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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 10-cv-00649-CMA-MJW DANIEL JOYCE and ROBERT LOPEZ, Plaintiffs, vs. NORTH METRO TASK FORCE, THE CITY OF NORTHGLENN, COLORADO, THE CITY OF THORNTON, COLORADO, JAMES NURSEY, CHIEF, THORNTON POLICE DEPARTMENT, RUSSELL VAN HOUTEN, CHIEF, NORTHGLENN POLICE DEPARTMENT JACK BELL, DANTE CARBONE, TIMOTHY HERSEE, and RICHARD REIGENBORN. Defendants.

RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER COMPELLING PRODUCTION OF SUBPOENAED DOCUMENTS AND TESTIMONY ______________________________________________________________________ Defendants, CITY OF THORNTON, JAMES NURSEY and DANTE CARBONE, by their attorneys, SENTER GOLDFARB & RICE, L.L.C., and pursuant to D.C.COLO.LCivR 7.1(C), hereby respond to Plaintiffs’ Motion for Order Compelling Production of Subpoenaed Documents and Testimony (Dkt. #37) as follows: A. 1. INTRODUCTION The underlying premise of Plaintiffs’ Motion is the oft-repeated charge that

Defendant Carbone was the “primary suspect” or “target” of the DEA investigation into the source of the leak that occurred in connection with the Tang investigation. As will

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be shown below, the primary reason why Carbone gained this dubious status was by virtue of the unsubstantiated allegations, suspicions, and charges that were lodged by Plaintiffs Joyce and Lopez. When these suspicions were put to the test of investigation, all objective facts pointed against Plaintiffs’ charges. Indeed, the entire exercise boils down to an example of nothing more than ipse dixit – the Plaintiffs’ say that Carbone is the primary suspect in the leak and, as a result, it must therefore be so. Herein, they continue to press their charge with no facts to support same other than rank speculation and slanderous rhetoric. 2. As will also be demonstrated below, Plaintiffs have failed to follow proper

procedure in seeking the documentation they request, they are untimely and have been dilatory in seeking that documentation, and the materials sought are not even relevant to the controversies presented by this case. For these collective reasons, the motion should be denied. B. 3. THE SUMMARY REPORT OF THE DEA INVESTIGATION The Amended Affidavit submitted in support the Motion is rife with errors

and also omits material facts included in the DEA Summary Report which, when considered, lead to far different conclusions than those suggested by Plaintiffs. In

considering the present motion, it must be remembered that the DEA Summary Report is not in and of itself evidence of anything, but instead merely reports information and statements gathered from the various persons who were interviewed in the underlying investigation. The reports are inadmissible hearsay. It is the documentation referenced and the witnesses identified therein that might constitute potential evidence. None of

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the investigators, including the person sought to be deposed (Special Agent Roach) have any direct knowledge of facts bearing on this case. Instead, they merely Finally, it must be

investigated and reported upon what they were told by others.

considered that while the Summary Report contained various impressions and surmise of investigators (as all such reports are want to do), such matters constitute nothing more than inadmissible opinions. Thus, neither the Summary Report, nor the complete report, nor any testimony concerning those documents is likely to be admissible in any event. 4. The undersigned counsel for Defendants reviewed the Summary Report

on November 10, 2010. As discussed below, several facts recited within the Amended Affidavit submitted with Plaintiffs’ Motion are inaccurate and/or omit material facts. By signature hereunder, counsel verifies that the following disparities of facts or omissions of facts are born out by the Summary Report: a. Claim is made that the Summary Report indicates that “then-Sergeant Carbone fought against having investigators move in and arrest the members [on February 14, 2008].” [Amended Affidavit at ¶ 3.b.] This statement is inaccurate. What the Summary Report actually reflects is that “both [Special Agent] Reid [of the DEA] and Carbone forcefully argued to wait until more time passed before taking action”. [Summary Report at p. 104.] The report further indicates that Assistant Special Agent in

Charge Palestino (also of the DEA) thought that immediate action should be taken and that Plaintiff Joyce also wanted to act immediately.

