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

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Lydia A. Jones - 017178 ROGERS & THEOBALD LLP 2425 East Camelback Road Phoenix, Arizona 85016
Telephone: (602) 852-5582 [email protected] [email protected]

Michael J. O'Connor - 010399 JENNINGS, STROUSS & SALMON, P.L.C.
A Professional Limited Liability Company

The Collier Center, 11th Floor 201 East Washington Street Phoenix, Arizona 85004-2385
Telephone: (602) 262-5889

Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KAYE HUTTON, as an individual and representative of a class consisting of others similarly situated, Plaintiff, vs. BANK OF AMERICA, N.A., Defendant. I. INTRODUCTION The Defendant Bank's response to the motion to strike the Price affidavit and any reliance of counsel/good faith evidence is inaccurate, both with respect to its characterization of the dispute and its discussion of the law. The response would have this Court ignore what is both beyond dispute and dispositive: No. CV 2003-2262-PHX-ROS REPLY IN SUPPORT OF MOTION TO STRIKE AFFIDAVIT OF PRICE AND ANY RELIANCE OF COUNSEL/GOOD FAITH EVIDENCE

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1. 2. 3.

Plaintiff has attempted to discover and depose the persons at the Bank with knowledge of the issues. Instead of making available persons with knowledge, the Bank has forced Plaintiff to depose persons without knowledge. The Bank has refused Plaintiff's request to depose Mr. Price, who is the one person identified by Bank personnel (as opposed to Bank lawyers) as the person with knowledge.

II.

THE BANKGROUND OF THE MOTION TO STRIKE Plaintiff has attempted to discover, for several years, the basic facts

surrounding (1) when the Bank was put on notice that the client manager position was nonexempt; (2) who at the Bank was put on notice of such; (3) why there was a delay between the time of being put on notice and the date that the Bank reclassified the position as nonexempt in March 2002; and (4) who made that decision and on what basis the decision was made. At the time this litigation was filed, it was known and undisputed that there had been prior similar litigation filed against the Bank in California in 1999. The Plaintiff properly attempted early on in this case to determine why the Bank took almost three years from the date of that filing to properly reclassify the client manager position as nonexempt in 2002. Plaintiff learned at a hearing in this Court that the decision to reclassify the client managers was made by the Bank on the basis of a study conducted by Lloyd Aubry, a former director of the California Wage and Hour Department. The Bank's attorney stated as follows: MR. CHESTER: Your Honor, if it please the Court, I believe that Ms. Hutton, when she worked in the State of Washington, was called a financial relationship manager. When she worked in Arizona, she was called a client manager for the premier banking group. The premier banking group chose to convert to nonexempt status in March of 2002. The plaintiff has alleged that and sought, as consistent with the case management plan, a collective action involving Arizona. That's what we're here today discussing, and that rolled out in Arizona, and all four
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markets in Arizona at the same time, if that answers the Court's question. THE COURT Well, yes and no. I guess I'm asking whether there was a policy in Washington where the Bank of America decided, because of the problems it was having, that the previous financial managers who had exempt status were given nonexempt status. Then, was there some argument made by the plaintiffs that they were pressured into working within the 40 hours and not making claims for overtime? Was there any of that portion of this case which applies in the Seattle case? MR. CHESTER: Your Honor, I can't answer that; I don't know. I understand that the status of nonexempt resulted from a study that was done by the former head of the Department of Labor for California, who did a study of what the work was that the client managers did in Washington. As a result of that study, and as a result of the pressure brought by these lawsuits not only to the Bank of America, but other employers, the decision was made to convert, or to abandon the exemption, if that's what they were after. Reporter's Transcript of Proceedings, February 3, 2004, p. 28:16 ­ 29:20, attached as Exhibit A. To learn more about this decision and the basis for this dramatic change, Plaintiff deposed Mr. Aubry (after a stay entered by the Court on February 23, 2006). Among other things, Plaintiff learned that: 1. 2. 3. 4. Mr. Aubry was engaged by the Bank's lawyers in May 2000. Mr. Aubry was sent by the Bank to the State of Washington to interview client managers selected by the Bank in May 2000. Mr. Aubry, on May 31, 2000, had a conference call with the Bank's lawyers, including Mr. Price, to report his findings. Mr. Aubry never prepared a report or provided recommendations to any Bank executive other than Mr. Price, and did not do additional work beyond May 2000.

See Portions of Mr. Aubry's testimony, attached as Exhibit B. After conducting Mr. Aubry's deposition, the Bank informed Plaintiff that Ms. Patti Roche Fukushima was the person with knowledge regarding the decision to change the classification of the client manager position from exempt to nonexempt. Ms. Roche-Fukushima, therefore, was deposed on February 28, 2006. Ms. Roche-

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Fukushima, however, was not truly knowledgeable on this topic. Her testimony established: 1. 2. 3. She did not make the decision to change the classification. She was only involved in early 2002 in the implementation of the decision. She did not know who made the decision, but speculated that Steele Alphin might be that person.

