Martensen v. Koch
| Decision Date | 29 July 2014 |
| Docket Number | Civil Action No. 13-cv-02411-REB-CBS |
| Parties | KIRBY MARTENSEN, Plaintiff, v. WILLIAM KOCH, DOES 6-25, Defendants. |
| Court | U.S. District Court — District of Colorado |
AND AMENDED MOTION FOR LEAVE TO EXTEND TIME LIMIT
This matter comes before the court on Plaintiff Kirby Martensen's Motion to Compel Defendant William Koch's Deposition Testimony (doc. #76), filed on January 30, 2014, and Plaintiff's companion Amended Motion for Leave to Extend the Time Limit for Defendant Koch's Deposition (doc. #82), filed on February 6, 2014. Also before the court is Plaintiff's Motion to Compel Production of Documents (doc. #108), filed on March 31, 2014, and Plaintiff's Motion to Compel Non-Party Deposition Testimony and Production of Documents (doc. #123), filed on April 18, 2014. These motions were referred to this Magistrate Judge pursuant to memoranda dated January 30, 2014 (doc. #77), February 7, 2014 (doc. #83), April 1, 2014 (doc. #109), and April 21, 2014 (doc. #125), respectively. This court has carefully considered the motions and related briefing, the entire case file, the comments offered by the parties during the October 23, 2013 Scheduling Conference and various motion hearings, discovery conferences, and status conferences, as well asapplicable case law. For the following reasons, the Motion to Compel Deposition Testimony and Motion to Compel Documents are granted in part and denied in part; the Amended Motion for Extension is granted; and the Motion to Compel Non-Party Deposition Testimony and Production of Documents is denied.
The sole remaining claim in Plaintiff's Revised Fourth Amended Complaint (doc. #111) is for false imprisonment.1 Mr. Martensen's allegations and version of the salient facts are set forth in detail in this court's June 12, 2014 Recommendation (doc. #151) and are condensed here for efficiency and ease of the reader.2 Defendant Koch is the founder, chairman, and majority owner of several companies including Oxbow Carbon, LLC ("Oxbow Carbon"), Oxbow Carbon & Minerals, LLC ("OCM"), and Oxbow Carbon & Minerals International, GmbH ("OCM International") (collectively "Oxbow"). In 2008, Plaintiff considered leaving his position with Oxbow to create a competing business venture, but ultimately abandoned the plan. In 2010, Oxbow underwent a structural reorganization that Plaintiff believed was part of a scheme to evade paying taxes to the United States on annual profits in excess of $100,000,000. See doc. #111, at ¶¶ 12-15. In late 2011, Mr. Martensen was promoted to the position of Senior Vice President-Asia with OCM International, which required him to relocate to Singapore; Plaintiff understood that this assignment was related to Oxbow's restructuring.
Defendant Koch received an anonymous letter in early 2011 that implicated Mr. Martensen and another employee in theft, breaches of fiduciary duty, fraud, and self-dealing against Oxbow. Based on this letter, Mr. Koch engaged the consulting firm Grant Thornton to conduct a comprehensive forensic review of thousands of documents, including letters, memoranda, and electronic corporate communications involving Plaintiff and several other employees. Mr. Martensen contends that through this review, Mr. Koch learned that Plaintiff and others had expressed concern over the legality of the company's tax strategy following the reorganization, and distrusted Oxbow upper management. Plaintiff further alleges that as a result of this forensic review, he was falsely imprisoned at Bear Ranch by Mr. Koch with the intention to intimidate him and chill his speech. Id. at ¶¶ 21-22.
Bear Ranch is located in a remote corner of Gunnison County, Colorado, approximately seventy miles from Aspen, Colorado, and is accessible only by a guarded, private road owned and maintained by Defendant. On the morning of March 21, 2012, Mr. Martensen flew from San Francisco to Aspen where Defendant Koch met and drove him, along with others, to Bear Ranch. Upon arriving, the guests learned that cellular service and internet access were not available at the Ranch. After lunch on March 22, 2012, Mr. Koch informed Plaintiff and others that a compensation specialist would conduct interviews as part of a "360 degree peer review." Thereafter, Defendant's agents interviewed Mr. Martensen in an office building for several hours, during which they accused Plaintiff of endeavoring to defraud Defendant and Oxbow, accepting bribes, and aiding Oxbow's competitors. Mr. Martensen learned that Mr. Koch knew of his aborted plan to leave Oxbow and form a competitor company, and that Defendant believed Plaintiff had colluded with a competitor. Id. at ¶¶ 27-31.
