1

1 DENVER DISTRICT COURT

DENVER COUNTY
2 COLORADO
1437 BANNOCK STREET
3 DENVER, CO 80202
4

5 PIERRE RAYGOT et al

6 Plaintiff,
*FOR COURT USE ONLY*
7

And
8 Case No. 17CV31269
SCOTT PACK et al Division 275
9

10 Respondent,

11
For Plaintiff:
12
HENRY BASKERVILLE
13

14
For Defendant:
15
MAX STICH
16
PHILIP ALEXANDER GOIRAN
17

18

19
The matter came on for hearing on May 4, 2018, before the
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HONORABLE ROSS B.H. BUCHANAN, Judge of the District Court, and
21
the following FTR proceedings were had.
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23

24

25
Transcribing Solutions, LLC
1624 Market St. #202-90925
Denver, CO. 80202
720-389-9420
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1 MAY 4, 2018

2 HEARING

3 THE COURT: All right, this is, is it Raygot or Raygo

4 (phonetic), how do they pronounce it?

5 MR. BASKERVILLE: Raygot.

6 THE COURT: Raygot versus Pack et al, 2017CV31269. Will

7 Counsel enter their appearance beginning with the Plaintiff

8 please?

9 MR. BASKERVILLE: Henry Baskerville on behalf of the

10 Plaintiffs.

11 THE COURT: Good morning.

12 MR. BASKERVILLE: Good morning Your Honor.

13 MR. STICH: Good morning Your Honor. Max Stich and Alex

14 Goiran on behalf of the Defendants.

15 THE COURT: Good morning.

16 MR. GOIRAN: Good morning.

17 THE COURT: All right, we’re here with respect to sort

18 of the pending matters in this case. I wanted to have you in

19 because I wanted to get this case rolling and wanted to hear

20 where we are on a few things. I’m going to take these up in the

21 order, it’s actually reverse order in which they were filed, the

22 motion to continue the trial date and stay the proceedings

23 pending resolution of parallel criminal matters and request for

24 expedited ruling. That was filed March 29th. Obviously, we needed

25 to have it fully briefed before we could rule on it, but we

 3

1 wanted to get you in here promptly after that. Let me, I’m a

2 little frustrated for reasons I’m sure are clear to you, that we

3 set this case for trial on October 22nd at a hearing in November

4 of last year. And, according to the motion, it just came to

5 Defense Counsel’s attention that Mr. Saenz’s, how do you

6 pronounce his name, Seenz (phonetic)?

7 MR. STICH: Sines (phonetic).

8 THE COURT: Mr. Saenz’s criminal case was set for trial,

9 oddly enough the very same day, of October 22nd. And, I’m, I’m

10 perplexed by that because, was, was his criminal defense lawyers,

11 were they aware that he had a civil case set that same day?

12 MR. STICH: Your Honor, I don’t know. He was aware of

13 the setting, as I understand it, the criminal case, the criminal

14 judge in Arapahoe County, and I wasn’t there - -

15 THE COURT: - - yeah - -

16 MR. STICH: - - I’m just telling you what I understand

17 the facts to be. The judge in Arapahoe County just said, this is

18 the date your trial is set and gave him a setting slip, and

19 that’s when it was set. Again, I wasn’t there. I do know that

20 this case was set first and, and the criminal case was set

21 second.

22 THE COURT: By quite a bit, by several months, right?

23 MR. STICH: Correct, right. And, our clients are made

24 aware of all trial dates.

25 THE COURT: Well, but you, you know that there’s this
 4

1 parallel criminal proceeding, did you notify criminal defense

2 counsel directly?

3 MR. STICH: We have been in touch with our client, with

4 respect to Mr. Saenz’s criminal defense Counsel, I don’t believe

5 that we have been. We confer with our client directly.

6 THE COURT: I mean, you, you cite in your motion this,

7 this Chief Justice directive that requires that the, the trial

8 judges talk to one another and try to resolve such matters which

9 is true. But, I can’t talk to somebody I don’t know who is trying

10 to set a trial date and, you know, in a parallel criminal matter.

11 MR. STICH: I understand.

12 THE COURT: And, neither can he or she, so, you know, I

13 mean, I hope you understand why I feel kind of, for a lack of a

14 better way to put it, sandbagged on this?

15 MR. STICH: I understand that 100 percent, and I

16 apologize. I mean, we, we are not criminal Counsel, we didn’t set

17 the hearing, we don’t go to the criminal proceedings, our clients

18 are made aware of all important dates in this case. And, as I

19 understand it, the, the judge in Arapahoe County said, here’s

20 your trial date, they write it down on a setting slip and they

21 give it to the, to the Counsel and the client.

22 THE COURT: It isn’t likely debated, or they don’t talk,

23 are you available on a particular day?

24 MR. STICH: That’s my understanding, again I wasn’t

25 there.
 5

1 THE COURT: Yeah.

2 MR. STICH: So, I don’t know if there was a discussion

3 like we’re having now, or if it was, you’re set for October 20th,

4 see ya then. I have no idea.

5 THE COURT: All right. So, catch me up on where Scott

6 Pack is. The last we were together he was supposed to start trial

7 April 9th and then there was some reference in the motions that

8 he’s, that his trial is going to be completed in July, what?

9 MR. STICH: No, no, no, no. So, so paragraph,

10 subsection, or section Roman numeral I, paragraph 4 of our

11 motion, his criminal trial was set on April 9th and it was

12 continued to June 11th. So yes, it will be, it will be concluded

13 by July. I think it’s set for two weeks to begin on June 11th,

14 2018.

15 THE COURT: Okay, is there any - -

16 MR. STICH: - - and I, I would tell the Court that in

17 the room is Mr. Kaplan, Mr. Pack’s criminal defense Counsel.

18 THE COURT: I was either going to mention it, or let

19 him.

20 MR. STICH: Who we have been - -

21 THE COURT: - - sorry?

22 MR. STICH: Who we have been, my office has been in

23 contact with.

24 THE COURT: All right. So, let me ask you this, is there

25 any question that Mr. Pack will go to trial in June?

 6

1 MR. STICH: Can I confer with Mr. Kaplan?

2 THE COURT: Or, he can come up and - -

3 MR. STICH: - - he can come up?

4 THE COURT: I know David Kaplan perfectly well, he can

5 come in and - -

6 MR. STICH: - - I’m happy to give him my jacket and tie

7 if he needs it - -

8 THE COURT: - - inform us what he knows.

9 MR. KAPLAN: Let me apologize, Your Honor, though, I did

10 go to work today in casual clothes, not thinking of a court

11 appearance, so it’s not my - -

12 THE COURT: - - well, at least it wasn’t a Grateful Dead

13 t-shirt.

14 MR. KAPLAN: Exactly. It’s not my usual attire, so. The

15 question in terms of whether it’s going to go, what’s the?

16 THE COURT: Yeah.

17 MR. KAPLAN: Yeah, if ever I could suggest to a Court

18 that the trial date is going to be kept, it’s this trial date. I

19 mean, it’s, it’s an extensive preparation, there are witnesses

20 that are, you know, planning on being flown in. The District

21 Attorney has given all of its exhibit lists and we have our Rule

22 16 requirements delivered on Monday. So, it’s anticipated to go.

23 It’s four day trial weeks and it’s set for three weeks at this

24 point, just to correct, it’s 12 trial days, but - -

25 THE COURT: - - yeah - -

 7

1 MR. KAPLAN: - - she uses a Friday for dockets, and - -

2 THE COURT: - - I’m sorry, who is the trial judge?

3 MR. KAPLAN: Judge Herron.

4 THE COURT: Okay. And - -

5 MR. KAPLAN: - - and I can’t inform the Court of

6 anymore, I was not at any of the settings for Mr. Saenz.

