Free Motion in Limine - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-01004-JLK-BNB VIRTUAL CLOUD SERVICES, INC., a Colorado corporation, Plaintiff, v. CH2M HILL, INC., a Florida corporation, and TIMOTHY INGRAM, Defendants.

DEFENDANTS'MOTION IN LIMINE TO EXCLUDE EXHIBITS P-35, 92 AND 95 Defendants CH2M Hill, Inc. (" CH2M Hill" and Timothy Ingram (" ) Ingram" ) (collectively " Defendants" submit Defendants'Motion In Limine to Exclude Plaintiff' ) s Exhibits 35, 92 and 95 in response to Plaintiff' Notice of Intent to Rely on Fed. R. Evid. s 807, filed February 6, 2007. In support of the Motion, Defendants state as follows. CERTIFICATION PURSUANT TO LOCAL RULE 7.1(A) Pursuant to Local Rule 7.1(A), the undersigned certifies that Heather Carson Perkins conferred with counsel for Virtual Cloud Services, Inc. (" Virtual Cloud" regarding the relief ) requested in this Motion. Virtual Cloud opposes the Motion.

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INTRODUCTION In Plaintiff' Notice of Intent to Rely on Fed. R. Evid. 807 (the " s Notice" Virtual ), Cloud stated that it intends to offer three separate exhibits (the " Exhibits" contending, in ), part, that the three Exhibits are admissible under Fed. R. Evid. 807. Virtual Cloud has described the Exhibits as follows: A. Plaintiff' Exhibit 35 (" s P-35" Letter from Val Perez of Harvard ). Technologies, Inc. to Shannon Bushman, offered to show that: (1) Virtual Cloud had opportunities that CH2M Hill sabotaged; and (2) CH2M Hill, after hearing feedback such as this, believed the Virtual Cloud solution was valuable. (See P-35, attached hereto as Exhibit A). Plaintiff' Exhibit 92 (" s P-92" Contracts entered into between Strategic ). Communications Partners Int' and Telre Funding LLC, offered to show that l CH2M Hill' network monitoring offering to FEMA in April 2002 was not the s Virtual Cloud solution. (See P-92, attached hereto as Exhibit B). Plaintiff' Exhibit 95 (" s P-95" Letter from Chuck Thomson of Telre ). Funding, offered to show Virtual Cloud had a viable opportunity with FEMA. (See P-95, attached hereto as Exhibit C).

B.

C.

Mr. Perez, the Telre Funding LLC principals, and Mr. Thompson are not on the witness list and Virtual Cloud does not intend to call them at trial. Exhibits P-35, 92 and 95 are hearsay, and none fall within any exception to the hearsay rule. In fact, the proffered Exhibits are textbook inadmissible hearsay: the statements contained in each have no special indicia of trustworthiness, Defendants will not have any opportunity for cross examination, and their admission would pose a high risk of distortion, misstatement, and misperception. Exhibits P-35, 92 and 95 are therefore inadmissible as a matter of law. In the alternative, even if the Exhibits are somehow admissible despite the hearsay rule, the probative value of each is substantially outweighed by the danger of unfair prejudice, confusion of issues, and

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misleading the jury, and are therefore inadmissible under Fed. R. Evid. 403. Accordingly, Defendants respectfully request that the Court exclude Exhibits P-35, 92 and 95. ARGUMENT
A.

Exhibits P-35, 92, And 95 Are Hearsay. Exhibits P-35, 92 and 95 are out-of-court statements that Virtual Cloud offers to

prove the truth of the matters asserted therein, and thus constitute hearsay. Moreover, Virtual Cloud' suggested non-hearsay uses for these Exhibits are belied by their content. s I. Exhibit P-35 Is Hearsay Under Rule 801.

Virtual Cloud argues that Exhibit P-35 is offered to show that Virtual Cloud had real opportunities that CH2M Hill allegedly sabotaged. This is classic hearsay: Virtual Cloud seeks to admit Exhibit P-35 to use the out-of-court statement to prove the truth of the matter asserted therein. Fed. R. Evid. 801. As such, when used for this purpose, Exhibit P-35 is hearsay. Virtual Cloud seeks to avoid the hearsay issue by arguing Exhibit P-35 is offered to show that CH2M Hill believed that Virtual Cloud' offering was valuable after hearing s statements such as those contained in the Exhibit. (Notice at 1.) In other words, Virtual Cloud appears to offer Exhibit P-35 to show the effect this letter supposedly had on CH2M Hill. For an out-of-court statement to be admitted for its effect on the listener, however, the proponent must show the statement was actually made to the listener, and the statement must be probative to explain the listener' response or state of mind. Neither prerequisite exists s here.

