Free Response to Motion - District Court of Colorado - Colorado

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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,

ALIOTO'S OPPOSITION TO HOILES'S MOTION TO QUASH JULY 12, 2005 DEPOSITION OF JOHN BITZER, JR.

Defendant and counterclaim plaintiff Joseph M. Alioto opposes the motion to quash the notice of deposition served by plaintiff and counterclaim defendant Timothy C. Hoiles,1 regarding the deposition of John Bitzer, a third party witness, on July 12, 2005. 1. Mr. Hoiles objects to the fact that the deposition was noticed to be taken three

weeks before trial. The deposition, however, originally was scheduled to be taken in April but was delayed at the request of counsel for Mr. Hoiles, who now complains that the deposition was not taken earlier. Moreover, the witness and his counsel have been unavailable since that time. Hence, the current deposition schedule constitutes an accommodation to the witness and his attorney and is the result of both this accommodation and the prior unavailability of Mr. Hoiles's counsel, not of any lack of diligence on Mr. Alioto's part. As explained below, the deposition is being taken on the earliest date available to all interested parties.

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Plaintiff's Motion to Quash the Deposition of John Bitzer (Mr. Hoiles's "Motion"), filed June 30, 2005.

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2.

On April 5, 2005, Magistrate Judge Schlatter granted leave to take this deposition

after the discovery cutoff over Mr. Hoiles' objection because Mr. Bitzer's wife had recently passed away. In that Order, Judge Schlatter specifically stated that if the deposition could not be completed by May 1, 2005, that the parties meet and confer to find a date convenient to all counsel and the witness. 3. That same day, Mr. Alioto's counsel contacted Mr. Bitzer's counsel, Eric

Waxman, informing him of the ruling and asking for available deposition dates.2 An effort was made to schedule the deposition in April, both to comply with the Court's order and because Mr. Waxman was starting a lengthy trial in May. Andrews Decl., ¶¶ 3-4, Exhs. B, C. On May 11, 2005, Mr. Waxman wrote to Mr. Alioto's counsel, stating that Mr. Waxman was attempting to pin down Mr. Bitzer's availability for April 26 or 27. Exh. B. 4. Over the next couple of weeks, Mr. Alioto's counsel attempted to schedule the On April 21, 2005, Mr.

deposition in conjunction with Mr. Bitzer's counsel and Mr. Johnson. Alioto's counsel wrote to Mr. Johnson, stating: Glen,

We 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. Thanks, John Exh. C. 5. On April 22, 2005, Mr. Alioto's counsel wrote to Mr. Johnson and Mr.

Declaration of John E. Andrews in Support of Alioto's Opposition to Hoiles's Motion to Quash ("Andrews Decl."), filed herewith, ¶ 1, Exh. A. (All references herein to exhibits refer to exhibits attached to the Andrews Decl.)

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Waxman's associate, Lauren Sudar, stating; Lauren and Glen, I am writing to confirm that we are prepared to go forward with the deposition for Mr. Bitzer on April 26, in Pittsburgh. Lauren, we can find a place if need be, but I think you indicated that had a location available to you; if so, we would be happy to use that. Please let me know. Thanks, John Exh. D. 6. That same date, Ms. Sudar wrote back to Mr. Alioto's counsel, stating that Mr.

Johnson was requesting that the deposition be moved to June. Mr. Alioto's counsel also received an e-mail from Mr. Johnson, stating in part:

I am requesting that the deposition take place in June, and ask that we get the earliest date in June that is available for Mr. Bitzer. I have tried to arrange things for Tuesday, but it looks impossible. As you may recall, the plan was to take this thing after the mediation, so I had not planned for it next Tuesday. Exh. E. 3 7. That same date, Mr. Alioto's counsel wrote to Ms. Sudar informing her that

"Johnson is not available next Tuesday, so June it will have to be. He wants the earliest date in June that Mr. Bitzer can be available. We are, of course, agreeable to June." Exh. F. 8. Upon learning that Mr. Waxman would not be available until mid-June for a

deposition of Mr. Bitzer, counsel for Mr. Alioto informed Mr. Johnson of that fact. Exh. G. Mr. Johnson agreed to a deposition in mid-June. Id.

3 There had been some discussion between the parties about possibly continuing the deposition until after the mediation scheduled for May 3, 2005, although the parties never finalized any agreement in this regard.

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9.

During the ensuing weeks, counsel for Mr. Alioto periodically contacted Mr.