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[Summary Report at pp. 104 – 105.]

The report also indicates that

“[Special Agent] Marshall [of the DEA] was ambivalent, but somewhat supportive of the need to take immediate action”. [Summary Report at p. 105.] The Summary Report goes on to indicate that “despite intercepted phone calls showing that the subject of the investigation were aware of police involvement, Carbone and Reid still recommended no action be taken”. [Summary Report at p. 106.] Moreover, in discovery taken in connection with this case, Plaintiff Joyce claimed that Defendant Bell also argued in favor of waiting before an enforcement action was taken. [Deposition of Daniel Joyce at p. 206, ll. 18-22.] Thus, while the Amended Affidavit attempts to suggest that Carbone stood alone in opposing immediate action, both the Summary Report and other facts clearly demonstrate that he was but one voice taking this position. Far from

being suspicious, such honest disagreements between investigators are a routine part of drug investigations. b. The Amended Affidavit also offers parenthetical commentary about the fact that Carbone was promoted to the rank of commander following the events that form the basis of this lawsuit. [Amended Affidavit at p. 2.] The obvious innuendo suggested by this comment is that the promotion was in someway linked to Plaintiffs’ claims or that he did not otherwise deserve the promotion. Carbone has had an exemplary 30+ year career in law enforcement. For many years, he has been sought by other law

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enforcement agencies to assist in the most difficult and complex of investigations. He received the City of Thornton’s Distinguished Service Award in 2005, and the City has received dozens of letters of appreciation for Carbone’s service to include one from then Colorado Attorney General Salazar offering thanks for his service in helping extradite criminals who committed acts in Colorado and then fled to Mexico as a safe haven. There is a letter from a chief deputy district attorney remarking that Carbone is “simply the best police interrogator I have ever encountered”. For over a decade, Carbone’s annual performance evaluations score amongst the highest in the department, rating “outstanding” and “highly proficient”. To suggest that his promotion had to do with anything other than merit is simply reckless slander. c. Through innuendo, the Amended Affidavit attempts to suggest that the cell phone mentioned in the tip-off letter is in some way associated with Carbone’s daughter. [Amended Affidavit at ¶¶ 3.c., d., and r.] What is omitted from this discussion is that substantial efforts were undertaken by the DEA to determine whether or not Carbone’s daughter was in any way linked to the purchase of the subject cell phone. All of those efforts

proved entirely fruitless and in fact demonstrated that she was not involved. Not a single witness was identified who placed Ms. Carbone in the location where the phone was purchased on the day in question. In fact, the clerk who sold the phone to the purchaser was shown a

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photograph of Ms. Carbone and was unable to identify her as the purchaser of the phone. [Summary Report at p. 116.] Bank records were reviewed which also showed no correlation to the purchase of the cell phone. [Summary Report at pp. 116 and 120.] Investigators even went to the lengths of having a CBI criminalist inspect Ms. Carbone’s handwriting to determine whether or not she had any part in filling out the application for the cell phone. The criminalist “concluded that the evidence suggests that [Ms. Carbone] did not write [the name of cell phone applicant]”. [Summary Report at p. 128.] They also had fingerprint analysis done by a detective from the Denver Police Department who analyzed the evidence and determined that “Ms. Carbone’s fingerprints were not on the cell phone application”. [Summary Report at p. 129.] In short, thorough

investigation was undertaken and multiple forensic analyses were performed and none of that yielded any results indicating that Carbone’s daughter had any link whatsoever to the purchase of the subject cell phone. Thus, while the Amended Affidavit suggests that investigators

found such a connection, the omitted material facts demonstrate just the opposite. d. The Amended Affidavit lays claim that the Summary Report indicates that “but (sic) of the 29 DEA and NMTF employees interviewed, approximately half questioned Sergeant Carbone’s integrity and/or suspected that he may have been involved in compromise the Tang investigation.”

