Case 1:12-cv-00053-MSK-BNB Document 150-5 Filed 10

Transcription

Case 1:12-cv-00053-MSK-BNB Document 150-5 Filed 10/04/13 USDC Colorado Page 1 of
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Philip L. Gordon
Shareholder
Chair, Privacy and Data Protection Practice
Group
Direct: (303) 362-2858
pgordon@littler.com
Assistant: Frances Martinez
Direct: (303) 362-2854 | fmartinez@littler.com
DENVER
1900 Sixteenth Street
Suite 800
Denver, CO 80202
Main: (303) 629-6200
Fax: (303) 629-0200
Philip L. Gordon has years of experience litigating privacy-based claims and
counseling clients on all aspects of workplace privacy and information security. He
has provided advice to businesses of all sizes on:
Practice Areas
Workplace Privacy and Data
Security
Background Checks
Surveillance of employees' electronic communications
International Employment Law
The Federal Wiretap Act
Digital Workplace
The Federal Stored Communications Act
Competition and Trade Secret
Law
Workplace searches
Location tracking and use of GPS-enabled devices
Education
Background checks
J.D., New York University
School of Law, 1989
The Fair Credit Reporting Act
Social media and other new technologies affecting the workplace
B.A., Princeton University, 1984
The Health Insurance Portability and Accountability Act
Bar Admission
State data protection laws
Colorado
Responding to security breaches
The European Union Data Protection Directive
Global data protection laws
Cross-border transfers of human resources data
Outsourcing
The Genetic Information Non-Discrimination Act of 2008 (GINA)
Philip also has substantial experience representing employers in disputes involving
misappropriation of trade secrets, claims of unfair competition and charges of
wrongful termination. In addition, he regularly counsels businesses on compliance
with the Americans with Disabilities Act's Accessibility Guidelines and frequently
defends businesses against claims of public accommodation discrimination.
EXHIBIT
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The chair of Littler's Privacy and Data Protection Practice Group, Philip writes
extensively on workplace privacy issues and has given dozens of presentations on
the topic. He is the principal author of Littler’s Workplace Privacy Blog. He taught
privacy and data protection law as an adjunct professor at the University of
Colorado School of Law in 2004 and 2005. Prior to joining Littler, he was an
associate and partner at two other law firms. He served as a judicial clerk on the
United States Court of Appeals, 10th Circuit.
PROFESSIONAL AND COMMUNITY AFFILIATIONS
Member, Advisory Board - BNA's Privacy and Security Law Report
Co-chair, Privacy and Data Protection Practice Group - Ius Laboris, 20102012
Member, Advisory Board - University of Colorado School of Law's Silicon
Flatirons Institute
Former member, Editorial Board - International Association of Privacy
Professionals
Former member, Educational Advisory Board - International Association of
Privacy Professionals
RECOGNITION
Named, The Best Lawyers in America, 2014
Named, Best Law Firm Writer - The Burton Awards, 2013
PUBLICATIONS AND PRESS
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next ›
last »
September 25, 2013
What's in a "Like"? Precedent-Setting Case Poses New Risk for Employers
Littler ASAP
September 4, 2013
New Jersey Becomes the Twelfth State to Enact Social Media Password
Protection Legislation; Recent Amendment to Illinois’ Law Benefits the Financial
Services Sector
Littler ASAP
August 27, 2013
New Jersey Court’s Decision Provides Roadmap For Access To Employees’
Restricted Social Media Content
Littler ASAP
August 15, 2013
Littler Attorneys Named In Best Lawyers In America® 2014 Edition
Littler Press Release
July 30, 2013
Washington State Turns Up the Privacy for Social Media
Law Technology News
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July 29, 2013
Colombia Adopta Normas Sobre la Protección de Datos Personales
Littler ASAP
July 29, 2013
Colombia Adopts Regulations to Implement its Data Protection Laws
Littler ASAP
July 22, 2013
Social-Media Screening is a Potential Mine Field
National Law Journal
July 2, 2013
Making Sense of the Complex Patchwork Created by Nearly One Dozen New
Social Media Password Protection Laws
Littler ASAP
July 2, 2013
Making Sense of the Complex Patchwork Created by Nearly One Dozen New
Social Media Password Protection Laws
Bloomberg Law
June 6, 2013
Growing social media privacy protection irks employment
Thomson Reuters News & Insight
May 31, 2013
Workplace Policy Institute: Social Media Password Protection and Privacy — The
Patchwork of State Laws and How It Affects Employers
Littler Report
April 26, 2013
Colorado is the Latest and Ninth State to Enact Legislation Restricting the Use of
Credit Reports for Employment Purposes
Littler ASAP
April 22, 2013
Littler Attorneys Phillip Gordon and Lauren Woon Receive Prestigious 2013 Burton
Award for Writing Excellence
March 27, 2013
7 Steps To Get HIPAA-Compliant Now
Law360.com
March 26, 2013
HIPAA omnibus final rule effective today: Business as usual?
Health IT Security
March 1, 2013
Prepare for the coming of the privacy police
InsideCounsel
February 21, 2013
The 2012 Global Employer: Highlights of Littler's Fifth Annual Global Employer
Institute
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Littler Report
February 15, 2013
6 Key Takeaways Of HIPAA Final Rule For Employers
Law360.com
February 11, 2013
What Do Employers Really Need to Know About the New HIPAA/HITECH Omnibus
Final Rule?
Bloomberg Law Privacy & Security Law Report
February 5, 2013
What Do Employers Really Need to Know About the New HIPAA/HITECH Omnibus
Final Rule?
Littler ASAP
January 24, 2013
Are Workers Free to Trash Their Employers Online?
