Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01002-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv -1002- MK-CBS : Donja Vaughn, : Plaintiff v. Simms Rhea et al. Defendants : : : :

PLAINTIFF'S RESPONSE TO MOTION FOR PROTECTION ORDER 1. Admitted in part; denied in part. In a letter sent to defense

counsel, Plaintiff's counsel asked defense counsel for dates they were available for the taking of trial testimony of witnesses who resided beyond the 100-mile subpoena power of the court. Counsel for Defendants Rhea, Shoun and Stevenson refused to provide any dates and said they would oppose taking of any trial testimony before July 12, 2006. No rule requires leave of court to do so. Plaintiff's counsel has taken trial testimony prior to the trial date many times in other cases. Leave of court was never required. 2. Admitted in part; denied in part. The discovery deadline was not

September, 2005. Depositions were taken October 2005. It was in October, 2005. After records from the criminal file of the Montezuma County District Attorney were produced in January, 2006, each relevant page was filed with the court in February, 2006 as a Supplement to Plaintiff's Motion for Partial Summary Judgment and served upon the parties. Each page was examined by defense counsel on June 1, 2006

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when the exhibits were examined by the parties. As to many of the exhibits obtained in January 2006, Defendants do not object as to authenticity. Most of them are documents produced by Margaret Krehbiel. Her trial testimony will be taken to lay a foundation for the introduction of the exhibits into evidence. The documents reveal the extensive conspiracy among Defendant Rhea, a private actor, and Defendants Connor, Olt, Shoun and Stevenson, state actors, to deprive Plaintiff of horses to which she had possessory rights without a hearing or notice. The records include detailed notes as to what transpired between March 1 and June 18, 2002, the period of the conspiracy. The testimony is being taken for use at trial. The deposition is not a discovery deposition. Krehbiel was noticed as a witness, all the exhibits have been in the possession of defense counsel for over 4 months. Under Rules 30 (b) and 32 (a)(3), F.R.C.P. testimony of witnesses to preserve testimony for trial may be taken even after the discovery deadline has passed, where the identity of the witness was know to counsel. Estenfelden v. Gates Corp., 199 F.R.D. 351 (D. Colo. 12001); Spangler v. Sears, Roebuck & Co., 138 F.F.D. 122 (S.D. Ind. 1991); Dunlap-McCulter v. Reise Organization, 980 F. 2d 153 (2nd Cir. 1992). In Dunlap-McCulter v. Reise Organization, supra, the court permitted 2 telephonic depositions to be taken in the middle of an employment discrimination trial, where the witnesses were greater than 100 miles from the place of trial, and the 2nd Circuit found this was

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proper under Rule 30(b), F.R.C.P. In Spangler v. Sears, Roebuck & Co., the court held that while a party may not propound interrogatories, submit requests for production of documents or requests for admissions or seek to amend its pleadings based on newly discovered materials after the discovery cutoff date, a party may still prepare for trial by taking depositions of witnesses whose unavailability for trial is anticipated. In Estenfelden v. Gates Corp., supra, this court held that preservation depositions can be conducted even though the discovery deadline hads passed, as the witnesses had been identified so there was no surprise. Krehbiel lives in California, beyond the subpoena power of the court. Defendants cite no cases to support their argument that preservation testimony may be taken for use at trial. None is cited in it brief. These cases were all provided to Jack Robinson. Plaintiff's counsel asked Robinson if he had any cases supporting the relief he was seeking. He provided none. Plaintiff's counsel called Michael Root, counsel for Defendant in 04cr-262, scheduled for trial the same day as this matter. He said it did not appear that case would settle but that he would call me. So it is likely this case will not go to trial on July 10, 2006. 3. 4. Admitted. Denied. On June 26, 2006, Plaintiff's counsel went to the docket

for November 30, 2004. It states: "Document 43. Trial Prep Order Eight Day Jury Trial set for 7/10/06 at 1:00 on a trailing docket in third

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position. Trial Preparation Conference set for 6/2/2006 at 08:000 A.M. in Courtroom A 901 before Judge Marcia S. Kreiger. Signed by Judge Marcia S. Kreiger on 11/30/04 (erv.) (Modified on 4/11/2006 to correct trial date and time) (erv.) (Entered 12/01/04)." Plaintiff's counsel has read the December 1, 2004 scheduling order. Nowhere does any November 30, 2004 Order state April 17, 2006 as a deadline of deposition testimony in lieu of trial testimony. No such deadline is contained in the December 1, 2004 scheduling order. See attachment. 5. Admitted. That does not preclude preservation of any testimony

before trial, since such testimony is considered "present at trial." 6. Admitted in part; denied in part. Rule 26 disclosures were made

and all witnesses to appear at trial or whose testimony would be preserved for trial were disclosed. Krehbiel's testimony is to lay foundation for introduction of exhibits disclosed at least 4 months before trial and reviewed page by page by all counsel on June 1, 2006. 7. Denied. Plaintiff's counsel sent a letter by fax seeking dates.