7 THE COURT: Okay.

8 MR. KAPLAN: So, I don’t know how that was set.

9 THE COURT: Somebody from your office was there, you

10 mean, or?

11 MR. KAPLAN: No, no, I’m just saying that Mr. Steinberg

12 (phonetic) is Counsel for Mr. Saenz.

13 THE COURT: Oh, okay.

14 MR. KAPLAN: I’m talking about on the criminal case.

15 THE COURT: All right, I gotcha, okay. So, can you,

16 while you’re up here - -

17 MR. KAPLAN: - - yes, sir?

18 THE COURT: Have, has the Scott Pack, I’m sorry, we just

19 talked about the Scott Pack trial, there’s, they’re bifurcated,

20 they’re being tried separately?

21 MR. KAPLAN: Yes, they were, yes.

22 THE COURT: Okay.

23 MR. KAPLAN: It’s always, they’ve always been set

24 separately. There hasn’t been, there was no need to ask for, for

25 them to ask for adjoinder or for us to ask for a severance,

 8

1 that’s how it’s been set. It was one superseding indictment with

2 multiple defendants but they’ve set, there’s only, I believe, and

3 I’m pretty sure this is accurate, out of the indictment there’s

4 only three defendants that have not pled.

5 THE COURT: Would that in and of itself be a reason why

6 the trial dates might be in danger?

7 MR. KAPLAN: No, you mean in terms of adjoinder issues?

8 THE COURT: Well, for reasons that I probably can’t even

9 imagine, but - -

10 MR. KAPLAN: - - right, well, that’s the point, the way

11 I said it, the way I, yeah, I mean trials get continued for the

12 most anticipated reason. But, I am telling this Court if ever

13 there was a trial date that I’ve been involved in that I believe

14 is going to stay and be resolved on June 11th, it’s this trial

15 date.

16 THE COURT: Okay.

17 MR. KAPLAN: It got continued once for a variety of

18 reasons, in part because of the complexity of the case and some

19 discovery, without casting aspersions, just discovery - -

20 THE COURT: - - sure - -

21 MR. KAPLAN: - - that happened, and so that we tried to

22 get a very quick trial date for this type of case, with the

23 complexity, and it got continued a relatively short period of

24 time. So, as far as a criminal case like this is concerned, with

25 the number of issues and the type of charges, the case is

 9

1 actually being moved, moved along relatively quickly. Now, of

2 course, that’s from the time they decided to indict it, not from

3 the time they started to investigate it.

4 THE COURT: Sure.

5 MR. KAPLAN: But, it is moving quickly and as a second

6 trial date I think that’s a pretty solid go.

7 THE COURT: Okay. All right, appreciate your input on

8 that. Let me ask this question, I mean, I, this is one of these

9 fait accompli-type things where obviously Mr. Saenz can’t be in

10 two places at one time, but tell me how discovery is going in

11 this case. I know that you’ve, from the Plaintiff’s standpoint

12 you’ve talked about you’ve gotten, in your judgment, inadequate

13 responses to written discovery. Has there been, have there been

14 any depositions, for instance?

15 MR. STICH: There have been no depositions. I will tell

16 you that from the Defendant’s side we have conducted no

17 discovery. From the Plaintiff’s side, the Plaintiff has done

18 written discovery on some but not all of the Defendants. We are

19 working through some complaints that the Plaintiff has about the

20 responses to discovery. No request is in front of you on a motion

21 to compel, for example, we’re trying to work that out between

22 ourselves. I do know that the Plaintiff has served a number of

23 subpoenas. I don’t know the status of those because we haven’t

24 received any documents back. And, that the Plaintiff has set Ms.

25 Saenz’s wife’s deposition for, I think some time in June. That’s

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1 the only deposition set. I will tell the Court, since you’ve

2 asked about discovery, we didn’t want to set any depositions from

3 the Defendant’s perspective until this hearing, because I didn’t,

4 because we’d like to encourage you to continue this case and stay

5 all discovery. But, subject to that not happening, we will begin

6 discovery and the depositions of the Plaintiff will be an issue.

7 We’ve, we’ve had chats about deposing them, they’re not American

8 citizens and the timing of those depositions, who will be

9 deposed, there’s two Plaintiffs and so for, but again, that’s not

10 in front of you either, because we’re encouraging you and asking

11 you at this hearing to stay all discovery until after Mr. Saenz’s

12 criminal case is complete or, in the alternative, until some time

13 in November which would be after Mr. Saenz’s case, we could come,

14 we could tell you what the status of his criminal case is, if for

15 some reason the criminal case isn’t completed by November, if

16 he’s gotten a continuance and what not, then we could decide

17 whether to set the case for trial and begin discovery, or if the

18 case has gone and it’s completed and the 5th Amendment is no

19 longer an issue, we could set the case for trial and have

20 expedited discovery or what not. But, we haven’t done discovery

21 because of the request that we’re making today.

22 MR. BASKERVILLE: Your Honor, can I just briefly respond

23 to that?

24 THE COURT: Yes.

25 MR. BASKERVILLE: So, I’m not, Counsel said - -

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1 THE COURT: - - and, by the way, your clients are from

2 Thailand, or?

3 MR. BASKERVILLE: Well, they’re, they were born in

4 France, they’re French citizens.

5 THE COURT: French citizens.

6 MR. BASKERVILLE: But, one lives in Thailand and one, I

7 think just moved to Dubai.

8 THE COURT: Okay.

9 MR. BASKERVILLE: Candidly, I forget if he moved to

10 Dubai from Portugal, or Portugal to - -

11 THE COURT: - - okay - -

12 MR. BASKERVILLE: - - whatever, they both live out of

13 the country.

14 THE COURT: Gotcha, all right.

15 MR. BASKERVILLE: In terms of discovery, Counsel said

16 that I served it on some of the Defendants and that’s not

17 actually true. We’ve served written discovery on every one of the

18 Defendants. In our opinion the responses are woefully inadequate.

19 The, cumulatively - -

20 THE COURT: - - are they woefully inadequate because of

21 some aspect of the criminal case, or just - -

22 MR. BASKERVILLE: - - no, because they’re just not

23 responding.

24 THE COURT: Okay, they’re not claiming the 5th Amendment,

25 they’re just not being responsive, in your judgment?

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1 MR. BASKERVILLE: Well, two of them have, Rudy and

2 Scott, and I’m not begrudging them for doing that. I’m not

3 talking about them.

4 THE COURT: Yeah.

5 MR. BASKERVILLE: In talking about everybody else,

6 cumulatively all of the Defendants have produced 16 documents for

7 a sum total of 79 pages. The interrogatory responses are single

8 lines, many of which are just either false or woefully

9 inadequate. Some provide information that is very interesting,

10 that I’d like to get into more, but I sent them a discovery

11 dispute letter in February and, as I noted in my motion, I’ve

12 gotten repeated emails, oh, I’ll get it to you tomorrow, I’ll get

13 it to you tomorrow. And, with all due respect to Counsel, they

14 told me this morning they’ll get it to me next week. And, I, and

15 I’m sure that, I don’t mean to speak badly of them, I suspect the

16 problem is not on their, at their firm. But, I feel like I’m

17 getting jerked around here, pardon my French. And, and that’s the

18 problem. We’ve served two subpoenas, we’ve got nothing. One of

19 the two subpoenas is on Rudy’s wife, as, as Counsel correctly

20 said, and I’m not trying to harass her. The reason we want some

21 documents from her and her deposition is because, the documents

22 that were provided to my clients represented that she invested $5

23 million dollars in this company. I suspect that’s false. We’ve

24 alleged that’s false and I’d like to ask her about it. Again,

25 we’ve, we’ve tried to set that deposition multiple times and it’s
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1 been pushed off into early June. It’s, I feel like I’m getting

2 the run around here, and I’ve tried to work with Counsel, I mean,

3 as I said in my motion, we served discovery in November and then

4 the deadlines on those passed and I never even heard from them.

