Free Reply in Support of Motion - District Court of Arizona - Arizona

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SUSAN MARTIN (AZ#014226) DANIEL L. BONNETT (AZ#014127) JENNIFER KROLL (AZ#019859) MARTIN & BONNETT, P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Telephone: (602) 240-6900 [email protected] [email protected] [email protected] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Barbara Allen; Richard Dippold; Melvin Jones; ) Donald McCarty; Richard Scates and Walter G. ) West, individually and on behalf of all others ) similarly situated, ) ) Plaintiffs, ) ) vs. ) ) Honeywell Retirement Earnings Plan; Honeywell ) Secured Benefit Plan; Plan Administrator of ) Honeywell Retirement Earnings Plan; and Plan ) Administrator of Honeywell Secured Benefit ) Plan, ) ) Defendants. ) ) No. CV04-0424 PHX ROS

REPLY IN FURTHER SUPPORT OF PLAINTIFFS MOTION TO CONDUCT ADDITIONAL DISCOVERY PURSUANT TO RULE 56(f) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Plaintiffs hereby submit this reply in further support of their Motion to Conduct Additional Discovery Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. (Doc. 373, 374.) On the cross motions for summary judgment, Plaintiffs contend that the statute of limitations defense should be dismissed because Defendants have failed to meet their burden to prove that any of the three documents upon which they rely put class members on notice of their injuries or clearly and unmistakably repudiated Plaintiffs claims. In response to Defendants motion, Plaintiffs filed a Rule 56(f) motion, (Doc. 373), because, in the event the Court concludes that the documents upon which Defendants rely are relevant, Plaintiffs

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have not had an opportunity to complete discovery on the alleged manner and method of distribution of the documents to class members. Defendants argument that Plaintiffs somehow failed to establish that the evidence sought would create genuine issues of material fact is without merit. Plaintiffs diligently sought discovery, but because the parties agreed not to pursue depositions during settlement negotiations and thereafter agreed to a further stay on depositions pending final approval of the Partial Settlement, Plaintiffs have been unable to complete discovery.1 (See Doc. 322 p. 3 ¶ F.) Questions of fact surrounding Defendants recent representations (not previously disclosed to Plaintiffs), concerning distribution of the three documents, make it appropriate to defer ruling on whether Defendants properly distributed those documents until completion of Plaintiffs discovery. James McLeod, who submitted a declaration in support of Defendants motion for summary judgment, had not yet been disclosed by Defendants in accordance with Rule 26 of the Federal Rules of Civil Procedure. Mr. McLeod offered statements regarding what he described as the usual practice of the Garrett Corporation through 1986 regarding distribution of communications. (Doc. 342, Exhibit 1, ¶ 5.) Part of what Mr. McLeod described as the usual practice could not have passed muster under ERISA as a method of distribution reasonably calculated to ensure actual receipt of material by plan

participants, beneficiaries and other specified individuals. See 29 C.F.R. § 2520.104(b)1(b)(1) (setting forth acceptable methods of distribution of ERISA required disclosures and stating that in no case it is acceptable merely to place copies of the material in a location

As set forth in Plaintiffs motion, Plaintiffs timely served interrogatories and requests for production and noticed Rule 30(b)(6) depositions on topics related to distribution of the documents that Defendants claim triggered the statute of limitations. In March 2007, Plaintiffs also noticed the deposition of Craig Chapman, who was disclosed by Defendants in their Initial Disclosures and who had previously submitted declarations to this Court addressed to communications that Defendants claimed triggered the running of the statute of limitations. Under the Scheduling Order, these depositions may take place after final approval of the Partial Settlement.
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frequented by participants. ) See McLeod Declaration, (Doc. 342, Exhibit 1, ¶5), noting that in some instances the Garrett printing department would send communications to Garrett Divisions which would then mail the communications or pass them out to their employees. Summary denial is especially inappropriate where the material sought is also the subject of outstanding discovery requests. VISA Int'l Serv. Ass'n v. Bankcard Holders of Am., 784

F.2d 1472, 1475 (9th Cir. 1986). See Garrett v. City and County of San Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987); Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc., 2007 WL 4039341 (9th Cir. 2007). Cf. Noyes v. Kelly Services, 488 F.3d 1163, 1173-74 (9th Cir. 2007). Defendants opposition appears to take the position that Plaintiffs motion should be denied because Plaintiffs somehow should have discovered the evidence offered by Mr. McLeod themselves. Defendants argument that a letter indicating that Mr. McLeod was one of several classes of individuals they wish[ed] to interview and de-brief for purposes of developing defenses and evaluating witnesses who may be relevant to testify in response to Plaintiffs deposition notices, (Doc. 389, Exh. 2), somehow sufficed to put Plaintiffs on notice that he had information relevant to the statute of limitations defense, including the method and manner of distribution of communications, is without merit. Likewise, without merit is Defendants contention that they somehow satisfied their Rule 26 obligations by providing Plaintiffs with a class listing of the approximately 16,500 class members. (Doc. 389, p.2.) Rule 26 did not require that Plaintiffs undertake to interview all 16,500 class members to determine whether they have information relevant to Defendants defenses. That is information that Defendants were required to provide to Plaintiffs in timely fashion through supplementation of initial disclosures. Rule 26 of the Federal Rules of Civil Procedure provides that a party must disclose: the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment...

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Not only did Defendants fail to comply with Rule 26 with respect to Mr. McLeod, they also affirmatively advised Plaintiffs that only four individuals would testify regarding the Rule 30(b)(6) notices served by Plaintiffs. Mr. McLeod was not one of them. (Declaration of Jennifer Kroll dated February 4, 2008 ¶ 3.) Accordingly, if the Court determines that receipt by class members of the three documents upon which Defendants rely for their statute of limitations defense may be relevant, Plaintiffs respectfully request that Plaintiffs be permitted to complete discovery prior to a ruling regarding whether class members received these documents. Although Plaintiffs have filed a Rule 56(f) motion, it is limited to the narrow issue of distribution of the documents upon which Defendants rely and is not addressed to the merits of the parties cross-motions for summary judgment on the statute of limitations defense. Respectfully submitted this 4th day of February, 2008. MARTIN & BONNETT, P.L.L.C. By: s/Susan Martin Susan Martin Daniel L. Bonnett Jennifer L. Kroll 3300 North Central Avenue Suite 1720 Phoenix, AZ 85012-2517 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on February 4, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Ave., Suite 2100 Phoenix, AZ 85012-2794 Michael Banks Azeez Hayne Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Howard Shapiro Proskauer Rose LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112 Amy Covert Proskauer Rose LLP th One Newark Center, 18 Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Craig Primis Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants s/ J. Kroll

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