Bloomberg Businessweek
January 8, 2013
States Crack Down on Employers Demanding Passwords
Baseline.com
January 4, 2013
Michigan's New "Internet Privacy Protection Act" Sets Limitations for Employers
and Employees
Littler ASAP
December 21, 2012
More than half of in-house counsel say data security is their top legal concern
InsideCounsel
October 10, 2012
California's New Social Media "Password Protection" Law Takes a More Balanced
Approach by Accounting for Employers' Legitimate Business Interests
Littler ASAP
October 9, 2012
Social Media Policies in the NLRB's Crosshairs
Littler ASAP
August 7, 2012
Illinois' New Social Media Password Protection Law Handicaps Employers'
Legitimate Business Activities
Littler ASAP
June 26, 2012
Employee use of own smart devices still risky for employers
Home Channel News
June 26, 2012
Latest NLRB Social Media Guidance Draws Criticism
Compliance Week
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last »
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BLOG ENTRIES
VIEW ALL
Workplace Privacy Counsel, September 9, 2013
5 Critical "To Do's" Before the Next HIPAA Compliance Deadline: September 23,
2013
Workplace Privacy Counsel, August 28, 2013
New Jersey Court's Decision Provides Roadmap For Access To Employees'
Restricted Social Media Content
Workplace Privacy Counsel, August 23, 2013
Decision Shines Light on How Not to Investigate Employees Online
Workplace Privacy Counsel, July 15, 2013
GPS Ruling by New York's Highest Court Sets Guideposts for Tracking Workers
Workplace Privacy Counsel, July 2, 2013
Patchwork of State Social Media Password Protection Laws Creates Challenges
for Employers
Workplace Privacy Counsel, June 21, 2013
Nevada Becomes State 11 to Enact Social Media Password Protection Legislation
Workplace Privacy Counsel, May 20, 2013
Minnesota Enacts "Ban the Box Law"
BOOKS & BOOK CHAPTERS
Managing the Evolving Challenges of Workplace Privacy and Information Security,
Chapter 13, Inside the MindsTM: Recent Trends in Privacy and Data Security,
Aspatore, chapter author, 2013
International Labor and Employment Law, International Corporate Practice: A
Practitioner’s Guide to Global Success, Chapter 21, Practising Law Institute, coauthors: Philip Berkowitz, Joseph Lazazzero, Trent Sutton, and Stefan Marculewicz,
2012
SPEAKING ENGAGEMENTS
July 31, 2013
Investigating Cross-Border Whistleblower Claims: A Challenge for Multinational
Employers
Littler Mendelson Webinar
June 18, 2013
All Aboard The HIPAA Omnibus – An Auditor’s Perspective
Health Care Compliance Association
April 18, 2013
Going Mobile: Managing Risk in a Workplace Driven by Personal Devices, Social
Media, and Cloud Computing
Littler Mendelson, Charlotte, NC
April 10, 2013
Translating the Trends: What to Expect in 2013
2013 Social Media Summit: The New Reality, Littler Mendelson, San Francisco, CA
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April 10, 2013
Social Media and the NLRB: New Challenges for Union-Free Employers From An
Unlikely Regulator
2013 Social Media Summit: The New Reality, Littler Mendelson, San Francisco, CA
March 19, 2013
Managing Retailer's Challenges of Bring Your Own Device (BYOD) Programs
February 19, 2013
What Does The New Omnibus HIPAA/HITECH Final Rule Really Mean For
Employers And Their Service Providers?
November 8, 2012
What Every Multinational Should Know About Bounty Hunters and Whistleblowers
Global Employer Institute, Littler Mendelson, Washington D.C.
October 30, 2012
Background Checks for the 21st Century: How to Protect Your Organization Without
Sinking in the Quagmire of New Laws
Bloomberg BNA Webinar
May 11, 2012
Brinker after Kirby: Still No Free Lunch in California
The 2012 Executive Employer® Conference, Littler Mendelson, Scottsdale, AZ
May 11, 2012
Business or Pleasure: The Challenge of "Bring Your Own Device" Polices in the
Workplace
May 10, 2012
Managing the Social Media Activity of A Multinational Workforce after the Global
Privacy Juggernaut
July 15, 2011
The Truth About the Workplace of the Future: Debunking the Myths Surrounding
Flexible Work
January 14, 2011
What Employers Need to Know About the Genetic Information Nondiscrimination
Act
December 8, 2010
New ADA Accessibility Regulations and Design Standards
March 17, 2010
Who Says Social Networking Is Just for Kids?
Littler Mendelson, Indianapolis, IN
March 12, 2010
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On the Cutting Edge of Workplace Privacy
Littler Mendelson, Pittsburgh, PA
February 5, 2010
On The Cutting Edge of Workplace Privacy
Littler Mendelson, Houston, TX
February 4, 2010
On the Cutting Edge of Workplace Privacy
Littler Mendelson, Dallas, TX
October 8, 2009
Meeting the Compliance Challenges of a Reinvigorated HIPAA and the Genetic
Information Non-Discrimination Act of 2009
Littler Mendelson, Denver, CO
July 24, 2009
Getting Past the EFCA Hype and Getting Down to Business
July 24, 2009
Meeting the Compliance Challenges of a Reinvigorated HIPAA and the Genetic
Information Non-Discrimination Act of 2009
May 12, 2009
Sex Offenders, Terrorists and Video Resumes: How Far Can You Go to Get
Information on Prospective and Current Employees?
October 4, 2007
Employers' Obligations Under Massachusetts' New Data Security Law
Littler Mendelson, Burlington, MA
October 28, 2005
Philip Gordon Speaks at "Human Resources" Panel at International Association of
Privacy Professionals (IAPP) Privacy Academy
International Association of Privacy Professionals (IAPP) Privacy Academy,
Henderson, NV
October 26, 2005
"Privacy Professional Boot Camp" Workshop at International Association of Privacy
Professionals (IAPP) Annual Meeting
Annual Meeting - International Association of Privacy Professionals (IAPP),
Henderson, NV
©2013 Littler Mendelson P.C. Employment and Labor Law Solutions Worldwide™ Attorney Advertising. Prior results do not
guarantee a similar outcome.
55
Darren E. Nadel
Shareholder
Direct: (303) 362-2861
dnadel@littler.com
Assistant: Barb Petrick
Direct: (303) 362-2874 | bpetrick@littler.com
DENVER
1900 Sixteenth Street
Suite 800
Denver, CO 80202
Main: (303) 629-6200
Fax: (303) 629-0200
Darren E. Nadel represents employers nationally in complex litigation and
employment law. He represents clients in high risk, high value cases involving trade
secrets and unfair competition, employee benefits litigation and whistleblower and
Sarbanes Oxley matters.
Practice Areas
Darren has represented employers in litigation brought under:
Complex Litigation and Jury
Trials
Trade secrets and unfair competition laws
The Employee Retirement Income Security Act
Sarbanes-Oxley and other whistleblower laws
Wage and hour laws
Anti-discrimination laws
Various common law theories
Darren frequently presents and recently authored materials on employment law
topics including the various agreements employers enter into with their executives
and employees, trade secrets and unfair competition litigation, and ERISA litigation.