5 They called me after the deadline to respond to discovery had

6 passed and said, can we have until January 30th to respond to

7 discovery, and this is mid-December. And I said, sure, no

8 problem, we’ve got, we’ve got a trial date in October. And, and

9 then January 30th came and went and they gave me nothing. And they

10 said, oh, we need a couple of more days, even though that was

11 their own self-imposed deadline, because Counsel was on vacation

12 and I don’t know why they chose a date to respond to discovery

13 when they were on vacation, but, okay. And, and again, it’s just

14 ongoing. And, and I know that a motion to compel is not before

15 you today, but I am at my wit’s end, candidly. And, I’ve been,

16 I’ve been trying to be reasonable with them because we do have,

17 our trial date wasn’t until October and so it’s not the end of

18 the world if they take another week or two. But, here I am

19 sitting here today and, as I said, I’ve gotten 79 pages from, you

20 know - -

21 THE COURT: - - yeah - -

22 MR. BASKERVILLE: - - six Defendants who don’t have a 5th

23 Amendment privilege as far as I know, 5th Amendment privilege to

24 assert.

25 THE COURT: Well, let me turn to the defense and hear

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1 about these discovery issues, written discovery issues.

2 Obviously, I’ve heard his side of that and I assume there’ve been

3 some delays. Explain to me what’s going on if you can?

4 MR. STICH: Sure, Mr. Goiran has been working on the

5 discovery issues, he’ll address the Court.

6 THE COURT: Okay. All right.

7 MR. GOIRAN: Good morning Your Honor.

8 THE COURT: Good morning.

9 MR. GOIRAN: Philip Goiran on behalf of the Defendants.

10 So, I have been working with Mr. Baskerville on discovery. So, to

11 date, what we did at Mr. Baskerville’s request was, I, I made

12 initially a blanket invocation of the 5th on behalf of Mr. Pack

13 and Mr. Saenz. Mr. Baskerville said, I would like you to take my

14 written discovery and assert that to each question in doc

15 request. We did that. As to the entities, the problem is we have

16 no representative from those entities to participate in

17 discovery.

18 THE COURT: You mean other than Mr. Saenz and Mr. Pack?

19 MR. GOIRAN: My understanding, probably the only person,

20 and I’m not even sure of this, would be Mr. Pack. And so, that

21 has been a, a constant concern for Mr. Pack. I think Mr. Kaplan

22 may be able to speak to that. And then, Michael Pack, we have not

23 only answered the written discovery, albeit later than Mr.

24 Baskerville would like it, he then pointed out what he perceived

25 were some deficiencies and then we supplemented our written

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1 discovery and produced additional documents. So, as far as we’re

2 concerned - -

3 THE COURT: - - you have additional documents that are

4 yet to be disclosed at this point that you know are not there?

5 MR. GOIRAN: With respect to any defendants?

6 THE COURT: Yeah.

7 MR. GOIRAN: I mentioned to Mr. Baskerville they’re not

8 documents responsive to his document request, there are about 800

9 pages of documents that are mostly pictures of things and things

10 that were in the file. But, nothing that would be responsive to

11 his request, and we do have that in possession. And, I said I’d

12 send it over, or if you want to come over and look at it, that’s

13 fine too. And then, there was the, the other issue was - -

14 THE COURT: - - pictures, pictures of what? What do you

15 - -

16 MR. GOIRAN: - - marijuana facilities and plants and

17 there were other smaller items in there. I could not at this

18 point tell you exactly the contents, but I told Mr. Baskerville I

19 would turn it over. The bigger issue is the privilege log, just

20 because we have six defendants, trying to ascertain who can

21 assert the privilege. Initially, I understood Mr. Baskerville’s

22 position that the documents that, that he was asking of Mr. Saenz

23 and Mr. Pack would need to be disclosed and then reviewed, and I

24 asked in camera to determine whether the 5th would apply to that

25 document I misunderstood him. Mr. Baskerville told me this

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1 morning what he’s really looking for are all the documents that

2 would be in the possession of the two entities who are also under

3 indictment. I understand that those entities do not have 5th

4 Amendment privilege, but I don’t have a representative to work

5 with, to produce that discovery.

6 THE COURT: Yeah, help me with that. I’m

7 misunderstanding that. These are entities that Mr. Scott and Mr.

8 Saenz controlled, right?

9 MR. GOIRAN: No, I think with respect to HGCO who,

10 frankly is a defendant in this case but isn’t the entity in which

11 the Raygots invested. So, their involvement in this case is

12 questionable. In terms of Harmony and Green, we do have these

13 documents that, in my view, when I looked at them were not

14 responsive to the request for production and I made Mr.

15 Baskerville aware of that, happy to turn those over. But, I

16 didn’t want to dogpile him and send him documents and he’s going

17 to say, Alex, or, you know, Mr. Goiran, what’s this, you’re not

18 responding to my document request. And then, my response - -

19 THE COURT: - - okay, help me with, who, who does

20 control these entities? I’m, trying to understand whose entities

21 they are as far as you’re concerned.

22 MR. GOIRAN: Well, I don’t know. There were other owners

23 of Harmony and Green and, at this point I don’t know who could

24 speak to the discovery request. On HGCO’s side, that would be Mr.

25 Pack.
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1 THE COURT: And, on Harmony and Green?

2 MR. GOIRAN: Again, I could say Mr. Pack, but there were

3 other owners of this company. So, at any rate - -

4 THE COURT: - - forgive me, but how many other owners

5 other than Pack?

6 MR. GOIRAN: I don’t know.

7 THE COURT: You represent this company and you don’t

8 know how many owners there are?

9 MR. GOIRAN: Well, my understanding is that there may be

10 up to four other owners in this company.

11 THE COURT: Do you know who they are?

12 MR. GOIRAN: Off the top of my head I wouldn’t be able

13 to give you the names. I know there was a Kyle Cobb (phonetic),

14 Philip Wizeman (phonetic), of course, honestly, Your Honor, I

15 don’t know everybody who was involved with HGCO.

16 THE COURT: Well, let me ask you something, are the two

17 you mentioned, are they under indictment?

18 MR. GOIRAN: Yes, oh, oh no, Mr. Cobb (phonetic) and Mr.

19 Wiseman (phonetic) are not under indictment.

20 THE COURT: Are they, do you, do you know whether

21 they’re intimately involved in the business enough to help you

22 respond to discovery?

23 MR. GOIRAN: Well, my understanding is that Mr. Wizeman

24 (phonetic) is no longer in the country. And so, there’s, at least

25 no ability to reach him or make him available easily.

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1 THE COURT: Okay.

2 MR. GOIRAN: And then, with Mr. Cobb (phonetic), I, I

3 understand that Plaintiff’s Counsel has been in touch with at

4 least the entity that Mr. Cobb (phonetic) controls. And, I do

5 know that he did have a stake in HGCO. Whether he has any of the

6 documents that are responsive to the questions, it doesn’t seem

7 so.

8 MR. KAPLAN: And Your Honor, if I can? There are

9 multiple owners. No one is willing to participate in the

10 discovery.

11 THE COURT: It’s best, if you’re going to be at the

12 table, to sit and speak into the microphone - -

13 MR. KAPLAN: - - oh, sure, sure, sorry, I didn’t want to

14 - -

15 THE COURT: - - just because we get a better recording.

16 Go ahead.

17 MR. KAPLAN: I didn’t want to disrespect the Court by my

18 sitting down, but I appreciate that. The other owners, the two

19 owners, no one is willing to participate in civil discovery.

20 THE COURT: What do you mean they’re not willing to

21 participate in, this isn’t a, this isn’t an invitation to a

22 garden party, they’ve been sued.