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[Amended Affidavit at ¶ 3.h.] What the Summary Report actually states is that “approximately half of the NMTF employees that were interviewed, including two of the members of the NMTF management, questioned Carbone’s integrity and/or suspected his involvement”. [Summary Report at p. 90.] Indeed, if one reviews the transcribed handwritten notes that are submitted with Plaintiffs’ motion, this exact quote is reflected showing that the quotation set forth in the Amended Affidavit is an error. [See, Excerpts from Handwritten Notes from Review of Summary Report at p. 3.] The correct quotation thus suggests that roughly half of the NMTF employees interviewed either questioned Carbone’s integrity and/or suspected him with regard to the leak. It is known from the discovery in this case that each of the Plaintiffs fit both of these categories. [Deposition of Daniel Joyce at p. 335, ll. 3-12, p. 345, l. 24 – p. 347, l. 1, p. 351, ll. 12-24; Deposition of Robert Lopez at p. 62, l. 15 – p. 66, l. 11, p. 71, l. 19 – p. 72, l.14.] Moreover, while Plaintiff Joyce denies that he told others at the NMTF of suspicions that Carbone was the author of the tip-off letter [Deposition of Daniel Joyce at . 332, l. 18 – p. 333, l. 5.],1 Plaintiff Lopez candidly admits that he announced his suspicions to at least 10 other persons at the NMTF. [Deposition of Robert Lopez at p. 97, l. 19 – p. 9, l. 6, p. 119, l. 7 – p. 126, 11.] Also, since the DEA investigators had, with the
Although Joyce denies telling other NMTF detectives and employees of his suspicions about Carbone, the vast majority of persons deposed or interviewed say just the opposite – Joyce spoke long and loud about his suspicions. In fact, his harangue became so distracting that at least one detective asked to be moved away from him.
1

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assistance of Plaintiffs, identified Carbone as a lead suspect, it is doubtless the case that virtually everyone who was questioned regarding the matter was asked about Carbone. With all of this suspicion already cast upon Carbone, one has to ask whether or not the suspicions existed before or only after Plaintiffs implicated Carbone. Once Carbone was made a suspect by Plaintiffs, all that he did became suspicious in the minds of others e. The Amended Affidavit also claims that the Summary Report indicates that Carbone was found to be “deceptive” in answering questions in his polygraph examination. [Amended Affidavit at ¶ 3.i.]2 What is omitted from the affidavit is that Carbone’s polygraph examination was conducted by a different special agent than the others who were given such a test. [Summary Report at p. 46.] Moreover, polygraph examinations are

generally held inadmissible both in the Colorado Courts and in the Tenth Circuit. 14 Colo. Prac., Criminal Practice & Procedure, § 1.5(3) 2nd Ed.; United States v. Call, 129 F.3d 1402 (1997). The vast majority of courts who have considered the admissibility of polygraph evidence hold it to be inadmissible for a variety of reasons, most notably lack of scientific reliability. 22 Fed. Prac. & Proc. Evid., § 51, 69, 1st Ed.

The Amended Affidavit also states that “Detective Garcia’s examination showed deception.” [Amended Affidavit at p. 4.] In reality, the Summary Report states that “the examination of Garcia…[shows]...no deception.” [Summary Report at p. 46.] This is but another example of the lack of precision and accuracy in the Amended Affidavit.

2

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f.

The Amended Affidavit further contends that the Summary Report suggests a close relationship between Carbone and Dan Tang, even going so far as to claim that “when Tang was interviewed on February 18, 2008, he ‘said that he was disappointed because he looked bad in front of his friend, Dante’”. [Amended Affidavit at ¶ 3.l.] What is omitted from the Amended Affidavit is the fact that when interviewed, Tang denied ever having made such a statement. [Summary Report at p. 100.] Moreover, the Summary Report reflects that no other person claims to have ever heard this statement besides one officer. [Id.] The officer who claims that the statement was made is none other than Plaintiff Joyce. [Deposition of Daniel Joyce at p. 352, ll. 3-10.] Moreover, when interviewed, both

