Free Notice (Other) - District Court of Colorado - Colorado

Case 1:02-cv-01004-JLK-BNB

Document 241

Filed 02/06/2007

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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. PLAINTIFF'S NOTICE OF INTENT TO RELY ON FED. R. EVID. 807 Plaintiff Virtual Cloud Services, Inc. ("Virtual Cloud") respectfully gives notice to this Court of its intent to rely on Fed. R. Evid. 807 regarding certain documents it has designated as exhibits in this matter. Specifically, Virtual Cloud may offer Exhibits P-35, P-92, and P-95 in part under Rule 807. Exhibit P-35 is a letter that Val Perez of Harvard Technologies, Inc. wrote to Shannon Bushman. In that letter, Mr. Perez states "I am extremely impressed with your technology and the flexibility it represents to telephony carriers who are trying to move fast in the fluid marketplace we are all experiencing right now." He further states "the purpose of this letter is to let you know that Harvard Technologies is interested in using your system as a part of a total solution for a major carrier customer we are currently working with." These statements are evidence of the material facts that: (1) Virtual Cloud had real opportunities that CH2M Hill sabotaged; and (2) CH2M Hill, after hearing feedback such as this, believed the Virtual Cloud solution was valuable. These statements show Harvard Technologies

Case 1:02-cv-01004-JLK-BNB

Document 241

Filed 02/06/2007

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enthusiasm over the Virtual Cloud solution. We now know that CH2M Hill inserted itself into Virtual Cloud's pre-existing relationship with Harvard Technologies and ultimately made a proposal to the State of Colorado with Harvard Technologies, which proposal did not include Virtual Cloud. Mr. Perez's address is 3714 Bluestein Drive, Suite 600, Austin, Texas 78721. Exhibit P-92 consists of two contracts entered into between Strategic Communications Partners Int'l and Telre Funding LLC. Virtual Cloud believes both of the contracts themselves are not hearsay, but are documents having independent evidentiary significance (also called operative facts), and are therefore not hearsay under Rule 801(c) of the Federal Rules of Evidence. Virtual Cloud, however, also intends to use Mr. Allen's handwritten notes on the first page of the exhibit. These notes which read "I'll re-do this to replace Virtual Cloud with CH2M Hill as VCloud will play no part in the FEMA solution from CH2. Thus, will pass 2/3ds through to Telre Funding" is evidence of the material fact that CH2M Hill's network monitoring offering to FEMA in April 2002 was not (despite CH2M Hill's Fed. R. Civ. P. 30(b)(6) testimony) the Virtual Cloud solution. Mr. Allen's last-known address is 6902 Hampton Court, Castle Rock, CO 80108. Finally, Exhibit P-95 is a letter dated November 28, 2001 where Chuck Thomson of Telre Funding reports back to Buck Krieger of Strategic on Virtual Cloud and Strategic's presentation to FEMA in November 2001. This letter is evidence of the material fact that Virtual Cloud had a viable opportunity with FEMA prior to CH2M Hill sabotaging that relationship. Mr. Thomson's address is Telre Funding LLC, 500 Bishop Street, Ste. F-1, Atlanta Georgia 30318.1
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Virtual Cloud first gave notice of its intent to rely on Fed. R. Evid. 807 in it its Response to Defendants' Motion to Strike Selected Paragraph's From Virtual Cloud's Additional Disputed Facts filed on October 24, 2003.

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Case 1:02-cv-01004-JLK-BNB

Document 241

Filed 02/06/2007

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Accordingly, Virtual Cloud intends to offer these statements, at least in part, pursuant to Rule 807 of the Federal Rules of Evidence. Virtual Cloud provides this notice as an alternative argument, subject to and without waiving its position that these statements are properly admitted as non-hearsay because they are offered to show the effect they had on CH2M Hill and are also subject to exceptions to the hearsay rules that include, but are not limited to, Rules 803(1), 803(3) and 803(6) of the Federal Rules of Evidence. DATED this 6th day of February, 2007. Respectfully submitted, s/ Dart M. Winkler ________________________________________ Scott R. Bauer Dart M. Winkler Moye White LLP 16 Market Square, 6th Floor 1400 Sixteenth Street Denver, CO 80202-5529 Telephone: 303 292 2900 Sarah Block Wallace Featherstone Petrie DeSisto, LLP 600 - 17th Street, Suite 2400 South Denver, CO 80202 Telephone (303) 626-7100 ATTORNEYS FOR PLAINTIFF VIRTUAL CLOUD, INC.

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Case 1:02-cv-01004-JLK-BNB

Document 241

Filed 02/06/2007

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of February, 2007, I electronically filed the foregoing PLAINTIFF'S NOTICE OF INTENT TO RELY ON FED. R. EVID. 807 with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: David W. Stark, Esq. Heather Carson Perkins, Esq. Faegre & Benson, LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 [email protected] [email protected]

/s Ronda Morehead __________________________________________

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