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Virtual Cloud can offer no evidence tending to indicate the letter from Val Perez to Shannon Bushman was ever delivered to or viewed by CH2M Hill. Moreover, the letter, even if shown to CH2M Hill, does not contain any non-hearsay probative value. While courts may admit otherwise hearsay statements to explain their effect on the listener, the nonhearsay significance of the statement only exists when the statement' making, regardless of s its accuracy, demonstrates either an essential element of a claim or an affirmative defense, such as notice, or explains why someone behaved in a certain manner. When the proffered assertion lacks independent significance and is merely offered to bolster other statements or conclusions, it is being offered for the truth of the matter and is hearsay. See Polec v. Northwest Airlines (In re Air Crash Disaster), 86 F.3d 498, 535-36 (6th Cir. 1996) (holding that statement by company vice-president calling the pilots " SOBs"after examining the cockpit of the crashed plane was essentially being offered to bolster expert' conclusion of s negligence, not to show the effect on the expert' opinion). s Evidence offered to explain the basis of an opinion rather than a state of mind, such as CH2M Hill' opinion of Virtual Cloud, is offered for its content, not merely for its effect on s the listener. Id. As the court explained in Polec, " [o]ne can ask: ` would the factual statement have the same value at trial regardless of whether it was true or untrue?' Id. In " this instance, the answer to that question is no. Virtual Cloud does not proffer this piece of evidence to explain a response by CH2M Hill to the letter, nor does it offer the letter to explain CH2M Hill' state of mind. It is instead offering this letter in an attempt to prove it s had viable opportunities that should have led CH2M Hill to believe the Virtual Cloud

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solution was viable. Offered for this purpose, the letter has no independent probative value outside of its content and is hearsay. II. Exhibit P-92 Is Hearsay.

Virtual Cloud intends to offer Exhibit P-92 for two purposes: (1) as a verbal act, and (2) to show " CH2M Hill' network monitoring offering to FEMA . . . was not the Virtual s Cloud solution." (Notice at 2.) Notwithstanding Virtual Cloud' attempt to lump statements s in the letter into a single statement, Exhibit P-92 consists of three distinct out-of-court statements: (1) the Agreement for Commissions on Virtual Cloud Services, (2) the Agreement for Commissions on CH2M Hill with Strategic for Telre Funding, LLC (collectively the " Agreements" and (3) the notation at the bottom of the first page (the ), " Notation" The Agreements and the Notation, however, are separate statements and, as ). such, are subject to separate and distinct hearsay analyses. United States v. Montana, 199 F.3d 947, 950 (7th Cir. 1999) (explaining difference between verbal acts such as " promise, a offer, or demand,"which " commit the speaker to a course of action,"and hearsay statements, which " narrate, describe, or otherwise convey information, and so are judged by their truth value" ). Statements that constitute verbal acts (e.g., contracts) are usually not hearsay because they are not offered for their truth. See Fed. R. Evid. 801(c) Advisory Committee Notes (1972) (noting that Rule 801(c) excludes from the definition of hearsay " verbal acts'and ` ` verbal parts of an act,'in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights" Even if admitted as a verbal act, ).

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however, the Agreements should not be admitted as evidence of the substantive content of the agreement. United States v. Peveto, 881 F.2d 844, 853-54 (10th Cir. 1989) (traffic ticket admitted to tie defendant to van, but not to prove truth of any matters asserted in the ticket; " [t]he existence of the ticket, not its assertions, was the point of its admission" see also, ); United States v. Markopoulos, 848 F.2d 1036, 1039 (10th Cir. 1988) (rental contract is hearsay evidence of identity of renter). Consequently, the Agreements in Exhibit P-92 may be admissible, if at all, to show a contract existed between Strategic Communications Partners Int' and Telre Funding LLC, but not to prove the truth of any of the terms of those l contracts.1 The Notation, on the other hand, has no non-hearsay purpose. Virtual Cloud intends to offer the Notation as " evidence of the material fact that CH2M Hill' network monitoring s offering to FEMA in April 2002 was not . . . the Virtual Cloud solution." (Notice at 2.) This is an attempt to admit an out-of-court statement to establish the truth of the matter asserted therein. The Notation is being offered for an impermissible hearsay purpose, and must therefore be redacted even if the rest of Exhibit P-92 is admissible for its limited purpose stated above. III. Plaintiff' Exhibit 95 Is Hearsay Under Rule 801. s