Carbone and Tang indicated that they only knew each other by virtue of Carbone having come into the restaurant for lunch. [Summary Report at p. 99.] No facts were developed which contradicted this assertion. In addition, although claim is laid that there was a close relationship between Carbone and Tang, it was found that Tang when interviewed stated that he only knew Carbone by the name “Dante”. [Summary Report at p. 99.] Thus, through misstatement and omission, it is made to appear that Tang acknowledged making a statement which in fact he denied ever having made and the critical fact is omitted that the only person who even alleges such a statement was made is one the Plaintiffs in this case. It is also

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suggested that a close relationship existed between Carbone and Tang when the Summary Report itself indicates no such thing. g. The Amended Affidavit also charges “questionable ethics on Sergeant Carbone’s part”. [Amended Affidavit at ¶ 3.o.] What follows this statement is a series of disconnected and random notes regarding matters having not the slightest thing to do with the Tang investigation from unattributed sources on unknown dates. In supporting this sort of innuendo, the

Summary Report indicates that “one NMTF employee said that several credible people both within and outside of NMTF told him to be aware of Carbone because he was ‘dirty’”. [Summary Report at p. 96.] No basis is given for this charge, nor is the source identified. Given the history of the investigation, it is not at all unlikely that the unattributed source was one of the Plaintiffs in this case. h. The Amended Affidavit also charges that Carbone was a close friend of Noel Busck, former mayor of the City of Thornton, and suggests that Carbone somehow arranged leniency in prosecution with regard to Busck. [Amended Affidavit at ¶¶ 3.v., w., x., and y.] In fact what the Summary Report indicates is that Busck was a “close friend of Tang”. [Summary Report at p. 122.] Busck describes his relationship with Carbone as a “friendly one” and goes on to describe that Carbone rode with him on “National Night Out” while Busck was mayor, a fact which Carbone readily conceded in his own interview. [Summary Report at p. 122.] With respect

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to the decision not to involve Busck in the prosecution of Tang, Carbone reported that Assistant U.S. Attorney Campbell had determined to use Busck as a witness, as opposed to filing charges against him. Carbone was also asked by Campbell to convey this information to Busck. [Id.] When interviewed, Assistant U.S. Attorney Campbell confirmed Carbone’s version of these events. [Summary Report at p. 126.] Thus, contrary to the assertions in the Amended Affidavit, the Summary Report does not bear out a close friendship between Carbone and Busck, nor does it demonstrate any impropriety on Carbone’s part with regard to decisions made concerning the prosecution of Busck, nor in the conveying of that information to him. 5. Despite the fact that Plaintiffs labeled Carbone as a suspect and this

apparently led to a vigorous investigation of him by the DEA, the end result of a detailed and lengthy investigation was that insufficient evidence was developed to pursue any type of charge against Carbone. In fact, as demonstrated above, a large measure of the evidence developed in the DEA report was completely exculpatory of Carbone. Even now, Plaintiff Joyce admits that he never had either probable cause or even reasonable suspicion to implicate Carbone in the alleged leak. [Deposition of Daniel Joyce at p. 19, l. 20 – p. 20, l. 16.] As well, Lopez admits that he never possessed any probable cause that Carbone was involved in the leak. [Deposition of Robert Lopez at p. 153, l. 25 – p. 153, l. 6.] Despite this dearth of evidence and despite not having any reasonable grounds to make their charge, Plaintiffs continue to label Carbone as a

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suspect. Professional law enforcement investigators should know that such conduct is unbecoming of their office. C. 6. PROCEDURE The motion is completely devoid of any reference to the rule or procedure

that is being relied upon seeking an order compelling document production and deposition testimony. It is unclear whether Plaintiffs rely on Fed.R.Civ.P. 37 (which does not include any provisions for compelling document production or testimony pursuant to a Rule 45 subpoena) or Fed.R.Civ.P. 45 (which has a contempt provision, but no other explicit provisions regarding orders compelling production or attendance). It is impossible for Defendants to respond to uncited procedure. Indeed, this lack of procedure alone should be sufficient to result in a denial of the motion. 7. It is also pointed out that Plaintiffs have presented no evidence to the

