Free Reply to Response to Motion - District Court of Colorado - Colorado

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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. 01-cv-0413-JLK M.D. MARK, INC. Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR DISCOVERY SANCTION OF "ADVERSE INFERENCE" JURY INSTRUCTION AGAINST PLAINTIFF M.D. MARK

Defendant Kerr-McGee Corporation ("Kerr-McGee") submits this Reply to Plaintiff's response to Defendants' motion for a discovery sanction of an "adverse inference" jury instruction. I. INTRODUCTION

Kerr-McGee's motion requests the Court to instruct the jury that it is permitted to infer that documents M.D. Mark intentionally destroyed were harmful to M.D. Mark's claims. Kerr-McGee presented evidence of M.D. Mark's knowledge that the documents were relevant and discoverable before destroying them. In opposing KerrMcGee's motion, M.D. Mark completely ignores Kerr-McGee's evidence, relies on unreliable and self-contradicting testimony of M.D. Mark's President, Marilyn Davies, and falsely asserts that it invited Kerr-McGee to inspect the documents at issue before destroying them.

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II. A.

ARGUMENT

M.D. M ARK I GNORES E VIDENCE O F I TS P RIOR N OTICE T HAT THE I NTENTIONALLY D ESTROYED D OCUMENTS W ERE R ELEVANT .

As M.D. Mark concedes, the legal authority cited in Kerr-McGee's motion applies where there is evidence that M.D. Mark destroyed documents with advance notice that they were relevant and discoverable. (See Plaintiff's Response to Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against M.D. Mark, p. 3); see also Computer Assoc. Int'l v. American Fundware, Inc., 133 F.R.D. 166, 167 (D. Colo. 1990). Kerr-McGee's motion presented ample evidence in this regard, specifically identifying discovery requests that encompassed the destroyed documents. (Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against Plaintiff M.D. Mark at pp. 3-5.) Kerr-McGee further demonstrated how these destroyed documents were relevant to its defense against M.D. Mark's claims and to the value of the PGI Data at issue. (Id. at pp.4-5.) Rather than address this evidence, M.D. Mark relies on Davies' deposition testimony, where she asserts that the documents she destroyed were not PGI accounting records and were not relevant. (Plaintiff's Response to Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against M.D. Mark at pp. 5-9.) As a matter of law, Davies' self-serving testimony is inherently unreliable. See Gates Rubber Co. V. Bando Chemical Indus., 167 F.R.D. 90, 112 (D. Colo. 1996). Further undermining Davies' credibility is her own, directly contradictory testimony only two weeks prior where she clearly testified that the documents she destroyed were,

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in fact, PGI accounting records. (Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against Plaintiff M.D. Mark at pp. 5, Ex. F ­ Davies Depo., April 6, 2004, 244:5-17.) Although M.D. Mark claims that Davies "corrected" her earlier testimony on the correction sheet of her deposition transcript, Kerr-McGee never received notice of this "correction," nor is it reflected in the deposition transcript that Kerr-McGee received. Despite these credibility issues and Kerr-McGee's evidence, M.D. Mark asks Kerr-McGee and this Court to "take Plaintiff at its word that these documents were neither relevant nor discoverable ..." (Plaintiff's Response to Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against M.D. Mark at p. 10.) B. M.D. M ARK ' S N EVER I NVITED D EFENDANTS TO R EVIEW THE D OCUMENTS IT L ATER D ESTROYED .

M.D. Mark asks the Court to believe that the PGI accounting records it destroyed are the same "8 file cabinet drawers of documents" that M.D. Mark invited Kerr-McGee to review in late 2001. (Plaintiff's Response to Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against M.D. Mark, pp. 2-3, 10-11.) Statements by M.D. Mark's counsel and Davies' deposition testimony prove M.D. Mark's allegation untrue. In letters dated December 27, 2001 and January 3, 2002, M.D. Mark's counsel represented that the documents M.D. Mark was inviting Kerr-McGee to review were license agreements between PGI and companies that are not parties to this lawsuit. (Plaintiff's Response to Defendants' Motion for Discovery Sanction of "Adverse

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Inference" Jury Instruction Against M.D. Mark at Ex. 1.) Yet Davies testified that the documents she destroyed were PGI accounting records. 1 (Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against Plaintiff M.D. Mark, p. 5, Ex. F ­ Davies Depo., April 6, 2004, 244:5-17.) M.D. Mark's own evidence shows that the PGI accounting records it destroyed while this case was pending are not the same documents M.D. Mark invited Kerr-McGee to review in 2001. Thus, contrary to M.D. Mark's allegation, Kerr-McGee did not have the opportunity to review the PGI accounting records before M.D. Mark destroyed them. III. CONCLUSION

For all of the reasons stated above and in Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against Plaintiff M.D. Mark, this Court should instruct the jury that it is permitted to infer that the documents M.D. Mark intentionally destroyed during the course of this litigation contained information harmful to M.D. Mark's claims.

Apparently realizing the implications of her testimony, Davies subsequently testified that the destroyed documents were accounting records of a different company. (Defendants' Motion for Discovery Sanction of "Adverse Inference" Jury Instruction Against at Ex. G ­ Davies Depo., April 23, 2004, 26:12-24.)

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Dated this 9th day of February, 2007. Respectfully submitted,

s/ M. Antonio Gallegos Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Denver, Colorado 80201-8749 Phone: (303) 295-8000 Fax: (303) 295-8261 [email protected] [email protected] [email protected] A TTORNEYS F OR D EFENDANTS

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C ERTIFICATE O F S ERVICE

I hereby certify that, on February 9, 2007, I electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to: Harlan P. Pelz Daniele W. Bonifazi Pelz, Bonifazi & Inderwish [email protected] [email protected]

s/Sally A. Walter__________

3664903_1.DOC

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