Prior to joining Littler Mendelson, Darren worked as in-house counsel at a Fortune
100 company where he served as vice president responsible for employment and
labor law. That experience gives him a unique insight into working with his clients to
understand and help them realize their corporate goals.
Competition and Trade Secret
Law
ERISA and Benefit Plan
Litigation
Business Restructuring
Education
J.D., University of California,
Berkeley, School of Law, 1991
B.A., University of California,
Berkeley, 1987
With Honors and Distinction
Bar Admissions
Colorado
California
Illinois
Wisconsin
Courts
U.S. Supreme Court
PROFESSIONAL AND COMMUNITY AFFILIATIONS
Recipient, Economics Department Citation - University of California,
Berkeley
RECOGNITION
Named, The Best Lawyers in America, 2014
U.S. Court of Appeals, 8th
Circuit
Circuit
Circuit
EXHIBIT
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Named, America's Leading Lawyers for Business - Chambers USA, 2013
PUBLICATIONS AND PRESS
August 15, 2013
Littler Attorneys Named In Best Lawyers In America® 2014 Edition
July 5, 2013
Tenth Circuit Rules in Favor of Religious For-Profit Corporations in Birth Control
Litigation under the Affordable Care Act
Littler ASAP
July 5, 2013
Tenth Circuit is First Circuit to Determine Remedies for Violation of ERISA Section
204(h) Notice Requirements
Littler ASAP
June 21, 2013
Tenth Circuit Adopts a Broad View of What Constitutes Protected Activity Under
Sarbanes-Oxley
Littler ASAP
December 28, 2012
Court upholds employee termination 2 days after FMLA request
Employee Benefit News
December 10, 2012
Tenth Circuit Upholds Employee Termination 2 Days After FMLA Leave Request
Littler ASAP
May 1, 2012
ERISA Class Certification in The Wake of Dukes And Amara
The Corporate Counselor
October 21, 2011
Pension court ruling comes down, provides new guidance
Employee Benefit News
October 19, 2011
Tenth Circuit Puts One More Nail in the Coffin for Cash Balance Plan Litigation
BNA Pension & Benefits Daily
August 12, 2011
Littler Wins Appellate Ruling for El Paso in Pension Plan Dispute
The Am Law Litigation Daily
June 29, 2011
Ninth Circuit Broadens Scope of Entities that Can Be Sued for ERISA Plan Benefits
Littler ASAP
June 15, 2011
Colorado Supreme Court Holds Continued Employment Is Sufficient Consideration
for Noncompetition Agreement
Littler ASAP
September 4, 2009
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Whether a Manufacturing Process is a Trade Secret Must Be Considered in the
Aggregate
Littler ASAP
July 1, 2009
Colorado Court Provides Guidance On Enforceability of Covenants Not to Compete
Against "Management Personnel"
Littler ASAP
June 19, 2009
Continued At-Will Employment Does Not Constitute Consideration for Noncompete
Agreements in Colorado
Littler ASAP
August 13, 2007
Colorado Court Clarifies When Covenants Not to Compete and Solicit Customers
and Employees May Be Enforced Against Executives, Managers and Their
Professional Staff
Littler ASAP
October 31, 2005
Colorado Division of Labor Issues Important Clarification of Management Overtime
Exemption Test
Littler ASAP
August 1, 2004
SEC Turns Up the Heat on 401(k) Fiduciaries
Littler ASAP
BLOG ENTRIES
Employment Benefits Counsel, July 22, 2013
Federal Court Enjoins Enforcement of Contraception Mandate
Tenth Circuit Rules in Favor of Religious For-Profit Corporations in Birth Control
Litigation under the Affordable Care Act
Tenth Circuit is First Circuit to Determine Remedies for Violation of ERISA Section
204(h) Notice Requirements
Employment Benefits Counsel, March 19, 2012
Ninth Circuit Clarifies the Scope and Application of “Surcharge” and “Reformation”
Remedies Under ERISA
Employment Benefits Counsel, February 15, 2012
Second Circuit Holds that Dukes Prohibits Certification of ERISA Claim Under Rule
23(b)(2)
Unfair Competition & Trade Secrets Counsel, June 20, 2011
Take It Or Leave It: Continued Employment Sufficient Consideration To Support
Colorado Noncompetition Agreement With At-will Employee
SPEAKING ENGAGEMENTS
55
June 11, 2013
Hiring Senior Executives From Both A Talent Search And Legal Perspective
Littler Mendelson and McAleer Gray, Denver, CO
June 14, 2012
Workplace Diversity and Discrimination Claims
March 27, 2012
Employee Benefits The Shifting Landscape of Employee Benefits – Imperatives for
2012
Littler Mendelson, New York, NY
©2013 Littler Mendelson P.C. Employment and Labor Law Solutions Worldwide™ Attorney Advertising. Prior results do not
guarantee a similar outcome.
55
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00053-MSK-BNB
MAJOR JON MICHAEL SCOTT,
Plaintiff,
v.
CITY & COUNTY OF DENVER,
Defendant.
PLAINTIFF’S RESPONSE TO DEFENDANT'S FIRST SET OF DISCOVERY
REQUESTS TO PLAINTIFF
Plaintiff Major Scott, by and through his attorneys Carrie Ann Lucas of the Center for
Rights of Parents with Disabilities and Fox & Robertson, hereby submits his responses to
Defendant’s First Set of Discovery Requests to Plaintiff:
GENERAL OBJECTIONS
General Objections
1.
Plaintiff objects generally to Defendant’s discovery requests to the extent they call
for information protected against discovery by the attorney-client, work-product, or other
applicable privilege.
2.
Plaintiff objects generally to Defendant’s discovery requests or any Definitions or
Instructions therein to the extent they go beyond the requirements of Rule 33 or 34 of the Federal
Rules of Civil Procedure.
EXHIBIT
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3.
Plaintiff and his counsel have not completed their investigation of the facts of this
case and have not completed discovery in this action. The responses below are made with
information currently known to Plaintiff and his counsel.
4.
By responding to any of the Interrogatories and Requests for Production of
Documents below, Plaintiff does not concede that the information requested is relevant or
admissible in this litigation.