Virtual Cloud seeks to offer Exhibit P-95 for the purpose of showing that Virtual Cloud had a viable opportunity with FEMA prior to CH2M Hill allegedly sabotaging that

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However, used for this non-hearsay purpose, Exhibit 92 is only minimally probative and potentially prejudicial, as there is a high probability the jury will use Exhibit 92 for its hearsay purpose, necessitating exclusion under Fed. R. Evid. 403.

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relationship. (Notice at 2.) This letter contains triple hearsay. It is a statement that may (or may not) have been delivered to non-party Phillip Allen, was written by non-party Chuck Thompson, and is based upon statements made to Mr. Thompson by anonymous individuals. (See Ex. C, " can' use individual names in this correspondence, however the appropriate I t administration appointments . . . have all been completed, in our favor... " Virtual Cloud ). offers Exhibit P-95 to show that Chuck Thompson received good feedback from Buck Krieger' presentation to FEMA, which is prove the truth of the matter asserted therein. This s makes the statement hearsay under Rule 801. Moreover, similar to Plaintiff' Exhibit 35, s there is no evidence that it was viewed or received by anyone at CH2M Hill, nor does it have any independent significance outside of the matters asserted therein. As such, it is hearsay.
B.

Exhibits P-35, 92 And 95 Are Not Subject to Any Hearsay Exception, and Are Therefore Inadmissible. Because Exhibits P-35, 92 and 95 are hearsay, they are inadmissible unless subject to

a specific hearsay exception. Virtual Cloud indicates in its Notice that the exceptions set forth in Rules 803(1), 803(3) and 803(6) apply to these Exhibits. (Notice at 3.) As described in detail below, none of these exceptions apply to the proffered Exhibits. I. Rule 803(1) Does Not Apply To P-35, 92 or 95.

The letters, Agreements and Notation Virtual Cloud seeks to admit as Exhibits P-35, 92, and 95 do not fall under the present sense impression exception to the hearsay rule set forth in Rule 803(1). The present sense impression exception applies to statements describing or explaining an event or condition, made while the declarant was perceiving the event or condition, or immediately thereafter. Fed. R. Evid. 803(1). Courts have agreed on

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three principal criteria for the admission of statements pursuant to this rule: (1) the statement must describe an event or condition without calculated narration; (2) the speaker must have personally perceived the event or condition described; and (3) the statement must have been made while the speaker was perceiving the event or condition, or immediately thereafter. United States v. Ruiz, 249 F.3d 643, 646 (7th Cir. 2001). A statement that meets these requirements is generally regarded as trustworthy because the substantial contemporaneity of event and statement minimizes unreliability due to defective recollection or conscious fabrication. Id. at 646-47. The appropriate inquiry, therefore, is whether sufficient time has elapsed to have permitted reflective thought. Accord McCormick, Evidence § 271 at 203-04 (5th ed. 1999). Letters such as Exhibits P-35 and 95, and agreements, such as Exhibit P-92 do not constitute a statement made at the time of observation. Letters and agreements usually require several revisions and significant reflective thought, and cannot, therefore, fall under the present sense impression exception. Alexander v. CIT Tech. Fin. Servs., Inc., 217 F. Supp. 2d 867, 883 (N.D. Ill. 2002) (proponent must provide evidence supporting claim that notes were written ` immediately thereafter'such that they could constitute present sense impressions). The Notation should likewise be excluded. The present sense impression exception is limited to contemporaneous descriptions or explanations of an event or condition. Fed. R. Evid. 803(1) Advisory Committee Notes (1972). A statement not describing an event or condition as it is happening, therefore, is not subject to this exception. Moreover, unless

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Virtual Cloud can provide evidence showing the amount of time that elapsed between Phillip Allen' observations and the time he made the Notation, it cannot show that the Notation is s the type of present sense impression that contains circumstantial guarantees of trustworthiness. United States v. Santos, 201 F.3d 953, 963-64 (7th Cir. 2000) (finding a handwritten note on a typed draft inadmissible because it may have been intended as a reflective summary and characterization of conduct rather than a spontaneous reaction to an immediate sensation). Accordingly, the Exhibits are not admissible under Rule 803(1). II. Rule 803(3) Does Not Apply To Exhibits P-35, 92 Or 95.

