the absence of evidence is directly attributable to [the Bank's] failure to provide the data" is disingenuous, at best. See Motion at 5 (quoting Tenth Circuit Decision, 249 F. App'x at 79). The subject data concerns the profits, if any, the Bank realized from the sale of broker price opinions ("BPOs"). See Tenth Circuit Decision, 249 F. App'x at 78. As Arthur Castner ("Castner"), the Vice-President, Residential Assets and Valuation, of the

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Bank, testified during his deposition two months before the first trial, the Bank did not calculate the net profits from its sale of BPOs. See Castner dep. at 6:7-10, 101:15102:23. (Relevant pages from the transcript of Castner's deposition are attached hereto as Exhibit A.) Q. Are you telling me that as head of the department, you can't tell me what profits and losses resulted, and revenues resulted, from the resale of residential BPOs purchased from national vendors and brokers from 1997 to the present? A. I can tell you that's correct. Id. at 101:15-20; see Tenth Circuit Decision, 249 F. App'x at 78 (the Bank "asserted it did not retain records allocating the profits within its product lines"). Not satisfied with Castner's testimony, on April 28, 2004, Cartel moved to compel the Bank to produce such data. See Mot. to Compel Produc. of Docs. at 4-10 (docket no. 256). In its response to Cartel's motion to compel, the Bank again explained: [Ocwen Realty Advisors ("ORA"), a department within the Bank] offers its customers a full spectrum of valuation services, including, without limitation, appraisals and property valuation analyses, of which BPOs comprise only a small portion. ORA charges its customers for this complete package of services, and not simply for BPOs. ORA's charges from BPO sales therefore cannot be "unbundled" from the revenue that ORA receives from its customers for its valuation work. Unlike the Bank, Cartel can determine how much it charges for BPOs, because the only product it provides is BPOs. For example, Cartel does not offer appraisals or expert analyses of valuations. The Bank, which does not sell BPOs alone, cannot break out the cost of its BPOs because they are included in the total cost of the Bank's package of valuation services. ....

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For the reasons explained above, the Bank does not track its revenues, profits, or losses attributable to the "resale" of BPOs, because the Bank does not provide BPOs, without more, to any customer. See Defs.' Resp. to Mot. to Compel Produc. of Docs., filed May 11, 2004, at 7 (docket no. 262). The Court denied Cartel's motion to compel, in relevant part, at a hearing conducted on May 13, 2004. See Minute Order dated May 14, 2004 (docket no. 268). Cartel's damages expert, James TenBrook ("TenBrook"), insinuated on the witness stand during trial that the Bank had withheld evidence of its profits on BPO sales: Q. And isn't it true that in calculating Cartel's alleged damages, you assumed that ORA's net profit margin from the sale of BPOs, is the same net profit margin as that of the other business lines of Ocwen Realty Advisors? A. Yes. Q. And enough specific information as to whether Ocwen Realty Advisors ever made a net profit on the sale of BPOs; agreed? A. Yeah, nothing was produced. Q. Well the answer is yes? A. The answer is yes, nothing was produced as to determine whether there was a net profit ­ Q. Isn't it true ­ A. ­ on BPOs. Trial trans. at 383:11-24 (emphasis added). (Relevant pages from the trial transcript are attached hereto as Exhibit B.) TenBrook and Cartel never explained to the jury,

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however, that the Bank had not produced the net profit information because such documentation did not exist. There is no evidence that the Bank failed to produce any information or documents Cartel requested, to which Cartel was entitled under the discovery rules, and that the Bank actually possessed. Cartel's hope that evidence of the Bank's net profits, if any, generated from sales of BPOs will magically appear four years after Cartel lost the motion to compel the very same documents is not only baseless, but, more importantly, does not meet Cartel's burden of proving that manifest injustice would result if the Final Pretrial Order is not substantively modified. 2. Judge Figa's Death Is Not Grounds for Modifying the Final Pretrial Order.

Judge Figa's untimely death, while a huge blow to our legal community, is not a legitimate basis for allowing Cartel to expand the evidentiary scope of the case. Cartel claims it should be permitted to modify the Final Pretrial Order because Judge Figa alone possessed knowledge about the conduct of the first trial. See Motion at 5. This argument not only lacks legal support, but it fails the test of logic. Under Cartel's theory, the reassignment of a case to a new judge, like the death of a judge, would be sufficient, without more, to reopen a pretrial order and to expand the scope of a case. Not surprisingly, Cartel cites no case law in support of this argument. There is no connection between the reassignment of the case back to the Judge who presided over this matter from March 7, 2002 to October 29, 2003 and Cartel's desire to muster new evidence. Judge Blackburn is capable of presiding over the second trial, regardless of whether the Final Pretrial Order is materially modified. Cartel cannot demonstrate that

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manifest injustice would result if the Final Pretrial Order is not revised in light of the recent change in judge. 3. The Prior Findings Against the Bank Are Irrelevant to the "Manifest Injustice" Analysis.

Cartel, in effect, asserts that the finding of liability against the Bank on the trade secret claim allows Cartel to ignore Rule 16 and the case law limiting modification of pretrial orders to situations involving "manifest injustice." See Motion at 5. Cartel's approach misses the mark. Rule 16 is primarily intended to aid court case management, and to avoid unnecessary burdens on the courts and opposing parties. See In re Baker, 744 F.2d 1438, 1441 (10th Cir. 1984). The Rule cannot be waived to punish "intentional wrongdoers." C. Reopening the Final Pretrial Order Would Result in Manifest Injustice to the Bank.