RESPONSES TO INTERROGATORIES
Interrogatory No. 1. For each and every health condition you suffer from which you
claim constitutes a disability under the ADA and the Rehabilitation Act:
a.)
state, identify and explain the health condition,
b.)
identify the date you were diagnosed with the health condition,
c.)
identify the Health Care Provider who diagnosed the health condition, and
c.)
indicate whether the health condition has become more pronounced, more serious,
and/or deteriorated since the diagnosis date, and/or
d.)
indicate whether the health condition has become less pronounced, less serious,
and/or has improved since the diagnosis date.
Response to Interrogatory No. 1: This Interrogatory consists of five discrete subparts
and counts as five interrogatories. Plaintiff objects to the extent that this interrogatory is
overbroad and seeks information that is outside the scope of discovery. This interrogatory seeks
information from the time that Major Scott was a toddler. Without waiving the foregoing
objection, Plaintiff states the following:
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a)
Severe to profound sensorineural hearing loss and a mild intellectual disability.
b)
Mr. Scott does not have the specific date that he was first diagnosed with hearing
loss as he was two or three years old. Mr. Scott was most recently diagnosed with a mild
intellectual disability on June 6, 2000.
c)
Mr. Scott does not have the identity of the doctors or audiologists who first
diagnosed him with sensorineural hearing loss as he was two or three years old, over two decades
ago. Mr. Scott was diagnosed with a mild intellectual disability by Dr. Dennis Rawlings, 5555
East 71st Street #6300, Tulsa, OK 74136, (918) 492-0435.
c)
Mr. Scott’s most recent audiological examinations suggest that his hearing loss has
become more severe. Mr. Scott does not believe that his intellectual disability has worsened.
d)
Mr. Scott’s hearing loss has not improved since diagnosis. Mr. Scott’s intellectual
disability has not improved.
Interrogatory No. 2. For each disability identified in Interrogatory No. 1, identify every
major life activity affected by the disability and describe fully and state every way in which the
disability “substantially limited” each stated major life activity, as that phrase is used in paragraph
6 of the Complaint.
Response to Interrogatory No. 2: Mr. Scott is substantially limited in the major life
activities of hearing, speaking, reading, writing, learning, and communicating. See also Report of
Jean Andrews; PS000674; PS001112; PCHSL00001-16.
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Interrogatory No. 3. For each disability identified in Interrogatory No. 1, identify all
Health Care Providers seen for said disability for the ten (10) year period ending January 10,
2012. For each Health Care Provider, identify
a.)
name, Address, and phone number of the Health Care Provider,
b.)
dates of treatment, and
c.)
the disability the Health Care Provider was treating.
Response to Interrogatory No. 3. Plaintiff objects that this Interrogatory is overbroad
and burdensome and calls for information that is neither relevant nor calculated to lead to the
discovery of admissible evidence. This interrogatory consists of three discrete subparts and shall
be counted as three interrogatories. Without waiving these objections, Plaintiff states:
a)
Brenda Ratkiewicz, The Center for Hearing Speech and Language, 4280 Hale
Parkway, Denver, CO 80220, 303-322-1871; Unknown providers at the Colorado Department of
Corrections.
b)
Mr. Scott was treated by Ms. Ratkiewicz between April 19, 2010 and December 9,
2011. Mr. Scott has been seen by unknown providers at the Colorado Department of Corrections
between August 2012 and the present.
c)
Mr. Scott was being treated for his sensorineural hearing loss.
Interrogatory No. 4. For each disability identified in Interrogatory No. 1, identify all
behavioral modifications, medications, prosthetic, and mechanical and/or electronic devices
(hereinafter “Disability Related Medical Measure”) relating to the disability and used or relied
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upon by Plaintiff for the ten (10) year period ending January 10, 2012. For each Disability
Related Medical Measure, identify or provide:
a.)
the disability to which the Disability Related Medical Measure was a response,
b.)
a description of the Disability Related Medical Measure,
c.)
an explanation of the function of the Disability Related Medical Measure,
d.)
the date Plaintiff began using or relying upon the Disability Related Medical Measure,
e.)
the date Plaintiff stopped using or relying upon the Disability Related Medical Measure,
f.)
where the Plaintiff ceased using or relying upon the Disability Related Medical Measure,
an explanation of the reason why,
g.)
whether the Disability Related Medical Measure was prescribed by a Health Care Provider
and, if so, the date it was prescribed and the name of the prescribing Health Care Provider, and
h.)
the name, Address, and phone number of the person or entity providing the Disability
Related Medical Measure.
Response to Interrogatory No. 4:
Plaintiff objects that this Interrogatory is overbroad
discovery of admissible evidence. This interrogatory consists of eight discrete subparts and shall
be counted as eight interrogatory requests. Without waiving these objections, Plaintiff states: In
approximately 2003 Mr. Scott was using hearing aids that were lost sometime during that year.
Mr. Scott is current using the hearing aids described in the report of Dr. Sandra Gabbard.
a)
the hearing aids were a response to his sensorineural hearing loss.
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b)
Mr. Scott does not have a description of the hearing aids that were lost in
approximately 2003. The hearing aids Mr. Scott is currently using are described in the report of
Dr. Sandra Gabbard.
c)
The hearing aids amplify all sounds, including background sounds, but do not
correct hearing.
d)
Mr. Scott does not know when he first began using the hearing aids that were lost
in 2003. Mr. Scott began using the Phonak Nadia III aids in August, 2010. Mr. Scott began
using the Colorado Department of Correction hearing aids in October, 2012.
e)
Mr. Scott lost his hearing aids sometime in 2003. He does not recall the exact date.
Mr. Scott lost one of the Phonak Nadia III hearing aids in 2012. Mr. Scott still uses the Colorado
Department of Corrections hearing aids.
f)
See response to Interrogatory No. 4(e).
g)
Mr. Scott does not have information about the prescribing provider for the hearing
aids lost in approximately 2003. The Phonak Nadia III hearing aids were prescribed by Brenda
Ratkiewicz on April 19, 2010; the current hearing aids were prescribed by unknown providers at
the Colorado Department of Corrections in September or October, 2012.
h)
Brenda Ratkiewicz, The Center for Hearing Speech and Language, 4280 Hale
Parkway, Denver, CO 80220, 303-322-1871.