23 MR. KAPLAN: The entity has been sued, correct. And, Mr.

24 Pack and Mr. Saenz have their 5th Amendment rights, they’re both,

25 as you know, under an indictment in Arapahoe County, they’re not

 19

1 participating. And the, and, and HGCO is only Mr. Pack. Harmony

2 and Green does have, I believe, two other owners and they’re

3 simply unwilling. I, I mean, I, I hope that you can appreciate

4 that the situation that we’re in in this position where you’ve

5 got a Plaintiff who has gone out and, and, and threatened people

6 to be under indictment. I, and I mean, not through Mr.

7 Baskerville but through prior attorneys has, has indicated that

8 everyone associated with this entity is going to be indicted.

9 Hysteria has been created where people are scared, and people are

10 scared to participate. And, the number one, the number one

11 witness from what I understand in Mr. Pack’s case are the

12 Raygots. And so, people want to stay away from this company,

13 like, like - -

14 THE COURT: - - in the criminal case?

15 MR. KAPLAN: Correct, and they’re worried, and we’re

16 worried about this as well, that this civil case is being used as

17 a sword in the criminal case. That, that there’s an attempt to

18 get information that the District Attorney might not be able to

19 get through this proceeding, so that it can be used in the

20 criminal case.

21 MR. BASKERVILLE: Your Honor, can I respond to that

22 absurd accusation?

23 THE COURT: You can, but, so, but I guess what I’m, I

24 mean, you know, to a certain extent that’s just sort of the

25 nature of the beast. I’m not sure that there’s a heck of a lot I
 20

1 can do about it in terms of, you know, and we talked about this

2 the last time we were together, you know? That there’s sort of

3 extremes that you could go in this case. You could say, we’re

4 going to stay the civil case until all of the criminal cases are

5 done, and it is not inconceivable that that would mean you’d put

6 it off for five years, right?

7 MR. KAPLAN: Correct.

8 THE COURT: Because you, you know, you’re convicted in

9 whole or in part, whatever, it goes up on appeal, goes up on two

10 appeals, is sent back for re-trial, who knows what’s going to

11 happen? That could go on forever.

12 MR. KAPLAN: I agree.

13 THE COURT: And therefore, I, I think they need to, you

14 know, move along parallel to one another, obviously respectful of

15 5th Amendment rights and all of that, I’m not suggesting

16 otherwise. But, you know, the, sort of the incidental effect that

17 the civil case has on the criminal case, I’m not sure I can

18 prevent that and I don’t think that’s enough of a reason to stay

19 the matter, or delay the matter until the criminal case is

20 resolved. I mean, obviously your clients would like it to be put

21 on hold indefinitely.

22 MR. STICH: Yes, of course they would, of course they

23 would, of course. Our request, however, isn’t for that, it’s to

24 stay the case until November - -

25 THE COURT: - - well, I understand, but - -

 21

1 MR. STICH: - - so that we can see where we’re at. I, I

2 understand exactly and I appreciate exactly what you’re saying

3 about the 5 year, 10 year, indefinite stay. But, what we know now

4 is that, from Mr. Kaplan, that Scott Pack has a firm trial date

5 and then Mr. Saenz, I don’t know how firm his date is, we just

6 know that it’s been set and it’s been set out. But, I mean, I

7 guess I’m just, we’re just asking for this first step through

8 November to be cleared and then I agree. If the cases have been

9 continued, or if they’ve been tried and won or tried and lost, my

10 argument for an additional stay is, I get it, is weaker and

11 weaker. But, the problem we have right now is this, is this, is

12 the pending discovery the lack of ability to get responses filed?

13 And, I apologize for that, but our hands are tied.

14 THE COURT: Well, help me with this, because - -

15 MR. STICH: - - sure - -

16 THE COURT: - - when you say, our inability to get

17 discovery requests and our hands are tied, are, are you telling

18 me that you’ve attempted to get ahold of whoever knows how these

19 companies work or worked, and said, what the documents are, they

20 want information that’s responsive and they just don’t return

21 your phone calls, don’t cooperate with you in any way?

22 MR. STICH: The people that we can get ahold of have

23 retained criminal defense Counsel.

24 THE COURT: Including this, the two you mentioned, Kyle

25 and - -
 22

1 MR. STICH: - - correct, Mr. Wizeman (phonetic), he’s

2 out of the country.

3 THE COURT: Okay.

4 MR. STICH: And, we have not been able to reach him. Mr.

5 Cobb (phonetic), and I, has criminal defense Counsel retained.

6 THE COURT: Right.

7 MR. STICH: I mean, it’s just, you know, I mean, and of

8 course we’re not here for a discovery dispute, this wasn’t set

9 for a discovery dispute, this was set for other issues - -

10 THE COURT: - - but, I, but I need to know this - -

11 MR. STICH: - - sure - -

12 THE COURT: - - to know whether it makes sense to - -

13 MR. STICH: - - sure - -

14 THE COURT: - - continue the case and/or stay the case,

15 so that’s what I’m - -

16 MR. STICH: - - sure. No, I understand, yes, no one

17 wants to touch this case, no one wants to be involved in this

18 case. We have, we have certain documents, we don’t think that

19 they’re necessarily responsive, we’re happy to provide them all,

20 you know, I mean. But, no one is willing to touch the case and if

21 Mr. Baskerville wants to take depositions of our clients he has

22 the ability to do that, and he knows the answers that he’s going

23 to get. They take the 5th, they take the 5th, and they take the

24 5th. And, once that 5th Amendment no longer applies, as this Court

25 has already ruled, then our clients are happy to answer the
 23

1 questions without that 5th Amendment privilege. But, while the 5th

2 is pending, they’re going to assert it.

3 THE COURT: All right. So, let me, let me hear from Mr.

4 Baskerville.

5 MR. BASKERVILLE: Okay, I’d like to start with the

6 absurd accusation that I’m some sort of foil for the prosecution

7 and I’m trying to get discovery in this case so I can turn it

8 over to the prosecution. I can assure Your Honor that that is an

9 absolute absurd thing to say. I’ve spoken to the prosecution, I

10 think twice. I’ve never provided them a single document, other

11 than I may have emailed them our filed second amended complaint

12 after, at one point. But, I’ve never provided them anything from

13 discovery - -

14 THE COURT: - - but I think the problem you’re - -

15 MR. BASKERVILLE: - - and I have no intention of doing

16 that.

17 THE COURT: Yeah, I think the problem you’re laboring

18 under is that, I think the first Plaintiff’s Counsel on this case

19 suggested a much closer connection to the prosecution.

20 MR. BASKERVILLE: Well, I can assure Your Honor that, as

21 I said - -

22 THE COURT: - - and I, you know - -

23 MR. BASKERVILLE: - - over the past, since I’ve

24 represented this client since October, I think I’ve spoken to

25 them, the prosecution on the phone twice.

 24

1 THE COURT: Okay.

2 MR. BASKERVILLE: And, and one of them was only about

3 whether my clients would be willing to come here for the trial

4 testimony. It had nothing whatsoever to do with this case.

5 THE COURT: Okay.

6 MR. BASKERVILLE: Although I can tell you that they’ve

7 never asked me to stay discovery in this case, they’ve never

8 asked me to provide any documents either. As to Michael Pack,

9 they said he’s fully responded and that’s not true. They provided

10 a number of objections that I think are just plainly wrong in

11 fact and wrong in law. I laid that out in my letter I sent them

12 in February. They still haven’t responded. So, to say that he’s

13 fully responded to discovery, we just have a difference of

14 opinion there. In terms of the, the entities, I think Counsel has

15 an obligation, they represent these entities in this case. They

16 could, if, if the entities don’t want to participate in

17 discovery, the case law is very clear that they can be defaulted.