Court that the parties sought to be compelled (i.e. the United States Attorney and a DEA agent) have even been served with the Motion. The Court will be deprived of any response from these non-parties if they are not served with the Motion. They have the right to be noticed and heard. 8. It is also clear that Plaintiffs have failed to comply with the Touhy

regulations, 28 C.R.F. § 16.21 et seq., that are a condition precedent to any legal action seeking the subject documentation or testimony. [See correspondence from Mark S. Pestal dated December 6, 2010 and February 3, 2011, Exhibits 3 and 10 to the Motion.] Failure to adhere to these procedures as well is sufficient in and of itself to result in a denial of the motion.

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D. 9.

TIMELINESS Plaintiffs have not raised this discovery dispute in a timely manner. In

fact, as the record demonstrates, they have been dilatory in both pursuing this discovery and in bringing the matter to the Court’s attention. 10. Plaintiffs’ first raised the issue of undertaking discovery regarding the DEA

investigation in August of 2010. [Email from Patricia S. Bangert and Notice of Issuance of Subpoena Duces Tecum dated August 17, 2010, attached hereto as Exhibit A.] Defendants were not informed as to whether or not the subject subpoena was ever served, nor was any notice given of cancellation of the subpoena. One of the defense attorneys appeared on the assigned return date for the subpoena, on August 27, 2010, only to find that Plaintiffs’ counsel had apparently unilaterally cancelled the production but given no notice of same. 11. It was not until some three and one-half months later in December of 2010 [Email from

that the issue of the DEA report was once again raised by Plaintiffs.

Patricia S. Bangert and Notice of Issuance of Subpoena Duces Tecum dated December 2, 2010, a copy of which is attached hereto as Exhibit B.] 12. Just four days following service of the second Notice of Issuance, the

United States Attorney’s Office responded to Plaintiffs’ counsel and advised of the need to conform to the Touhy regulations. [Letter from Mark S. Pestal dated December 6, 2010, Exhibit 3 to the Motion.] In his correspondence, the Assistant United States Attorney also offered to make the Summary Report available for inspection by Plaintiffs.

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13.

Although the United States Attorney had agreed to make the Summary

Report available as of early December of 2010, Plaintiffs’ counsel did not convey her intent to review those materials until December 20, 2010. [E-mail from Patricia S.

Bangert dated December 20, 2010, a copy of which is attached hereto as Exhibit C.] In her communication, Plaintiffs’ counsel indicated that she would be “set[ting] up a time to review the letter in early January”. [Id.] No reason is given for delaying inspection of the Summary Report until a month following the offer of inspection. 14. The issue was not raised again until yet another month later on January

21, 2011, when Plaintiffs’ counsel announced her intention to take the deposition of Special Agent Roach. [E-mail from Patricia S. Bangert dated January 21, 2011, a copy of which is attached hereto as Exhibit D.] In this communication, Plaintiffs’ counsel unilaterally announced her intention to set Roach’s deposition for “next Thursday” (January 27, 2011). This notification is some six weeks after Plaintiffs were given the opportunity to review the Summary Report. It is also served only eight days before the lapsing of the discovery cut-off in the case. It is further in violation of D.C.Colo.LCivR 30.1(A) which requires that reasonable notice for the taking of a deposition is not less than 14 days and also requires that a party engage in good faith efforts to schedule the deposition by agreement at a time that is reasonably convenient and economically efficient to the proposed deponent and all counsel of record. Plaintiff’s counsel neither conferred nor gave 14 days notice. 15. It was not until January 26, 2011, that Plaintiffs’ counsel indicated that “the

U.S. Attorney needs more time to consider Plaintiffs’ request to depose S.A. Paul