Interrogatory No. 5: For each disability identified in Interrogatory No. 1, identify any and
all education, training, rehabilitative, or supportive services (hereinafter “Disability Related
Service”) relating to the disability and received by or provided to Plaintiff for the ten (10) year
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period ending January 10, 2012. For all identified Disability Related Service(s), identify or
provide:
a.)
the disability to which the Disability Related Service was a response,
b.)
a description of the Disability Related Service,
c.)
an explanation of the goal, or purpose, of the Disability Related Service,
d.)
the date Plaintiff began using or participating in the Disability Related Service,
e.)
the date Plaintiff ceased using or participating in the Disability Related Service,
f.)
where the Plaintiff ceased using or participating in the Disability Related Service,
an explanation of the reason why,
g.)
whether the Disability Related Service was prescribed by a Health Care Provider
and, if so, the date it was prescribed and the name of the prescribing Health Care Provider,
and
h.)
the name, Address, and phone number of the person or entity providing the
Disability Related Service.
Response to Interrogatory No. 5: Plaintiff objects that this Interrogatory is overbroad
discovery of admissible evidence. This interrogatory consists of eight discrete subparts and shall
be counted as eight interrogatory requests. Without waiving these objections, Plaintiff states: Mr.
Scott received vocational rehabilitation services from the Colorado Department of Vocational
Rehabilitation (“Vocational Rehabilitation”); and from the Oklahoma School for the Deaf
(“OSD”).
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a)
Mr. Scott received services for his sensorineural hearing loss and mild intellectual
disability.
b)
Mr. Scott received evaluations, job search assistance, interpreter services,
equipment, and job coaching from Vocational Rehabilitation; and job skills training and general
education from OSD.
c)
The goal of services was employment from Vocational Rehabilitation, and a high
school diploma from OSD.
d)
Mr. Scott began receiving Vocational Rehabilitation services in March, 2010. Mr.
Scott began attending OSD prior to January 10, 2002.
e)
Mr. Scott stopped using Vocational Rehabilitation services in August 2012. Mr.
Scott graduated from OSD in 2003.
f)
Mr. Scott stopped using Vocational Rehabilitation services due to incarceration.
Mr. Scott stopped using OSD services due to graduation.
g)
Services were not prescribed by a health care provider.
h)
Sue Williams, 2211 West Evans Avenue, Denver, CO 80223, (303) 866-2500.
OSD, 1100 East Oklahoma Ave., Sulphur OK, 73086-3108, 888-865-3323.
Interrogatory No. 6: For each disability identified in Interrogatory No. 1, identify each
and every instance where the City denied, or did not provide, the Accommodation necessary for
you to obtain, access, use, or participate in any City Services, Programs and Activities from
January of 2005 to the present. For each instance, identify or provide:
a.)
the name or description of the sought after City Services, Programs and Activities,
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b.)
a description of the Accommodation necessary to obtain, access, use, or
participate in the City Services, Programs and Activities,
c.)
the name of the City department, facility, institution, or agency providing the City
Services, Programs and Activities,
d.)
an explanation as to how the Accommodation would have made it possible for you
obtain, access, use, or participate in the City Services, Programs and Activities,
e.)
the disability requiring the Accommodation, and
f.)
the date(s) that the City denied, or did not provide, the necessary Accommodation.
discovery of admissible evidence. This interrogatory consists of six discrete subparts and shall be
counted as six interrogatories. These interrogatories thus exceed the number of interrogatories
permitted by the Court.
Interrogatory No. 7: For each disability referenced in Interrogatory No. 1, identify each
and every instance where the City provided to you the Accommodation necessary for you to
obtain, access, use, or participate in a City Services, Programs and Activities from January of
2005 to the present. For each instance, identify or provide or identify:
a.)
the name or description of the sought after City Services, Programs and Activities,
b.)
a description of the provided Accommodation,
c.)
the name of the City department, facility, institution, or agency providing the City
Services, Programs and Activities,
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d.)
an explanation as to how the Accommodation made it possible for you to obtain,
access, use, or participate in the City Services, Programs and Activities,
e.)
the disability requiring the Accommodation, and
f.)
the date(s) that the City provided the Accommodation.
Interrogatory No. 8: For each instance identified in Interrogatory No. 6 where the City
denied, or did not provide the Accommodation necessary for you to obtain, access, use, or
participate in a City Program or Service from January of 2005 to the present, explain how or why
the City was aware of your need for a Accommodation. For each instance, identify, explain or
provide:
a.)
a link or identifier to the specific Accommodation at issue, where there exists more
than one (1) accommodation,
b.)
whether the need for the Accommodation was Obvious,
c.)
whether you requested an Accommodation,
d.)
where you requested an Accommodation, Identify the City employee to whom you
communicated your request for an Accommodation,
-10-
55
e.)
where you requested an Accommodation, the date you made the request for an
Accommodation,
f.)
where you requested an Accommodation, how you made the City employee(s)
aware of your need for an Accommodation, i.e. the mode of communication used to
convey the request.
Interrogatory No. 9: For each instance identified in Interrogatory No. 7 where the City
provided to you the Accommodation necessary for you to obtain, access, use, or participate in a
City Program or Service from January of 2005 to the present, explain how or why the City was
aware of your need for a Accommodation. For each instance, identify, explain or provide:
a.)
a link or identifier to the specific Accommodation at issue, where there exists more
than one (1) accommodation,
b.)
whether the need for the Accommodation was Obvious,
c.)
whether you requested the Accommodation,
d.)
where you requested the Accommodation, Identify the City employee to whom
you communicated your request for a Accommodation,
e.)
where you requested the Accommodation, the date you made the request for an
-11-
55
Accommodation, and
f.)
where you requested the Accommodation, how you made the City employee(s)
aware of your need for an Accommodation, i.e. the mode of communication used to
convey the request.
Interrogatory No. 10: State the name, Address, and telephone number of each and every
school, academic, vocational, or vocational rehabilitation institution or entity Plaintiff attended
beginning with ninth grade to the present, including dates attended and degrees or certificates
received.
Plaintiff objects that this Interrogatory is
overbroad and burdensome and calls for information that is neither relevant nor calculated to lead
to the discovery of admissible evidence. These interrogatories thus exceed the number of
interrogatories permitted by the Court.
