As reported in Now, about that document State Farm produced for Judge Senter in Rigsby qui tam, Coast attorney Deborah Trotter of the Merlin Law Group is counsel for plaintiff’s in three similar cases currently before the Court, Judge Senter presiding. Magistrate Judge Parker was assigned Lizana v State Farm and Magistrate Judge Walker the other two, Lebon v State Farm, and New Light Baptist Church v State Farm:
Defendant simultaneously filed three motions for protective order in response to Plaintiff’s Notices of 30(b)(6) Depositions, one of which was an expedited motion to quash and for protective order, for which the Lebon Court ordered Plaintiff on November 9, 2009, to Respond by 9:00am on November 10, 2009, during Hurricane Ida Warnings. As all three motions filed simultaneously by Defendant were similar in substance, context and argument, with the exception of the additional motion to quash in the Lebon case, Plaintiff’s counsel determined that in the interest of judicial economy and consistency that all should be responded to simultaneously and in combination. (Plaintiff’s Amended Response, Lizana)
Plaintiffs’ notices were filed simultaneously but State Farm’s motions were cleverly staggered:
- October 30: Lizana, Lebon and New Light Baptist Church plaintiffs each file Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum
- November 6: Lebon v State Farm: Motion to Expedite, Motion to Quash Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum think and Motion for Protective Order by State Farm
- November 9: New Light Baptist Church v State Farm: MOTION for Protective Order Regarding Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum by State Farm
- November 11: Lizana v State Farm: MOTION for Protective Order Regarding Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum by State Farm
Cleverly staggered – and cleverly planned to produce the following result:
- November 9: Walker issues Text Only Order granting State Farm’s Motion to Expedite with Plaintiff’s Response due at 9:00am the next day! (Note November 9 is the same day State Farm filed its Motion for Protective Order in New Light Baptist Church v State Farm)
- November 18: Plaintiff files Amended Response in Lizana to correct and/or clarify title and references to defendant State Farm’s motion to quash and filed a similar amendment in both Lebon and New Light Baptist Church v State Farm to clarify and/or correct related references in the Response for these cases.
- November 19: Walker issues Order granting State Farm’s Motion to Quash the Lebon’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum and an additional Order declaring Protective Order Moot in both New Light Baptist Church v State Farm as well as Lebon.
The timeline only suggests what the Orders reveal, namely that Judge Walker willingly ignored fact that would contradict his assumption:
The notices of deposition were served on October 30, 2009, with depositions scheduled for November 11 and 12, 2009. Defendant argues that Plaintiffs set the location, date and time for these depositions unilaterally and without consulting Defendant. Defendant further argues that it has not been given sufficient time to identify, coordinate with, and prepare a representative to speak on its behalf for the scheduled deposition.
The Court finds that Defendant’s motion to quash should be GRANTED and the notices of deposition quashed based on Plaintiff’s unilateral setting of the deposition, without consultation and without allowing sufficient preparation time for Defendant.
Not a word about Plaintiff’s argument and evidence to the contrary:
In Defendant’s Response in Opposition to Plaintiffs’ motion to extend the discovery deadline and motion deadline is this case, Defendant showed the court the difficulties of scheduling
depositions across this country and beyond for very active deponents and experts. However, Defendant’s exhibits were very selective in its attempts to show that the scheduling difficulties were the result of something other than their very own obstructionist tactics of offering deposition dates only at the end of the discovery period, availability of requested deponents only in a certain time and/or place, or only within a week, or on some occasions, for only one day in a specific place. (See Composite Exhibit A.)
Further, without proper recognition of inherent difficulties in coordinating schedules, Defendant attempted to persuade the court that the inability to properly notice depositions was due
to something other than State Farm’s orchestrated efforts to hide the known whereabouts of the requested deponents listed in State Farm’s Initial Disclosures On February 4, 2009, this court scheduled twelve (12) case management conferences,including this case, between the two firms involved in this present action. This court scheduled the 12 cases in groups of three over a slightly staggered period. On March 30, 2009 during a Hearing with this court for an extension of time in two of those cases for Plaintiffs to respond to discovery, one Plaintiff was out of the country and the other was combating illness, State Farm sought a deposition schedule for Plaintiffs in those 12 cases, without regard to their schedules or circumstances. This court granted State Farm’s request which resulted in the deposition schedule attached as Exhibit D. The court offered that it would assist the Defendant in obtaining information necessary to resolve these cases. In respect for the ruling, Plaintiffs obliged.
Further, in August 2009, this court ordered several of those 12 cases into mediation. At one of the mediation, State Farm refused to even participate and refused to counter Plaintiff’s demand. So much for State Farm’s alleged efforts at resolving cases as alleged in its Response in opposition to Plaintiffs’ request for an extension. Plaintiffs requested deposition dates for requested deponents in this case in September 2009, only to receive deposition dates for late October and early November. The trial date in this matter is not until June 7, 2010. It is not necessary to allow only a three month period in which to depose no less than five experts designated by defendant, which five experts are located throughout the country and beyond.
