Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:01-cv-02198-PCD

Document 457

Filed 03/04/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ) ) ) Plaintiff, ) ) v. ) ) TRUSTMARK INSURANCE COMPANY ) ) Defendant. ) ______________________________________) ) TRUSTMARK INSURANCE COMPANY, ) ) Third Party Plaintiff, ) ) v. ) ) TIG INSURANCE COMPANY, ) ) Third Party Defendant. ) SECURITY INSURANCE COMPANY OF HARTFORD,

Civil No. 301CV2198(PCD)

March 4, 2005

TRUSTMARK'S MEMORANDUM IN OPPOSITION TO TIG'S MOTION FOR RECONSIDERATION AND MODIFICATION OF THE COURT'S FEBRUARY 22, 2005 ORDER TO PERMIT IT UNTIL MARCH 22, 2005 TO PRODUCE MESSRS. THIRKILL AND LO FOR DEPOSITION

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TIG files its Motion for Reconsideration under remarkably awkward

circumstances: as even a summary review of the pending motions confirms, it is undisputed that TIG (a) unilaterally flouted the Court's February 22nd directive that the depositions of Messrs. Thirkill and Lo be completed by March 11, Exhibit F1, (b) flatly

Exhibits referred to herein are the exhibits submitted with Trustmark's Emergency Motion to Bar the Testimony of Michael Toothman, David Thirkill and Richard Lo and for Other Sanctions, filed on March 2, 2005. This Memorandum in Opposition incorporates by reference the factual statements contained in that Emergency Motion.

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refused to explain to Trustmark the reason for its deliberate non compliance; id., and (c) persisted in its non-compliance when counsel for Trustmark, before filing its motion, once again reminded TIG of the terms of the February 22nd order. 2. While TIG's Motion for Reconsideration seeks to justify TIG's unilateral

disregard of the Court's Order on account of the busy schedule of TIG's lawyers, Mr. Thirkill and Mr. Lo, it does not explain why the lawyers were so busy on unrelated matters they could neither explain that fact to Trustmark nor seek advance relief from the Court. Similarly, it fails to explain TIG's failure to move for reconsideration until after it had announced its intention to violate the pending order and was faced with the prospect of responding to Trustmark's Emergency Motion for sanctions. 3. TIG's Motion for Reconsideration is conspicuously silent about a few other

details as well. Why was it, for example that TIG's lawyers, and Messrs. Thirkill and Lo were all so busy that the two deponents could not be made available until after the March 18th due date of Part B of the pretrial order, for which Trustmark bears the principal responsibility? And what was it about the busy schedule of all these

individuals that compelled TIG conveniently to reverse the order of the Thirkill and Lo depositions and insist they occur on sequential days in cities 250 miles and a five hour drive apart? (Indeed, TIG's Motion for Reconsideration implicitly asks the Court to confirm TIG's insistence that the order of the two depositions be reversed and they be taken in the distant locations chosen by TIG.) 4. Trustmark respectfully submits that it is past time for TIG to take the

proceedings in this Court seriously and to cease its pattern of abuse. TIG has already been subjected to findings and sanctions by the U.S. District Court in San Francisco for

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misconduct during depositions conducted there in that District.

Exhibit I.

TIG's

suggestion (unsupported by any deposition transcript or even an affidavit) that its undisputedly inappropriate on-the-record attacks on opposing counsel were provoked by some unexplained conduct of some unidentified Trustmark counsel at some unspecified point in the past should be given by the Court the weight it deserves. The suggestion in footnote 1 of the Motion for Reconsideration that sanctions be imposed because shortly after his Mother's death Mr. Thomson was unable to attend a proposed (not scheduled, as TIG inaccurately asserts) March 3 deposition is characteristic. 5. As Trustmark noted in its Emergency Motion, TIG's most recent

inappropriate conduct, its defiance of this Court's order of February 22, 2005 compelling TIG to produce David Thirkill and Richard Lo for depositions by March 11, 2005, is part of a larger pattern of abusive and uncivil conduct directed towards Trustmark and its lawyers. TIG's conduct has gone far beyond the realm of vigorous advocacy. Rather, TIG and its counsel have now committed bi-costal violations of court orders in this case, and leveled abusive personal attacks at Trustmark's counsel during recent depositions. The actions of TIG and its counsel have crossed the line and this Court should act to preserve the efficacy of its orders and the integrity of the process.

WHEREFORE, Trustmark requests that this Court deny TIG's Motion for Reconsideration in its entirety and enter an order awarding such other relief as the Court deems just and equitable.

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DEFENDANT/THIRD PARTY PLAINTIFF TRUSTMARK INSURANCE COMPANY s/David R. Schaefer David R. Schaefer, Esq. (CT 04334) Rowena A. Moffett, Esq. (CT 19811) BRENNER, SALTZMAN & WALLMAN LLP 271 Whitney Avenue New Haven, CT 06511 Tel.: (203) 772-2600 Fax: (203) 562-2098 Email: [email protected] [email protected]

By:

Roger Pascal (CT 26488) David M. Spector (CT 21679) John Bannon (CT 26489) Everett J. Cygal (CT 22765) SCHIFF HARDIN LLP 6600 Sears Tower Chicago, Illinois 60606-6473 Counsel for Trustmark Insurance Company

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CERTIFICATE OF SERVICE

I, David R. Schaefer, Esq., Do Certify That A True And Correct Copy Of The Foregoing Trustmark's Emergency Motion to Bar the Testimony of Michael Toothman, David Thirkill and Richard Lo and for Other Sanctions and was sent by facsimile and United States mail on March 4, 2005 addressed to: Frank F. Coulom, Jr., Esq. Marion Manzo Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103 Mark H. Holton, Esq. Kate Nealon, Esq. Gibson Dunn & Crutcher 200 Park Avenue, Floor 48 New York, NY 10166 David J. Grais, Esq. Kathryn C. Ellsworth, Esq. Dewey Ballantine LLP 1301 Avenue of the Americas New York, NY 10019 Daniel J. Sagarin, Esq. David A. Slossberg, Esq. Hurwitz & Sagarin 147 North Broad Street Milford, CT 06460-0112 Harry P. Cohen, Esq. Brian J. O'Sullivan, Esq. Cadwalader, Wickersham & Taft 100 Maiden Lane New York, NY 10038 s/David R. Schaefer David R. Schaefer, Esq., (CT 04334)
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