Interrogatory No. 11: State the name, Address, and telephone number of each and every
employer Plaintiff had since January 1, 2005, including any self-employment, the dates of
employment for each employer, job title, a detailed description of Plaintiff’s job duties, salary or
wage earned, and identify Plaintiff’s immediate supervisor.
-12-
55
discovery of admissible evidence. These interrogatories thus exceed the number of interrogatories
Interrogatory No. 12: Identify each and every instance in which Plaintiff was
incarcerated or housed by any law enforcement entity, for any reason, since January 1, 2005. For
each instance, provide the dates of incarceration or detention, criminal case number associated
with the arrest, and the name, Address and phone number of the jail, penal institution, or half-way
house.
Plaintiff objects that this Interrogatory is
overbroad and burdensome and calls for information that is neither relevant nor calculated to lead
to the discovery of admissible evidence. These interrogatories thus exceed the number of
Interrogatory No. 13: Identify each and every instance in which Plaintiff was arrested
since January 1, 2005. For each instance, provide the date of the arrest, charge or basis for the
arrest, criminal case number associated with the arrest, and the name, Address, and telephone
number of the law enforcement entity making the arrest.
-13-
55
Interrogatory No. 14: State:
a.)
your present resident Address
b.)
your resident Addresses since January 1, 2005, and
c.)
the dates you lived at each Address.
Interrogatory No. 15: For each residence identified in Interrogatory No. 14, state
a.)
Identify roommates or persons with whom you co-habitated (including name, Address,
telephone number and relationship to you),
b.)
dates of co-habitation, and
c.)
the Address of the shared residence.
discovery of admissible evidence. This interrogatory consists of three discrete subparts and shall
be counted as three interrogatories. These interrogatories thus exceed the number of
Interrogatory No. 16: Identify each and every cellular phone or texting device for which
you were a Primary User since January 1, 2005. For each identified cellular phone or texting
device, provide the name of the service provider, the phone number, the make and model of the
-14-
55
cellular phone or texting device, the date Plaintiff became a Primary User, the date Plaintiff ceased
to be a Primary User, and Identify the person to whom the service provider sent the bill (including
name, Address, telephone number and relationship to you).
RESPONSES TO DOCUMENT REQUESTS
Request for Production No. 1: All documents identified in response to any
interrogatory.
Response to Request for Production No. 1: Subject to the objections above, these
documents have previously been produced or are being produced herewith.
Request for Production No. 2: For the ten (10) year period ending January 10, 2012,
any audiological records relating to Plaintiff, including those audiological records relating to any
prosthetic, and mechanical and/or electronic hearing device
Response to Request for Production No. 2: Plaintiff objects to the extent that this
interrogatory is overbroad and burdensome and not calculated to lead to the production of
admissible evidence. See PCHLS000001-16.
Request for Production No. 3: All educational records, including the Individualized
Education Program (IEP), from each and every institution or entity identified in Interrogatory No.
-15-
55
10. (In lieu of a response to this Request for Production of Documents, please provide your
signature to the release for educational records appended hereto).
admissible evidence. See POSD000001-76; PPCS000001-15.
Request for Production No. 4: The service contract for each and every cellular phone or
texting device Interrogatory No. 16.
admissible evidence. Plaintiff responds that he is not in possession of any such service contract.
Request for Production No. 5: The medical records for the ten (10) year period ending
January 10, 2012 for each and every Health Care Provider identified in Interrogatory No. 3. (In
lieu of a response to this Request for Production of Documents, please provide your signature to
the release for medical information appended hereto).
admissible evidence. See PCHSL00001-16; PS000674; PS001112.
Request for Production No. 6: Produce any and all documents and/or electronic
information contained within any social website used by Plaintiff since January 1, 2005, including,
but not limited to, Facebook, MySpace, Twitter, Blogger, E-Harmony, Zoosk, Adult Friend
Finder, or any similar site. Your response should include, but not be limited to, all information
-16-
55
posted on the site(s), identification of the website, web/blog addresses, a current printout of the
site(s), and whether or not such addresses/accounts remain active.
request is overbroad, burdensome, irrelevant, and will not lead to the discovery of admissible
information. Without waiving the aforementioned objection, Plaintiff states that he has an
account on Facebook but does not recall the password and does not currently have access to a
computer. As a matter of courtesy, the undersigned used her personal Facebook account to
access that part of Mr. Scott’s account that is public, and Plaintiff is producing it herewith.
Request for Production No. 7: Produce copies of all expert reports/opinions, curriculum
vitae or professional resumes, and any file materials of any expert witness retained by you to
render an opinion with regard to any allegations contained in your Complaints, including any and
all documents, materials, texts, articles, publications, and/or authorities relied upon by each such
expert in rendering his/her opinion, all correspondence between you, your attorney(s) and the
retained expert(s), and the expert's personal notes.
Response to Request for Production No. 7: Plaintiff objects to production of any
documents that are privileged pursuant to Rule 26(b)(4)(B) and (C). Subject to and without
waiving that objection, Plaintiffs produce herewith documents JA00001-389. The articles and
publications cited in Prof. Andrews’s report are publicly available documents. In addition to the
documents produced herewith, Prof. Andrews reviewed the following documents/media:
DENVER000626; PCHSL000001-16; POSD000001-76; and PPCS000001-15.
Respectfully submitted this 15th day of November, 2012.
-17-
55
/s/ Amy F. Robertson
Amy F. Robertson
Fox & Robertson, P.C.
104 Broadway, Suite 400
Denver, CO 80203
303.595.9700 (voice)
303.595.9705 (fax)
arob@foxrob.com
Carrie Ann Lucas
The Center for Rights of Parents with
Disabilities
P.O. Box 756
Windsor, CO 80550
720.363.1131 (voice)
970.460.9197 (fax)
clucas@disabledparentrights.org
Attorneys for Plaintiffs
-18-
55
CERTIFICATE OF SERVICE
I hereby certify that on November 15, 2012, I sent the foregoing document to counsel for
Defendants by email to the following email addresses:
Joseph M Rivera
Denver City Attorney’s Office
Litigation Section
201 W Colfax Ave, Dept 1108
Denver, CO 80202
joseph.rivera@denvergov.org
dlefiling.litigation@ci.denver.co.us
By: /s/ Caitlin R. Anderson
Caitlin R. Anderson
Paralegal
Fox & Robertson, P.C.
