Filed: Oct. 31, 2014
Latest Update: Oct. 31, 2014
Summary: Discovery Dispute and Status Conference Order MARK R. ABEL, Magistrate Judge. On October 30, 2014, counsel for the parties participated in a telephone discovery dispute and status conference with the Magistrate Judge. Before the conference, plaintiffs' counsel wrote me an October 14, 2014 letter setting out the issues to be discussed; and defendants' counsel responded with an October 28, 2014 letter. The following matters were discussed. Plaintiffs' request to depose all of defendants' trial
Summary: Discovery Dispute and Status Conference Order MARK R. ABEL, Magistrate Judge. On October 30, 2014, counsel for the parties participated in a telephone discovery dispute and status conference with the Magistrate Judge. Before the conference, plaintiffs' counsel wrote me an October 14, 2014 letter setting out the issues to be discussed; and defendants' counsel responded with an October 28, 2014 letter. The following matters were discussed. Plaintiffs' request to depose all of defendants' trial ..
More
Discovery Dispute and Status Conference Order
MARK R. ABEL, Magistrate Judge.
On October 30, 2014, counsel for the parties participated in a telephone discovery dispute and status conference with the Magistrate Judge.
Before the conference, plaintiffs' counsel wrote me an October 14, 2014 letter setting out the issues to be discussed; and defendants' counsel responded with an October 28, 2014 letter. The following matters were discussed.
Plaintiffs' request to depose all of defendants' trial witnesses. Plaintiffs served interrogatories asking defendants to name their trial witnesses. Defendants responded that neither the Federal Rules of Civil Procedure or Judge Sargus's scheduling order require them to name their trial witnesses until 30 days before trial. Rule 26(a)(3)(A) and (B), Fed. R. Civ. P.; Doc. 185, PageID 3822.1 Defendants' counsel stated that his clients have disclosed all their potential witnesses in their 26(a)(1) disclosures and their answers to interrogatories.
Plaintiffs suggested that the parties enter an agreement that gave both sides the opportunity to depose before trial the other side's trial witnesses who were not deposed during discovery. Defendants rejected the offer.
Defendants have complied with both the Rules and Judge Sargus's scheduling order. They are not required to name their trial witnesses until 30 days before trial. Plaintiffs have had the opportunity to depose the witnesses they believe have the most information relevant to their claims and defendants' defenses. Defendants did not oppose their taking more than 10 depositions. While plaintiffs' proposal might have advantaged both parties, neither the Rules nor Judge Sargus's order required defendants to accept it. Accordingly, plaintiffs' request for an order that all of defendants' trial witnesses submit to deposition before trial is DENIED.
Additional discovery that may be occasioned by Judge Sargus's ruling on plaintiff's objections to my August 8 and September 12 Orders (docs. 187 and 192). Both sides agree that it is best to wait for Judge Sargus's ruling.
Plaintiffs' request to depose former Duke Energy Corporation CEO James Rogers. Plaintiff's argue that they did not know that Rogers made the decision to offer the customers who withdrew their opposition to Duke's early 2004 electricity rate plan option agreements until September 26, 2014 when defendants produced Gainer's December 6, 2004 email that states Rogers made that decision.2
Defendants argue that plaintiffs' request to depose Rogers was untimely. The discovery deadline was October 15, 2014. During the evening of October 13, plaintiffs' counsel sent defendants' counsel their first request to depose him. During the October 30 conference, defendants' counsel said that his clients would not call Rogers as a witness at trial.
Defendants argue that plaintiffs knew about Rogers' involvement in the issues raised in this lawsuit because he testified during PUCO proceedings. Defendants further argue that a year ago James Gainer's deposition testimony made plaintiffs aware of Rogers' role in okaying the options agreements. My August 8, 2014 Order summarized Gainer's testimony as follows:
Next plaintiffs point to James Gainer's deposition. In December 2004, he was CG&E's Vice President for Regulatory and Legislative Strategy. He testified that there were option agreements that "gave the CRES an option to serve those customers in return for a payment." He did not recall the reasons for switching from the agreement negotiated in November 2004 to the option agreements. He described it as a management decision that he did not know had anything to do with PUCO's order. He believed the company could have kept the November 2004 agreement rather than negotiate the option agreements. Gainer further testified that he consulted with Rogers (the ultimate decision-maker), Ficke, Steffen, Manly, and Cyrus about the Option Agreements. One purpose of the option agreements may have been to fulfill the commitment Cinergy made in May and November 2004 to the interven-ers opposing Cinergy's RSP pending before PUCO. Gainer acknowledged that CG&E had an agreement with the 22 large customers "to negotiate in good faith to try to put the parties back in the same economic position. However, Gainer insisted that the decision to negotiate option agreements was a management decision, and his participation in that process was as a lawyer, albeit one whose office was Cinergy's Vice President of Legislative and Regulatory matters with direct supervisory authority over the Rate Department.
Paul Colbert testified in his deposition in the Deeds case that there were no contracts that Cinergy Retail Services ("CRS") had that had been termed a settlement agreement. Cinergy never formed a CRES in connection with its RSP. However, he further testified that all the interveners supported their May 2004 "settlement [with Cinergy], which resolved the RSP."
Colbert further testified that negotiation of the options agreements began in December 2004 after PUCO's final order in the RSP case. The options agreements were negotiated with customers who intervened in the RSP case or were members of an association that intervened in that case.3
The December 6 Gainer email communicated to other business employees that Rogers had decided not to go forward with the Cinergy CRES agreement but to offer the customers the option agreements that are at the center of this lawsuit.
It is ORDERED that plaintiffs wait until Judge Sargus rules on their objections to the August 9 and September 12, 2014 Orders before filing a motion requesting leave to depose Rogers that is supported by a statement of the facts (and supporting documents) relevant to their knowledge of Rogers' involvement in the decision to abandon the Cinergy CRES agreements.
Paul Colbert severance agreement. Plaintiffs' counsel said that during his recent deposition Paul Colbert said that he had a severance agreement with Duke, but he was unwilling to provide a copy to them. Plaintiffs want to know if there is a cooperation agreement and, if so, its terms. Defendants' counsel agreed to provide the severance agreement and cooperation agreement, if any, to plaintiffs.
