Free Motion for Protective Order - 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 Civil Action No. 04-cv-1002-MSK-CBS DONJA VAUGHN, Plaintiff, v. SIMMS RHEA, JOE OLT, JOEL STEVENSON, & GARY SHOUN, Defendants. ________________________________________________________________________________ AMENDED MOTION FOR PROTECTIVE ORDER ________________________________________________________________________________ Defendant Simms Rhea, through counsel Spies, Powers & Robinson, P.C., and Defendants Joel Stevenson and Gary Shoun, through the Office of the Colorado Attorney General, and pursuant to Fed.R.Civ.P. 26(c) and D.C.COLO.LCivR 30.2, submit the following amended motion for protective order to prevent the deposition of Margaret Krehbiel noticed by Plaintiff for July 6, 2006, at 10:00 a.m. CERTIFICATE OF COMPLIANCE In conformance with F.R.C.P. 26(c) and D.C.COLO.LCivR 7.1.A., the undersigned certifies that he conferred with Plaintiff's counsel on June 21, 2006, in a good faith effort to resolve this discovery dispute without court action. Plaintiff's counsel stated that he opposes the relief sought in Defendants' Motion for Protective Order. Because Defendant Olt has settled with Plaintiff and is awaiting procedural dismissal from this case, counsel for Defendant Olt was not contacted. MOTION FOR PROTECTIVE ORDER 1. On June 21, 2006, the undersigned received Plaintiff's "Notice of Taking of Trial

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Testimony" dated June 16, 2006. See attached Exhibit A. According to this Notice, Plaintiff has scheduled the deposition of Margaret Krehbiel for July 6, 2006, in Chico, California. This deposition was noticed without the consent of Defendants and without ever seeking leave from this Court to take this belated deposition. 2. The discovery cut-off in this case was September 17, 2005. An eight-day jury trial

is scheduled to commence July 10, 2006 - just one business day after Plaintiff plans to take Ms. Krehbiel's deposition 3. Dispositive motions have been filed and ruled upon. The Final Pretrial Conference

was held before Magistrate Judge Shaffer on April 11, 2006, and the Final Trial Preparation Conference was held before this Court on June 1, 2006. This case is ready to go to trial. 4. Pursuant to this Court's Trial Preparation Order - Jury Trial (Civil) dated November

30, 2004, the deadline to file designations of deposition testimony in lieu of live testimony expired April 17, 2006. Plaintiff did not designate any witness or deposition testimony that she intended to present in lieu of live testimony. 5. The parties were required to set forth in the Final Pretrial Order the identity of those

witnesses who "will be present at trial," those witnesses who "may be present at trial," and those witnesses "where testimony is expected to be presented at trial by means of a deposition." See United States District Court for the District of Colorado Civil Forms, Final Pretrial Order form, found at http://www.co.uscourts.gov/forms/fin_pre_ord_new.pdf, at p. 2 § 6.a. (emphasis in original), citing F.R.C.P. 26(a)(3)(A) and (B). In the Final Pretrial Order, Plaintiff listed Margaret Krehbiel as a witness that would be present at trial to testify. See Final Pretrial Order, p. 9, # 10. 6. Pursuant to F.R.C.P. 26(a)(3)(B), Plaintiff was required to affirmatively disclose to

the court and all parties the identities of those witnesses whose testimony was expected to be 2

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presented at trial by means of a deposition. Plaintiff never disclosed any witnesses whose testimony was expected to be presented at trial by means of a deposition. 7. In violation of D.C.COLO.LCivR 30.1.A., Plaintiff's counsel never made a good faith

effort to schedule the deposition by agreement at a time reasonably convenient to counsel of record before sending out the notice of deposition. Rather, Plaintiff's counsel unilaterally selected July 6th as the date for the deposition and sent out the notice. 8. Pursuant to F.R.C.P. 30(b)(7), a telephonic deposition may be taken only upon

stipulation in writing of all the parties or upon leave of court after an appropriate motion has been filed. Plaintiff obtained neither a stipulation from any party nor an order from the court to take the telephonic deposition of Margaret Krehbiel. 9. Defendants note that Plaintiff attempts to conceal the discovery nature of the

deposition by captioning her pleading as a "Notice of Taking of Trial Testimony." While the "deposition" of a witness may be used at trial under certain conditions and at the discretion of the trial court, the federal rules do not make a distinction between a "discovery deposition" and a "trial deposition." See F.R.C.P. 32(a); In re Air Crash Disaster at Stapleton Int'l Airport, 720 F.Supp. 1493, 1501 (D.Colo. 1989)("Rule 32 itself does not distinguish between depositions taken for discovery purposes and depositions taken for the preservation of testimony."). 10. Counsel for Defendants are not ignorant of the fact that from a custom and practice

standpoint all depositions are not the same and that, at times, the sole purpose of a deposition may be based upon a party's need to preserve the witness's testimony for trial. See Estenfelder v. The Gates Corp., 199 F.R.D. 351, 354-355 (D.Colo. 2001)(viewing circumstance of "trial deposition" as being where the deponent is "friendly" and counsel knows what the deponent has to say but is

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merely seeking means for introducing the testimony at trial). 11. Rather than a "friendly" witness, Margaret Krehbiel is an adverse witness to the

