Free Uncategorized - District Court of Arizona - Arizona

l Joseph T. Clees, SBN 009645
2 Christopher M. Mason, SBN 019891
Michelle H. Ganz, SBN 023651 `
3 OGLETREE, DEAKINS, NASH, I
- SMOAK & STEWART, P.C. SBN 00504800
4 2415 East Camelback Road, Suite 800
5 Phoenix, Arizona 85016 .
Telephone: (602) 778-3700
6 Email: [email protected]
7 Email: [email protected]
Email: [email protected] -
8 Attorneys for Defendant Charles Schwab & Co., Inc.
9 UNITED STATES DISTRICT COURT 5
10 DISTRICT OF ARIZONA
U MARCELA JOHNSON, Case No. CV-04-0790-PHX—JWS i
§ 12 Plaintiff DEFENDANT CHARLES SCHWAB &
r _ §,, 13 CO., INC.’S RESPONSE TO
E E f,i§ VS- "PLAINTIFF’S MOTION TO STRIKE ·
Z E 14 NEW ARGUMENTS RAISED ON
E E E 15 CHARLES SQHWAB CORPORATION DEFENDANT’S REPLY IN SUPPORT
gg 5 Defendant OF MOTION FOR COURT ORDER TO
§ E § § B 16 ` _ SECURE RECORDS RELATING TO
gw 17 ALLEGED DAMAGES" ;
N is f
19 Plaintiff seeks to strike from Defendant Charles Schwab & Co., Inc.’s ("Schwab")
20 Reply Brief any discussion of the fact that Plaintiffs unemployment compensation and
21 workers’ compensation files likely will reveal useful infomation concerning Plaintiffs claim
22 of damages and mitigation effortsl Her motive is clear — she wants to do away with the
23 discussion because it is irrefutable and reflects that the requested infomation is reasonably
24
25 ISchwab’s Motion for Court Order to Secure Records Relating to Alleged Damages is
26 referred to herein as "Schwab’s Opening Brief." Plaintiffs Response to Defendanfs Motion
for Court Order to Secure Records Relating to Alleged Damages is referred to herein as
27 ‘“Plaintiffs Response Brief.” Schwab’s Reply in Support of Motion for Court Order to
Secure Records Relating to Alleged Damages is referred to herein as "Schwab’s Reply
28 Brief"
Case 2:04-cv—00790-EHC Document 79 Filed 12/20/2005 Page 1 014

1 calculated to lead to the discovery of admissible evidence. This fact is clear regardless of
2 whether the requested information is specifically discussed in an opening brief or not.
3 But, notably, Schwab’s Opening Brief mentions that the unemployment and
4 workers’ compensation records were sought for calculating Plaintiffs earnings. Although
5 the Opening Brief did not cover the nuanced details of every piece of paper one might find in
6 an unemployment compensation or workers’ compensation file which would help in
7 constructing the calculation, it is something of a truism to say that the Court, with its ·
3 experience, and Plaintiffs counsel (who typically represents employers in employment
9 litigation) already generally understands the scope of records one may find in such files. The 1
19 point is, as was stated in Schwab’s Opening Brief] the information contained in those files
11 addresses Plaintiffs claim for damages. B
§ 12 This fact was not lost on Plaintiff who acknowledged in her Response Brief that B
§ E G 13 “[Schwab] asks this Court to order Plaintiff Marcela Johnson to execute certain releases
E 14 under the premise that the sought after information is relevant to her damages claim."
5 (Plaintiffs Response Brief p. 1, emphasis added.) Plaintiff knew and understood the 1
E g § § V 16 arguments that Schwab was making. She made her counter-arguments.
g 17 Schwab addressed those counter-arguments in its Reply. One such counter-
18 argument is that Ninth Circuit law prohibits application of unemployment earnings to reduce
19 a claim for damages where the unemployment earnings derive Hom collateral payments from
20 other employers.2 (Plaintiffs Response Brief] p. 3.) While this is a highly debatable
21 proposition in light of the conflicting precedent, one of Schwab’s reply arguments was to say
22 that it is a pointless debate because the records are relevant for other reasons. Refuting 1
24
25 2In making this argument, Plaintiff mischaracterizes Schwab’s discovery efforts.
Schwab is seeking earnings records that relate to ns funding of Plaintiffs unemployment and
I 26 workers’ compensation insurance. Numerous Ninth Circuit cases suggest that this type of
27 information is relevant and admissible, which obviously suggests that it must first be
discoverable. See McClean v. Runyon, 222 F.3d 1150 (9th Cir. 2000); Naton v. Bank 0fCc1Z.,
28 649 F.2d 691, 700 (9th Cir. 1981); Olivas v. US., 506 F.2d 1158, 1163-64 (9th Cir. 1974).
Case 2:04-cv—00790-EHC Document 79 2 Filed 12/20/2005 Page 2 of4

1 counter-arguments is an appropriate purpose for a reply brief, notwithstanding Plaintiffs
2 unsupported proclamation that such an approach "vio1ates basic rules of motion fi1ing.” `
3 Regardless, Plaintiff has every opportunity to address Schwab’s arguments if she
4 feels that she has not had an adequate opportunity to do so. She can ask to file a surreply or
5 she can file a motion for a protective order, as she has already done in raising new arguments
6 ` to respond to one of Schwab’s other motions. These would be appropriate responses —
7 moving to strike a valid argument merely dodges the issue. Worse yet, Plaintiff provides no ·
3 legal authority supporting these efforts. For these reasons, Schwab requests the Court to
9 deny Plaintiffs Motion. 1
10 DATED this 20th day of December 2005.
U Ogletree, Deakins, Nash, Smoak & Stewart, P.C. _
_ § 12
itat
Z IL I
g gg; f§ By: s/ Christopher M. Mason, SBN 019891
§ 5 g § 14 Joseph T. Clees i
QQ Q 15 Christopher M. Mason -
g § 9 Mrcheire H. Ganz
§ ·>= if 16 2415 East Camelback Read, suite 800
§ 17 Phoenix, Arizona 85016
Attomeys for Charles Schwab & Co., Inc.
18
19
20
. 21
22
23
24
26 i
Case 2:04-cv—00790-EHC Document 79 3 Filed 12/20/2005 Page 3 of 4

1 CERTIFICATE OF SERVICE
2 I hereby certify that on the 20th day of December 2005, I electronically transmitted
3 the attached to the Clerk’s Office using the CM/ECF Systems for filing and transmittal of a
4 Notice of Electronic Filing to the following CM/ECP registrant:
5 Lonnie Williams, Esq.
6 Dawn C. Valdivia, Esq.
Quarles Brady Streich Lang, LLP
7 One Renaissance Square ·
Two North Central Avenue
8 Phoenix, AZ 85004
Y
10 s/Terri Oliver
11
§ 12
3E§§°13
itil:
§§=§§14
§§§§8l5
s 6 Q
gegr 16
E 17
18 _
19
20
21
22 5
23
24 .
25 2
26 .
27 Q
28 Q
Case 2:04-cv—00790-EHC Document 79 4 Filed 12/20/2005 Page 4 of 4

Case 2:04-cv-00790-EHC

Document 79

Filed 12/20/2005

Page 1 of 4

Case 2:04-cv-00790-EHC

Document 79

Filed 12/20/2005

Page 2 of 4

Case 2:04-cv-00790-EHC

Document 79

Filed 12/20/2005

Page 3 of 4

Case 2:04-cv-00790-EHC

Document 79

Filed 12/20/2005

Page 4 of 4