Free Declaration - District Court of Colorado - Colorado

Case 1:04-cv-00438-JLK-MEH

Document 253

Filed 07/05/2005

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-F-0438 (OES) TIMOTHY C. HOILES, Plaintiff and Counterclaim Defendant, v. JOSEPH M. ALIOTO, Defendant and Counterclaim Plaintiff,

DECLARATION OF JOHN E. ANDREWS IN SUPPORT OF ALIOTO'S OPPOSITION TO HOILES'S MOTION TO QUASH

I, John E. Andrews, declare as follows: 1. I am an attorney licensed to practice in California and New York, and in the

District of Colorado. I am a member of Blecher & Collins, P.C., attorneys for Joseph L. Alioto in this matter. I have personal knowledge of the following and if called as a witness could testify competently thereto. 2. On April 5, 2005, the same date that the Court issued its Order permitting the

Bitzer deposition to go forward, I sent an e-mail to Mr. Bitzer's attorneys, Eric Waxman and Lauren Sudar, stating that leave had been granted to take the deposition and we were seeking their cooperation, which they had previously committed to provide. In response, Mr. Waxman informed me that he would start making inquiries and get back to me. A true and correct copy of this e-mail exchange is attached as Exhibit A. 3. Over the next couple of weeks, I communicated with Mr. Waxman and Ms. Sudar

both by e-mail and telephone in an effort to schedule the deposition. On April 11, 2005, Mr.

1

Case 1:04-cv-00438-JLK-MEH

Document 253

Filed 07/05/2005

Page 2 of 4

Waxman informed me that he was attempting to confirm either April 26 or 27 with his client. Mr. Waxman also informed me that he would be in a trial "starting May 3 that would last through June," so that, if Mr. Bitzer's deposition could not be scheduled in April, "it will have to wait till then [the end of June]." A true and correct copy of my April 11, 2005, e-mail exchange with Mr. Waxman is attached as Exhibit B. 4. On April 21, 2005, I advised Mr. Hoiles's attorney, Glen Johnson that "[w]e are

available to take Bitzer on either the 26 or 27th in Pittsburgh. I just got the message late yesterday that Bitzer prefers the 26th. Are you available? If not, we will need to do it in June because of Waxman's conflicting trial." A true and correct copy of this e-mail correspondence is attached as Exhibit C.1 On April 22, 2005, I wrote to Ms. Sudar and Mr. Johnson to confirm

the scheduling of Mr. Bitzer's deposition for April 26, 2005. In response, Mr. Johnson informed me that he was not available on April 26, 2005, and that "I am requesting that the deposition take place in June." True and correct copies of my e-mail exchanges with Ms. Sudar and Mr. Johnson are attached as Exhibits D , E and F, respectively. 5. On May 11, 2005, I advised Mr. Johnson that "I have communicated with Eric

Waxman, who is in trial, on this subject. He has indicated that he is not available until sometime in mid-June. I will let you know when he gets more specific." A true and correct copy of this email is attached as Exhibit G. 6. During the remainder of May and early June, I periodically checked with Mr.

Waxman as to his availability, which did not change. In a June 15, 2005 e-mail message, Mr. Waxman informed Mr. Johnson of his trial schedule, and Mr. Bitzer's availability. A true and
1

There was discussion about continuing the deposition in the interests of economy until after the private mediation scheduled on May 3, 2005, before Judge Carrigan, although the parties never finalized any agreement in this regard.

2

Case 1:04-cv-00438-JLK-MEH

Document 253

Filed 07/05/2005

Page 3 of 4

correct copy of Mr. Waxman's message and Mr. Johnson's response is attached hereto as Exhibit H. In that message, Mr. Waxman states in part: We are dark today in my trial, but the judge has indicated he expects the other side to close on Friday, with rebuttal on Monday and closing argument on Tue or Wed. Post trial briefs will be due the week of the 27th. With that in mind, I have inquired about Bitzer's depo availability and have learned that he is not available until July 27th or August 1,11 or 12 in Pittsburgh or in Martha's vineyard July 7th-21, with the possibility of doing the depo at Login [sic]Airport in a conference room there if people did not want to go to Martha's vineyard. 7. While Mr. Alioto has continually attempted to find an early date for the

deposition that would be available to all involved parties, the unavailability of Mr. Bitzer, his counsel, and Mr. Johnson are the sole reasons the deposition has not been taken already. In fact, if not for the unavailability of Mr. Hoiles's counsel, the deposition of Mr. Bitzer would have been taken on April 26, since both Mr. Bitzer and counsel for Mr. Alioto were available on that date. Nonetheless, despite his own counsel being a primary cause of the delay, Mr. Hoiles now objects to the deposition going forward on the ground that the available dates are too close to trial. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that this declaration was executed on July 5, 2005, at Los Angeles, California. s/John E. Andrews__________________________ John E. Andrews

3

Case 1:04-cv-00438-JLK-MEH

Document 253

Filed 07/05/2005

Page 4 of 4

CERTIFICATE OF MAILING I hereby certify that on this 5th day July, 2005, I electronically filed a true and correct copy of the foregoing DECLARATION OF JOHN E. ANDREWS IN SUPPORT OF ALIOTO'S OPPOSITION TO HOILES'S MOTION TO QUASH with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Daniel R. Shulman Gray Plant Mooty 500 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Fax: (612) 632-4335 [email protected] Maxwell M. Blecher John E. Andrews BLECHER & COLLINS, P.C. 611 West Sixth Street, 20th Floor Los Angeles, California 90017-3120 Fax: (213) 622-1656 [email protected] [email protected] E. Glen Johnson Bart A. Rue Frank Pierce Greenhaw IV Kelly Hart & Hallman 201 Main St., Suite 2500 Fort Worth, TX 76102 Fax: (817) 878-9280 [email protected] (and via Federal Express) and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the non-participant's name Scott Levin Fisher, Sweetbaum & Levin 1331 Seventeenth Street, Suite 100 Denver, CO 80202 Fax: (303) 296-7343 [email protected]

William T. Hankinson Kenneth B. Siegel Katherine D. Varholak Sherman & Howard LLC 633 17th Street, Suite 3000 Denver, CO 80202 Fax: (303) 298-0940 [email protected] (and via Hand Delivery)

Via First Class, U.S. Mail Joseph M. Alioto 555 California Street, Suite 3160 San Francisco, CA 94104 Fax: (415) 434-9200 s/Louisa Boyte Louisa Boyte
60529840 v3

4