plaintiff s opposition to eapd s motion to strike plaintiff s first amended disclosures of document...

8/6/2019 Plaintiff s Opposition to EAPD s Motion to Strike Plaintiff s First Amended Disclosures of Document Opps

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1 OPP2 Bill Frizzell (Texas Bar No. 07484500)

Frizzell Law Firm3 305 South Broadway, Suite 404

Tyler, Texas 757024 Tel: 903-595-19215 Fax: 903-595-4383Appearing Pro Hac Vice

David R. Koch (Nevada Bar No. 8830)7 Steven B. Scow (Nevada Bar No. 9906)8 KOCH & SCOW, LLC

11500 S. Eastern Ave., Suite 2109 Henderson, Nevada 8905210 Tel: 702-318-5040

Fax: 702-318-503911 Attorneys for Plaintiff12131415 CMKM DIAMONDS, INC.,

Electronically Filed05/11 /2011 04:21 :48 PM

CLERK OF THE COURT

DISTRICT COURTCLARK COUNTY, NEVADA

16171819 URBAN CASAVANT; THE UAlC 2005IRREVOCABLE TRUST; MIKE20 WILLIAMS; DESHA WN L. WAYNE;

BRIAN DVORAK; lAMES KINNEY;21 GINGER GUIERREZ; P.A. HOLDINGS,22 INC.; BUCKO LLC; DONALD ROGERGLENN; EDWARDS ANGELL PALMER23 AND DODGE LLP; RENDAL24 WILLIAMS; CIERRA WILLIAMS;MONTE VERDE INTERNATIONAL25 HOLDINGS LLC; PATRICIA E.

DECOSTA; DOES 5-20; and ROES 3-20,26

Plaintiff,vs.

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Defendants.

CASE NO: A540161DEPT NO: XIPLAINTIFF'S OPPOSITION TOEAPD'S MOTION TO STRIKEPLAINTIFF'S FIRST AMENDEDDISCLOSURES OF DOCUMENTSAND WITNESSES

Hearing Date:Hearing Time: May 31, 20119:00 a.m.

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12 PlaintiffCMKM Diamonds, Inc. ("CMKM") opposes the EAPD Defendants'3 Motion to Strike Plaintiff s First Amended Disclosures of Documents and Witnesses with4 the following memorandum of points and authorities.5 MEMORANDUM OF POINTS AND AUTHORITIES67 I. Introduction8 Plaintiff CMKM served its First Amended Disclosure of Documents and Witnesses9 at the end of the discovery period, adding two individuals as testifying witnesses, both of

10 whom are well known to the EAPD Defendants. As described herein, certain events11 occurred near the end of the discovery period necessitating the addition of these witnesses.1213 Notwithstanding their inclusion, CMKM has agreed to withdraw one of the witnesses. The14 other witness is CMKM's corporate representative, whose role at the company has recently15 changed. EAPD has been aware of this witness and his role at the company for several16

months. CMKM asks the Court to deny the motion to strike, as the addition of the final1718 witness was neither a surprise nor does it prejudice the EAPD Defendants.192021222324

A.II. Factual Background

Certain Individuals within CMKMWere Assisted by Roger Glenn andOthers in Defrauding CMKM and Hence Causing Damage to CMKMand Its Investors

Numerous individuals, including many of the named Co-Defendants in this case,25 engaged in actions that have brought indictments from a federal court grand jury as well as26 legal action by the SEC. A review of the acts set out in the indictment and the SEC's2728 allegations against the liable parties reveals that attorney Brian Dvorak illegally issued

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1 opinion letters authorizing the issuance of billions of shares of free trading CMKM stock.2 In mid June of 2004, the Defendant Roger Glenn was hired by CMKM to bring the3 company back to reporting status. Mr. Glenn was hired at a time when the transfer agent45 refused to accept the opinion letters of Mr. Dvorak and requested that Mr. Glenn validate6 Dvorak's opinion letters. Mr. Glenn accommodated the transfer agent and authored7 opinion letters validating and referencing Mr. Dvorak's opinion letters thus directly8 causing the issuance of billions of shares of CMKM stock as free trading securities. This910 free trading stock was issued directly to the insiders perpetrating the fraud against CMKM.11 In both the SEC actions and the federal grand jury indictment, these illegal opinion letters12 validated by Roger Glenn were cited as significant events resulting in the criminal actions13 and enforcement proceedings.1415 B. Procedural History16 In March of 2007, CMKM's new management began a long course of cooperation17 with the Department of Justice, the FBI, the SEC and the IRS to assist in making the18 responsible persons accountable. Contrary to the assertions ofEAPD, this lawsuit has1920 never lay dormant. When new management took over, those that defrauded the company21 ceased cooperation. Few records were left with new management from the departing22 CEO, and gathering company records from insiders and former accountants and attorneys,23 including Roger Glenn, proved an almost impossible task due to ongoing criminal2425 investigations and SEC enforcement activity. Eventually through litigation, CMKM's new26 management was able to obtain bank records, stock trading records, stock issuance2728

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1 records, and numerous depositions taken by the SEC. These records provided the2 information that gave rise to the claims asserted against Glenn and EAPD.34 III. ARGUMENT5678910 with Mr. Cook in relation to a St. George Metals, Inc. transaction. At page 210 of this

