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DATE FILED: December 28, 2023 6:13 PM
DISTRICT COURT, CITY AND COUNTY OF FILING ID: A27320A4AA948
DENVER, COLORADO CASE NUMBER: 2022CV32353
Denver City and County Building
1437 Bannock Street
Denver, Colorado 80202
Plaintiffs and Counterclaim-Defendants: Aircomm of
Avon, L.L.C.; et al.
v.
Defendant and Counterclaim-Plaintiff: DISH Wireless
L.L.C.
v.
Counterclaim-Defendant: Crown Castle USA Inc. ▲ COURT USE ONLY ▲
Rachel G. Skaistis (admitted pro hac vice)
Case No.: 2022CV032353
Kevin J. Orsini (admitted pro hac vice)
Courtroom: 209
Damaris Hernández (admitted pro hac vice)
Michael P. Addis (admitted pro hac vice)
Zachary W. Jarrett (admitted pro hac vice)
CRAVATH, SWAINE & MOORE LLP
825 Eighth Avenue
New York, New York 10019-7475
Telephone: 212.474.1000
Facsimile: 212.474.3700
Email: rskaistis@cravath.com; korsini@cravath.com;
dhernandez@cravath.com; maddis@cravath.com;
zjarrett@cravath.com
Daniel A. Richards, #50457
DAVIS GRAHAM & STUBBS LLP
1550 17th Street, Suite 500
Denver, Colorado 80202
Telephone: 303.892.9400
Facsimile: 303.893.1379
Email: daniel.richards@dgslaw.com
Attorneys for Plaintiffs and Counterclaim-Defendants
JOINT STATEMENT OF DISCOVERY DISPUTE
Plaintiffs and Counterclaim-Defendants Aircomm of Avon, L.L.C., et al., Additional
Counterclaim-Defendant Crown Castle USA Inc. (together with Plaintiffs, “Crown”), and
Defendant and Counterclaim-Plaintiff DISH Wireless, L.L.C. (“DISH,” and together with Crown,
the “Parties”) submit this Joint Statement of Discovery Dispute in connection with the discovery
hearing scheduled on January 2, 2024.
Background. On July 17, 2023, the Court entered a Scheduling Order setting November 13, 2023,
as the date for disclosure of claiming party expert reports, and December 4, 2023, as the deadline
for defending party expert disclosures. On November 13, DISH disclosed reports by two
counterclaim damages experts and Crown disclosed the report of its damages expert. On
December 4, Crown and DISH each disclosed a single report responding to the other’s damages
experts. DISH further disclosed an additional report by Ryan Jackson (Exhibit 1), who DISH
proffered as an expert on the National Electrical Code and related industry standards. Crown
contends this report is untimely and should be stricken. DISH contends it is not untimely, but in
any event, should not be stricken.
Crown’s Position. The Court should strike Mr. Jackson’s report because it is an untimely claiming
party disclosure. Mr. Jackson is an expert on the National Electrical Code (“NEC”) who opines
on the meaning of various contractual clauses and phrases in the Parties’ Master Lease Agreement
(“MLA”). Mr. Jackson was retained by DISH to address “various issues” in this matter, “including
DISH’s counterclaim[s] against [Crown]”. (Jackson Rep. at 2.) Specifically, Counts One through
Four of DISH’s Counterclaims are premised on the disputed issue of whether certain space
surrounding DISH’s equipment required by the NEC (“NEC space”) must be contained within
DISH’s 5’ x 7’ lease area in order to avoid additional rent charges, and which provisions of the
MLA relate to that NEC space, precisely the subject of Mr. Jackson’s testimony. (Compare
Counterclaims ¶¶ 144, 146-47, 162, 167 with Jackson Rep. at 2, 5-8, 11-12.) It is beyond dispute
that Mr. Jackson’s opinions are intended as direct support for Count One. But to take another
example, Count Two claims that in the event Crown is correct and the NEC space must be
contained within the 5’ x 7’ feet lease area, Crown misrepresented and failed to disclose to DISH
that the NEC space was problematic. (Counterclaims ¶¶ 146-47.) Mr. Jackson’s opinion that
“[c]learly the subject of NEC working space was considered and discussed by Crown in the
preliminary design stage” (Jackson Rep. at 10) is only relevant if it is intended to support DISH’s
allegations under Count Two regarding what Crown supposedly knew and should have disclosed
prior executing the MLA.
