Subject: Enron / Broadwing Confidential / Atty/Client Communication
From: [email-masked]
To: [email-masked], [email-masked], [email-masked], [email-masked]
Cc: [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked]
Date: Wed, 23 Feb 2000 01:22:00 -0800 (PST)

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 ---------------------------

[email-masked] 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: [email-masked] 

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:  [email-masked]