Waxman to inquire as to the progress of his trial and was continually told that Mr. Waxman would not be available until mid-June at the earliest. Andrews Decl. ¶ 6. 10. As it turned out, however, this was only taking Mr. Waxman's calendar into

consideration, and Mr. Bitzer himself was not available until July 7, 2005, at the earliest, and only if the parties would agree to take the deposition in Massachusetts, as opposed to Pittsburgh (where the parties originally planned to take the deposition). On Wednesday, June 15, 2005, Mr. Waxman wrote to Mr. Johnson, explaining the scheduling accommodations needed by him and his client: 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 Logan Airport in a conference room there if people did not want to go to Martha's vineyard. Will you let the other side know and get a series of dates that work for you and them in these time parameters and I will then get a firm date from Bitzer that matches up with one of those dates. Lets try to get this firmed up sooner rather than later. Exh. H (emphasis added). 11. Mr. Johnson responded to the foregoing, and forwarded the exchange of

correspondence to counsel for Mr. Alioto: Eric: The dates you propose for Pittsburgh are unacceptable to counsel for Mr. Hoiles; however, I am passing along your email to counsel for Mr. Alioto. Our trial setting is August 1. The July dates are too late in the game, too. My understanding with 4

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opposing counsel was that the depositon [sic] would be taken no later than the month of June, well after the deadline that has been set by the court. I am passing all this along, because I am certain counsel for Mr. Alioto will want to review the alternatives you have proposed. Id. 12. Mr. Alioto has diligently attempted to schedule the deposition at the earliest date

available to the witness and his attorney, as well as to Mr. Johnson. In order to take the deposition on July 12, 2005 (as an accommodation to the schedules of Mr. Bitzer and Mr. Waxman), Daniel Shulman, counsel for Mr. Alioto, had to cancel a scheduled vacation to Greece. 13. Mr. Alioto kept Mr. Johnson informed of the negotiations with Mr. Waxman.

Counsel for Mr. Hoiles, therefore, is fully aware that the delay of this deposition was first caused by the death of Mr. Bitzer's wife, then by the unavailability of Mr. Bitzer's lawyer (and counsel for Mr. Hoiles), and then by Mr. Bitzer's own schedule. Mr. Alioto scheduled the deposition at the earliest possible date in light of the foregoing scheduling conflicts. 14. In his Motion, Mr. Hoiles does not even attempt to argue that he might be

prejudiced by the scheduling of this deposition. Instead, the Motion merely notes that "Hoiles is opposed to the notice." Nor can Mr. Hoiles show any prejudice. He will have a full and fair opportunity to cross-examine Mr. Bitzer and ample time to incorporate that testimony into his trial preparation. 15. Although Mr. Hoiles's Motion argues in conclusory fashion that "Alioto was not

diligent in attempt [sic] to secure Bitzer's deposition within guidelines established by the Court," the facts belie this contention. The Motion makes much of the fact that Mr. Alioto "never offered a date for the deposition to occur during [early June]." As counsel for Mr. Hoiles knows

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full well, however, Mr. Bitzer and his counsel were not available during that period, so there would have been no point in attempting to reach agreement with Mr. Hoiles on a deposition date in early June. 16. Mr. Alioto has been diligent, and all delay has been caused by factors beyond his

control. In fact, the deposition could have been taken in April, but for the unavailability of Mr. Hoiles's counsel. PRAYER For the reasons set forth herein, Mr. Alioto respectfully requests that Mr. Hoiles's Motion to Quash be denied. It is further requested that the Court hear argument and decide Mr. Hoiles's Motion on July 6, 2005, when the parties will be appearing before Judge Figa for the Final Pretrial Conference. Due to the impending trial date and scheduling difficulties, any delay in resolving of this motion or taking Mr. Bitzer's deposition would be prejudicial to Mr. Alioto. Dated: July 5, 2005 Respectfully submitted, s/Ian L. Saffer_____________________ Ian L. Saffer Chad E. King Townsend and Townsend and Crew, LLP One Tabor Center 1200 Seventeenth Street, Suite 2700 Denver, Colorado 80202 (303) 571-4000 (303 571-4321 (fax) [email protected] (email) [email protected] (email)

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Maxwell M. Blecher John E. Andrews Blecher & Collins, P.C. 611 West Sixth Street, 20th Floor Los Angeles, California 90017-3120 (212) 622-4222 (213) 622-1656 (fax) [email protected] (email) [email protected] (email) Daniel R. Shulman Gray, Plant, Mooty, Mooty & Bennett, P.A. 500 IDS Center 80 South Eighth Street Minneapolis, MN 55402 (612) 632-3335 (612) 632-4335 (fax) [email protected] (email) Attorneys for Defendant and Counterclaim Plaintiff Joseph M. Alioto

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CERTIFICATE OF MAILING I hereby certify that on this 5th day July, 2005, I electronically filed a true and correct copy of the foregoing 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

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