Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 1 of 7 Civil Action No. 12-cv MSK-BNB MAJOR JON MICHAEL SCOTT; v. Plaintiff, CITY & COUNTY OF DENVER, Defendant. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO DECLARATION OF AMY F. ROBERTSON IN SUPPORT OF PLAINTIFF S REPLY BRIEF IN SUPPORT OF MOTION FOR FEES I, Amy F. Robertson, hereby declare that: 1. I make this declaration based on personal knowledge. I am over 18 years of age and am competent to testify to the facts set forth below. 2. I am co-founder of the Civil Rights Education and Enforcement Center ( CREEC ). I am also counsel for Plaintiff in this action. I co-counseled in this action with Carrie Ann Lucas of the Center for Rights of Parents with Disabilities ( CRPD ). 3. Attached hereto as Exhibit 1 is a true and correct copy of Defendant s June 1, 2012 First Supplemental Response to Plaintiff s March 28, 2012 Discovery. 4. When Plaintiff received Response to Plaintiff s Motion for Attorneys Fees and Costs, ECF 147 ( Fee Response ), including the Declaration of Andrew Ringel which is highly critical of many of my and Ms. Lucas s specific billing practices I requested that Defendant City and County of Denver (the City ) provide examples of Mr. Ringel s billing records to the City so

2 Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 2 of 7 as to compare Mr. Ringel s bills to the standards against which he measures Plaintiff s counsel. The City refused, sending only summary invoices for the past 21 months. Attached hereto as Exhibit 10 is the correspondence with counsel for the City. Attached hereto as Exhibit 2 is a letter from Joseph Rivera with Hall & Evans invoices to the City attached. 5. Attached hereto as Exhibit 3 is a true and correct copy of Mr. Ringel s affidavit and billing records in the case Newmont U.S.A. Ltd. v. Insurance Co. of North America, 06-cv ZLW-BNB (D. Colo.), downloaded from the PACER system. My office added highlighting to this exhibit to point out billing entries in which time was devoted to intra-firm or intra-counsel communication. 6. Attached hereto as Exhibit 4 is a true and correct copy of an excerpt constituting the bill from Littler Mendelson, PC, dated November 15, 2011, in the case In re Morreale Hotels, LLC, ABC (D. Colo. Bankr.), downloaded from the PACER system. My office added highlighting to this exhibit to point out billing entries in which time was devoted to intra-firm or intra-counsel communication or travel time. My law partner and husband, Timothy Fox, was one of the plaintiffs in the underlying litigation, in which Judge Matsch granted partial summary judgment in favor of Mr. Fox and his co-plaintiffs. Fox v. Morreale Hotels, LLC, 2011 WL (D. Colo. Nov. 9, 2011). The litigation was stayed when the defendant filed for bankruptcy. 7. Attached hereto as Exhibit 5 is a true and correct copy of Philip Gordon s attorney page, saved from Littler Mendelson s website. It shows that Mr. Gordon graduated from law school in 1989, one year after I did. -2-

3 Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 3 of 7 8. Attached hereto as Exhibit 6 is a true and correct copy of Darren Nadel s attorney page, saved from Littler Mendelson s website. It show that Mr. Nadel graduated from law school in 1991, three years after I did. 9. On December 28, 2011, I spent.5 hours drafting a demand letter and tolling agreement, which was sent to the City on January 16, On November 1 and 2, 2012, I spent 2.0 hours and.2 hours, respectively, interviewing witnesses with information relevant to this case, both of whom were concerned about retaliation. 11. On February 12 and 13, 2013, I spent 1.7 and 2.5 hours, respectively, reviewing over 300 pages of probation documents in preparation to meet with two probation officers that the City had indicated it would like to depose. 12. The information downloaded from Mr. Scott s social media accounts, which Defendant had demanded in discovery, required attorney review because of the awkwardness of the broad request for social media and dating sites, as it required sensitivity to privilege, relevance and confidentiality issues. 13. Between October 8 and October 29, 2012, I reviewed hundreds of jail medical documents mostly handwritten forms to determine the relevant individuals employed by the Denver Health and Hospital Authority ( DHHA ) who would be appropriate to interview, contacted the DHHA, and in response to their request drafted a substantive explaining the background of the case and the need for interviews that the DHHA would send to the requested interviewees, and then followed up with the DHHA. -3-