Moreover, DISH has provided no substantial justification for the belated disclosure: its only stated
reason for withholding Mr. Jackson’s report is its claim that Mr. Jackson is a defending expert
because he opines on issues that are related to Crown’s claims (as well as to DISH’s claims). The
fact that Mr. Jackson’s opinions are also applicable to Crown’s claims is not a substantial
justification for the belated disclosure and should be rejected by the Court. Additionally, the
belated disclosure harms Crown and advantages DISH because it deprives Crown of a fair chance
to engage an expert to respond to opinions regarding its own liability. Accordingly, the Court
should strike Mr. Jackson’s report pursuant to C.R.C.P. 37(c)(1). See St. Jude’s Co. v. Roaring
Fork Club, L.L.C., 351 P.3d 442, 455 (Colo. 2015).
-1-
If the Court chooses not to strike Mr. Jackson’s report, Crown requests, in the alternative, leave to
engage rebuttal experts. Doing so will allow Crown to attempt to remedy the prejudice caused by
Mr. Jackson’s late disclosure. Promptly after receiving Mr. Jackson’s report, Crown told DISH it
would forego objection to the late disclosure if DISH agreed to allow Crown a rebuttal report.
Dish took the position that it would only permit Crown to respond to Mr. Jackson if it was
permitted a second response to Mr. Kruskol, a position that was not acceptable to Crown for
multiple reasons. Although Crown believes it would be necessary to engage multiple experts to
properly rebut the NEC and non-NEC subject matter in Mr. Jackson’s report, Crown is mindful
that engaging numerous additional experts necessarily would entail further extending the deadlines
for expert discovery and motions to exclude under C.R.E. 702 beyond the extension requested in
the Parties’ joint motion filed on December 26, thereby jeopardizing the broader case schedule.
Crown therefore moves for exclusion now of the non-NEC portions of Mr. Jackson’s report
(discussed further below).
Mr. Jackson acknowledges that his “area of expertise is the NEC”. (Jackson Rep. at 11.) He has
no expertise in the telecommunications industry or in contract drafting. However, he attempts to
interpret contract language unrelated to the NEC. Section IV.B of Mr. Jackson’s report purports
to opine on the meaning of Section 7 of the MLA, based on what he claims are similarities between
the language of that Section and the NEC. Moreover, in Sections V, VI and VII of his report, Mr.
Jackson interprets contract terms by searching dozens of professional codes unrelated to the subject
matter of this case and synthesizing a definition for each term based on the results. He offers an
opinion on those terms despite the fact that, by his own admission, none of them appears in the
NEC and he has either never heard of the relevant terms or has only heard them used in “slang
discourse”. Mr. Jackson is not qualified to offer an opinion on the interpretation of language in a
telecommunications contract, and his method of comparing the similarities between terms in the
contract to the NEC or other, unrelated professional codes is also not scientific, and reflects the
sort of comparison that a lay person can just as easily perform. See People ex rel. M.M., Jr., 215
P.3d 1237, 1250 (Colo. App. 2009). Therefore, if the Court does not strike Mr. Jackson’s report,
these non-NEC opinions should be excluded and Crown be permitted to submit a rebuttal to the
NEC portions of the report.
DISH’s Response. Crown has manufactured this dispute because it cannot counter the substance
of Mr. Jackson’s opinions. Although its disclosure was timely, DISH offered 3 weeks ago to allow
Crown to disclose a rebuttal expert—the same relief Crown agrees would remedy any prejudice.
That Crown rejected that offer and raised this dispute now is telling. (See Pretrial Order E(4)
(“Disputes over the adequacy of expert disclosures should be raised at the time of disclosure.”).)
Mr. Jackson was timely disclosed as a defending-party expert on December 4, 2023. (July 17, 2023
Am. CMO.) Crown brought this lawsuit for breach of contract against DISH, demanding additional
rent and alleging that it uses more space than it leases under the MLA because the National
Electrical Code requires some of DISH’s equipment to have working space beyond its lease area.
(FAC ¶¶ 1–7, 53–86, 111–118, 138–144.) Accordingly, Mr. Jackson was “asked to provide [his]
independent expert opinion on various issues in this litigation,” “including the meaning and
application of the National Electrical Code® (NEC®) . . . and the meaning of the terms ‘setback,’
-2-
‘buffer,’ and ‘spark radius,’” which Crown’s witnesses have alleged are synonymous with the term
“NEC working space.” (Jackson Rep. 1.) DISH is without question the defending party to Crown’s
claims, and Mr. Jackson’s opinions are offered as part of DISH’s defense to those claims.