104 Broadway, Suite 400
Denver, CO 80203
303.595.9700 (voice)
303.595.9705 (fax)
canderson@foxrob.com
-19-
55
Amy F. Robertson
From:
Sent:
To:
Cc:
Subject:
Amy Robertson
Monday, February 25, 2013 5:05 PM
Liang, Carol - City Attorney Office
Rivera, Joseph M. - Department of Law; Shea, Wendy J. - Department of
Law; Washington, David L - City Attorney Office; Hoy, Catricia M - City
Attorney Office; clucas@disabledparentrights.org; Caitlin Anderson
RE: Scott v. CCD - Defendant's Sixteenth Supplemental Disclosures
Carol –
We tried WMP, Corel Draw, VLC and RealPlayer. Our IT person also tried the CCTV DVR viewers on this
website: http://www.cctvcamerapros.com/Surveillance-DVR-Downloads-s/82.htm. In addition, he reports:
I actually tried renaming the file to .avi or .wav and didn’t seem to make a difference. We even tried running
a utility against the DSF file that would normally tell us codecs needed to play the file, manufacturer of the
software, etc . . and it didn’t come back with any information at all.
Usually if this is a true media file, VLC would have been able to open and play it. VLC plays
EVERYTHING! But again unfortunately not even vlc player would do anything for this file.
There has to be some kind of proprietary software that this file was used to create it.
If the file you have has the extension .dsf, providing us another copy will not help. That is a graphics file extension,
which Corel Draw should have read. What you have is not a graphics file; it’s a video of some sort.
If I’m permitted to view it, I can’t imagine the problem with recording a video of the screen. I’ll come by at 11:00
tomorrow.
-
Amy
From: Liang, Carol - City Attorney Office [mailto:Carol.Liang@denvergov.org]
Sent: Monday, February 25, 2013 4:43 PM
To: Amy Robertson
Cc: Rivera, Joseph M. - Department of Law; Shea, Wendy J. - Department of Law; Washington, David L - City Attorney
Office; Hoy, Catricia M - City Attorney Office; clucas@disabledparentrights.org; Caitlin Anderson
Subject: RE: Scott v. CCD - Defendant's Sixteenth Supplemental Disclosures
Amy,
As promised, we have a call into our IT department. While we are waiting for an answer from IT, we can provide you
with another copy of the DVD. Of course, we will again verify that it works on our computers (in case your computer, for
whatever reason, simply did not want to open this particular DVD). Or, you may also come to our office tomorrow at 11
1
EXHIBIT
8
55
am to view the DVD on one of our computers; however, we cannot allow you to record from that computer, regardless
of the method of recording.
We expect to get a response from our IT people tomorrow. Have you heard anything from your IT people? It seems
strange that the video plays on several of our computers but not on your computer.
Please let us know by 8 am tomorrow morning whether we should expect you at 11.
Carol
From: Amy Robertson [mailto:ARob@foxrob.com]
To: Liang, Carol - City Attorney Office
My thought was not to record from the computer but simply to point a video camera at it. Assume that’s ok.
If I can get free, could you do this around 4:00 today?
To: Amy Robertson
Amy,
While we have no problem letting you watch the DVD on one of our computers, we cannot allow anyone to record from
any of our computers. We have contacted IT and are waiting for a response from them regarding the formatting issue.
We hope to provide you with a format that is readable on your computer as soon as possible. If neither of our IT
departments has found a solution by then, you are welcome to view the DVD on one of our computers at 11 am
tomorrow, but again, may not record from that computer.
Carol
Let’s meet at 11:00. The trial of Corel Draw – which is supposed to read .dsf files – found the file type to be
invalid. I’m going to bring either a webcam or video camera and – cumbersome as that is – record from your
screen. Meanwhile, please keep trying to get us a useable file format. Thanks.
2
55
To: Amy Robertson
Amy,
What time works best for you? I am free after 9 am. You’ll probably need about an hour and a half to view the whole
thing.
Carol –
As I said, those steps did not work. Let’s set a time tomorrow morning for me to view the video on a City
computer. (I seem to recall you saying that you could only view it on one of the available computers; I’ll leave it to
you where to view it.)
I’ll let you know if we make any progress, but let’s plan on going this route just in case.
Thanks.
-
Amy
To: Amy Robertson
Hi Amy,
I followed these steps to view the videos on the copy of the DVD I sent you right before I handed it over to your courier:
1. Right click on the file; choose “open with”
2. Open with Windows Media Player
3. Click “no” in the dialogue box that pops up
4. Click the play button.
3
55
We’re waiting to hear back from IT, but we’ve been able to view the DVD on three different computers using the process
described above. Please do let me know if you are able to open the files at some point. I can also make another copy
for you when you’re at our office tomorrow afternoon for the deposition.
Carol
To: Amy Robertson; Liang, Carol - City Attorney Office
I guess I should note, too, that you stated that you had trouble viewing the files, that Windows Media Player initially
would not play the file, that you disregarded that error message and were ultimately able to play the file after couple
of additional steps. You walked me through those steps on the phone, but WMP would not play the file for us, nor
ultimately would VLC using the same approach you recommended.
From: Amy Robertson
Hi, Carol –
The files continue to be unreadable in WMP or VLC. We have asked our IT folks to take a look, and I am
downloading a trial version of Corel Draw, which my Google search suggests will play it.
Please consult your IT folks and see if you can either convert the file or use your Windows Media Player (or another
program such as Real Player) to record the video into a useable format as you play it.
Thanks.
-
Amy
To: Amy Robertson
Hi Amy,
As we just discussed over the phone, both files on the disc I sent you opened when I tried them this morning, but are not
playing on your computer. We are working to find out now whether there is a way to change the file extension; in the
4
55
meantime, you are trying the process we discussed and will let me know whether you are able to view the videos that
way.
Carol
Sent: Monday, February 25, 2013 11:59 AM
Carol –
Thanks for sending over the disk. However, we are unable to read either file.
The file labeled 10000005.dsf appears to be corrupt. When trying to copy from the disk, we get a dialog box saying
“Can’t read from source file or disk.” This is often the message you get when a file is corrupt.
We are not able to read the other file with either Windows Media Player or VLC, a slightly more powerful media
player. The file extension is “.dsf” which appears to be a type of proprietary graphics program:
http://www.fileinfo.com/extension/dsf
http://www.daz3d.com/products/daz-studio/daz-studio-what-is-daz-studio/
I can’t imagine that’s the format the DPD used. What is the file extension on the files you’ve been viewing in
Windows Media Player?