18 I understand what he’s trying to say, that nobody wants to verify

19 the interrogatory responses, but that’s a step further. I mean,

20 I’m willing to talk to them about that. And Counsel has an

21 obligation to go out and do some research. They can speak to old

22 ex-employees, they can certainly speak to Mr. Pack and Mr. Saenz

23 who they said that they speak to on a regular basis. They could

24 get the information from, to answer my interrogatories and sign

25 them themselves. They don’t have to tell me where the information

 25

1 came from. I’m just trying to figure out what happened here. And,

2 they, and instead of having a conversation with me about that,

3 about ways that we can get around this issue that I can

4 appreciate that Mr. Pack doesn’t, his criminal Counsel doesn’t

5 want him to verify interrogatory responses and I’m not asking for

6 that. I’m just asking for some basic information in response to

7 my interrogatories. And - -

8 THE COURT: - - let me ask you this, on, on the larger,

9 on the larger picture are there other areas of discovery that you

10 can be moving forward on that are not as problematic from the

11 standpoint of the 5th Amendment? In other words, you, you talked

12 about deposing Ms. Saenz - -

13 MR. BASKERVILLE: - - yeah, there - -

14 THE COURT: - - are there others that you could be

15 deposing?

16 MR. BASKERVILLE: Well, yes, I’d like to get more

17 information from Mr. Michael Pack. I’d like to take his

18 deposition. And then, there, there are some others, this Mr. Cole

19 (phonetic) that they’ve talked about. I’ve talked to his attorney

20 who, as far as I know, is not criminal Counsel and never said

21 anything about having any concerns about the 5th Amendment

22 privilege. In fact, we served him with a subpoena although I need

23 to follow-up on where the documents are. There are other avenues.

24 Part of the problem is that the discovery responses I’ve gotten

25 from them are so woefully inadequate that I’m, I’m sort of

 26

1 stymied on where the other avenues are. But, certainly I can

2 subpoena bank records for the companies, I can subpoena third

3 parties. I, I never said that I need more information from Scott

4 Pack or Rudy Saenz. All that I said is, that they sent, Counsel

5 sent me a letter that said, Rudy and Scott are going to invoke

6 their 5th Amendment privilege. And I said, that’s fine, but can

7 you just put it in response to my interrogatories, rather than in

8 a letter, because I think that’s the appropriate way to do it. He

9 did it, fine, and I haven’t objected to what they’re doing. I’d

10 like to continue forward in discovery as to Michael Pack and his

11 company, SMP Properties. For example, he just recently disclosed

12 some information that I find very interesting that, around the

13 same time this fraud scheme was developing and, and Scott Pack

14 began soliciting investments from my clients, he, Scott Pack

15 transferred his interest in SMP Properties to his Father for

16 apparently no consideration, that’s not, that’s never been

17 described. I think I’d like to delve into that further. I, again

18 I’d like to take Rudy’s wife’s deposition. There’s plenty of

19 third parties, too. But, I’ve been trying to see if I could get

20 answers to my interrogatories so I can be pointed with my third

21 party discovery, rather than just blanket the City of Denver with

22 subpoenas.

23 THE COURT: Yeah. Let me ask you this, do you have any,

24 I mean, obviously this is a, I mean obviously the indictment

25 includes counts of securities fraud, and obviously you’re

 27

1 alleging fraudulent investment scheme and so forth, essentially a

2 Ponzi scheme. You know, when it’s General Motors and big

3 corporate entities, there’s all sorts of paper in a case like

4 this, but are you satisfied there’s a lot of paper out there that

5 you don’t know about, or haven’t seen copies of?

6 MR. BASKERVILLE: Well, I’m, I’m shocked that there

7 hasn’t been more produced by the Defendants, I’ll say that. I

8 mean, this was - -

9 THE COURT: - - well, why is that? Because, you know,

10 most people that are conducting a fraudulent scheme try to keep

11 things to a minimum, they try to write as little as possible.

12 And, I guess I’m just wondering, are you, based on what you know

13 about the case, do you know that there are quantities of

14 documents out there that you haven’t seen yet?

15 MR. BASKERVILLE: Based on what I know about the case,

16 this was an ongoing business, at least semi-legitimate, ongoing

17 business for more than a year. I’m surprised that they don’t have

18 a single document. It was just today that Counsel represented

19 they have some box with 800 documents in it, including prior

20 prospectuses which are definitely responsive to my interrogatory,

21 my document request. And then, I - -

22 THE COURT: - - and those haven’t been produced?

23 MR. BASKERVILLE: No, that’s what they’re talking about.

24 They just told me today and, and they told Your Honor that

25 there’s a box that has pictures in it. But, Counsel represented

 28

1 to me before the hearing that it was also prior prospectuses

2 which I would be really interested to see.

3 MR. STICH: And Your Honor, we told him we would

4 disclose those things.

5 THE COURT: All right.

6 MR. BASKERVILLE: Right, but just this morning. I mean,

7 that’s the thing.

8 MR. GOIRAN: Your Honor, if I might? I was speculating

9 as to the totality of those documents. I, what I have seen, the

10 majority of those documents were photographs. And, beyond that, I

11 cannot represent what the entirety of that file was.

12 THE COURT: Okay.

13 MR. GOIRAN: So, when Mr. Baskerville says - -

14 MR. BASKERVILLE: - - but, one of the things I would - -

15 MR. GOIRAN: - - that, it’s without any representation

16 that’s a certainty. I said, I will disclose those documents to

17 him right away. He asked if he could come to the office if it’s

18 too much and I said fine. When I looked at the documents they did

19 not appear to be responsive to the request for production. But,

20 certainly those documents exist and we can give them to Mr.

21 Baskerville straightaway.

22 THE COURT: Okay. Let me, let me ask both sides this

23 question, assuming Mr. Scott is tried beginning in June and

24 assuming Mr. Saenz is tried beginning in late October, I believe

25 there’s a bit of assumption, more on Mr. Saenz than Mr. Scott

 29

1 based on what I’ve heard from Mr. Kaplan. But, and let’s say

2 Saenz’s trial ends in, what, it sounds like mid-November or

3 something like that, how much after that, after the outcome of

4 those trials would it take to get this case, get what remains of

5 the discovery in this case ready and this case ready for trial?

6 Are we talking another six months, are we talking three months?

7 I, I’m asking because I really don’t know the scope of everything

8 that’s out there. And, and how much of it can be addressed before

9 those trials go forward, or as they’re going forward?

10 MR. BASKERVILLE: Well, I think it sort of depends on

11 how responsive the Defendants are. Again, you know, learning

12 about a box of 800 documents on May 5th, or whatever it is today,

13 when I served discovery in November it’s a little frustrating as

14 you can imagine.

15 THE COURT: Yeah, I got you.

16 MR. BASKERVILLE: But, assuming that they participate,

17 that I’m able to get all the third party discovery done before

18 then and, then after their trials, that they actually participate

19 in discovery which I think is a, is a question mark, I don’t

20 think it’ll take six months certainly. Now, they may have

21 dispositive motions. I don’t think I’ll be filing a motion for

22 summary judgment on fraud claims. But, you know - -

23 THE COURT: - - good thinking.

24 MR. BASKERVILLE: Yeah, so, so I don’t know how long it

25 would take after then, I don’t think it would take more than a
 30

1 couple of months.

2 THE COURT: Okay, how about from the defense side? And,

3 I realize, I, I understand all of the question marks in your

4 mind, in other words, you know, there are convictions in whole or

5 in part and, you know, appellate issues and you want to pursue

6 appeals and all of that sort of thing. But, setting that to one

7 side, and just in terms of the work to get the case ready, how

8 long do you think it takes after mid-November to get ready for

9 trial?

