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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. INTRODUCTION

1. 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. THE SUMMARY REPORT OF THE DEA INVESTIGATION

3. 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

investigated and reported upon what they were told by others. Finally, it must be

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

1
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.

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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.

2
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.

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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. PROCEDURE

6. 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. TIMELINESS

9. 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

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

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. RELEVANCE

19. 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. CONCLUSION

22. 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 J. Andrew Nathan
3773 Cherry Creek North Drive Marni Nathan Kloster
Suite 575 Nathan Bremer Dumm & Myers, PC
Denver, Colorado 80209 3900 E. Mexico Avenue, Suite 1000
pbangertlaw@aol.com Denver, Colorado 80210
Attorney for Plaintiffs Joyce and Lopez anathan@nbdmlaw.com
mkloster@nbdmlaw.com
Steven J. Dawes Attorneys for North Metro Task Force
Light, Kelly & Dawes, P.C. and Richard Reigenborn
1512 Larimer Street
Writer Square Office Tower, #300 Cathy Havener Greer
Denver, CO 80202 William T. O’Connell, III
sdawes@lkdpc.com Wells, Anderson & Race, LLC
Attorney for Defendant Timothy Hersee 1700 Broadway, Suite 1020
Denver, Colorado 80290
Josh A. Marks cgreer@warllc.com
Melanie B. Lewis woconnell@warllc.com
Berg Hill Greenleaf & Ruscitti, LLP Attorneys for the City of Northglenn
1712 Pearl Street and Russell Van Houten
Boulder, Colorado 80302
jam@bhgrlaw.com
MBL@bhgrlaw.com
Attorneys for Jack Bell

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

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