2 Christopher M. Mason, SBN 019891
I Michelle H. Ganz, SBN 023651
3 I OGLETREE, DEAKINS, NASH,
r SMOAK & STEWART, P.C. SBN 00504800 `
4 I 2415 East Camelback Road, Suite 800
5 1 Phoenix, Arizona 85016
Telephone: (602) 778-3700
6 Email: joe.clees@ogletreedeal
I Email: michelle.ganz@ogltreedeal
9 Attorneys for Defendant Charles Schwab & Co., Inc.
10 I UNITED STATES DISTRICT COURT
11 DISTRICT OF ARIZONA
S 12 I MARCELA JOHNSON, Case No. CV 04-0790 PHX-J WS
Qq E 5 13 E Plaintiff, DEFENDANT CHARLES SCHWAB
§ 8 S14 & CO., INC.’S MOTION FOR g
§ §§ g VS- COURT ORDER TO SECURE
E E E § R15 RECORDS RELATING TO 1
Q §§16 . CHARLES SCHWAB CORPORATION, ALLEGED DAMAGES I
§ rg-: E I I Defendant. l
2 17 =
N 18 I In what appears to be a concerted effort to deny Defendant Charles Schwab & Co.,
19 Inc. ("Schwab") access to evidence which would show that Plaintiff has almost
20 I completely mitigated her alleged damages, Plaintiff flatly refuses to execute releases for
21 2 records showing her unemployment and other eamings. Plaintiff has not disclosed a
22 damages calculation. She has not disclosed complete records of her earnings. She even
23 refuses to identify her current employer.
24 Schwab, in routine discovery practice, sent releases to Plaintiff to obtain records
25 1 from the Arizona Department of Economic Security, the State Compensation Fund and
26 I the State Industrial Commission. The records sought through these releases will reflect
27 I Plaintiff’ s unemployment earnings (which she acknowledges that she received) and
28 1 earnings through similar govermnent sources, such as w0rkers’ compensation. Releases
Case 2:04-cv—00790-EHC Document 49 Filed 10/31/2005 Page 1 014
1 are required because these agencies will only release records either pursuant to a release
2 or in response to a court order. They will not provide these records in response to just a
3 subpoena.
4 Undersigned counsel sent the attached releases to Plaintiffs counsel on August l5,
5 2005. (See Exhibit "A" hereto). Plaintiffs counsel disregarded the releases and
6 accompanying letter from undersigned counsel. After waiting for over one and one-half
7 months for a response, undersigned counsel contacted Plaintiffs counsel to follow up.
3 Plaintiffs counsel flatly refused to sign the releases.
9 This is even more surprising given the fact that Schwab has asked for multiple
1() levels of income verification, but has yet to receive it. In fact, Plaintiff has provided only
11 incomplete income documentation — just one year’s tax return and five pay stubs for four ‘
§ l2 post-Schwab employers. Plaintiff has indicated in interrogatory responses that she _
E C 13 received unemployment compensation, and identified an approximate monthly amount
§; Ig Qi E 14 and time period; however, she further indicated that she does not have any documentation
15 of the benefits she received, nor can she specifically identify all of the unemployment
§ 51*2f 16 compensation she was paid. Additionally, Plaintiff has not provided any workers’ 2
§ 17 compensation benefit information. Any unemployment benefit, workers’ compensation
18 claims and benefit verification are clearly discoverable.
19 Based on the above, and because these documents are discoverable, Schwab
20 requests that the Court to issue an Order which will provide the Industrial Commission
21 and the DES the authority to release Plaintiffs files. In the alternative, Schwab requests
22 that the Court order Plaintiff to sign the releases served on her counsel in August 2005
23 and attached hereto as Exhibit A.
24 Schwab has concurrently served proposed release Orders for the Court’s
25 consideration.
Case 2:04-cv—00790-EHC Document 49 2 Filed 10/31/2005 Page 2 of 4
1 DATED this day of October 2005.
2 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
3
4 .
By: s/ Chrrstopher M. Mason, SBN 019891
5 Joseph T. Clees
6 Christopher M. Mason
Michelle H. Ganz
7 2415 East Camelback Road, Suite 800
Phoenix, Arizona 85016
8 Attorneys for Charles Schwab & Co., Inc.
9 2
10
11 , 1
12 A
1 13
15
ga .1 16
17
is
19
20
22
24
Case 2:04-cv—00790-EHC Document 49 3 Filed 10/31/2005 Page 3 of 4
1 cnnririciirtz or sniwiciz 1
2 I hereby certify that on the 31st day of October 2005, I electronically transmitted the _
3 attached document to the Clerl<’s Office using the CM/ECF Systems for filing and ‘
4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant:
5
6 sl Terri Oliver
8
10
Eg¤E—
16
17
19
20
24
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