Virtual Cloud also contends that the Exhibits are admissible under the state of mind (or present sense impression) exception set forth in Rule 803(3). Exhibits P-35, 92 and 95 consist of statements of memory or belief to prove the fact remembered or believed, and as such, fall outside the present sense impression exception. The exclusion of " statements of memory or belief to prove the fact remembered or believed"is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind. Fed. R. Evid. 803(3) Advisory Committee Notes (1972); Shepard v. United States, 290 U.S. 96, 105-06 (1933). Because Plaintiff' Exhibits s 35, 92 and 95 are not describing an emotion, sensation, or physical condition existing at the time of the statement, they are not subject to the Rule 803(3) exception. Moreover, several courts have held that statements admissible under Rule 803(3), like statements subject to 803(1) and (2), cannot result after reflection on the events mentioned in

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the statement. United States v. Faust, 850 F.2d 575, 585-86 (9th Cir. 1988) (the circumstances allowed for declarant to think before drafting the letter, indicating he had time to reflect upon his statements, making them unreliable and not subject to Rule 803(3) exception). In determining whether statements relative to the declarant' state of mind are s admissible under Fed. R. Evid. 803(3), three requirements must be satisfied: (1) the statements must be contemporaneous with the event sought to be proven; (2) it must be shown that the declarant had no chance to reflect-- that is, no time to fabricate or to misrepresent his thoughts; and (3) the statements must be shown to be relevant to an issue in the case. United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986) (internal quotations omitted). The act of letter writing or agreement drafting can provide the declarant with as much time as the writer might want to fabricate or misrepresent his thoughts, making such documents inadmissible to show the declarant' current state of mind. United States v. s Rodriguez-Pando, 841 F.2d 1014, 1019 (10th Cir. 1988) (" [s]tatements relating to a person' s state of mind have probative value mainly because the declarant has no chance to reflect upon and perhaps misrepresent his situation" (citing Jackson, 780 at 1315). Exhibits P-35, ) 92 and 95 are outside the purview of the state of mind exception, and are therefore not subject to Rule 803(3). III. The Business Records Exception of Rule 803(6) Does Not Apply To the Exhibits

Exhibits P-35, 92 and 95 are not subject to the business records exception. Not every item of business correspondence is a business record. See, e.g., Breeden v. ABF Freight Sys., 115 F.3d 749, 754 (10th Cir. 1997) (sustaining exclusion of letter from chiropractor proffered

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as " medical business record" Timberlake Constr. Co. v. United States Fidelity & Guar. Co., ); 71 F.3d 335, 341-42 (10th Cir. 1995) (holding that court erred in admitting letters " written in anticipation of litigation"as business records). Rule 803(6), contains multiple foundational hurdles which must be cleared before a document may be admitted under the business records exception. United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999). Specifically, Rule 806(6) " requires that the custodian or other qualified witness testify that (1) the records were made contemporaneously with the events and ` kept in the course of a regularly conducted business activity,'and (2) ` was the regular practice of that business it activity to make the [record].' Id. (quoting Fed. R. Evid. 803(6)) (footnote omitted); Noble " v. Alabama Dep' of Environmental Management, 872 F.2d 361, 366-67 (11th Cir. 1989) t (holding that court erred in admitting letter as business record where " testimony was not adequate to establish that the letter was compiled as a matter of regular practice . . . " ). Virtual Cloud cannot provide the proper foundation to admit Exhibits P-35, 92 and 95 because none of the proffered Exhibits consist of records made contemporaneously with the events being recorded, kept in the regular course of business. Moreover, the business records exception, by intent and design, does not apply to the documents Virtual Cloud seeks to offer here. Neither the letters nor the agreements are records of events occurring within any business. They do not contain " element of the unusual reliability . . . said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or