Though, Plaintiffs have accomplished the depositions of the requested experts, the short discovery period does not allow for follow up to information discovered that would likely lead to
the admissible evidence as contemplated by Federal Rules 26.
Further, it is often in these depositions that a party discovers information withheld, not previously identified and/or in the possession of some other entity or source, such as that information requested of deponents from the Structures Group in this matter.(See Exhibit E, Good Faith Correspondence re Information to be Produced by the Structures Group.)
State Farm uses the recent cancellation of a deposition in Chicago to support its objection to an extension of the discovery deadline. However, State Farm fails to alert the court that the
Plaintiffs were forced to cancel the deposition scheduled in Chicago due to the approach of Hurricane Ida, to which counsel for State Farm was fully apprised. (See Exhibit F.) This deposition of an employee of State Farm who is in possession of relevant information to the Plaintiffs’ claims will not be allowed to be rescheduled without an extension of the discovery deadline.
Further, State Farm objects to Plaintiffs’ request for a discovery extension because it alleges that Plaintiffs have not conferred with Defendant regarding Plaintiffs’ requested 30(b)(6) deponents. However, Plaintiffs sent a detailed Notice with attached Topics of Inquiry as to alert Defendant to the areas that the Corporate Representative, or Person(s) Most Knowledgeable (PMK), should be prepared for testimony on behalf of State Farm. (See Exhibit G.) Further, Plaintiffs sent State Farm a very detailed basis for the relevancy and discoverability of all of the information and data requested from State Farm in Plaintiffs’ discovery requests, to which topics Plaintiffs also wantedState Farm’s 30(b)(6) deponent to be able to speak for the company.
Plaintiffs scheduled these 30(b)(6) deponents with reasonable notice, especially, given the fact that these areas of inquiry had been discussed in previous cases between the firms, and during recent depositions where opposing counsel advised that a 30(b)(6) witness would be made available for those types of inquiries that the sitting deponent was not authorized to answer.
However, the most egregious obstructionist tactics used by State Farm in this case is its arbitrarily ending the discovery period two weeks prior to the current deadline of November 16,
2009. Plaintiffs submit that the previously mentioned instances and these instance listed below, present good cause for an extension of the discovery deadline and the motion deadline in this case. On October 30, 2009, Plaintiffs sent its Notices for a 30(b)(6) deponent and a 30(b)(6) IT deponent. On November 5, 2009, after detailed correspondence identifying the topics of inquiry and the relevancy of the requested topics, State Farm filed emergency Motions to Quash the 30(b)(6) deponents depositions. (See Exhibit G) On November 9, 2009, the day of the hurricane warnings for Hurricane Ida, Plaintiffs were ordered by the court to respond to State Farm’s Expedited Motion to Quash by 9:00am on November 10, 2009. Plaintiffs filed their timely Response. However, on November 10, 2009, State Farm informed Plaintiffs that it would not be participating in the 30(b)(6) depositions scheduled. (See Exhibit H.) State Farm’s cancellation of the depositions is contrary to Uniform Local Rule 37.2 that states “The filing of a motion for protective order to limit or quash a deposition does not operate as a stay of the deposition. It is incumbent upon the party seeking the protection of the court to obtain a ruling on the motion prior to the scheduled deposition.” Plaintiffs will not be allowed to rescheduled these depositions without an extension of the discovery deadline.
On November 2, 2009, Plaintiffs sent detailed correspondence to State Farm identifying production of data and materials that the deponents, State Farm experts, The Structures Group, agreed to produced. (See Exhibit E.) Defendant has decided not to respond to at all and to force Plaintiffs to file a Motion to Compel the production. On November 6, 2009, Plaintiffs sent correspondence to State Farm seeking to obtain production of data and documents held at opposing counsel’s office and requested confirmation of November 11 – 14, 2009, as dates that Plaintiffs could have access to the data and information for inspection and copying as stated in State Farm’s discovery responses. (See Exhibit I.) Again, State Farm chose to continue its invoke its arbitrary discovery deadline by ignoring Plaintiffs requests and failing to respond at all.
State Farm should not be allowed to make a mockery of the judicial system by selectively applying portions of the Federal Rules and Local Rules to aid in their obstructionist tactics. Again, though, the Federal Rules and Local Rules allow for the inspection and copying of data and information, it also requires that the burden to shift the cost of production to another party be based upon proof that the production requested would in fact be burdensome. Also, to benefit from the rule that allows inspection and copying of voluminous materials, the party seeking protection from the burden of production must describe by category and location those documents in its possession, custody or control.
Walker’s Orders do nothing to dispute the growing consensus he’s a Company man to the core. Read the rest from the linked document – assuming you’re not sickened by what you’ve read thus far.