10 MR. STICH: Sure, I would say, I would agree with Mr.

11 Baskerville, a couple of months, three to four months maybe with

12 the trial, you know, one to two months after that, have, have the

13 dates consolidated so that we’re doing discovery up to a trial,

14 you know, up, up, up close to trial and, you know, working on

15 TMOs at the same time.

16 THE COURT: Is there, let me, let me ask this question,

17 obviously Mr. Baskerville has indicated there is additional

18 discovery that can be being pursued against what I’m going to

19 characterize as third parties. But, I guess what I mean is, you

20 know, people who are not indicted or entities that are not

21 indicted. Do you have any reason why you can’t be pursuing that

22 discovery during the, during the, you know, pending the trial of

23 the criminal defense?

24 MR. STICH: So, like third party subpoenas, third party

25 depositions?
 31

1 THE COURT: I’m not sure I fully understand exactly all

2 he means, but the one example I’ve heard is Ms. Saenz. And, and I

3 guess, and I guess - -

4 MR. STICH: - - yeah, I know, and I mean, I, I don’t

5 think that, you know, I’ll editorialize it a little bit, I don’t

6 think that during the pendency of the criminal cases he’s going

7 to get the answers that he wants out of those third party

8 depositions. You know, Ms. Saenz - -

9 THE COURT: - - you mean, even people that aren’t

10 indicted? Why not?

11 MR. STICH: Well, as I’ve said before, everyone, I mean,

12 Mr. Colb (phonetic) has retained Kenneth Eikner (phonetic),

13 criminal defense attorney. Ms. Saenz has retained, who is it?

14 MR. GOIRAN: Miller Leonard (phonetic).

15 MR. STICH: Miller Leonard (phonetic), criminal defense

16 attorney. Everyone that gets involved in this case is lawyering

17 up with a criminal defense attorney. Based upon first Counsel’s

18 statements, the first Plaintiff’s Counsel, not Mr. Baskerville,

19 but the first Plaintiff’s Counsel who, who, quite honestly,

20 scared a tremendous amount of people with his involvement and

21 the, and the, you know, I don’t want to say threats but, for lack

22 of a better term, the threats that he made. And so, I mean, so,

23 to answer your question, after I, after I gave my two cents, does

24 anything stop him from doing third party discovery? I guess, no.

25 I guess no, nothing stops him from doing that. I think it would
 32

1 be more efficient for him to do nothing on the case until it’s

2 over. But, I can’t look at you with a straight face and say, if

3 he wants to subpoena Wells Fargo for, for bank records, I mean he

4 can do it. I don’t see how that, I don’t see how that would stop,

5 but I think it would be more efficient to stay everything, but,

6 you know - -

7 THE COURT: - - all right - -

8 MR. STICH: - - I, I think that his, that his oral

9 discovery, he’s going to face criminal defense attorneys at every

10 single corner, and I know that he issued subpoenas months ago. We

11 have nothing to do with those subpoenas. I don’t believe he’s

12 received a single document from any of those subpoena requests,

13 probably based upon the criminal defense attorneys working with

14 their clients.

15 MR. BASKERVILLE: Your, Your Honor - -

16 MR. STICH: - - but, but like you, I’m making an

17 assumption on that.

18 MR. BASKERVILLE: Your Honor, the case law is very clear

19 that, obviously you have discretion to stay, but you have to stay

20 a case because of prejudice. And, the fact that some third

21 parties may try to assert their 5th Amendment privilege has

22 nothing whatsoever to do with prejudice to these Defendants. And,

23 I can assure, I’ve, I’ve spoken to Mr. Cobb’s (phonetic), and Ms.

24 Saenz’s lawyers, and neither of them suggested that they intend

25 to assert the 5th Amendment privilege at, at a deposition. But,

 33

1 if they do, then okay, they have the right to do that. But, that

2 doesn’t mean that we should just sit on our hands for the next

3 six months. And, as far as I know, Michael Pack has no intention

4 of asserting his 5th Amendment privilege. He’s answered

5 interrogatories, although I would argue not completely, but

6 there’s no reason why we can’t take his deposition. The same with

7 his company, SMP Properties, or companies, I should say. So, I, I

8 would argue, Your Honor, that the current status quo doesn’t need

9 to change. These, these Defendants can take their 5th Amendment

10 privilege which they have done. We can argue about whether or not

11 other interrogatory and document request responses are adequate

12 or not, and, you know, if we can’t resolve that then we can come

13 back to you. I’m not, I can assure you that I’m not pushing to

14 get discovery from Scott Pack or from Rudy Saenz right now. And

15 so, I think it’s better to, if Your Honor intends to move the

16 trial, okay, we can move the trial and let discovery continue in

17 that process so that when these criminal cases are resolved, if

18 they are, we can be ready to go to trial rather than, you know,

19 trying this case in 2020.

20 THE COURT: Yeah, okay. All right, I’ve heard the

21 arguments of Counsel and I appreciate, you know, the position

22 that both of them are in frankly. But, obviously I have to rule

23 on the motion to continue and to stay proceedings. First of all,

24 I find that there is good cause to continue, it’s not cause that

25 I like and it’s cause that I sure would’ve liked to have seen
 34

1 some effort to avoid, that being some communication by Mr.

2 Saenz’s criminal defense Counsel when he was, he or she was

3 handed a, a piece of paper indicating the trial date was October

4 22nd. He or she should have known at that point that that

5 conflicted with this civil case and should have done something

6 about it, at the very least suggest that the criminal trial judge

7 get on the phone with me so we could talk about it. But, that

8 didn’t occur, and the fact of the matter is that we can’t expect

9 Mr. Saenz to be in two places at one time. And, the, the criminal

10 matter has to take precedence over the civil matter in the sense

11 that, as long as the criminal matter is pending, Mr. Saenz is

12 presumably going to be asserting the 5th Amendment with respect

13 to, his 5th Amendment privilege with respect to discovery in this

14 matter. And, that’s the difficulty with the discovery going

15 forward in this matter. So again, it’s, I reluctantly find that

16 there is good cause to continue the trial date in this case. But,

17 what I am inclined to do is set the matter for a new trial date

18 so that it is out there, it’s on everybody’s calendar. And, I’m

19 going to order that defense Counsel communicate it to all of

20 their clients and their clients’ lawyers, that there is a new

21 trial date.

22 MR. STICH: Understood.

23 THE COURT: And, I’m going to need to see a death

24 certificate before the next continuance, or something pretty damn

25 close to it. Because, you know, it isn’t just a matter of having

 35

1 an inconvenient date and then scheduling over it, then saying oh,

2 by the way, that date needs to be moved. And, I’m not suggesting

3 that there was any intentional act on anybody’s part. But, I do

4 want to avoid it happening again. So, having said all of that,

5 I’m looking in February or March of 2019 as the potential dates

6 we’re talking about.

7 MR. STICH: Is it okay to look at our phones?

8 THE COURT: Sure.

9 MR. STICH: Thanks.

10 THE COURT: Is five days still a realistic time for the

11 trial?

12 MR. BASKERVILLE: Yeah, frankly I think it - -

13 THE COURT: - - get it done within five?

14 MR. BASKERVILLE: I think it could be less than that,

15 but yeah.

16 THE COURT: Okay. How about from the defense side, is

17 five days realistic?

18 MR. STICH: That’s fine.

19 THE COURT: Okay.

20 FEMALE VOICE: February 4th?

21 THE COURT: How do you like February 4th?

22 MR. BASKERVILLE: That works for me, Your Honor.

23 MR. STICH: We’re, we’re wide open.

24 THE COURT: All right, so let’s set it, we’ll continue

25 the trial to begin, well, wait a minute.

 36

1 MR. BASKERVILLE: Your Honor?

2 THE COURT: Yes, sir?

3 MR. BASKERVILLE: I hate to do this, I just noticed I

4 have a trial the week before that, a five day trial, and back to

5 back seems like a lot. Is there any, maybe - -

6 THE COURT: - - aww, come on - -

7 MR. BASKERVILLE: - - maybe - -

8 MR. STICH: - - well, we have no problem setting it

9 later than February 4th.