A. CMKM Agrees to Withdraw Sherwood Cook as a Testifying WitnessThe addition of Sherwood Cook as a witness became necessary when Roger Glenn

testified at his own deposition on April 12, 2011, that he was unsure of his correspondence

11 deposition Mr. Glenn stated, "I am pretty sure that I did the initial draft and sent them to a12 lawyer named Sherwood Cooke who sent back, apparently, threw mine in the garbage can13 and sent back something that was completely unacceptable." In the discovery of this case,1415 CMKM has never received from Mr. Glenn's attorneys any such records purportedly from16 Sherwood Cook as referenced in Mr. Glenn's testimony. But in order to avoid any17 unnecessary delay as complained of by EAPD, CMKM agrees to remove Mr. Cook as a18 testifying witness. CMKM agrees to such removal without waiving any right it may have1920 to seek documentation purportedly sent to Mr. Glenn (then counsel to CMKM) from the21 appropriate custodian of records at Mr. Cook's office or wherever such records might be22 found.23 B. Justice Requires that Plaintiff Be Permitted to Include Jim Lowden as a242526

Testifying WitnessJim Lowden has been the CFO of CMKM since July of 2009. Attorneys for Roger

27 Glenn have discussed matters with Jim Lowden directly since his hiring in July of 2009.28

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1 Jim Lowden attended the deposition of Roger Glenn as the company representative on2 April 12, 2011 that occurred in New York, New York. EAPD does not (and cannot) claim3 surprise at the addition of Mr. Lowden.45 Mr. Lowden has been the primary officer of CMKM since Kevin West announced6 his resignation in January of 20 11. While Mr. West remains a witness and valuable7 consultant to the company, he does not maintain day-to-day possession and control over8 the large volume of business records possessed by company. Many of these records will910 be introduced as evidence in the trial of this case. Mr. Lowden will be the official11 corporate representative and custodian of records with day-to-day control over all12 company records.13 Mr. Lowden is also a potential witness in the area of damages suffered by CMKM1415 as the damages caused by Defendants continue to be incurred on a daily basis. Daily16 problems continue to arise over the issuance and cancellation of shares that are related to17 CMKM's damage calculations, and CMKM continues to incur attorney fees in all matters18 being pursued by the company. Mr. Lowden's addition as a witness does not prejudice the1920 Defendant. Mr. Lowden is available for deposition at any reasonable time and place and21 Defendant's were told of such availability. Mr. Lowden's testimony would not be22 necessary but for the resignation ofMr. West and the ongoing damage matters of which23 Mr. West is not attending to since his resignation.242526 remarks by EAPD counsel regarding CMKM's damage expert Lou Straney. CMKM

Plaintiff takes strong exception and hereby enters this response to the unfounded

27 designaged Lou Straney, a well recognized author and expert in the field of damages in28

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1 securities fraud matters, as one of its experts. Mr. Straney submitted a well-documented2 report supporting his opinions on damages incurred by CMKM. Mr. Straney was recently345 EAPD remarks "CMKM may be unhappy about that deposition, but that does not entitle

deposed by EAPD' s attorneys. In the concluding paragraph of this Motion to Strike,

6 them to conjure up a new damages witness the night discovery closes." To the contrary,7 Mr. Straney was extremely effective and he supported every conclusion he made in this8910 deposition. The decision to add Mr. Lowden had had nothing to do with the testimony by

case. His qualifications to make such opinions were never questioned during the

11 Lou Straney.12131415 Mr. Lowden both as the Custodian of Records of CMKM and as the corporate

IV. CONCLUSIONFor all of the foregoing reasons, Plaintiff requests that CMKM be allowed to call

16 representative to testify as to damage matters within his knowledge.171819202122232425262728

Dated: May 10, 2011 FRIZZELL LAW FIRM

By: lsi Bill FrizzellBill FrizzellAttorney for Plaintiff CMKM Diamonds,Inc.

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1

Las Vegas, NV 89169

CERTIFICATE OF SERVICE

2 Pursuant to NRCP 5(b), I certify that on ay 11, 2011, I caused the following3 documents entitled: PLAINTIFF'S OPPOSITION TO EAPD'S MOTION TOSTRIKE PLAINTIFF'S FIRST AMENDED DISCLOSURES OF DOCUMENTS4 AND WITNESSES to be served as follows:56789101112131415 I declare under penalty of perjury under the laws of the State of Nevada that the above is

true and correct. Executed on May 11, 2011 at Henderson, Nevada.

[ X] by placing same to be deposited for mailing in the United StatesMail, in a sealed envelope upon which first class postage wasprepaid in Henderson, Nevada; andlor[ ] Pursuant to EDCR 7.26, to be sent via facsimile; andlor[ ] hand-delivered to the attorney(s) listed below at the addressindicated below:[ ] to be delivered overnight via an overnight delivery service in lieu ofdelivery by mail to the addressee (s).

James R. CondoPatricia Lee RefoAndrew StoneSnell & Wilmer LLP400 E. Van BurenPhoenix, AZ 85004-2202

Alex L. FugazziSnell &Wilmer LLP3883 Howard Hughes Pkwy Suite1100

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l s i Marti ReichMarti Reich

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