1999-03-24_GENERAL DOCUMENTS - C1981017

Home Browse Search

04/08/99 10:13 FAX 3037962777 BURINS FIGA & WILL Z 004 BURNS, FIGA & WILL, P.C. Cheryl A. Linden, Esq. April 8, 1999 Page 3 The timing of this Motion in and of itself is quite suspicious. While it my be possible that you might have the right to raise this jurisdictional issue at any point, the obvious question is if this argument is any good, why didn't you raise it earlier? Obviously, it is merely an attempt to avoid the Steve Renner deposition which brings me to the next topic. Renner Deposition At this point, it is our position that the Renner deposition must go forward as scheduled. Your April 6"' letter seems to take the position that C.R.S. § 24-10-108, is :;elf-executing and that merely by the filing of your Motion to Dismiss on sovereign immunity grounds, all discovery automatically ceases. However, that is clearly not the case from the face of the statute which says in part, "The court shall suspend discovery . . ." Clearly, you need a court order before discovery can cease. Therefore, in the absence of such an order, we expect to see Mr. Renner at this office on Friday morning. The reason for the requirement that the court must suspend discovery is obvious because the statute goes on to say that the court should allow any discovery necessary to decide the issue of sovereign immunity. Thus, the court must tailor discovery to the issues at hand. Here, the Renner deposition clearly should go forward as originally scheduled in thy: face of your Motion to Dismiss, even if you don't withdraw it. Your statement that Mr. Renner does not have information necessary to decide the issue of sovereign immunity is quite incorrect. Your argument in the Motion to Dismiss is that Mid-Continent seeks to enforce the Coal Act rather than the Reclamation Plan. Therefore, it should be obvious that one of the most hotly contested issues on this matter would be what is included in the Reclamation Plan versus what is included in or required by the Coal Act. As the chief DMG representative on the Coal Basin Reclamation, Mr. Renner not only knows the specific reclamation activities that have occurred and which he plans to undertake in Coal Basin, but he is also quite familiar with the Reclamation Plan itself and is uniquely qualified to testify regarding the basis in the Reclamation Plan or the Coal Act, as the case may be, for certain tasks that have been accomplished or are: planned. In fact, it seems to me that given the way you have argued the Motion to Dismiss, a decision by the court would be impossible without bearing from Mr. Renner. In addition, Mr. Renner's deposition on Friday is appropriate becau;:e you have moved to dismiss only four of six claims and we have some questions for him on the issue of DMG's accounting, which is not subject to your Motion to Dismiss. In summary, unless you or the court takes some action before Friday morning, Mr. Renner must appear or we will seek to be reimbursed for our expenses and attorneys fees for preparing for that deposition if it does not occur.