10 THE COURT: That’s when the fun begins - -

11 MR. BASKERVILLE: - - yeah, well - -

12 THE COURT: - - you get about 10 minutes into the

13 opening and you realize, oh, that was last week.

14 MR. BASKERVILLE: But, so maybe like the second or third

15 week in February?

16 FEMALE VOICE: The 30th we can’t do, ‘cause that’s when

17 we start on a Tuesday, the 11th?

18 MR. BASKERVILLE: That, that would be fine with me.

19 THE COURT: The 11th? How does that look?

20 MR. STICH: Perfect.

21 THE COURT: All right. So, we’ll continue the case until

22 Monday, February 11th, 2019. We start at 8:30 on Monday and

23 obviously we’ll get to the details of how we do trials later.

24 But, start at 8:30.

25 MR. STICH: Should we set a pretrial conference also,

 37

1 or?

2 THE COURT: Well, it probably wouldn’t be a bad idea. I

3 will tell you that we don’t do them as, as a matter of routine.

4 Here’s, here’s what we do, and you tell me whether you think this

5 fits your case. I don’t know enough about your case to say, but

6 what we normally do is, 30 days out you get a call from Audrey

7 and she basically says, is the case still going to trial and do

8 you want a pretrial conference? And, if the answer is yes, in our

9 experience it has been that if you have a pretrial conference 30

10 days out, Counsel typically come in and there’s a lot of, I don’t

11 know, I haven’t decided that, we’re not sure of that, blah, blah,

12 blah, so, and which is understandable, people don’t tend to focus

13 on things quite that far out. If it’s less than two weeks, then

14 it’s too late in the process, because you don’t have time to

15 adjust and, you know if I’ve made a ruling on a motion in limine,

16 or something else, it’s more difficult to adjust. So, we, we try

17 to call 30 days ahead of time and then set something within the

18 third or fourth week out from trial. That’s kind of the MO,

19 right?

20 FEMALE VOICE: (inaudible).

21 THE COURT: Yeah.

22 MR. STICH: That makes perfect sense to us.

23 THE COURT: Yeah, and, and what Miranda was pointing out

24 is that, and this is something that’s really odd to me that I

25 hadn’t really realized before as a judge, it’s easier to set

 38

1 things in the short-term than it is the long-term.

2 MR. STICH: Sure.

3 THE COURT: Because, I look at, I look at the schedule

4 in February and, you know, we’re, some weeks we’re four deep with

5 trials. Well, if one of those trials goes, we, we could only do a

6 pretrial conference at a noon hour or something. But, I guarantee

7 you, as we get closer, most of those cases will go away and we’ll

8 have a lot more flexibility - -

9 MR. STICH: - - sure - -

10 THE COURT: - - and, and so, when we call you 30 days

11 out we typically have a lot of flexibility and can set it, you

12 know, on a schedule that makes sense. So - -

13 MR. STICH: - - so, we’re set for February 11th. What

14 time do trials start, 8:30, 9:00?

15 THE COURT: 8:30 on - -

16 MR. STICH: - - and jury trials?

17 THE COURT: We start Monday at 8:30, yeah, jury trial.

18 Right, there’s a jury demand from both sides?

19 MR. BASKERVILLE: Yes, I think so.

20 THE COURT: We, we had it as a jury trial in October,

21 so.

22 MR. STICH: The Plaintiff’s amended complaint has a jury

23 demand.

24 THE COURT: Okay. All right - -

25 MR. STICH: - - I guess, with respect, I’ve got to - -

 39

1 THE COURT: - - now, with respect to the second aspect

2 of the motion which is the stay of proceedings, I’m not going to

3 grant a stay. And, the reasons are that, and this is difficult, I

4 understand it, I’m not pretending that it’s easy and everybody

5 should just, you know, have an obvious approach to the case. I

6 realize that, you know, all of the Defendants in this case are

7 under indictment and that there are at least other people with

8 information that is relevant to the case who are also under

9 indictment, or may be under indictment at some point. And, that

10 presents some real challenges. But, I’m satisfied that, in terms

11 of the discovery against the entities, and discovery involving

12 third parties and parties not indicted at this point, there is at

13 least a prospect of making some headway that will position the

14 parties well so that, come hopefully the end of the criminal

15 process in, say mid-November, they’re ready to hit the deck

16 running with as much paper as, as they will have had by that time

17 and move forward. Mr. Baskerville has indicated he has a number

18 of, what I’m going to characterize as third party witnesses that

19 could be deposed, might be able to get some documents from other

20 parties that can, that are not afraid to cooperate with civil

21 discovery, even in, even, you know, with a parallel criminal

22 proceeding going on. I will say that, as far as I’m concerned,

23 HGCO, Harmony and Green, LLC, and SMP Properties, LLC all have an

24 obligation to make discovery in this case. And, to the extent

25 that, to the extent that they aren’t doing that because people
 40

1 are refusing on an individual basis, I think the defense Counsel

2 needs to work through that and figure out a way to respond on the

3 part of the entities that doesn’t put any individuals in, in

4 jeopardy under the 5th Amendment. I don’t know what that means in

5 this particular case and exactly how to do that, but I think it’s

6 an obligation of Counsel to do that because you are defending,

7 you know, three entities. All right, that, that’s the order on

8 that motion.

9 MR. STICH: Judge, if I could follow-up with just two

10 quick issues - -

11 THE COURT: - - you may - -

12 MR. STICH: - - and I think the first one’ll be easy.

13 Would you like us to amend the case management order? I think in

14 your case management order we are very specific, like with dates,

15 like disclosures are done on this date - -

16 THE COURT: - - yeah, probably - -

17 MR. STICH: - - and just, I mean, we can work with Mr.

18 Baskerville to try and get some - -

19 THE COURT: - - in fact, why don’t we ask Mr.

20 Baskerville to take the lead on that, just to plug in new dates

21 on the case management order and file an amended one?

22 MR. BASKERVILLE: Yes, Your Honor.

23 THE COURT: Can you do that within a week?

24 MR. BASKERVILLE: Sure.

25 THE COURT: Okay. So, today’s the 4th, I’ll give you
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1 until the 11th to do that. Mr. Stich?

2 MR. STICH: All right, and then, then the second issue,

3 this goes to discovery, since the Plaintiff has objected to

4 staying the entire case and the Court has agreed to not stay the

5 entire case, and we have your ear right now, I would like to get

6 the Plaintiffs’ depositions scheduled now. And, the reason being

7 is that the Plaintiffs are not in this country. I’ve asked Mr.

8 Baskerville, I said we don’t want to set them now, because I

9 wanted to wait for this hearing, but if we lose this hearing, or

10 if it’s not stayed, I’m going to want to set them. And, Mr.

11 Baskerville’s suggestion was to take their depositions the week

12 of Scott Pack’s trial because they’ll be here.

13 THE COURT: Okay.

14 MR. STICH: We don’t, Mr. Pack has the right to be at

15 that deposition, we would, we, Mr. Pack can’t be, as you’ve said

16 a couple of times in this case, in two places at once. We would

17 like to take that deposition before the criminal, or those

18 depositions, there’s two Plaintiffs, before the criminal trial.

19 THE COURT: Well, that may or may not be possible. But,

20 they, they live elsewhere, right?

21 MR. BASKERVILLE: They, they both live out of the

22 country.

23 THE COURT: Right.

24 MR. BASKERVILLE: I can tell the Court that - -

25 THE COURT: - - they’re planning to be here for the

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1 criminal case?