However, Crown argues that, even though DISH is indisputably the defending party to Crown’s
claims, it has forfeited its status as defending party because it alleged its own declaratory judgment
claim on the meaning of the MLA. Crown cites no case to suggest a defending party forfeits that
status as a result of asserting a counterclaim, and none exists.
Precluding Mr. Jackson because he could also be characterized as a claiming-party expert would
be improper and “disproportionate” because his disclosure as a defending-party expert was
“substantial[ly] justifi[ed]” and caused Crown no “significant harm.” C.R.C.P. 37(c)(1); see also
Cook v. Fernandez-Rocha, 168 P.3d 505, 507 (Colo. 2007) (“[P]reclusion of evidence or witnesses
is inappropriate where there is a substantial justification for a failure to comply with the disclosure
deadlines or where the failure is harmless to the opposing party.”). First, as discussed above, DISH
had a “substantial justification” in disclosing Mr. Jackson as a defending-party expert. Cf. Todd v.
Bear Valley Village Apartments, 980 P.2d 973, 978–79 (Colo. 1999) (evaluating “the explanation
of the party for its” late disclosure and the party’s “bad faith or willfulness” in assessing substantial
justification). Second, Mr. Jackson’s disclosure caused no—let alone, significant—harm to
Crown. In evaluating harmlessness under Rule 37(c), “the question is whether the failure to
disclose the evidence in a timely fashion will prejudice the opposing party by denying that party
an adequate opportunity to defend against the evidence.” Id. at 979. Here, DISH disclosed Mr.
Jackson just 14 business days after claiming-party expert disclosures were due—119 days before
trial, and only 7 days after Rule 26(a)(2)(C)(I)’s standard 126-day deadline for claiming-party
disclosures. With 95 days before trial, Crown has ample time to engage and disclose a rebuttal
expert. Indeed, the Colorado Rules typically require defending-party expert disclosures only 98
days (and rebuttal disclosures 77 days) before trial. Crown cannot claim significant harm when it
will have had more time to disclose a rebuttal expert than the Colorado Rules typically allow. If
the Court believes DISH’s disclosure was untimely, the only proportionate response is to allow
Crown to disclose a rebuttal expert—which DISH offered to Crown on December 11.
Finally, Crown’s attempt to short-circuit CRE 702 motion practice and exclude Mr. Jackson’s
expert testimony through this abbreviated discovery dispute is inappropriate. Mr. Jackson is
indisputably qualified as an expert on the NEC and the design and installation of electrical
equipment, including DISH’s equipment and attendant NEC working space requirements at issue.
(Jackson Rep. 3–4.) Mr. Jackson will properly offer opinions on the working space requirements
at issue and technical meanings of the key terms “setback,” “buffer,” and “spark radius.” (Id. at 2,
5–13.) This is proper expert testimony if the Court concludes the MLA is ambiguous or uses terms
in a technical sense. See, e.g., Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1314 (Colo.
1984) (“[W]here the terms of an agreement are ambiguous or are used in some special or technical
sense not apparent from the contractual document itself[,] . . . the court may look beyond the four
corners of the agreement . . . .”). Crown’s unsupported challenge that Mr. Jackson is not
sufficiently knowledgeable within the telecommunications industry speaks at most to the weight
of his testimony, not its admissibility. In any event, this issue is not properly decided without full
briefing and potentially voir dire under Rule 702.
-3-
Dated: December 28, 2023 DAVIS GRAHAM & STUBBS LLP
/s/ Daniel A. Richards
Daniel A. Richards #50457
CRAVATH, SWAINE & MOORE LLP
Rachel G. Skaistis (pro hac vice)
Kevin J. Orsini (pro hac vice)
Damaris Hernández (pro hac vice)
Michael P. Addis (pro hac vice)
Zachary W. Jarrett (pro hac vice)
Dated: December 28, 2023 WHEELER TRIGG O’DONNELL LLP
/s/Hugh Q. Gottschalk
Hugh Q. Gottschalk
Frederick R. Yarger
Ryan W. Cooke
Miranda B. Worthington
Rebekah L. Nickel
-4-
CERTIFICATE OF SERVICE
I hereby certify that on December 28, 2023, the foregoing JOINT STATEMENT OF
DISCOVERY DISPUTE was filed via the Colorado Courts E-filing system and served on all
counsel of record.