4 Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 4 of Regarding the Joint Motion to Amend the Scheduling Order, I reviewed my paralegal s work, corresponded with Mr. Rivera concerning the motion, and reviewed the markup, but I did not bill any time for that work. 15. Because Mr. Scott has been incarcerated repeatedly over the past few years, his records were largely in the possession of his mother, Beckie Scott. In addition, the City demanded production of educational and medical records back to Mr. Scott s elementary school days. In order to obtain most of Mr. Scott s educational and medical records, the undersigned, Ms. Lucas, and Ms. Anderson had to work with Ms. Scott to get documents and information, both to investigate the case and to respond to the City s discovery. 16. Attached hereto as Exhibit 7 is a true and correct copy of Plaintiff s Response to Defendant s First Set of Discovery Requests to Plaintiff, dated November 15, The City initially took the position that Mr. Scott was not as deaf as he claimed to be and thus commissioned an independent medical examination ( IME ) of Mr. Scott by an audiologist. I observed the IME and, when I returned to my office, drafted a memo to file. The examination started with an interview (with a sign language interpreter) which, I observed, came suspiciously close to an unnoticed deposition. As such, much of the preparation of the memo to file involved reviewing notes, recalling, and recording as accurately as possible the content of that interview. During the examination, it became clear that the audiologist was concluding that Mr. Scott was in fact profoundly deaf. However, in the midst of the exam, the expert became concerned that Mr. Scott had an ear infection. The memo thus attempted to record as accurately as possible the steps she took in response to that concern, in case the City later used that as -4-

5 Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 5 of 7 grounds to request a second IME. In the end, the expert agreed with Mr. Scott s treating physician that he had a severe to profound sensorineural hearing impairment. 18. The 30(b)(6) depositions of Lorrie Kosinski, Capt. John Romero, and Maj. Frank Gale were the first depositions taken in this case and the document review and outline that I prepared for those depositions served as a template for many of the later depositions. The depositions related to facts specific to Mr. Scott's circumstances, so the depositions from the earlier case of Ulibarri v. City and County of Denver, 07-cv-1814-ODS-MJW (D. Colo.), were only helpful as to background; indeed, very little time was spent in either Scott deposition on routine background questions (education; work history) that were already established in the Ulibarri depositions. In addition, the Ulibarri depositions occurred in 2009, a year before the events at issue in the present case, and the deposition of Capt. Romero in the Ulibarri case was concerned almost entirely with the department's observation and suicide prevention policies -- not at issue in the present case -- as Ms. Ulibarri s son had committed suicide in the Denver County Jail. 19. Because the City had requested information concerning and was challenging Mr. Scott s hearing abilities and educational experience back to his preschool days, Ms. Lucas and I had requested that our expert, Dr. Jean Andrews, review and opine on these records and experiences. As such, preparation for her deposition required me to review a large number of documents to prepare her and anticipate the types of questions Defendant would ask in an attempt to demonstrate that Mr. Scott could hear and understand. -5-

6 Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 6 of This Court s Procedures for Rule 702 Motions require that the parties confer to identify each opinion that each expert shall offer and each ground for objection, and then file a joint motion setting forth this information. The deadline for filing the Rule 702 motion was the dispositive motion deadline, Trial Preparation Order - Civil, ECF 15 at 2, which had been set variously at December 14, 2012, ECF 14 at 6, January 14, 2013, ECF 28 at 3, March 15, 2013, ECF 85 at 1, and May 24, 2013, ECF 118 at 1. The Offer of Judgment was not accepted until May 9, 2013, so Ms. Lucas and I reasonably spent time ensuring we were properly conferring with counsel for the City and preparing Plaintiff s portion of the joint motion for filing on the deadline. 21. After Defendant produced an unreadable copy of a video of Mr. Scott s interview, with a sign language interpreter, on February 25, 2013, Plaintiff s counsel and their information technology professionals worked furiously to find a program that would play the video. Attached hereto as Exhibit 8 is a true and correct copy of the exchange between myself and counsel for the City on February 25, The video is just under one hour long in two parts, and to review it thoroughly and stop it from time to time to go over specific passages and take notes so as to be able to prepare to defend Dr. Andrews s deposition and to take Dr. Schick s deposition required slightly longer than the actual running time. -6-

7 Case 1:12-cv MSK-BNB Document Filed 10/04/13 USDC Colorado Page 7 of Attached hereto as Exhibit 9 is a true and correct copy of an excerpt from Lloyd Gura s affidavit and billing records in the case Newmont U.S.A. Ltd. v. Insurance Co. of North America, 06-cv ZLW-BNB (D. Colo.), downloaded from the PACER system. 24. The time that Ms. Lucas and I spent related to Mr. Scott s Department of Justice investigation was all spent conferring with the DOJ trial attorney in charge of the case both to ensure that she had the documents and information she needed to advance her investigation and that Mr. Scott could benefit from the DOJ s work and insights in the present case. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Signed at Denver, Colorado on October 4, /s/ Amy F. Robertson Amy F. Robertson -7-

Case 1:12-cv-00053-MSK-BNB Document 150 Filed 10/04/13 USDC Colorado Page 1 of 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case 1:12-cv-00053-MSK-BNB Document 150 Filed 10/04/13 USDC Colorado Page 1 of 32 Civil Action No. 12-cv-00053-MSK-BNB MAJOR JON MICHAEL SCOTT; v. Plaintiff, CITY & COUNTY OF DENVER, Defendant. IN THE