Free Memorandum - District Court of Arizona - Arizona

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David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 [email protected] [email protected] Michael L. Banks, Pro Hac Vice William J. Delany, Pro Hac Vice Azeez Hayne, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 [email protected] [email protected] [email protected] Attorneys for Defendants 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. I. INTRODUCTION On April 13, 2006, the Court authorized Defendants to take discovery from putative class members and ordered the parties to prepare a joint proposed scheduling order addressing pre-certification discovery. As discussed in more detail below, No. CV04-0424 PHX ROS

Memorandum In Support of Defendants' Proposed Interim Rule 16 Scheduling Order

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Defendants conferred with Plaintiffs regarding the scope of this discovery and offered to limit their pre-certification discovery to putative class members represented by Martin & Bonnett. Pursuant to this compromise offer, Defendants have proposed the following schedule for completion of pre-certification discovery and briefing: · Defendants will produce the documents in their possession regarding all of the putative class members within 60 days after the Court enters a scheduling order; · Defendants will complete discovery from the putative class members represented by Martin & Bonnett (including document requests, interrogatories, and a limited number of depositions) within 90 days after the Court enters a scheduling order; · Defendants will file a supplemental brief in opposition to Plaintiffs' motion for class certification within 120 days after the Court enters a scheduling order; and · Plaintiffs will file a reply to Defendants' opposition and supplemental opposition briefs within 150 days after the Court enters a scheduling order. Defendants' proposed Interim Rule 16 Scheduling Order provides a fair and reasonable time for both parties to complete pre-certification discovery, and a rational process by which to complete briefing on class certification. By contrast, the scheduling order proposed by Plaintiffs to Defendants is both inadequate and one-sided. See Plaintiffs' Proposed Rule 16 Scheduling Order (attached as Ex. A). As discussed in more detail below, Plaintiffs' proposed scheduling order: · Fails to provide for the discovery from the putative class that the Court authorized; · Creates a fragmented and duplicative briefing schedule; and · Attempts to expand Plaintiffs' discovery requests to encompass individuals who were not encompassed by their original requests. Defendants, therefore, respectfully request that the Court adopt Defendants' Rule 16 Scheduling Order.

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II.

ARGUMENT
A.

Defendants' Proposed Interim Rule 16 Scheduling Order Is Reasonable and Preferable To Plaintiffs' Incomplete Proposed Schedule. 1. Defendants' Proposed Pre-Certification Discovery Deadline Is Fair And Reasonable.

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Defendants have proposed to complete pre-certification discovery from putative class members within 90 days of the Court's entry of a scheduling order. This discovery would include both Defendants' discovery from the putative class (limited to Martin & Bonnett's clients), and the production of documents in Defendants' possession related to the putative class.1 The schedule, therefore, provides a reasonable opportunity for both parties to obtain discovery concerning the putative class members. By contrast, Plaintiffs' proposed order simply ignores that the Court authorized Defendants to take discovery from the putative class. For this reason, Plaintiffs' proposed schedule is inadequate. Defendants' proposed schedule, moreover, is fair and reasonable. Defendants have requested 90 days to complete pre-certification discovery from putative class members represented by Martin & Bonnett, including document requests and interrogatories, and a limited number of depositions. Defendants proposed a 90-day discovery period largely to accommodate any additional time that Plaintiffs believe they will need to respond to Defendants' proposed discovery. Ninety days is a reasonable period in which to complete discovery from the roughly 800 individuals Martin & Bonnett represents in this action, particularly since preliminary discussions with Plaintiffs (as discussed more fully below) suggest that the parties disagree about the scope of discovery, and time will likely be needed to address these disputes. Defendants, therefore, respectfully request that the Court adopt Defendants' proposed schedule for pre-certification discovery.

As discussed in more detail below, see II(B) infra, Defendants have already produced documents relating to individuals covered by Plaintiffs' discovery requests. Nonetheless, Defendants will produce documents regarding the entire putative class, notwithstanding that Plaintiffs' requests do not encompass all such individuals.
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2.

Defendants' Proposed Discovery From The Putative Class Members Represented By Martin & Bonnett Is Reasonable.