/s/ Madeline J. Smart
Madeline J. Smart
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Preview
DATE FILED: December 28, 2023 6:13 PM DISTRICT COURT, CITY AND COUNTY OF FILING ID: A27320A4AA948 DENVER, COLORADO CASE NUMBER: 2022CV32353 Denver City and County Building 1437 Bannock Street Denver, Colorado 80202 Plaintiffs and Counterclaim-Defendants: Aircomm of Avon, L.L.C.; et al. v. Defendant and Counterclaim-Plaintiff: DISH Wireless L.L.C. v. Counterclaim-Defendant: Crown Castle USA Inc. ▲ COURT USE ONLY ▲ Rachel G. Skaistis (admitted pro hac vice) Case No.: 2022CV032353 Kevin J. Orsini (admitted pro hac vice) Courtroom: 209 Damaris Hernández (admitted pro hac vice) Michael P. Addis (admitted pro hac vice) Zachary W. Jarrett (admitted pro hac vice) CRAVATH, SWAINE & MOORE LLP 825 Eighth Avenue New York, New York 10019-7475 Telephone: 212.474.1000 Facsimile: 212.474.3700 Email: rskaistis@cravath.com; korsini@cravath.com; dhernandez@cravath.com; maddis@cravath.com; zjarrett@cravath.com Daniel A. Richards, #50457 DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, Colorado 80202 Telephone: 303.892.9400 Facsimile: 303.893.1379 Email: daniel.richards@dgslaw.com Attorneys for Plaintiffs and Counterclaim-Defendants JOINT STATEMENT OF DISCOVERY DISPUTE Plaintiffs and Counterclaim-Defendants Aircomm of Avon, L.L.C., et al., Additional Counterclaim-Defendant Crown Castle USA Inc. (together with Plaintiffs, “Crown”), and Defendant and Counterclaim-Plaintiff DISH Wireless, L.L.C. (“DISH,” and together with Crown, the “Parties”) submit this Joint Statement of Discovery Dispute in connection with the discovery hearing scheduled on January 2, 2024. Background. On July 17, 2023, the Court entered a Scheduling Order setting November 13, 2023, as the date for disclosure of claiming party expert reports, and December 4, 2023, as the deadline for defending party expert disclosures. On November 13, DISH disclosed reports by two counterclaim damages experts and Crown disclosed the report of its damages expert. On December 4, Crown and DISH each disclosed a single report responding to the other’s damages experts. DISH further disclosed an additional report by Ryan Jackson (Exhibit 1), who DISH proffered as an expert on the National Electrical Code and related industry standards. Crown contends this report is untimely and should be stricken. DISH contends it is not untimely, but in any event, should not be stricken. Crown’s Position. The Court should strike Mr. Jackson’s report because it is an untimely claiming party disclosure. Mr. Jackson is an expert on the National Electrical Code (“NEC”) who opines on the meaning of various contractual clauses and phrases in the Parties’ Master Lease Agreement (“MLA”). Mr. Jackson was retained by DISH to address “various issues” in this matter, “including DISH’s counterclaim[s] against [Crown]”. (Jackson Rep. at 2.) Specifically, Counts One through Four of DISH’s Counterclaims are premised on the disputed issue of whether certain space surrounding DISH’s equipment required by the NEC (“NEC space”) must be contained within DISH’s 5’ x 7’ lease area in order to avoid additional rent charges, and which provisions of the MLA relate to that NEC space, precisely the subject of Mr. Jackson’s testimony. (Compare Counterclaims ¶¶ 144, 146-47, 162, 167 with Jackson Rep. at 2, 5-8, 11-12.) It is beyond dispute that Mr. Jackson’s opinions are intended as direct support for Count One. But to take another example, Count Two claims that in the event Crown is correct and the NEC space must be contained within the 5’ x 7’ feet lease area, Crown misrepresented and failed to disclose to DISH that the NEC space was problematic. (Counterclaims ¶¶ 146-47.) Mr. Jackson’s opinion that “[c]learly the subject of NEC working space was considered and discussed by Crown in the preliminary design stage” (Jackson Rep. at 10) is only relevant if it is intended to support DISH’s allegations under Count Two regarding what Crown supposedly knew and should have disclosed prior executing the MLA. Moreover, DISH has provided no substantial justification for the belated disclosure: its only stated reason for withholding Mr. Jackson’s report is its claim that Mr. Jackson is a defending expert because he opines on issues that are related to Crown’s claims (as well as to DISH’s claims). The fact that Mr. Jackson’s opinions are also applicable to Crown’s claims is not a substantial