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-EHC MOTION FOR LEAVE AND TO COMPEL DEPOSITION OF CHERI MELLE AND FOR SANCTIONS

Plaintiff Marcela Johnson ("Johnson") moves for leave to take the deposition of Cheri Melle ("Melle") outside of the discovery deadline and to compel Melle to appear for her deposition and for sanctions against Schwab for failing and refusing to cooperate with Johnson and for misleading Johnson regarding Melle's deposition. This Motion is accompanied by the following Memorandum Points and Authorities and the accompanying Statement of Consultation by Dawn C. Valdivia. MEMORANDUM OF POINTS AND AUTHORITIES Cheri Melle ("Melle") was Johnson's supervisor, provided information to the Human Resource Director who recommended that Johnson be terminated, and supported the decision to terminate Johnson. Her testimony is crucial to this litigation. She is listed on both parties' disclosure statements. Despite numerous requests, Schwab provided Johnson with only one date, for one half day, to take Melle's deposition. The date provided by Schwab conflicted with other commitments held by Johnson's counsel. The date was also unacceptable because it unilaterally limited the seven-hour time period allowed by Rule 30(d)(2). Schwab indicated that Melle's availability was limited due to a vacation and various doctors appointments and that she
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could not commit to any dates after the week of February 20, 2006. Johnson asked for dates in March, but was never provided with any. Johnson informed Schwab that given Melle's unavailability, Johnson intended to take the deposition outside of the March 31, 2006, discovery deadline. Schwab expressed no disagreement with Johnson's intention and indicated that it had contacted Melle and that her husband was facing serious medical issues, but that they would follow-up regarding dates. Johnson did not unilaterally notice Melle's deposition based on Schwab's representations that Melle's husband was facing serious medical issues and Schwab's assurance that it was working to secure a date for Melle's deposition. Despite their representations, Schwab never provided Johnson with another date and has now taken the position that Melle will not appear for her deposition without a Court Order because discovery has closed. Schwab's actions are unreasonable, unprofessional, and sanctionable. Schwab initially provided only one 1/2 day for Melle's deposition and then, despite repeated requests for dates, stalled by indicating that Melle was either on vacation or dealing with medical issues. Schwab mislead Johnson into believing that it was working to secure deposition dates for Melle, but apparently never intended to do so. Instead, Schwab stalled until discovery closed and then refused to agree to allow Johnson to take Melle's deposition beyond the deadline, even though Schwab never provided any other dates for Melle's deposition. For the foregoing reasons, Johnson respectfully requests this Court to grant Johnson leave to take Melle's deposition beyond the discovery cut-off and to compel Melle to appear for her deposition. Johnson also respectfully requests that she be awarded the costs of filing this Motion for Schwab's dilatory tactics regarding this matter. RESPECTFULLY SUBMITTED this 23rd day of May, 2006.

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Case 2:04-cv-00790-EHC

QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

I hereby certify that on May 23, 2006, I electronically transmitted the attached document to the Clerk's office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Karen Gillen Nonnie Shivers Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A copy of this document was provided to The Honorable Earl H. Carroll s/Dawn C. Valdivia
QBPHX\115637.00002\2015084.1

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