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occupation." Fed. R. Evid. 803(6) Advisory Committee Notes (1972). Moreover, in order for any business record made to memorialize an act, event, condition, opinion or diagnosis to be admissible under Rule 803(6), it is necessary that the record be made at or near the time the events occur. United States v. Strother, 49 F.3d 869, 876 (2d Cir. 1995) (the timeliness with which a report is prepared with relation to the events recorded therein is " important to assure a fairly accurate recollection of the matter and because any trustworthy habit of making regular business records will ordinarily involve the making of the record contemporaneously." (internal quotations omitted). Because none of the Exhibits are ) records made contemporaneously with the events they are recording, and because they are not records kept in the regular course of any business, they are not subject to the Rule 803(6) exception. IV. The Residual Exception to the Hearsay Rule Does Not Apply.

Exhibits P-35, 92 and 95 fall well outside the purview of statements admitted under Rule 807. The residual exception contains five requirements, all of which must be satisfied for the statement to be admissible: (1) equivalent trustworthiness; (2) necessity; (3) material fact; (4) satisfaction of the purpose of rules; and (5) notice. Fed. R. Evid. 807. Exhibits P-35, 92 and 95 fail to satisfy at least two of these requirements: equivalent trustworthiness and necessity. The most significant requirement for admission under the residual exception is that the statement possess " circumstantial guarantees of trustworthiness"equivalent to that of statements admitted under the specific exceptions. Id. To determine trustworthiness, the

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focus should be upon the circumstances that " surround the making of the statement and that render the declarant particularly worthy of belief." Idaho v. Wright, 497 U.S. 805, 819 (S. Ct. 1990). None of the circumstances surrounding the statements Virtual Cloud offers here contain indicia of exceptional trustworthiness. Nor are any of the declarants particularly worthy of belief. Exhibit P-95, for example, consists of triple hearsay based primarily on anonymous sources. Furthermore, it is not unreasonably difficult for Virtual Cloud to obtain the information it seeks to introduce through these hearsay statements from the declarants themselves. Each of the declarants can be called by Virtual Cloud at trial, or Virtual Cloud could have elected to depose any of the declarants during discovery. Indeed, calling these individuals as witnesses would subject them to cross examination, and obviate any need to rely upon untrustworthy hearsay evidence.
C.

The Probative Value of Exhibits P-35, 92 and 95 is Not Substantially Outweighed by the Danger of Unfair Prejudice, Confusion of the Issues, Misleading the Jury or Presentation of Cumulative Evidence Determining whether the probative value of particular evidence is substantially

outweighed by the danger of unfair prejudice requires a balancing test under Fed. R. Evid. 403. In determining whether evidence is relevant, the court must consider whether it relates to a fact that is of consequence to determination of a claim, whether evidence makes it more or less probable that a consequential fact exists, and whether its probative value is outweighed by any danger of unfair prejudice. Fed. R. Evid. 401; Sims v. Great American Life Ins. Co., 469 F.3d 870, 881 (10th Cir. 2006) (definition of Rule 401 requires a dual

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inquiry into: (1) whether the evidence is probative or factually relevant to the proposition asserted (i.e., whether the evidence tends to make the existence of that fact more or less probable); (2) whether the proposition for which the evidence is offered is properly provable in the case (i.e., the fact is material-of consequence-to the question of state law)). Probative value under Fed. R. Evid. 403 is not considered in isolation, but signifies the marginal or incremental probative value of evidence relative to other evidence in the case. Wolfel v Holbrooki, 823 F2d 970, 972 (6th Cir. 1987) (the marginal relevance of a refusal to submit to polygraph testing was outweighed by its prejudicial effect.). The court should therefore take into account the logical force of the evidence and the proponent' need s for the evidence in light of other available evidence. Because the Exhibits are not subject to any hearsay exception, they can only be admitted for some non-hearsay purpose. Any relevancy these Exhibits may have under Virtual Cloud' proffered non-hearsay purposes, however, is marginal, while the possibility s that the jury will misuse the exhibits to prove the truth of the matters asserted therein is high. For example, even if Exhibit P-92 is admissible to show the existence of the contracts in that Exhibit, their existence is minimally relevant, and the potential the jury will read the contracts to prove the truth of the statements asserted within those contracts is high. Virtual Cloud' position that Exhibits P-35 and 95 are proffered to admit the effect they had on s CH2M Hill is likewise insufficient. Not only is it questionable that CH2M Hill ever saw these documents, the proffered Exhibits fail to demonstrate any effect on CH2M Hill. At best, they may tend to indicate the effect that they should have had on CH2M Hill. However,

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as described above, offered for this purpose, they constitute hearsay. The potential for jury misuse of Exhibits P-35, 92 and 95 outweighs whatever materiality, if any, they could have at trial.
D.

