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

IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Barbara Allen; Richard Dippold; Melvin Jones; Donald McCarty; Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs,

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vs.
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Honeywell Retirement Earnings Plan; Honeywell Secured Benefit Plan; Plan Administrator of Honeywell Retirement Earnings Plan; and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.

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) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV04-0424 PHX ROS Certification Regarding Compliance with LR Civ. 7.2(j) and Rule 16 and Joint Statement Regarding Discovery Dispute

Case 2:04-cv-00424-ROS

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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. Plaintiff s counsel and Defendant s counsel have exchanged several emails and held telephonic conferences to attempt to resolve their differences. Many of the differences were resolved. However, the parties have been unable to resolve all of their discovery issues satisfactorily.

Plaintiffs Statement As outlined by the parties in the Joint Proposed Case Management Plan, (pp. 8-10), despite requests in Plaintiffs Second Set of Interrogatories and Requests for Production, Defendants have refused to identify or produce any documents relating to defendants affirmative defenses beyond the documents claimed to relate to individual Plaintiffs. Defendants have stated they do not intend to do so until the Court rules on the motion for class certification. Nevertheless, Defendants have opposed class certification on the basis of the alleged affirmative defenses of the statute of limitations, laches and release. Plaintiffs do not believe the alleged existence of affirmative defenses renders class certification inappropriate. Plaintiffs counsel is not aware of releases that bar the rights of class members to participate in the action and do not believe this defense is appropriately asserted in opposition to class certification. In order to enable Plaintiffs to address Defendants contention that the existence of releases operates to make class certification inappropriate, Defendants should be required to produce the releases in their possession that they contend operate to bar putative class members claims. In the absence of production, Plaintiffs are hampered in their ability to respond to this alleged basis for opposing class certification. Pre-certification discovery may be appropriate in certain instances,

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such as when the opposing party contends that proof of the claims or defenses unavoidably raises individual issues. Manual for Complex Litigation Fourth, § 21.141 p.251 (2004). Accordingly, Plaintiffs respectfully request that Defendants be directed to produce copies of releases or other documents they contend support their contentions that class certification is inappropriate because of the existence of affirmative defenses. Defendants Statement Plaintiffs requested that Defendants produce all documents "upon which they intend to rely" in support of their affirmative defenses or in response to Plaintiffs Motion for Class Certification. Defendants have responded to Plaintiffs Class Certification Motion, and have identified therein the information upon which they rely in opposition to class certification. Defendants have properly objected that Plaintiffs requests are premature as to documents related to affirmative defenses for members of the putative class beyond the Named Plaintiffs, however, because there has not yet been class wide discovery. Defendants have agreed to produce, and have begun producing, benefits files for each putative class member. It is possible that some release documents about which Plaintiffs complain may be contained in those files. In light of Plaintiffs significant delay in initiating the instant lawsuit, however, Defendants are challenged in their efforts to identify individuals who have released claims against Defendants, but Defendants reasonably believe that such releases exist and will be identified in the discovery process. At this time, however, with no class-wide discovery, Defendants need not (and cannot) identify the specific documents upon which they will rely at trial, if a class is certified, to show releases by approximately 10,000 individual class members.

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Respectfully submitted this 11th day of April, 2006. MARTIN & BONNETT, PLLC 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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By:___s/ Susan Martin Susan Martin Daniel L. Bonnett Jennifer Kroll 3300 N. Central Ave., Suite 1720 Phoenix, AZ 85012-2517 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on April 11th, 2006 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing:

s/ Susan Martin _____________________________

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