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Enron Mail |
Wilson, Christine, and Robin, could you please coordinate with David L's
group the gathering of the items needs by our outside counsel? As you can see, the burden of proof is on us, and without your help we will not prevail at Monday's hearing. You can see Dave Ditto's phone number and address in his earlier email. Kenton ---------------------- Forwarded by Kenton Erwin/Enron Communications on 02/23/2000 09:23 AM --------------------------- dditto@hollandhart.com on 02/23/2000 08:58:09 AM To: Brad Cheney/Enron Communications@Enron Communications, David Leatherwood/Enron Communications@Enron Communications, Kenton Erwin/Enron Communications@Enron Communications cc: sblack@hollandhart.com Subject: Enron / Broadwing Confidential / Atty/Client Communication Confidentiality Notice: This message is confidential and may be privileged. If you believe that this e-mail has been sent to you in error, please reply to the sender that you might have received the message in error. Then please delete this e-mail. Thank you. Gentlemen, I am not sure who else should be included with this e-mail, but I wanted to summarize some thoughts and request additional documents and information. We will have a tough burden at the hearing on Monday at 2:00, simply because at each of the cuts they had several witnesses present while Enron had none, or perhaps one or two. After talking with Don Beamis it sounds like for the most part we photographed and investigated the cuts after the fact. Even though they may be completely at fault, proving it will be another thing. We can assume it will be a swearing match between witnesses. I hope to meet with Don Beamis Tomorrow or Friday to discuss cut reports, photographs, etc. To prevail, I think we will need to show the following: That Enron owned an easement at the site of each cut, that Enron placed its cable within that easement, that Enron or the locators properly marked the location of the cable, that Enron or the locator complied with the Wyoming statutory requirements to respond One Call and mark the easement, and that the markings complied with the statute, or recognized standards in the industry. If we can prove the above, we should be able to show that it was Broadwing's fault from there. In light of the above, I think I need the following from Enron or other sources: Right-of-Way Grants or Easement Agreements for locations of the cuts; Plats / surveys / legal descriptions / filed with One Call or county for the area of each cut; Photographs and Cut Reports for each Cut (I have most cut reports and some photographs); Correspondence by Katie Nelson (?) referenced by Broadwing authrizing it to proceed without marking; All correspondence with Broadwing; Call One records documenting the day and time of all calls from Broadwing; Map of Wyoming for demonstrative purposes to show location of the cuts to the judge; It would be nice, for demonstrative purposes, to have a one foot piece of fiber optic cable; I don't know that we will use each of the above, but I should review it and then make the decision. Whoever has some or all of the above please overnight it to me. As far as witnesses, we will need Don Beamis and others who investigated the cuts, one or more locate people to testify as to how the markings were placed and the accuracy of the markings, Brad Cheney as to irreperable harm to Enron which cannot be compensated for with damages, others? You should each think about your conversations with Broadwing to recall any admissions - I see in one of Brad's e-mails that the Mears contractor acknowledged responsibility for one of the cuts. Don Beamis can testify that Bud Black acknowledged at a meeting with the Uinta County Commissioners that the "markings on Enron's line" had not been a problem. I don't know if Bud was in the field and that acknowedgment may not get us far. The one by Mears may help. Who could testify to what the standard for marking in the industry is? the locate people, or Brad? Finally, opposing counsel has insisted that he be given equal time at the hearing, which may be limited to three hours. So we will be trying to fit a lot of evidence in a very short time period. After you have read this please give me your thoughts, and/or pass this on to others who may have additional facts or information that would be helpful. Thanks. David G. Ditto Holland & Hart 2515 Warren Ave. Suite 450 Cheyenne, WY 82001 Tel: (307) 778-4255 fax: (307) 778-8175 e-mail: dditto@hollandhart.com
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