Free Response to Motion - District Court of Colorado - Colorado

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

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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. DEFENDANT KERR-M C GEE'S RESPONSE TO PLAINTIFF'S SECOND MOTION IN LIMINE

Defendant Kerr-McGee Corporation ("Kerr-McGee") ("Oryx") submits this response to Plaintiff's Second Motion in Limine. INTRODUCTION M.D. Mark seeks to exclude relevant and admissible evidence of its loss and intentional destruction of records which may have shown that Kerr-McGee properly licensed 3191 miles of seismic data, sometimes referred to as the "Torch Data." This evidence relates directly to the reliability of the records through which M.D. Mark supports its claim that Kerr-McGee wrongfully possesses the so-called "Torch Data." M.D. Mark's motion improperly attempts to bolster the reliability of these records, emphasizes certain evidence regarding Kerr-McGee's records, and attacks the credibility of certain witnesses. While Kerr-McGee disputes these contentions, these arguments go to the weight the jury should give this evidence, not its admissibility.

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LEGAL STANDARD Evidence is relevant if it has a tendency to make the existence of a fact of consequence more or less probable than it would be without the evidence. F ED . R. E VID . 401; Federal Deposit Insurance Corp. v. Refco Group, Ltd., 184 F.R.D. 623, 629 (D.Colo. 1999). As a general rule, all relevant evidence is admissible unless the danger of unfair prejudice, confusion, or misleading the jury substantially outweighs the evidence's probative value. FED . R. E VID . 402, 403; Id. at 629-30. The jury ­ not the court ­ bears sole responsibility for determining the weight given to admitted evidence. Kitchens v. Bryan County Nat'l Bank, 825 F.2d 248, 251 (10th Cir. 1987). ARGUMENT Discovery in this case has revealed evidence that M.D. Mark's records of seismic data licenses may not be a reliable means of determining whether or not Kerr-McGee wrongfully obtained the "Torch Data." Marilyn Davies, M.D. Mark's President, has testified to the state of disarray and incompleteness in which the M.D. Mark acquired records from its predecessor, Professional Geophysics, Inc. ("PGI"), and that M.D. Mark intentionally destroyed large portions of those records. Davies searched approximately 150 boxes of PGI records that were being stored by a bankruptcy court, but "was allowed to take a few of the boxes . . . . [p]robably three or four." (Ex. A, Marilyn Davies Depo., April 23, 2004, 17:21-18:19). Moreover, it is undisputed that large portions of the PGI documents have been destroyed over the years. As Davies testified, "I have what I have. Several rooms of documents were destroyed in the move from when PGI was shutting down and moving . . . . They destroyed two rooms of

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documents. Unfortunately, that was a lot of accounting documents and included a lot of contracts." (Ex. B, Marilyn Davies Depo, April 11, 2002, 181:13-182:2). In fact, Davies admitted that she directed the shredding of volumes of documents pertaining to seismic data it acquired from PGI, including accounting records. (Ex. C, Marilyn Davies Depo., April 6, 2004, 244:12-252:25). In a deposition two weeks later to explore spoliation of these documents, Davies acknowledged that, on August 23, 2003 (more than two years after initiating this litigation), she destroyed 487 pounds of documents and 384 pounds of tapes relating to the PGI database. (Ex. A, Marilyn Davies Depo., April 23, 2004, 57:19-59:3). Further undermining the reliability of M.D. Mark's records is evidence that there are, in fact, license agreements to support KerrMcGee's lawful possession of several lines of "Torch Data" because M. D. Mark's inventory of so-called "Torch Data" overlaps with its inventory of data it concedes was properly licensed by Kerr-McGee. (See Ex. D, Ann Lane Depo., May 25, 2004, 18:1223). M.D. Mark will not be unfairly prejudiced by admission of this and other relevant evidence concerning the unreliability of its records because M.D. Mark is free to present evidence in support of its claim. In fact, a large portion of M.D. Mark's motion attempts to bolster the reliability of its records and berates Kerr-McGee's failure to produce copies of license agreements for the "Torch Data." (Plaintiff's Second Motion in Limine, ¶¶3-8, 11.) To the extent that evidence advocated in its motion is admissible, M.D. Mark may offer it at trial. Thus, admission of evidence as

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to the unreliability of M.D. Mark's promotes the truth-finding process because it will allow the jury to weigh Kerr-McGee's evidence against M.D. Mark's evidence. M.D. Mark's Motion, however, improperly requests that the Court usurp the jury's factfinding responsibility. M.D. Mark's argument that potential Kerr-McGee trial witnesses lack sufficient personal knowledge to testify that Kerr-McGee lawfully acquired the "Torch Data" is unfounded. First, it is premature to determine whether there exists an adequate foundation for any witness to testify on this issue. This issue should be decided at trial, after counsel elicits testimony regarding a given witness's personal knowledge regarding the "Torch Data." Second, deposition testimony contradicts M.D. Mark's assertion of inadequate foundation. Several witnesses testified at their depositions, based on personal knowledge, that the "Torch Data" belongs to Kerr-McGee and was not improperly obtained from a third party. (See e.g., Ex. E, Dan Miller Depo., 16:416:7; 16:12-16; 30:19-31:24; 65:20-23; 93:21-94:9; Ex. F, Tom Schultz Depo., 42:1922; 67:21-25; 83:3-9; Ex. G, Darren E. Helm Depo., 11:5-12:9; 19:25-20:23). CONCLUSION M.D. Mark provides no legal basis for the exclusion of relevant and admissible evidence regarding the loss and intentional destruction of its records. Instead, M.D. Mark improperly argues in support of evidence it would like to present at trial. The Court should DENY M.D. Mark's Second Motion in Limine.

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Dated this 5th 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 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8513 Fax: (303) 975-5416 [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 5, 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/Julie J. Winkler

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