On April 13, 2006, the Court authorized Defendants to take discovery from the putative class. See April 13 Tr. at 52 (attached as Ex. B). Although the Court allowed discovery from all putative class members, Defendants offered that they were willing to consider limiting their discovery requests to the roughly 800 individuals Martin & Bonnett represents in this action.2 See April 19, 2006 Letter from W. Delany to S. Martin (attached as Ex. C). Defendants, therefore, requested a list of the individuals Martin & Bonnett represents in this matter to enable Defendants to assess the possibility of limiting discovery from the putative class. Id. Martin & Bonnett, however, refused to provide Defendants with such a list. Id. Nonetheless, in an effort to facilitate a compromise and the preparation of a joint proposed Rule 16 order, Defendants provided to Plaintiffs for review and comment a draft set of requests for production of documents and interrogatories to be directed to putative class members represented by Martin & Bonnett. See April 25, 2006 Letter from A. Hayne to S. Martin (attached as Ex. D). Plaintiffs reviewed the draft requests and objected to virtually every request for production. See May 3, 2006 Letter from A. Hayne to S. Martin (attached as Ex. E). Moreover, despite the Court's April 13 ruling authorizing Defendants to serve interrogatories, see April 13, 2006 Transcript at 52, Plaintiffs argued that Defendants may not serve any interrogatories. See Ex. E at 3-4. In an effort to allay Plaintiffs' concerns, Defendants revised their discovery requests and offered Plaintiffs a number of compromises. See Ex. E. For example, Defendants eliminated two of their document requests, offered to limit several more, and offered to pay the copying and shipping costs that Martin & Bonnett's clients reasonably
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Defendants offered this compromise while reserving their right to take discovery from the entire class should the Court certify one, and provided that Plaintiffs would agree not to argue on class certification that Defendants had failed to meet any burden of proof with respect to the putative class members from whom Defendants opted not take discovery at this stage.
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incur in responding to Defendants' requests. Id. Defendants also indicated their intent to take the depositions of a limited number of the putative class members Martin & Bonnett represents. Id. Despite the compromise offers, however, Plaintiffs have refused to respond to six of Defendants' eight revised requests for production of documents. Plaintiffs have also continued to refuse to respond to any interrogatories, despite the Court's April 13 ruling, which specifically allowed Defendants to serve interrogatories. Similarly, Plaintiffs have asserted that Defendants may not take any depositions from the putative class. Defendants' discovery requests are reasonable. The Court has already authorized Defendants to take discovery from the putative class. Defendants' document requests and interrogatories, moreover, are designed to obtain information not available from Defendants' files. In addition, Defendants have drafted their requests so as to minimize the burden on the putative class. There is no basis, therefore, for Plaintiffs' refusal to respond to this discovery. Defendants' request to take a limited number of depositions from putative class members Martin & Bonnett represents is similarly reasonable. As described in Defendants' opposition to Plaintiffs' motion for class certification, and in the oral argument on April 13, Plaintiffs' depositions provided a great deal of information regarding the affirmative defenses that will be central to this action. Based on these depositions, Defendants have reason to believe that depositions from a limited number of the putative class members will also yield significant evidence relevant to the Court's certification decision. Defendants' request to take a relatively small number of depositions, therefore, is reasonable, particularly in light of the potential size of this putative class action. 3. Defendants' Proposed Briefing Schedule Is The Most Rational Way To Complete Briefing On Class Certification.

In their proposed Rule 16 scheduling order, Defendants provide for a supplemental brief in opposition to Plaintiffs' motion for class certification followed by a single reply to both of Defendants' briefs. The supplemental opposition brief is necessary to allow
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Defendants to present the additional evidence to be obtained through the discovery from putative class members that the Court authorized. Plaintiffs argue, however, that Defendants might not obtain any new evidence from this discovery. Plaintiffs, therefore, propose instead to file a reply to Defendant's opposition brief, and then to require Defendants to petition the Court for leave to file a supplemental opposition brief if they obtain relevant evidence from putative class members. Plaintiffs' proposed briefing schedule, however, ignores that the reason the Court authorized pre-certification discovery from putative class members was to allow Defendants to present evidence in these individuals' possession in opposition to class certification. Plaintiffs' proposed briefing schedule simply glosses over this fact, effectively refusing to give effect to the Court's April 13 rulings. Plaintiffs' proposed briefing schedule, moreover, is also needlessly complicated. Based on the diversity and amount of evidence that Defendants obtained through discovery from the six Plaintiffs, there is no reason to believe that the selective and tailored discovery Defendants intend to pursue from an additional 800 putative class members will not yield new evidence relevant to class certification. Plaintiffs' proposed schedule, therefore, will simply lengthen the time needed to complete briefing on class certification, and force Defendants' to file, and the Court to consider, an unnecessary motion for leave to file a supplemental opposition brief. Furthermore, under Plaintiffs' schedule, if the Court grants Defendants leave to file a supplemental opposition brief, Plaintiffs would presumably seek leave to file an additional response brief. Plaintiffs' proposed schedule, therefore, will necessarily increase and fragment the briefing on class certification. Thus, Defendants respectfully request that the Court adopt Defendants' more stream-lined proposal, which gives effect to the Court's April 13 rulings.
B.