After the interview concluded at approximately 5:00 p.m., Defendant's agents escorted Mr. Martensen to his cabin so that he could pack his belongings. On the way, Plaintiff was served with termination papers and a lawsuit, Oxbow Carbon, LLC et al. v. Martensen et al., Case No. 502012CA005386 (hereinafter "the Florida Action"), which had been filed in Circuit Court, Palm Beach County, Florida that same morning. Mr. Koch's agents searched Plaintiff's belongings while he packed, and then drove him to a cabin elsewhere on the Ranch where he was told to wait. Mr. Martensen was told, "A sheriff is here to make sure you don't wander off," and Plaintiff could see a uniformed police officer in a parked patrol car from the cabin room in which he waited. Plaintiff spent three hours in the cabin before Defendant's agents escorted him to a vehicle. Mr. Martensen was instructed to sit in the back of the vehicle along with a former co-worker, Wenming "Charlie" Zhan. Plaintiff asked the driver to take him to the airport in Aspen where he was scheduled to board a flight the following morning. The driver refused and drove Plaintiff and Zhan to a private airport outside of Denver. The drive from Bear Ranch lasted five hours, and the vehicle arrived at the airport at approximately 2:00 a.m. on the morning of March 23. Martensen and Zhan were told to board a private plane that was owned by Defendant and Oxbow. A pilot, co-pilot, and escort were waiting on the plane for Plaintiff and Zhan. The escort was a retired Florida police officer whom Mr. Martensen believed was armed with a weapon. The private plane arrived at an airport in Oakland, California at approximately 4:00 a.m. on the morning of March 23. One of the agents instructed Mr. Martensen to ride in a vehicle that would take him to a nearby hotel, but Plaintiff refused the directive and hailed a taxi to drive him to his home in Berkeley, California. Id. at ¶¶ 3235.
Based on the foregoing facts, Mr. Martensen is seeking economic damages, non-economicdamages for "fear, anxiety, humiliation and emotional distress," and exemplary damages for Defendant Koch's actions and/or omissions that "were willful, wanton, reckless, malicious, oppressive and/or done with a conscious or reckless disregard" for Plaintiff's rights. Defendant Koch has asserted various affirmative defenses in response to Mr. Martensen's claim of false imprisonment. More specifically, in his Answer to Plaintiff's First Amended Complaint3 (doc. #1-65), Mr. Koch asserted that Mr. Martensen comes to the court with unclean hands as a result of his "fraud, self-dealing, and participation in a fraudulent scheme against the Oxbow Companies"; that Plaintiff's false imprisonment claim is barred because Mr. Koch "did not directly or indirectly cause the alleged conduct" asserted as the basis for that claim; and that Plaintiff's alleged detention was "legally justified and/or privileged due in part to Martensen's theft, fraud, and other acts of misconduct against the Oxbow Companies."4 Finally, Mr. Koch asserts that Plaintiff is not entitled to punitive damages because he has not alleged "any conduct that would permit the imposition of such damages."5
Plaintiff's counsel deposed Defendant Koch for approximately seven and a half hours on December 12, 2013, during which Mr. Koch invoked the attorney-client privilege and refused toanswer certain questions regarding his knowledge of and participation in Oxbow's corporate restructuring, tax strategy, and the events at Bear Ranch during the weekend of March 21-22, 2012. On January 30, 2014, Mr. Martensen filed a Motion to Compel (doc. #76) further deposition testimony from Defendant Koch, and a related Motion to Extend the Time Limit (doc. #78) for Defendant Koch's deposition. On February 6, 2014, Mr. Martensen filed an amended Motion to Extend (doc. #82) the time to take Defendant Koch's deposition. Defendant filed his Response to Plaintiff's Motion to Compel (doc. #88) with an accompanying declaration (doc. #89) on February 20, 2014, and a Response to Plaintiff's Motion to Extend the Time Limit (doc. #90). On July 8, 2014, Defendant filed a supplemental brief regarding Plaintiff's Motion to Compel Deposition Testimony (doc. #160).
At the conclusion of a motion hearing on February 24, 2014, this court allowed Defendant Koch to supplement his Response to Plaintiff's Motion to Compel to further address the applicability of the crime-fraud exception, and concurrently stayed Plaintiff's time to file his reply brief (doc. #92). Defendant Koch filed a Supplemental Response on February 26, 2014 (doc. #93)6, and Plaintiff filed a Reply To Defendants' Opposition to Motion to Compel (doc. #98) on March 7, 2014. On March 31, 2014, Mr. Martensen filed a Motion to Compel (doc. #108), seeking an order that Defendant Koch produce documents and materials related to the March 21-22, 2012 events at Bear Ranch; evidence of damages resulting from Plaintiff's allegedly nefarious business practices; Oxbow's petroleum coke business in China; the Grant Thornton investigation; and the decision totransfer Plaintiff to Singapore. More specifically, Plaintiff seeks:
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