Cartel's proposed amendments to the Final Pretrial Order would be manifestly unjust to the Bank. Cartel seeks the right to hunt down unspecified new evidentiary support for its damages claim, without limitation or reservation. Rule 16 does not, however, allow Cartel to alter the constraints of the Final Pretrial Order at whim. Revising the Final Pretrial Order and reopening discovery, as Cartel seeks, would result in substantial additional unnecessary expense to the Bank,4 would admittedly delay the trial for at least seventy-five days, and would disrupt the orderly and efficient preparation of the case for the second trial.
4

The Bank would be forced to incur further unnecessary expenses if the Court grants the Joinder Motion and adds a new party and a new claim to the case at this late date.

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III.

CARTEL'S MOTION TO MODIFY THE FINAL PRETRIAL ORDER AND TO REOPEN DISCOVERY IS A FORBIDDEN POST-TRIAL ATTEMPT TO PLUG THE HOLES IN CARTEL'S DAMAGES CASE. In squarely addressing the issue of amending a final pretrial order for purposes of

retrial, the Tenth Circuit has admonished that, as here, the first trial typically affords parties "ample time for discovery and investigation." Cleveland, 985 F.2d at 1449 (emphasis added). "[R]emand for a new trial [is] not an invitation to reopen discovery for newly retained expert witnesses [or] to enlarge trial time unnecessarily through the addition of totally new exhibits and testimony." Id. Moreover, the Tenth Circuit specifically prohibits amendments to a final pretrial order to serve "a lawyer's theory of how to `plug the holes' of a case." Id. at 1450. It is always easy in hindsight for counsel to realize there may be a better way to try a case the second time around. Hindsight advantage necessarily inures to both sides, but this does not mean a court [. . .] must allow either side to introduce totally new expert witnesses to bolster or impeach earlier evidence. Id. at 1449-50 (emphasis in original). Furthermore, the Tenth Circuit has held that motions to reopen discovery between a first and second trial must be rejected unless they seek evidence not otherwise readily accessible or known in the first trial, id., which is not the case here. These considerations may be overlooked only when technical obstacles, not present in this case, create manifest injustice, such as when a witness is deceased, ill, or otherwise unable to attend the second trial. Id. at 1450 ("[t]echnical rulings should never preclude new and material proofs; common sense should control"). Cartel impermissibly seeks a blank check to modify the Final Pretrial Order and to reopen discovery for the forbidden purpose of plugging the holes that were fatal to its

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damages claim during the first trial. Notably absent from the Motion is any explanation of what new relevant evidence Cartel believes it would uncover through a new round of discovery, why it did not seek such information and documents before the last discovery cut-off date, or why Cartel did not identify such evidence prior to the first trial. See Martin's Herend Imps., Inc. v. Diamond & Gem Trading United States Co. of America, 195 F.3d 765, 775-6 (5th Cir. 1999) (district court properly limited testimony on remand to the witnesses at the first trial and properly excluded testimony by seven new witnesses as untimely, for failing to demonstrate why their testimony was not introduced in the first trial, and the manifest injustice to the opposing party); see also Total Containment Inc. v. Dayco Prods. Inc., 177 F. Supp. 2d 332, 336 (E.D. Pa. 2001) (parties who had three years to take discovery may not introduce at second trial new evidence simply to improve their chances; refusing to allow at second trial 332 new exhibits and additional theories of liability); Whitehead v. K Mart Corp., 173 F. Supp. 2d 553, 564-65 (S.D. Miss. 2000) (refusing defendant's request to designate new expert on the issue of damages because this was a matter "which easily could have been pursued prior to the first trial"). In sum, the Motion represents no more than a thinly veiled attempt at bolstering Cartel's case and, therefore, should be denied. See Clark v. R.E.L. Prods., No. 904121, 1993 U.S. Dist. LEXIS 4788, at *2-7 (D. Kan. Mar. 4, 1993) (magistrate judge properly barred plaintiff's attempt to designate additional expert witnesses in the second trial for the sole purpose of rebutting testimony by defendant's expert witnesses in the first trial, as improper attempt to improve its case); William A. Graham Co., v. Haughey,

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No. 05-612, 2007 U.S. Dist. LEXIS 86060, at *1-4 (D. Pa. Nov. 21, 2007) (precluding defendants from introducing testimony of three witnesses and an expert witness in damages trial, because the additional testimony would entail simply bolstering their case and leading to additional discovery "with no quick end in sight"). CONCLUSION For the reasons set forth above, the Bank respectfully requests that the Court deny the Motion and clarify that the Final Pretrial Order (as modified solely to comply with the Court's formal requirements) will remain in effect through the second trial. Respectfully submitted this 3rd day of March, 2008. /s/Lino S. Lipinsky de Orlov Lino S. Lipinsky de Orlov Sandra B. Wick Mulvany McKENNA LONG & ALDRIDGE LLP 1875 Lawrence Street, Suite 200 Denver, CO 80202 (303) 634-4000 ATTORNEYS FOR DEFENDANT OCWEN FEDERAL BANK FSB

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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of March, 2008, a true and correct copy of the foregoing DEFENDANT OCWEN FEDERAL BANK'S RESPONSE TO PLAINTIFF'S MOTION TO CONDUCT ADDITIONAL DISCOVERY was electronically filed with the clerk of court using the CM/ECF System, which will send notification of such filing to the following: Glenn W. Merrick, Esq. G.W. Merrick & Associates, LLC 5445 DTC Parkway, Suite 912 Greenwood Village, CO 80111 [email protected] /s/Lino S. Lipinsky de Orlov
DN:32137760.1

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