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Roach” and therefore announced that the “deposition is obviously cancelled”. [E-mail from Patricia S. Bangert dated January 26, 2011, a copy of which is attached here to Exhibit E.] 16. The discovery cut-off in this case lapsed on January 28, 2011. This

occurred without Plaintiffs having perfected scheduling of the discovery they now wish to undertake, without having filed a motion with regard to such discovery, and without moving for an extension of the discovery cut-off. 17. It was not until February 18, 2011 that Plaintiffs advised of their desire to

pursue a motion with regard to the document production and deposition requested from the United States Attorney and the DEA. [See, E-mail from Patricia S. Bangert dated February 18, 2011, a copy of which is appended hereto as Exhibit F.] This Motion was then filed on February 21, 2011, some three and one-half weeks following the expiration of the discovery cut-off. 18. Plaintiffs’ Motion offers no good cause for why the discovery in question

could not have been completed before the discovery cut-off. In fact, as the history set forth demonstrates, Plaintiffs first contemplated this discovery in August of 2010, leaving them over five months within which to conduct the discovery. Despite this, they waited until the eve of the cut-off to even attempt to subpoena the records and depose Special Agent Roach. Perhaps more importantly, no extension was sought before the discovery deadline expired. Accordingly, this Motion should be denied on the basis of timeliness alone.

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E. 19.

RELEVANCE The Motion, as well as the Amended Affidavit, contains a hodgepodge of

assertions of relevance in the requested discovery. In order to determine relevance, it is fundamental to understand the nature of the legal theory of the case. Here, Plaintiffs plead but one claim for relief, that being premised upon a theory of First Amendment retaliation. In such a case, the legal issues are straightforward. Within the Tenth Circuit, the basic formula for recovery on a First Amendment retaliation claim requires that a plaintiff be able to show the following elements: (1) that the plaintiff’s speech was made a private citizen, as opposed to as a part of his official duties; (2) that the speech was on a matter of public concern; (3) that the government’s interests as an employer in promoting efficiency of public service do not outweigh the plaintiff’s free speech interests; (4) that the protected speech was a motivating factor in the alleged adverse employment action; and (5) that the government employer would not have reached the same employment decision in the absence of the protected speech. Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010); Brammer Hoelter v. Twin Peaks Charter Acad., 492 F3d 1192, 1202 (10th Cir. 2007). 20. Despite Plaintiffs’ assertion to the contrary, the DEA investigative reports

and testimony associated therewith do not bear on any of these legal or factual issues. This is seen by responding, in order, to the assertions of relevance contained in the Motion: a. First it is asserted that the DEA report will detail the specific speech which Plaintiffs claim to have participated in. [Motion at p. 7.] Whether or not

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the report contains reference to the Plaintiff’s claimed speech will make none of the issues presented by this case more or less likely. In fact, Plaintiffs have already offered sworn testimony in their depositions as to the specific nature of the speech they claim to have engaged in. The fact that such may have been reported in DEA reports, either in detail or in summary form, does nothing to advance Plaintiffs’ cause. b. Second, it is claimed that the DEA report “may” show a motive for Defendants’ retaliation against Plaintiffs. [Motion at p. 8.] Plaintiffs’

assertion that the report “may” show such a motive is speculative at best. But more to the point, Plaintiffs have already announced and conducted extensive discovery with regard to their claimed theory of motive in the case (i.e. to silence Plaintiffs’ criticism of the NMTF’s perceived lack of response to the leak and/or their announced belief that Defendant Carbone was the source thereof). Whether or not the DEA report

speculates on such matters does nothing to make the truth of that claimed motive more or less likely. c. Third, Plaintiffs assert that the DEA report “may” show the exertion of “substantial political influence” in connection with the underlying criminal investigation. [Motion at p. 9.] Once again, the suggestion that the report “may” show such matters is speculative at best and is not consistent with anything contained within the Summary Report that has been reviewed by all of the parties. Such speculation either by Plaintiffs or by the DEA