Defense counsel refused to agree to any dates. 8. Denied. This is not a telephone deposition. It is preservation of

testimony for trial. Defense counsel refused to agree to any dates so the date was set. Leave of court is not required. It was not in Estenfelden v. Gates Corp., supra, Spangler v. Sears, Roebuck & Co., supra, or DunlapMcCulter v. Reise Organization, supra. The federal rules nowhere require such leave.

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9.

Denied. This is not a discovery deposition. Without any

reasonable bases Defendants have refused to allow documents produced 4 months ago to be introduced into evidence at trial, so the testimony of Krehbiel to lay a foundation for them for then introduction is permitted under Rules 30 & 32, F.R.C.P. and cited case law. Defense counsel cites not one on-point case to support his motion. 10. Admitted. Plaintiff's counsel cited the 3 above cases which permit

the preservation of trial testimony and asked counsel to provide one supporting his motion. He could find none. Estenfelder v. The Gates Corp., 199 F.R.D. 351, 354-355 (D. Colo. 2001) supports. Plaintiff's position and contradicts Defendants'. 11. Admitted in part; denied in part. Whether Krehbiel is friendly or

hostile is immaterial. She can lay a foundation to introduce key documents into evidence. 12. Denied. Plaintiff is incarcerated. She has no job, no income and

virtually no assets. She cannot afford extensive costs. Defendants purposely tried to make the case as expensive as possible for Plaintiff by taking her deposition for over 8 hours over 2 days. In an effort to save money for Plaintiff, the taking of trial testimony was scheduled after the settlement conference because it would not be necessary if the case settled. Defendants Conner and Olt settled. There is no evidence Plaintiff set the July 6, 2006 date for any reason to strategically prejudiced Defendants. The granting of this motion will severely

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prejudice Plaintiff when there is clear case law authority for her to preserve trial testimony. 13. Denied. There is no evidence the date was set for "purely tactical

reasons." This is a complete fabrication. The 14th Amendment claim is clear: without notice or a hearing, property of which Plaintiff had the right to possess was taken by Defendant Rhea as a result if a conspiracy with state actors. 14. 15. 16. 17. Denied. There is no basis for this claim. Denied. It is not a discovery deposition. Denied. Trial is 2 business days late. No leave is required. Denied. Plaintiff's counsel was taken trial depositions the week

before trial many times. Counsel has all the relevant documents and may attend by phone. Plaintiff made a very low offer to settle the case which will result in Plaintiff's counsel obtaining extremely modest counsel fees. Counsel for Defendant Rhea said he thought he could obtain a certain amount to settle the case with Rhea keeping the horse, but has refused to even respond to a counter offer, though he said he'd have an answer by June 13, 2006. It was stated in the Final Pretrial Order that Krehbiel would testify at trial. Counsel for Rhea even asked Plaintiff's counsel if she would be flown in from California for trial. The statement he did not expect her to testify at trial is disingenuous.

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Defense counsel received the exhibits of the Montezuma County D.A., many notes of Krehbiel, and knows she will essentially lay the foundation for introduction of exhibits she wrote or can identify. No rebuttal testimony is possible. This is simply document identification. There is no evidence the record will be "confirmed." The elaborate conspiracy will be revealed by Krehbiel's diary, notes, frivolous agister's lien, and use of state actors to circumvent court orders. Defendant Rhea does not want the truth to be revealed. 18. Admitted. There is no requirement Krehbiel's deposition be taken.

Also, the documents arrived in January, 2006. 19. Denied. This is simply not true. What discovery will be needed?

None is specified. 20. 21. Denied. See response to #9. Denied. The witness is beyond 100 miles and unable to be

produced by subpoena. Rules 30 and 32 permit the taking of trial testimony. This witness will help establish the elaborate private-state actor conspiracy. Date: June 27, 2006 s/J. Michael Considine, Jr. J. Michael Considine, Jr. 12 East Barnard St., Suite 100 West Chester, PA 19382 (610) 431-3299 Counsel for Plaintiff CERTIFICATE OF SERVICE

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I, J. Michael Considine, Jr., hereby certify that I electronically filed a true and correct copy of PLAINTIFF'S RESPONSE TO MOTION FOR PROTECTION ORDER to the following counsel of record on the date indicated below: Kathleen L. Spalding, Asst. Attorney General, State Services Building, 1525 Sherman Street, 5th Floor, Denver, CO 80202 andJack B. Robinson, Spies, Powers & Robinson, P.C., 1660 Lincoln Street, Suite 2220, Denver, CO 80264. Date: June 27, 2006 s/J. Michael Considine, Jr. J. Michael Considine, Jr.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 04-cv -1002- MK-CBS : Donja Vaughn, : Plaintiff v. Simms Rhea et al. Defendants : : : : ORDER AND NOW, this _________ day of _________________________, 2006, upon consideration of the Motion for Protection Order filed by Defendants, and the response thereto said motion is DENIED. IT IS SO ORDERED. BY THE COURT: ______________________________ Marcia S. Kreiger, U.S.D.C.

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