Free Statement - 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

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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 Certification Regarding Compliance with LR Civ. 7.2(j) and Rule 16 and Joint Statement Regarding Plaintiffs Request for Protective Order

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CERTIFICATION Pursuant to Local Rule 7.2(j) and Fed. R. Civ. Pro. 16, the undersigned counsel confirm that they personally consulted and made sincere efforts to resolve all discovery issues. However, the parties have been unable to resolve all of their discovery issues satisfactorily.

MARTIN & BONNETT, PLLC

MORGAN, LEWIS & BOCKIUS LLP

By:___s/ Susan Martin Susan Martin Daniel L. Bonnett Jennifer Kroll 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012-2517 Attorneys for Plaintiffs

By s/William J. Delany Michael L. Banks (Pro Hac Vice) William J. Delany (Pro Hac Vice) John G. Ferreira (Pro Hac Vice) Amy Promislo Covert(Pro Hac Vice) Azeez Hayne (Pro Hac Vice) 1701 Market Street Philadelphia, PA 19103 Attorneys for Defendants

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Plaintiffs Statement Regarding Need for Protective Order Defendants proposed discovery on absent class members (Ex. A) fails to support their burden to make a strong showing of need, (see doc.159), seeks information already in their possession, is overly broad and unduly burdensome. The Court allowed discovery subject to review, (doc.155, pp.4950,54), based on Defendants representation that the information needed for their affirmative defenses was in absent class members possession. Despite this representation, Defendants seek plan documents, plan descriptions, seminar materials, etc. that are in their possession (RFP 1) and that would require absent class members to produce hundreds of copies of the same plan documents or forms along with requests for benefit estimates and other information that a cursory review of documents produced by Defendants reveals are also in their possession (RFP 2). Defendants have never shown reason to believe that plan communications contained notice and repudiation sufficient to trigger running of the statute of limitations.1 Plaintiffs believe these documents will prove to be entirely irrelevant once the Court sets the parameters of the statute of limitations. Asking for production of all communications relating to benefits (RFP 3,4,5,8, Interrog. 2-5,8) is a fishing expedition. Aside from seeking information Defendants possess, RFP 1- 4 and Interrog. 2, 4, 78 seek information that Defendants could obtain by investigation or review of their own records and representatives. The requests are overly broad, irrelevant and unduly

Defendants focused on the activities of Barbara Allen and a small group of retirees who submitted information to the Department of Labor as a reason they need absent class discovery (doc. 155, p.50) and as a reason this action is potentially barred by the statute of limitations in their opposition to Plaintiffs class certification motion. However, Defendants claim that further discovery is warranted to support their affirmative defenses is not borne out by the discovery undertaken with respect to the named Plaintiffs. It is clear from the exhibits submitted by Defendants, (doc. 147, ex.S), that this small group was complaining about their belief that the mere existence of Honeywell s offsets somehow constituted tax fraud, a claim not asserted nor even remotely relevant to the facts or legal issues raised here. Defendants pointed to nothing about the activities of Barbara Allen or the other retirees that demonstrated knowledge that plan amendments were adopted and applied retroactively to reduce accrued benefits.
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burdensome, including the request to describe involvement in and produce documents concerning all involvement in retiree clubs (RFP 7, Interrog.6) and to produce documents and describe communications and conversations absent class members had with anyone concerning their benefits (RFP 5,8, Interrog.2, 3, 5). Defendants interrogatories are likewise overly broad, truly burdensome and confusing, asking, for example, itemization of details of meetings and conversations no longer recalled and descriptions of documents no longer possessed (Interrog. 3, 7). Plaintiffs respectfully request a protective order. Defendants Statement Plaintiffs motion for a protective order essentially reiterates the arguments they made in support of their proposed Rule 16 order, (Doc. # 159), to which Defendants already responded extensively. (Doc. # 161). As discussed below, and in Defendants previous memoranda, (Doc. #s 157, 161), Defendants proposed discovery is appropriate and should be allowed in accordance with the Court s April 13 rulings.

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Plaintiffs complain that the proposed discovery is overbroad, unduly burdensome, or
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irrelevant. On the contrary, Defendants propounded to Plaintiffs a reasonable set of discovery
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requests which were narrowly tailored to seek information in support of Defendants
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affirmative defenses. The discovery requests are drafted to be easily understood by
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participants represented by Martin & Bonnet, and with the understanding that most individuals will have a central repository for their benefit information, as did the named Plaintiffs. In fact, to further minimize any burden, Defendants offered various compromises, including to pay the copying and shipping costs the putative class members reasonably incur in responding to the discovery. See (Doc. 157 at Ex. E).
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Plaintiffs dismiss Defendants request for all communications regarding benefits under the Plans as a fishing expedition. Plaintiffs, however, ignore that this request would encompass the several hundred page letter Ms. Allen and other participants sent to the Department of Labor challenging the very offsets they now attack. See also (Doc. # 161 at 10.) Plaintiffs characterization of the letter aside, such a document is clearly relevant to the statute of limitations and laches
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In addition, Plaintiffs also resist this discovery based on the same faulty understanding of the standards applicable to Defendants statute of limitations defense they advanced in their Memorandum in support of Plaintiffs proposed Rule 16 Order. (Pls. Statement at 2.). As discussed in Defendants response, however, Plaintiffs interpretation of the statute of limitations is unsupported by the case law and untenable. See (Doc. # 161 at 5-7).

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Plaintiffs also object that the proposed discovery seeks information, e.g. plan
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documents, that Plaintiffs assert are in Defendants possession. Plaintiffs argument is
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incorrect for a number of reasons. Plaintiffs filed their claim more than 20 years and several
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corporate mergers after the events giving rise to their claims took place. Given the passage
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of time, Defendants no longer maintain all of the communications sent or given to participants over the intervening decades. In many cases, therefore, the putative class members will be the best repository of this information, as demonstrated by the numerous documents produced by the named Plaintiffs. Indeed, this was the very reason the Court authorized Defendants to take discovery from the putative class. Plaintiffs objection, moreover, ignores that a putative class member s production of a document (regardless of whether that document is in Defendants possession) provides substantive evidence that the participant possessed the document, evidence that is relevant to the statute of limitations defense. See also (Doc. # 161 at 8-9). For all these reasons, Defendants request that the Court deny Plaintiffs motion for a protective order.

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defenses, and would be responsive to Defendants requests.
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Respectfully submitted this 18th day of May, 2006.

MARTIN & BONNETT, PLLC By:___s/ Susan Martin Susan Martin Daniel L. Bonnett Jennifer Kroll 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012-2517 Attorneys for Plaintiffs

MORGAN, LEWIS & BOCKIUS LLP By s/William J. Delany

Michael L. Banks (Pro Hac Vice) William J. Delany (Pro Hac Vice) John G. Ferreira (Pro Hac Vice) Amy Promislo Covert(Pro Hac Vice) Azeez Hayne (Pro Hac Vice) 1701 Market Street Philadelphia, PA 19103 Attorneys for Defendants

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CERTIFICATE OF SERVICE
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I hereby certify that on May 18, 2006 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing:

s/

Jennifer Kroll

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