justification for the belated disclosure and should be rejected by the Court. Additionally, the belated disclosure harms Crown and advantages DISH because it deprives Crown of a fair chance to engage an expert to respond to opinions regarding its own liability. Accordingly, the Court should strike Mr. Jackson’s report pursuant to C.R.C.P. 37(c)(1). See St. Jude’s Co. v. Roaring Fork Club, L.L.C., 351 P.3d 442, 455 (Colo. 2015). -1- If the Court chooses not to strike Mr. Jackson’s report, Crown requests, in the alternative, leave to engage rebuttal experts. Doing so will allow Crown to attempt to remedy the prejudice caused by Mr. Jackson’s late disclosure. Promptly after receiving Mr. Jackson’s report, Crown told DISH it would forego objection to the late disclosure if DISH agreed to allow Crown a rebuttal report. Dish took the position that it would only permit Crown to respond to Mr. Jackson if it was permitted a second response to Mr. Kruskol, a position that was not acceptable to Crown for multiple reasons. Although Crown believes it would be necessary to engage multiple experts to properly rebut the NEC and non-NEC subject matter in Mr. Jackson’s report, Crown is mindful that engaging numerous additional experts necessarily would entail further extending the deadlines for expert discovery and motions to exclude under C.R.E. 702 beyond the extension requested in the Parties’ joint motion filed on December 26, thereby jeopardizing the broader case schedule. Crown therefore moves for exclusion now of the non-NEC portions of Mr. Jackson’s report (discussed further below). Mr. Jackson acknowledges that his “area of expertise is the NEC”. (Jackson Rep. at 11.) He has no expertise in the telecommunications industry or in contract drafting. However, he attempts to interpret contract language unrelated to the NEC. Section IV.B of Mr. Jackson’s report purports to opine on the meaning of Section 7 of the MLA, based on what he claims are similarities between the language of that Section and the NEC. Moreover, in Sections V, VI and VII of his report, Mr. Jackson interprets contract terms by searching dozens of professional codes unrelated to the subject matter of this case and synthesizing a definition for each term based on the results. He offers an opinion on those terms despite the fact that, by his own admission, none of them appears in the NEC and he has either never heard of the relevant terms or has only heard them used in “slang discourse”. Mr. Jackson is not qualified to offer an opinion on the interpretation of language in a telecommunications contract, and his method of comparing the similarities between terms in the contract to the NEC or other, unrelated professional codes is also not scientific, and reflects the sort of comparison that a lay person can just as easily perform. See People ex rel. M.M., Jr., 215 P.3d 1237, 1250 (Colo. App. 2009). Therefore, if the Court does not strike Mr. Jackson’s report, these non-NEC opinions should be excluded and Crown be permitted to submit a rebuttal to the NEC portions of the report. DISH’s Response. Crown has manufactured this dispute because it cannot counter the substance of Mr. Jackson’s opinions. Although its disclosure was timely, DISH offered 3 weeks ago to allow Crown to disclose a rebuttal expert—the same relief Crown agrees would remedy any prejudice. That Crown rejected that offer and raised this dispute now is telling. (See Pretrial Order E(4) (“Disputes over the adequacy of expert disclosures should be raised at the time of disclosure.”).) Mr. Jackson was timely disclosed as a defending-party expert on December 4, 2023. (July 17, 2023 Am. CMO.) Crown brought this lawsuit for breach of contract against DISH, demanding additional rent and alleging that it uses more space than it leases under the MLA because the National Electrical Code requires some of DISH’s equipment to have working space beyond its lease area. (FAC ¶¶ 1–7, 53–86, 111–118, 138–144.) Accordingly, Mr. Jackson was “asked to provide [his] independent expert opinion on various issues in this litigation,” “including the meaning and application of the National Electrical Code® (NEC®) . . . and the meaning of the terms ‘setback,’ -2- ‘buffer,’ and ‘spark radius,’” which Crown’s witnesses have alleged are synonymous with the term “NEC working space.” (Jackson Rep. 1.) DISH is without question the defending party to Crown’s claims, and Mr. Jackson’s