Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ MOTION TO ALLOW PLAINTIFF TO CONDUCT ONE PRESERVATION DEPOSITION ______________________________________________________________________________ COMES NOW the Plaintiff, M.D. Mark, Inc., by and through its attorneys, Pelz, Bonifazi & Inderwish, P.C., and hereby submits this Motion to Allow Plaintiff to Conduct One Preservation Deposition, which as grounds therefore, Plaintiff shows unto this Court the following: 1. As more specifically detailed herein, Plaintiff is seeking leave of Court to conduct one

videotaped preservation deposition of in-house counsel Carlos Salazar, the attorney that provided the legal advice in this case, which forms the basis for Defendant Kerr-McGee Corporation's affirmative defense of advice of counsel. 2. As this Court may recall, this case was commenced in 2001, where the Parties requested

and this Court allowed expanded Discovery to occur due to the complexities of the issues

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involved. As part of this expanded Discovery, this Court ordered the appointment of Special Master Peter Bjork. During various hearings between the Parties and the Special Master, the Parties always agreed that there would be a need to conduct some preservation depositions. At that time the Parties acknowledged that the need for preservation depositions stemmed from the fact that the transcribed written testimony of some of the current or former Kerr-McGee employees was very convoluted and confusing, dealing with geophysics and intricacies of the seismic data industry. Previously, the Parties acknowledged that to accurately provide the proper context for the deposition testimony, large volumes of deposition testimony would need to be read to the jury at trial as opposed to simply providing snippets of testimony which would likely confuse the jury or be misleading. 1 3. Another basis for this agreement was that the Parties were also concerned that if either

side was forced to read large portions of the discovery deposition testimony, the length of this trial, currently set for 10 days, would be greatly extended. Everyone agreed this would extend the time in which to try this case. 4. The Parties always agreed that the most efficient and cost efficient solution was to

conduct video preservation depositions after discovery had ended and after dispositive motions had been ruled on by this Court. 2 For much of this case, previous defense counsel, David

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In order to satisfy Fed. R. Evid. 106 and 403, large portions of this testimony must be read so as to allow the jury to understand the issue being questioned as well as understand the complex answers being given. 2 Attached as Exhibit 1, is a proposed Order, titled Order Granting Joint Motion To Extend The Discovery Cut-Off For Limited Purpose And To Extend Dispositive Motions Deadline, drafted on or about January 30, 2003 by previous counsel for Defendant Kerr-McGee. On page 2 of this document, previous counsel for Defendant KerrMcGee writes "[t]his order is not intended to limit the parties' ability to take depositions for the preservation of testimony." The Parties' agreement that preservation depositions would be used at trial is consistent with additional pleadings drafted by previous counsel for Defendant Kerr-McGee which reiterated discussion on the same topic during hearings presided over by the Special Master.

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Hammond, agreed that use of a limited number of videotaped preservation testimony conducted after discovery and after dispositive motions had been ruled on by this Court was the best and most efficient way to present this testimony. However, in March 2007, Defendant Kerr-McGee changed its position claiming that no such agreement existed. Later, again reversing course, Defendant Kerr-McGee acknowledges that preservation depositions may be permissible, but it depended on which witnesses' testimony Plaintiff wanted to preserve. 5. At no time did Defendant Kerr-McGee ever raise an objection to the use of preservation

depositions at trial much less reserve the right to select which witness Plaintiff would be allowed to depose. Defendant Kerr-McGee's only objection was the number of preservation depositions that Plaintiff would be allowed to conduct as the Special Master was attempting to decide how many additional fact depositions would be allowed. That objection is now moot as Plaintiff is only requesting that one video preservation deposition be conducted. 6. Parties have agreed that the need to conduct preservation depositions for Marilyn Young,

and Darren Helm will not be necessary wherein counsel for Defendant Kerr-McGee has agreed to ensure that each will attend trial personally. The only remaining witness mentioned in this discussion that will not be at trial is Carlos Salazar. Defendant Kerr-McGee has objected to allowing his testimony to be preserved by video deposition since he was deposed on two prior occasions. 7. Contrary to all prior agreements and understanding between the Parties discussed during

hearing presided over by the Special Master, Defendant Kerr-McGee now is taking the position that they have the right to decide who Plaintiff chooses to depose. That was never the agreement

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between the Parties. Plaintiff would never have agreed to allow Defendant Kerr-McGee to select which witnesses' testimony needed to be preserved. More specifically, the Parties knew that this case would likely change following completion of discovery and rulings on dispositive motions, which in turn would determine specific witness testimony that would need to be preserved for trial if a witness would not be attending personally. 8. The fact that Carlos Salazar was deposed on two prior occasions is of no consequence.

During the first deposition in May 2002, this deposition was conducted prior to Plaintiff's need to amend its Complaint on three subsequent occasions due to factual changes in this case. Therefore, this case was very different at that time Mr. Salazar was deposed then it is now. The second deposition in March 2004 was limited in scope preventing Plaintiff from questioning Mr. Salazar on any other topic save the advice of counsel he gave his client. Accordingly, that testimony is only part of the testimony that he will be questioned on for purposes of cross exam at trial. Mr. Salazar, the person that gave the advice for the actions of Defendant Kerr-McGee which form the basis for this lawsuit, remains a critical witness in this case. To now attempt to limit Mr. Salazar's testimony, thus limiting Defendant's potential culpability, by forcing Plaintiff to rely on these earlier depositions is nothing more than trial gamesmanship which would result in prejudice to Plaintiff. 9. Plaintiff now seeks an Order allowing Plaintiff to conduct one (1) video preservation

deposition of a witness that will not be personally present at trial, to be completed on or before September 1, 2007.

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DATED:

August 2, 2007 Respectfully submitted, PELZ, BONIFAZI & INDERWISH, P.C. /s Dan Bonifazi Harlan P. Pelz Daniele W. Bonifazi 1873 South Bellaire Street, Suite 1401 Denver, CO 80222 Telephone: 303-691-5600 Facsimile: 303-691-5606 ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of August, 2007, a true and correct copy of the foregoing MOTION TO ALLOW PLAINTIFF TO CONDUCT ONE PRESERVATION DEPOSITION was placed in the United States Mail, postage prepaid, addressed as follows: Scott S. Barker, Esq. Gregory E. Goldberg, Esq. Antonio Gallegos, Esq. HOLLAND & HART, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749

/s Dee A. Shaffer_________________ Dee A. Shaffer

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