Plaintiff. Indeed, Plaintiff has sued Margaret Krehbiel and her husband Robert in a separate lawsuit filed with this Court in Donja Vaughn v. Margaret and Robert Krehbiel, Case No. 04-cv-1358MSK-CBS, for substantially the same matters that are at issue in this lawsuit. 12. At all time material hereto, Margaret Krehbiel has resided more than 100 miles from

the place of trial and Plaintiff's counsel knew that she was not within subpoena power for trial. Plaintiff's counsel knew that Ms. Krehbiel would not voluntarily testify at trial and knew that her deposition would have to be taken if her testimony was needed at trial. Plaintiff knowingly and strategically decided not to take her deposition in this case during the abundant time allotted for discovery. 13. On the virtual eve of trial, and without prior leave of court, Plaintiff has attempted

to schedule the deposition of Margaret Krehbiel for purely tactical reasons. As the Final Trial Prep Conference established, Plaintiff's counsel is still unable to articulate to the Court's and counsel's satisfaction the elements or contours of the federal claims he is bringing against Defendants. Rather, Plaintiff's counsel professed that "the evidence will come out at trial." See Reporter's Transcript, Final Trial Preparation Conference, 19:16-17, attached as Exhibit B. 14. Plaintiff's counsel hopes that through further discovery he can construct a prima facie

case against Defendants; the nature of which still remains unknown. 15. Whether the deposition of Margaret Krehbiel is considered a discovery deposition

or a trial deposition, it is nevertheless a matter that pertains to discovery and a determination must be made as to whether discovery should be reopened at this late date. The Tenth Circuit has

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identified several relevant factors in determining whether discovery should be reopened, including: 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence. Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). 16. First, trial is certainly imminent - just one business day after the scheduled

deposition. Second, while Plaintiff never filed a motion for leave to take the deposition, the scheduling of the deposition is strenuously opposed by Defendants based upon the reasons set forth above. 17. Third, Defendants would be prejudiced in a myriad of ways if Plaintiff were allowed

to take this belated deposition: 1) the deposition is scheduled to take place at the height of counsel's trial preparation; 2) Defendants' cases have been prepared (including selection of witnesses and exhibits) with the expectation that Margaret Krehbiel would not testify at trial;1 3) Defendants' counsel does not know what Ms. Krehbiel is going to testify to, or what she is going to say, or why she is being deposed, or what claims her testimony is going to relate to - Plaintiff's counsel does not even know what Ms. Krehbiel knows, if anything, about the matters at issue in this lawsuit; 4) there will be insufficient time for Defendants to prepare and present rebuttal evidence to the yet unknown testimony presented by Ms. Krehbiel; and 5) it is likely that Ms. Krehbiel's testimony will only serve to further confuse the already amorphous claims presented by Plaintiff, with no time for

Plaintiff's counsel refused to take Margaret Krehbiel (and other adverse out-of-jurisdiction witnesses) off of his "will call" witness list despite the admonitions by Defendants' counsel that they were not within subpoena power, would not voluntarily testify at trial, and that their depositions had not been previously taken for use at trial.

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Defendants to resolve the confusion. 18. Fourth, as articulated in detail above, Plaintiff was not diligent in obtaining Margaret

Krehbiel's deposition within the guidelines established by the court. Plaintff never attempted to take Ms. Krehbiel's deposition during entire pendency of this case. 19. Fifth, as referenced above, it is foreseeable that additional discovery will be needed

if Ms. Krehbiel's deposition is allowed to take place. However, the discovery cut-off expired many months ago and time will not permit the taking of any more discovery. 20. Finally, given the specious claims that remain, it is doubtful that Ms. Krehbiel will

provide any relevant testimony at trial. Ms. Krehbiel was not a recipient or participant in the "speech" that allegedly provides the predicate for Plaintiff's malicious prosecution claim. Ms. Krehbiel is not involved in any way in Plaintiff's procedural due process claim or the conversion and replevin claims. 21. Plaintiff has presented no just cause for taking this belated deposition. Accordingly,

Plaintiff should be prevented from doing so. WHEREFORE, Defendants Rhea, Shoun and Steven respectfully request that this Court grant Defendants' Amended Motion for Protective Order and enter an Order that the deposition of Margaret Krehbiel not be taken. Respectfully submitted on June 23, 2006, SPIES, POWERS & ROBINSON, P.C. /s/ Jack D. Robinson _____________________________ Jack D. Robinson 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264 Telephone: (303) 830-7090 Facsimile: (303) 830-7089
Attorney for Defendant Simms Rhea

Office of the Colorado Attorney General /s/ Pat Herron ____________________________________ Kathleen Spalding Pat Herron Assistant Attorney General 1525 Sherman Street, 5th Floor Denver, CO 80203
Attorneys for Defendants Shoun and Stevenson

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CERTIFICATE OF MAILING I hereby certify that on June 23, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: J. Michael Considine, Jr. 12 East Barnard Street, Suite 100 West Chester, PA 19382
counsel for plaintiff

David Broughman Edmund Kennedy HALL & EVANS, LLC 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202
attorney for defendant Olt

Duly signed copy on file in the offices of Spies, Powers & Robinson, P.C.

/s/ Melissa Phillips _____________________________________

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