opinions are offered as part of DISH’s defense to those claims. However, Crown argues that, even though DISH is indisputably the defending party to Crown’s claims, it has forfeited its status as defending party because it alleged its own declaratory judgment claim on the meaning of the MLA. Crown cites no case to suggest a defending party forfeits that status as a result of asserting a counterclaim, and none exists. Precluding Mr. Jackson because he could also be characterized as a claiming-party expert would be improper and “disproportionate” because his disclosure as a defending-party expert was “substantial[ly] justifi[ed]” and caused Crown no “significant harm.” C.R.C.P. 37(c)(1); see also Cook v. Fernandez-Rocha, 168 P.3d 505, 507 (Colo. 2007) (“[P]reclusion of evidence or witnesses is inappropriate where there is a substantial justification for a failure to comply with the disclosure deadlines or where the failure is harmless to the opposing party.”). First, as discussed above, DISH had a “substantial justification” in disclosing Mr. Jackson as a defending-party expert. Cf. Todd v. Bear Valley Village Apartments, 980 P.2d 973, 978–79 (Colo. 1999) (evaluating “the explanation of the party for its” late disclosure and the party’s “bad faith or willfulness” in assessing substantial justification). Second, Mr. Jackson’s disclosure caused no—let alone, significant—harm to Crown. In evaluating harmlessness under Rule 37(c), “the question is whether the failure to disclose the evidence in a timely fashion will prejudice the opposing party by denying that party an adequate opportunity to defend against the evidence.” Id. at 979. Here, DISH disclosed Mr. Jackson just 14 business days after claiming-party expert disclosures were due—119 days before trial, and only 7 days after Rule 26(a)(2)(C)(I)’s standard 126-day deadline for claiming-party disclosures. With 95 days before trial, Crown has ample time to engage and disclose a rebuttal expert. Indeed, the Colorado Rules typically require defending-party expert disclosures only 98 days (and rebuttal disclosures 77 days) before trial. Crown cannot claim significant harm when it will have had more time to disclose a rebuttal expert than the Colorado Rules typically allow. If the Court believes DISH’s disclosure was untimely, the only proportionate response is to allow Crown to disclose a rebuttal expert—which DISH offered to Crown on December 11. Finally, Crown’s attempt to short-circuit CRE 702 motion practice and exclude Mr. Jackson’s expert testimony through this abbreviated discovery dispute is inappropriate. Mr. Jackson is indisputably qualified as an expert on the NEC and the design and installation of electrical equipment, including DISH’s equipment and attendant NEC working space requirements at issue. (Jackson Rep. 3–4.) Mr. Jackson will properly offer opinions on the working space requirements at issue and technical meanings of the key terms “setback,” “buffer,” and “spark radius.” (Id. at 2, 5–13.) This is proper expert testimony if the Court concludes the MLA is ambiguous or uses terms in a technical sense. See, e.g., Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1314 (Colo. 1984) (“[W]here the terms of an agreement are ambiguous or are used in some special or technical sense not apparent from the contractual document itself[,] . . . the court may look beyond the four corners of the agreement . . . .”). Crown’s unsupported challenge that Mr. Jackson is not sufficiently knowledgeable within the telecommunications industry speaks at most to the weight of his testimony, not its admissibility. In any event, this issue is not properly decided without full briefing and potentially voir dire under Rule 702. -3- Dated: December 28, 2023 DAVIS GRAHAM & STUBBS LLP /s/ Daniel A. Richards Daniel A. Richards #50457 CRAVATH, SWAINE & MOORE LLP Rachel G. Skaistis (pro hac vice) Kevin J. Orsini (pro hac vice) Damaris Hernández (pro hac vice) Michael P. Addis (pro hac vice) Zachary W. Jarrett (pro hac vice) Dated: December 28, 2023 WHEELER TRIGG O’DONNELL LLP /s/Hugh Q. Gottschalk Hugh Q. Gottschalk Frederick R. Yarger Ryan W. Cooke Miranda B. Worthington Rebekah L. Nickel -4- CERTIFICATE OF SERVICE I hereby certify that on December 28, 2023, the foregoing JOINT STATEMENT OF DISCOVERY DISPUTE was filed via the Colorado Courts E-filing system and served on all counsel of record. /s/ Madeline J. Smart Madeline J. Smart -5-