Exhibits P-92 And 95 Are Inadmissible Pursuant To Rule 901.2 Exhibits P-92 and 95 are also likewise inadmissible because Virtual Cloud cannot

authenticate them. The requirement that a document is authenticated is a condition precedent to admissibility, and is only satisfied by evidence sufficient to support a finding that the document in question is what its proponent claims it to be. Fed. R. Evid. 901(a); United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991) (exhibits are irrelevant unless proponent fulfills authentication requirement by introducing evidence sufficient to support finding that they are what proponent claims them to be). The proponent must show that the evidence is what it is claimed to be by a preponderance of the evidence. United States v. Gelzer, 50 F.3d 1133, 1140-41 (2d Cir. 1995) (proponent of physical evidence must show that it is what proponent claims it to be by preponderance of evidence). For contracts, such as Exhibit P-92, and letters, such as Exhibit P-95, testimony regarding the accuracy of the document must be given by a person having personal knowledge of the document. Hernandez-Herrera, 952 F.2d at 344 (testimony of INS agent who had personal knowledge of circumstances surrounding making of relevant INS forma

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Defendants understand that the Court may need to hear certain evidence at trial before it can determine whether Exhibits P-92 and 95 will have the required foundation for admissibility under Rule 901. However, Defendants call attention to this issue in the Motion now so that the Court may review the Exhibits in anticipation of having to rule on this matter at trial. Unless Virtual Cloud can produce testimony at trial of persons familiar with the agreements and letters they seek to admit into evidence as Exhibits P-92 and 95, these Exhibits cannot be admitted into evidence even if the Court deems them to be not hearsay or subject to a hearsay exception.

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and who was familiar with INS' recording procedures was sufficient to establish s authenticity); R.R. Mgmt. Co. LLC v. CFS La. Midstream Co., 428 F.3d 214, 219-20 (5th Cir. 2005) (four-page excerpt of assignment agreement not admitted where the party seeking to benefit from the inference it provided could not indicate any place in the record where the parties to the agreement referred to the excerpt). Virtual Cloud does not plan to call Charles Thompson as a witness. Phillip Allen will be called to testify, and may testify via deposition. Phillip Allen' deposition testimony, s however is insufficient to authenticate the agreements in Exhibit P-92. Similar analysis applies to Exhibit P-95. Virtual Cloud does not intend to call Charles Thompson, Buck Krieger, or anyone who is familiar with this letter, as a witness. Virtual Cloud, therefore, cannot provide any evidence tending to authenticate the letter from Charles Thompson to Buck Krieger. Without anyone testifying to authenticate the letter, Virtual Cloud will be precluded from Offering Exhibit P-95. CONCLUSION For all the reasons identified herein, Defendants respectfully request that the Court exclude Plaintiff' Exhibits 35, 92 and 95. s

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Respectfully submitted this 22nd day of February, 2007.

s/ David W. Stark David W. Stark Heather Carson Perkins FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 (303) 607-3500 Attorneys for Defendants CH2M Hill and Timothy Ingram

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 22nd day of February, 2007, I electronically filed the foregoing DEFENDANTS' MOTION IN LIMINE TO EXCLUDE PLAINTIFF' S EXHIBITS 35, 92 AND 95 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Scott R. Bauer, Moye White LLP Sarah B. Wallace Esq., Petrie Schwartz LLP [email protected] [email protected]

I also hereby certify that on the 22nd day of February, 2007, a true and correct copy of the foregoing DEFENDANTS' MOTION IN LIMINE TO EXCLUDE PLAINTIFF' S EXHIBITS 35, 92 AND 95 was placed in the U.S. Mail, properly addressed, postage prepaid to the following non CM/ECF participants: Peggi Spencer Corporate Counsel CH2M Hill P.O. Box 22508 Denver, CO 80222-0508 Tim Ingram 5173 Dover Street Arvada, CO 80002

s/ Veronica Thomas
fb.us.1825896.06

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