Additional Problems With Plaintiffs' Proposal

In addition to the issues discussed above, there are two further concerns relating to Plaintiffs' proposed scheduling order: (1) Plaintiffs' proposed order attempts to
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retroactively expand Plaintiffs' discovery requests significantly, and (2) Plaintiffs' proposal misconstrues the issues to be decided on class certification. Plaintiffs' proposed order improperly attempts to broaden Plaintiffs' discovery requests. Plaintiffs defined the putative class as: All former participants of the [Garrett] Retirement Plan . . . and the [Garrett] Severance Plan . . . who became vested participants in the [Signal Retirement Plan] or the Garrett Secured Benefit Account . . . . See Plaintiffs' Motion for Class Certification at 1-2 (emphasis added). Despite this definition, Plaintiffs' first set of interrogatories sought information regarding: all former salaried employees of the Garrett Corporation . . . who were participants in the [Garrett] Retirement Plan. . . and the [Garrett] Severance Plan . . . as of December 31, 1983 and who became vested participants in the [Signal Retirement Plan] and the Garrett Secured Benefit Account . . . . See Plaintiffs' First Set of Interrogatories at 5-6 (emphasis added) (attached as Ex. F). Defendants have already produced over 400,000 pages of documents related to these individuals. Plaintiffs now, however, seek an order requiring Defendants to "serve responses to all of Plaintiffs' discovery demands with respect to all putative class members." See Plaintiffs' proposed Rule 16 Scheduling Order at 1 (emphasis added). In other words, Plaintiffs essentially seek to rewrite their first interrogatories to drastically expand the group of individuals beyond their original interrogatories. While Defendants plan to produce documents in their possession regarding the entire putative class over the next 60 days, requiring Defendants to produce those documents immediately is inappropriate because Plaintiffs have never before requested these documents. Plaintiffs' proposal is also inappropriate because it seeks the entry of an order that appears to be designed to bypass Defendants' legitimate objections to Plaintiffs' discovery requests. Plaintiffs seek an order requiring Defendants to comply with a nebulous and
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undefined set of Plaintiffs' "discovery demands." See Plaintiffs' Proposed Scheduling Order at 1. Such an order, read literally, might be misconstrued to suggest that Defendants' valid objections ­ that Plaintiffs have never challenged by motion ­ are somehow overruled. Plaintiffs' in-artful drafting is particularly problematic because Plaintiffs misconstrue the proper scope of inquiry on a motion for class certification. Class certification does not entail an investigation into the merits of each putative class members' claims and the defendants' defenses to those claims. Rather, the focus of the inquiry is upon how those claims will be decided ­ i.e. whether the claims can be decided based on class-wide proof, or whether they will devolve into mini-trials dependant on individualized inquiries. Plaintiffs wrongly contend that Defendants must identify, before this Court certifies a class, each fact and document on which Defendants may rely at trial to support their affirmative defenses with respect to each of the 10,000+ putative class members. At the class certification stage, Defendants need not prove the merits of their affirmative defenses with respect to each of the putative class members. On the contrary, at this stage, Plaintiffs bear the burden of proving that the putative class meets all of Rule 23's requirements. Defendants, therefore, respectfully request the Court to reject Plaintiffs' proposal and adopt Defendants' proposed Rule 16 order.

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III.

CONCLUSION For all the reasons outlined above, Defendants respectfully request that the Court

adopt Defendants' proposed Rule 16 scheduling order. Respectfully submitted this 4th day of May, 2006. OSBORN MALEDON, P.A. By: /s/ David B. Rosenbaum_____ David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Michael L. Banks (Pro Hac Vice) William J. Delany (Pro Hac Vice) Azeez Hayne (Pro Hac Vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Attorneys for Defendants

CERTIFICATE OF SERVICE I do certify that on May 4, 2006, 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: Susan Martin Martin & Bonnett P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Attorney for Plaintiff /s/ David B. Rosenbaum David B. Rosenbaum

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