Thanks.
-
Amy
To: Amy Robertson
Office; Hoy, Catricia M - City Attorney Office; clucas@disabledparentrights.org
Amy,
This is a DVD with two video recordings. On the copy I have, one of the recordings (beginning with the number “09”) is
66.7 MB. Another recording (beginning with the number “10”) is 54.1 MB.
Let me know if you have any issues opening the files. If you have a Windows operating system, you’ll likely have to use
Windows Media Player.
5
55
Carol
Office; Hoy, Catricia M - City Attorney Office; clucas@disabledparentrights.org
Carol –
Is this a DVD with a document on it or a DVD with a video recording? Either way, could you let us know how
large the file is? Thanks.
-
Amy
To: Amy Robertson; clucas@disabledparentrights.org
Office; Hoy, Catricia M - City Attorney Office
Subject: Scott v. CCD - Defendant's Sixteenth Supplemental Disclosures
Amy and Carrie,
Please find attached Defendant’s Sixteenth Supplemental Disclosures. I have put a copy of the DVD for each of you in
the mail, and you should receive it shortly. Please let us know if you have any questions.
Regards,
Carol Liang
Assistant City Attorney
Litigation Section
Denver City Attorney's Office
201 W. Colfax Ave, Dept. 1108
Denver, CO 80202
(720) 913-3129
This e-mail transmission from the City and County of Denver, and any documents, files, or previous e-mail messages attached to it,
are intended solely for the individual(s) to whom it is addressed and may contain information that is confidential, legally privileged,
and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that any
unauthorized review, forwarding, printing, copying, distribution, or use of this transmission or the information it contains is strictly
prohibited. A misdirected transmission does not constitute waiver of any applicable privilege. If you received this transmission in
error, please immediately notify the sender and delete the original transmission and its attachments. Thank you.
6
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Amy F. Robertson
From:
Sent:
To:
Cc:
Subject:
Amy F. Robertson
Monday, September 16, 2013 5:19 PM
'Shea, Wendy J. - Department of Law'
Rivera, Joseph M. - Department of Law; Carrie Ann Lucas
RE: Extension and request
Wendy –
Thanks and we are happy to receive and review the cover letters, but they leave a good deal of relevant information
out, as I understand it. Your expert has spent a good deal of time critiquing the activities that we are billing for; it
seems reasonable to know what activities H&E bills Denver for. To get this, we’d need the billing records. If you
are concerned about privilege, perhaps we could pick a couple of recent but closed cases. Let me know if this
approach would work for you.
Thanks.
-
Amy
From: Shea, Wendy J. - Department of Law [mailto:Wendy.Shea@denvergov.org]
Sent: Monday, September 16, 2013 4:38 PM
To: Amy F. Robertson
Cc: Rivera, Joseph M. - Department of Law
Subject: RE: Extension and request
Hi Amy:
I am not aware of any case law which permits additional discovery after the acceptance of an offer
of judgment. Additionally, with respect to open records requests, the City Attorney’s Office does
provide the detailed billing records because we would first need to redact all detailed information,
which would require us to expend a great deal of time and expense. Rather, in response open
request, the City produces monthly cover letters which the contract attorneys are required to send
in addition to the detailed billing statement. The cover letter includes the monthly amount which
has been billed, the billing rates, and any adjustments made to the amount billed before payment is
made.
While Denver does not agree that such information is relevant or that or Plaintiff is entitled to
obtain such information through discovery or an open records request at this stage of the
proceedings, we would like to be as cooperative as possible. Therefore, in the interest of
cooperation, we will agree to provide the above-referenced cover letters (as the City would provide
in response to an open records request) which show the monthly amounts billed in all cases in
which the City Attorney’s Office for the litigation claims section has retained Hall & Evans as
outside/conflict counsel in the past two years. As indicated above, the cover page will also reflect
the billable rate for partners, associates and paralegals. While most of the cases are not likely
1
EXHIBIT
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55
comparable to an ADA Title II case, the cover letters reflecting the monthly amounts billed in all
cases for which Hall & Evans has been retained as outside/conflict counsel by the litigation claims
section at any time within the past two years will be provided.
We should be able to assemble this information and get it to you sometime next week.
Thanks.
From: Amy F. Robertson [mailto:arobertson@creeclaw.org]
Sent: Thursday, September 12, 2013 12:10 PM
To: Shea, Wendy J. - Department of Law; Rivera, Joseph M. - Department of Law
Cc: Carrie Ann Lucas; Caitlin R. Anderson
Wendy & Joe –
Please let us know whether you are willing to provide copies of billing records from your expert’s firm to the City
and County of Denver. Thanks.
-
Amy
From: Shea, Wendy J. - Department of Law [mailto:Wendy.Shea@denvergov.org]
Sent: Wednesday, September 11, 2013 6:02 PM
To: Amy F. Robertson; Rivera, Joseph M. - Department of Law
Hi Amy:
We have no objection to your extension of time. As a result of my current schedule, Joe should be
easier to reach. Because I currently have so many things scheduled outside of the office, there is
typically a delay in my ability to respond. However, I do apologize for the delay.
Thanks.
From: Amy F. Robertson [mailto:arobertson@creeclaw.org]
Sent: Wednesday, September 11, 2013 5:36 AM
To: Shea, Wendy J. - Department of Law; Rivera, Joseph M. - Department of Law
Please let us have your position on this so we can move for an extension. Thanks.
From: Amy F. Robertson
Sent: Monday, September 09, 2013 11:54 AM
2
55
To: Shea, Wendy J. - Department of Law; 'Rivera, Joseph M. - Department of Law'
Cc: 'Carrie Ann Lucas'; Caitlin R. Anderson
Subject: Extension and request
Wendy & Joe –
Our reply brief is due during a week when I’m out of town. Would Defendants oppose a motion for extension to
October 4, 2013?
Also, given that your expert’s firm, Hall & Evans, has represented the City in a number of matters – including the
Ulibarri matter -- we’d like to request that the City provide us with copies of H&E’s bills to the City, including time
detail, for the past two years.
Thanks.
-
Amy
3

Case 1:12-cv-00053-MSK-BNB Document 150-5 Filed 10

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