2 MR. BASKERVILLE: Christophe is not going to be here,

3 only Pierre will be here to testify in the criminal case. And,

4 you know, we’ll make him available. I don’t know if he’s made his

5 travel plans yet. I can tell you one thing, that, as I said, I

6 have spoken to the prosecutors twice, neither had anything to do

7 with this case, but I suspect if Scott Pack’s lawyers want to

8 depose a witness in a criminal trial the week before the criminal

9 trial, I suspect that we’re going to hear about that, and, and

10 have some problems with that.

11 THE COURT: In the criminal case?

12 MR. BASKERVILLE: Absolutely, because - -

13 THE COURT: - - okay - -

14 MR. BASKERVILLE: - - I mean, Your Honor, how am I, you

15 can imagine that every criminal defense attorney would love to

16 depose their witness a week before the witness hits the stand?

17 THE COURT: I hear ya, I hear ya - -

18 MR. BASKERVILLE: - - so, you know - -

19 THE COURT: - - it’s not really your fight, though.

20 MR. BASKERVILLE: It’s not my fight, but - -

21 THE COURT: - - I understand - -

22 MR. BASKERVILLE: - - I can assure Your Honor that we’re

23 going to have some motion practice if that’s what they try to do.

24 THE COURT: Right. Here’s what I will say, obviously the

25 discovery needs to be a two way street. So, to the extent that

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1 they wish to set your clients’ depositions and the most

2 reasonable, economical way to do that is while he’s here around

3 the trial time, I, I think that makes sense. Now, you know, I, I

4 think it just has to, you know, kind of come down to what makes

5 the most sense. And, in terms of the timing and so forth,

6 certainly Mr. Pack, if he insists on physically being present

7 during the deposition and he does have the right, I’m not, I’m

8 not suggesting that he doesn’t, but if he’s going to insist on

9 that, then it has to be at a time when the trial is not going on.

10 So, the, you know, Mr. Raygot, one or the other, or both, to the

11 extent they’re here, need to be available at times that aren’t

12 necessarily taken up with the trial, perhaps the week before or

13 week after. I’m not going to order at this point that it be done

14 at any particular time, but it does seem to me that’s the most

15 logical. Why don’t the two of you try to work out a schedule that

16 makes sense? I realize that, I realize that, you know, that there

17 probably will be some communication between defense Counsel and

18 prosecutor which I assume, pardon me, between this defense

19 Counsel and Mr. Saenz’s criminal Counsel which the prosecutor may

20 wish to point out at some point. But, you know, that’s just one

21 of those sort of byproducts of the fact that you have two

22 parallel proceedings that I can’t help very much. So, I think you

23 need to see when your clients are available, what their travel

24 plans are and plan around it as best you can. And obviously

25 they’ve chosen the jurisdiction, so, you know, they, they filed
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1 their lawsuit in Colorado, so at some point they need to make

2 themselves available in Colorado.

3 MR. BASKERVILLE: No, I, I appreciate that, Your Honor.

4 And, I was the one who suggested that we take Pierre’s deposition

5 when he’s in town - -

6 THE COURT: - - yeah - -

7 MR. BASKERVILLE: - - rather than force him to take two

8 trips. In fact, I put that in my pleading, I think. I’m just

9 suggesting that, I don’t know what his travel plans are yet, so

10 I’ll have to talk to him about that. But, I think it probably

11 makes more sense and would be a lot less problematic for the, in

12 the prosecutor’s eyes if we did it after the trial rather than

13 before.

14 THE COURT: Right.

15 MR. BASKERVILLE: Frankly, I don’t really care one way

16 or the other.

17 THE COURT: Okay. Well, it sounds to me like that’s an

18 issue that can be worked through.

19 MR. STICH: Okay. And, I want to be clear, too, we want

20 to take both of their depositions.

21 THE COURT: Probably I keep my next comment to myself,

22 so I won’t make it. Go ahead.

23 MR. STICH: Well, I just want to be clear, we want to

24 take both of their depositions, the two Plaintiffs in the case.

25 THE COURT: Yeah, I know.

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1 MR. STICH: But, I’ll work with Mr. Baskerville. If I’m

2 understanding what the Court’s saying, if I set the depo for next

3 week I’m not going to get it, I’ve got to work with him - -

4 THE COURT: - - well, yeah, you’ve got to work with him.

5 MR. STICH: We’ll try out hardest to find a time. We

6 both understand probably when I want it and when he wants it, and

7 all that.

8 THE COURT: Right, but work it out and if you’ve got a

9 problem, that sort of thing, call Miranda and we’ll set up a,

10 we’ll set up a short hearing on it if necessary. But, I’m going

11 to expect that you cooperate and that you not simply be focused

12 on, you know, the advantage to your client in some proceeding

13 other than this one, okay?

14 MR. STICH: Okay.

15 THE COURT: All right. Now, there are two pending

16 motions to dismiss that I will tell you I reviewed in greater

17 detail at one point. I’ve tried to become familiar with them

18 again over the last two days, in the time that I’ve had to give

19 them, and I am satisfied that, as to what I’m going to do with

20 respect to both of them. So, I’m just going to make oral rulings

21 on these. The first is, HGCO, LLC’s and Harmony and Green LLC’s

22 motion to dismiss filed November 28th has been fully briefed. I’m

23 going to deny that motion. The standard, as you all know is,

24 under the (inaudible) case is that the pleading make a plausible

25 case on its face. This, the allegations are that the, pardon me,
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1 the, the basis of the motion is that the allegations lack

2 sufficient particularity under Rule 9(b). I reject that

3 characterization now that I think that they are as detailed as

4 allegations of this nature can be without discovery. That, in my

5 judgment, is the purpose of discovery, is to test the adequacy of

6 the allegations. And, I think they’re made with sufficient

7 particularity. With respect to the other grounds, very frankly I

8 think all of the other grounds stated are simply things that need

9 to be explored through discovery in terms of whether or not

10 they’re plausible claims, and I presume some of them may be set

11 up in summary judgment motions once some discovery has occurred,

12 obviously, another reason for pursuing discovery fairly

13 aggressively. And so, that motion will be denied. The second is a

14 motion to dismiss filed by Mr. Pack and SMP Properties. I find

15 that this motion is a much closer question and yet I’m still

16 going to deny this motion as well. I find that, with respect to

17 the plausibility standard, there are allegations that Mr. Pack,

18 that being Michael Pack, made various properties available that

19 he was aware of, the allegations of fraudulent conduct and

20 misrepresentations that he participate in those and that he

21 benefited from them, and I think that, without going into great

22 detail about the specifics of each claim that is asserted against

23 him, I believe they’ve been adequately pled and they are, the

24 claims are plausible on their face. Again, whether or not they

25 survive a summary, a summary judgment motion down the line is an

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1 entirely separate issue and obviously is the purpose for

2 discovery. But, for the time being I’m going to deny both of

3 those motions. And, I think that takes care of any pending

4 motions at this point. Is that right?

5 MR. BASKERVILLE: Yes, Your Honor.

6 THE COURT: Are there any others?

7 MR. BASKERVILLE: Not that I know of.

8 THE COURT: All right. All right, very good. We’ll look

9 to see, look for that updated case management order in one week.

10 Good luck and again, give us a call if you have discovery issues

11 and we’ll deal with them as quickly as possible, okay?

12 MR. STICH: Thank you.

13 MR. BASKERVILLE: Thank you very much, Your Honor.

14 THE COURT: Thanks.

15 MR. BASKERVILLE: Thank you for your attention.

16 THE COURT: Good to see you Mr. Kaplan.

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1 CERTIFICATE

3 I, Joyce Burgess, certify that the foregoing is a

4 correct transcript from the electronic sound recording of the

5 proceedings in the above-entitled matter.

7 Signed this 8th day of May, 2018, in Castle Rock,

8 Colorado.

10

11 Joyce K. Burgess

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