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investigators is not in any way probative of the salient issues in this case and, for that matter, is in all likelihood completely inadmissible testimony. The hyperbolic references to “political influence” contained within the Motion constitute nothing more than a fishing expedition which should not be allowed, particularly at this late date in the proceedings. d. Fourth, Plaintiffs also assert that the DEA report “may” show that other members of the NMTF were in fear of retribution. [Motion at p. 10.] Here again, the speculative claim that the report “may” show such matters is insufficient grounds to reopen discovery in this case. The real evidence concerning any such claimed fear of retribution would be through the testimony of the NMTF employees who are claimed to have suffered from such. Virtually, every such person associated with the NMTF during the subject time frame has already been deposed or given a statement in connection with this case. Thus, as with the other matters discussed

above, relevance here is tenuous at best. e. Fifth, Plaintiffs make the curious assertion that the report may show that the Plaintiffs themselves believed their lives to be in jeopardy as they continue to work under a “corrupt police sergeant”. [Motion at p. 11.] If any witnesses are competent to testify to this proposition, it would be Plaintiffs themselves. Why Plaintiffs would need to discover their own feelings and emotions from a report is indiscernible. There is simply no

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reason to conduct discovery from third parties to determine what the Plaintiffs thought and felt. f. Sixth, Plaintiffs make the broad assertion that the DEA report “might shed light on the credibility of the defendants”. This claim of relevance is by far the most speculative of any offered by Plaintiffs. It is simply not good cause or viable grounds to reopen discovery because Plaintiffs believe that a document that they could have discovered months ago “might” allow Plaintiffs to obtain facts that would allow them to question the credibility of the Defendants collectively. This appears to be simply make-weight

substantiation for a weak argument of relevance. 21. In sum, the relevance of the requested discovery is tangential and weakly

linked, if at all, to the issues in this case. Given the fact that correct procedure has not been adhered to, timeliness has been ignored, and Defendants have a substantial interest in moving forward with the consummation of this litigation, such weak relevance should be outweighed by all competing factors. F. 22. CONCLUSION The facts concerning the Summary Report upon which Plaintiffs premise

their motion are either incorrect or incomplete due to material omissions of fact. Plaintiffs have wholly failed to comply with applicable procedure. Plaintiffs’ Motion is untimely and their acts have been dilatory in every respect. Relevance, if any, is

tenuous. Under these circumstances, the motion should be denied.

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Respectfully submitted,

s/ Thomas S. Rice Thomas S. Rice Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: trice@sgrllc.com Attorneys for City of Thornton, James Nursey, and Dante Carbone

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of March, 2011, I electronically filed a true and correct copy of the above and foregoing RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER COMPELLING PRODUCTION OF SUBPOENAED DOCUMENTS AND TESTIMONY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Patricia S. Bangert Attorney at Law, LLC 3773 Cherry Creek North Drive Suite 575 Denver, Colorado 80209 pbangertlaw@aol.com Attorney for Plaintiffs Joyce and Lopez Steven J. Dawes Light, Kelly & Dawes, P.C. 1512 Larimer Street Writer Square Office Tower, #300 Denver, CO 80202 sdawes@lkdpc.com Attorney for Defendant Timothy Hersee Josh A. Marks Melanie B. Lewis Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, Colorado 80302 jam@bhgrlaw.com MBL@bhgrlaw.com Attorneys for Jack Bell

J. Andrew Nathan Marni Nathan Kloster Nathan Bremer Dumm & Myers, PC 3900 E. Mexico Avenue, Suite 1000 Denver, Colorado 80210 anathan@nbdmlaw.com mkloster@nbdmlaw.com Attorneys for North Metro Task Force and Richard Reigenborn Cathy Havener Greer William T. O’Connell, III Wells, Anderson & Race, LLC 1700 Broadway, Suite 1020 Denver, Colorado 80290 cgreer@warllc.com woconnell@warllc.com Attorneys for the City of Northglenn and Russell Van Houten

s/ Barbara A. Ortell Barbara A. Ortell, Legal Secretary

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