Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S ATTENDANCE AT DEPOSITION AND REQUEST FOR SANCTIONS

Defendant Charles Schwab & Co., Inc., ("Schwab") accuses Plaintiff Marcela

15 Johnson of "gamesmanship." However, it is Schwab that has engaged in delay tactics 16 seeking to hold this case hostage. Schwab sought to gain a tactical advantage in this lawsuit 17 by refusing to provide a witness, or witnesses, in response to Plaintiff's notice of deposition 18 pursuant to Rule 30(b)(6), Fed. R. Civ. P., and then seeking to take Plaintiff's deposition. 19 20 A. Factual Background

On September 23, 2005, Ms. Johnson issued a notice of Rule 30(b)(6) deposition to

21 take place on October 11, 2005. On October 6, 2005, almost two weeks after the notice had 22 been issued and just days before the deposition was scheduled, Schwab objected to the 23 scope of the deposition and informed Plaintiff that it would not make witnesses available on 24 the scheduled date. [Exhibit B to Schwab's Motion for Protective Order at Dkt. 53] On 25 October 11, 2005, the Court specifically instructed Schwab to "cooperate with plaintiff with 26 respect to the Rule 30(b)(6) deposition in order to minimize further delay." [Dkt. 45] On 27 October 17, 2005, Schwab offered one date (November 18, 2005) for the deposition with 28 the condition that certain topics would be limited in time and scope and offered to provide a
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witness via telephone regarding the benefits categories. [Dkt. 53, Exhibit F] Plaintiff was not agreeable to those limitations. [Dkt. 53, Exhibit I] Schwab's counsel then requested dates for Plaintiff's deposition. [Exhibit 1 to Schwab's Motion to Compel at Dkt. 80] The parties exchanged additional dates for the Rule 30(b)(6) deposition and then on November 14, 2005, Schwab filed a Motion for Protective Order to prevent Plaintiff from taking the deposition that had been noticed 6 weeks earlier. [Dkt. 53 and Exhibits I and J] Four days later, Schwab noticed Plaintiff's deposition for December 1, 2005.1 [Dkt. 57] During a conference call on December 7, 2003, the parties agreed that Plaintiff could take the Rule 30(b)(6) deposition before Schwab took Ms. Johnson's deposition. [Dkt. 80, Exhibit 11] Contrary to Schwab's assertions, Plaintiff's counsel, Ms. Valdivia, agreed that certain, but not all of the case management deadlines could be extended. [Declaration of Dawn C. Valdivia, filed contemporaneously herewith.] Schwab's counsel insisted that all of the deadlines be extended and when Plaintiff's counsel disagreed, Schwab filed the instant motion. [Id.] On January 5, 2005, this Court denied the majority of Schwab's Motion for Protective Order regarding the 30(b)(6) deposition and Plaintiff is waiting for Schwab to provide a date to move forward with that deposition. [Dkt. 88] B. The Rule 30(b)(6) Deposition May Impact Ms. Johnson's Testimony.

Contrary to Schwab's assertions, information obtained during the Rule 30(b)(6) deposition could very well impact Plaintiff's testimony and her claims. The basis of Plaintiff's lawsuit is that she was terminated in retaliation for engaging in protected activity (i.e. reporting unwelcome conduct in the workplace) and that she was discriminated against based on her gender and her national origin, Hispanic. Categories No. 1-8 of the Rule 30(b)(6) deposition seek information that bears directly on these claims. [Dkt. 53, Exhibit A] For example, Plaintiff seeks facts concerning complaints or reports made by Schwab employees for reasons similar to Plaintiff and facts concerning how Schwab handled those complaints or reports.
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Such information bears directly on Ms. Johnson's claims for

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The deposition did not take place because Plaintiff's counsel was unavailable. [Dkt. 88, Exhibit 7]
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retaliation and discrimination and may affect her testimony. For example, facts concerning a Caucasian male employee who complained or reported to his manager that another employee made offensive remarks to him in the workplace has a direct impact on Plaintiff's testimony regarding her retaliation and discrimination claims; especially if the Caucasian male was not terminated after making the report. Thus, Plaintiff's preference for priority in deposition scheduling in not simply based on the fact that she noticed the Rule 30(b)(6) deposition first, but is also because she expects to discover information that will bear on her claims and her testimony. C. Schwab Is Not Entitled to Sanctions.

Rule 37(a)(4)(A) provides that if a motion to compel discovery is granted, the court shall, after an opportunity for hearing, require the non-moving party or the attorney advising the motion to pay the reasonable expenses incurred in brining the motion, unless the court finds that the opposing party's nondisclosure "was substantially justified, or that other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(4)(A). Here, the parties had agreed to postpone Ms. Johnson's deposition until after the Rule 30(b)(6) deposition and to extend certain case management deadlines. Because the parties could not reach agreement on the issue of the case management deadlines, Schwab recanted its agreement regarding deposition priority and sought to compel Ms. Johnson's deposition. Accordingly, "other circumstances" in this case make an award of expenses unjust. C. Conclusion

For the foregoing reasons, Plaintiff asks this Court to deny Schwab's motion. RESPECTFULLY SUBMITTED this 9th day of January, 2006. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

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QBPHX\1980199.1

I hereby certify that on the 9th day of January, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: Joseph T. Clees Christopher Mason Michelle H. Ganz Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Rd., Suite 800 Phoenix, AZ 85016 s/Lisa Young

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