See Portions of Ms. Roche-Fukushima's, attached as Exhibit C. After conducting Ms. Roche-Fukushima's deposition, Plaintiff requested to take Mr. Price's deposition and Mr. Alphin's deposition again in an effort to obtain the facts about one of the key issues in the lawsuit. The Bank objected to both and refused to produce either Mr. Alphin or Mr. Price for a deposition, even though deposition notices were served for both. See Letters re discovery dispute dated March 21, 2006 and April 3, 2006, attached as Exhibit D. During a conference call with the Court on April 5, 2006, the Bank stated that Mr. Price should not be deposed because he only had privileged information, and that Mr. Alphin should not be deposed because he did not make the decision. At the hearing, and for the first time, the Bank suggested that yet another Bank employee, Mark Reale, was actually the person who made the decision, and he could testify regarding the timing and reasons behind the change and otherwise be responsive to Plaintiff's requests. Prior to that hearing, which occurred three years into the

litigation and only days before the discovery deadline, Plaintiff had never been informed of Mr. Reale or his role. See Reporters Transcript of Proceedings, April 5, 2006, attached as Exhibit E. Plaintiff proceeded with the deposition of Mr. Reale on May 3, 2006, and learned the following:

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1. 2. 3. 4. 5.

Mr. Reale did not become executive over client manager positions until August 2001. Mr. Reale never spoke to Mr. Aubry or even knew of Mr. Aubry until being told of Mr. Aubry just prior to the deposition. Mr. Reale relied upon Mr. Price when changing the client manager position from exempt to nonexempt. Mr. Reale stated that there are no documents at the Bank which explain when and why the decision was made. Mr. Reale was prevented by the Bank from testifying regarding his discussions with Mr. Price.

See Portions of Mr. Reale's deposition, attached as Exhibit F. After the depositions, discovery closed on March 28, 2006, and the parties moved to the motion for summary judgment phase. Still pending, however, was the Court's ruling on the Davis notes of May 2000 based upon her conversation with Mr. Aubry and Mr. Price, and such ruling has not yet been made. In the motion for summary judgment filed by Plaintiff on the issue of the Bank's willfulness, she properly argued that Mr. Price had been involved in the retention of Mr. Aubry and had been involved in the decision-making process. In its response, despite its failure to produce Mr. Price for a deposition and its failure to allow any substantive questioning of any individual's communications with Mr. Price, the Bank affirmatively submitted an affidavit from Price as to his actions and conversations with Bank members and executives. It was the Bank, therefore, that affirmatively put Mr. Price's testimony into evidence after prohibiting Plaintiff from such discovery, after asserting the attorneyclient privilege, and after the discovery deadline had passed. The Bank now claims that, somehow, Plaintiff strategically trapped the Bank and that Plaintiff was less than diligent in attempting to gather this information on Mr. Price. Nothing could be further from the truth. As the Court will see, the Plaintiff has made every effort to discover this case. Indeed, to the extent any party has
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engaged in a strategy to prevent discovery or trap the opposing party, it was the Bank. The Bank prevented discovery of Mr. Price and, instead, has sent Plaintiff around the country, from San Clemente, California to Boston, Massachusetts to ask questions of witnesses who had marginal information at best on this key topic as to who was involved and why the decisions were made. After the discovery cutoff, the Bank submitted an affidavit of Mr. Price despite the Bank's refusal to previously allow him to be deposed. It is the Bank that is responsible for any "strategic position" that it is now in ­ not Plaintiff.1 III. CONCLUSION Plaintiff should not be prejudiced by the Bank's strategic decision to attempt to use the attorney-client privilege both as a sword and a shield. The motion to strike the Price affidavit and thus the good faith/reliance on counsel defense should be granted. DATED this 8th day of September, 2006. ROGERS & THEOBALD, LLP Lydia A. Jones 2425 East Camelback Road, Suite 850 Phoenix, Arizona 85016 Attorneys for Plaintiff JENNINGS, STROUSS & SALMON, P.L.C.

By

s/ Michael J. O'Connor Michael J. O'Connor th The Collier Center ­ 11 Floor 201 East Washington Street Phoenix, Arizona 85004 Attorneys for Plaintiff

It is also important to note that there is no Bank memorandum or document which explains the decision, identifies who was involved or why the decision was made. This failure to document such a multimillion dollar change within an organization such as Bank of America is, to say the least, unusual.

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COPY of the foregoing electronically transmitted to the Clerk's Office using 2 the ECF System for filing and transmittal of a Notice of Electronic 3 Filing to the following ECF registrants this 8th day of September, 2006:
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Charles L. Chester, Esquire RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 6 Phoenix, Arizona 85004-4417 Attorneys for Defendant Bank or America
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And copy mailed to:

The Honorable Roslyn O. Silver UNITED STATES DISTRICT COURT Sandra Day O'Connor U.S. Courthouse 11 401 West Washington Phoenix, Arizona 85003-2151
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By

s/ Kristine Farnsworth

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