Free Motion to Clarify - District Court of Colorado - Colorado

Case 1:03-cv-02073-WDM-KLM

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Filed 12/28/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-CV-02073-WDM-PAC

ROBERTA PULSE, TONYA HOUSE, Plaintiffs, v. THE LARRY H. MILLER GROUP, Defendant. ______________________________________________________________________________ STIPULATED MOTION FOR CLARIFICATION ______________________________________________________________________________ The parties, by and through their respective counsel, and after consultation with one another under D.C.LCivR. 7.1(A), hereby submit this Stipulated Motion for Clarification ("Motion"), for the Court's consideration prior to the telephonic hearing scheduled to take place on December 28, 2005, at 10:00 a.m. MST. As requested by the Court, the Parties hereby request that the Court consider the following issues during the telephonic hearing scheduled for 10:00 a.m. this morning. 1. On December 22, 2005, counsel for the parties appeared for a trial preparation

conference before this Court. 2. During the hearing, the Court discussed the issue of mandatory disqualification of

under 28 U.S.C. § 455(b) and briefly discussed Plaintiff's Expedited Motion to Disqualify Holland & Hart [Docket No. 178]. 3. The Parties seek clarification as to two issues in advance of the December 29

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hearing so they can prepare their presentations accordingly. 4. In the December 22, 2005 hearing, the Court indicated to the Parties that it would

hear the Plaintiffs' Expedited Motion to Disqualify Holland & Hart before it heard further argument concerning the issue of mandatory disqualification under 28 U.S.C. § 455(b). 5. First, the Parties seek clarification as to whether and how evidence should be

provided before and at the December 29 hearing. Defendant believes that (a) the Court permitted Defendant to offer evidence if Defendant chose to do so, and (b) if Defendant chose to elicit testimony from a witness, it must make that witness available to Plaintiffs' counsel for informal discovery or deposition before the hearing. 6. By contrast, Plaintiff believes that the Court (x) mandated that Defendant

make available to Plaintiffs a witness concerning the circumstances of Holland & Hart's engagement to represent Defendant in this case, and Plaintiffs would have an opportunity to informally interview said witness prior to the December 29 Hearing, (y) Defendant represented on the record that it would be calling a witness, and (z) Defendant offered to provide a court reporter to transcribe the informal interview to be conducted by Plaintiff's counsel at Defendant's cost. 7. Second, the Parties seek clarification from the Court as to the nature and scope of

any pre-hearing examination, if any, by Plaintiffs. Defendant asserts that any such examination inevitably will invade the attorney-client privilege and work-product protection. 8. Plaintiffs assert that they can cross-examine Defendant's witness about how and

when Holland & Hart was retained and knowledge of potential grounds for judicial disqualification without violating the attorney-client privilege or work-product protection, which only applies to legal advice or strategy.

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WHEREFORE, the Parties respectfully request this Court hold a brief hearing to clarify the outlined above during its telephonic hearing currently scheduled for December 28, 2005, at 10:00 a.m. Respectfully submitted this 28th day of December, 2005. W.C. Traylor & Associates, LLC s/Whitney Traylor ______________________________________ Whitney C. Traylor W.C. Traylor & Associates, LLC 700 E. 24th Ave., #1 Denver, CO 80205 Telephone: 303-321-1862 Facsimile: 303-837-1214 Email: [email protected] Kimberlie K. Ryan Ryan Law Firm, LLC 283 Columbine St., #157 Denver, CO 80206 Telephone: 303-355-0639 Facsimile: 303-355-3020 Email: [email protected] ATTORNEYS FOR PLAINTIFFS /s/ Christopher M. Leh______ Christopher M. Leh HOLLAND & HART LLP 1800 Broadway, Suite 300 Boulder, CO 80302 Telephone: 303-473-2700 Fax: 303-473-2720 E-mail: [email protected] Steven M. Gutierrez, HOLLAND & HART LLP 555 Seventeenth St., Suite 3200 Denver, CO 80202 Telephone: 303-295-8000 Fax: 303-295-8261

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E-mail: [email protected]

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE I certify that on the 28th day of December, 2005, I electronically filed the Stipulated Motion for Clarification with the Clerk of Court using the CM/ECF system, which will send notification to the following addresses to counsel of record: Judy Holmes, [email protected] Steven M. Gutierrez, [email protected] Christopher M. Leh, [email protected]

s/ Whitney C. Traylor

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-CV-02073-WDM-PAC

ROBERTA PULSE, TONYA HOUSE, Plaintiffs, v. THE LARRY H. MILLER GROUP, Defendant. ______________________________________________________________________________ ORDER GRANTING STIPULATED MOTION FOR CLARIFICATION ______________________________________________________________________________ Having reviewed the Parties Stipulated Motion for Clarification (the "Motion"), and being fully advised the premises, this Court ORDERS that the Motion BE, and hereby IS, GRANTED. The Court will clarify the issues raised by counsel as stated in their Motion in the telephonic hearing on the matter at 10:00 a.m. MST. Dated this 28th day of December 2005. BY THE COURT:

______________________ U.S. District Judge