Party Discovery: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Co Dm QD

CARROLL, BURDICK &
MeDoncci LLP
Ariss HES
Saw Faanciseo

Garrett Sanderson ITT, Bar No. 131026
gsanderson@cbmlaw.com

Peter H. Cruz, Bar No. 220850
peruz@cbmlaw.com

CARROLL, BURDICK & MeDONOUGH LLP

Attorneys at Law

44 Montgomery Street, Suite 400
San Francisco, California 94104
Telephone: 415.989.5900
Facsimile: 415.989.0932

Attorneys for Defendant Volkswagen Group of
America, Inc.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAY 15 2014

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

HAROLD KOEPKE and NANCY KARIDIS-
KOEPKE,

Plaintiffs,
v.
FORD MOTOR COMPANY, et al.,

Defendants.

j
|

Case No. CGC-13-276217

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF VOLKSWAGEN GROUP OF
AMERICA, INC.’S EX PARTE APPLICATION
FOR AN ORDER ALLOWING THE DEPOSITION
OF BARRY GREEN TO BE TAKEN ON
SHORTENED NOTICE

Date: May 15, 2014

Time: = 11:00 a.m.

Depr.; 503

Action Filed: December 3, 2013
Trial Date: June 16, 2014

1, INTRODUCTION

Defendant Volkswagen Group of America (*VWGoA”) requests that this Court grant its

ex parte application

‘or an order allowing the deposition of non-party witness, Barry Green. to be

taken on shortened notice pursuant to Code of Civil Procedure section 2025.270(d) and Rule of

Court 3.1200 ef seg.

in Australia, where p!

Mr. Green is a former sheet metal worker at Athertons (N.S.W.) PTY LTD

aintiff was also employed as a sheet metal worker in the early 1960s.

Through its own investigatory efforts, WWGoA was recently able to identify, locate, and contact

Mr. Green (who lives

VWGoA that he woul

Tuesday, May 20, 20

CBM-PRODUCTS'SF620431-1

in Australia). It was not until May 12, 2014, that Mr. Green informed
d be willing to give a deposition, but would be unreachable starting on

4 (Australian time) because he was leaving on a month-long vacation to the

MPA 180 DEFENDANT VWGOA’S Ex PaR?E APPLICATION FOR AN ORDER ALLOWING THE DEPOSITION OF BARRY
GREEN TO BE TAKEN ON SHORTENED NOTICE6

oo

o fo

CARROLL, BURDICK &

MeDonoven 14.8
Ani o
San FRANCISCO

Australian Outback. Thus, that left on/y Monday. May 19, 2014 (Australia time), which is
Sunday, May 18, 2014 (San Francisco time), as a reasonable date that he could be deposed. On
May 13, 2014, Mr. Green confirmed his availability for deposition at 10:00 a.m. AEST on May
19, 2014 (Australia time). He subsequently had to reschedule his deposition for 2:00 p.m. AEST
on the same date. Accordingly, his deposition would begin locally on Sunday, May 19, 2014, at
9:00 p.m. PDT.

Good cause exists to grant this application because there is insufficient time to regularly
notice Mr, Green’s deposition given Mr. Green's schedule. He will be traveling starting on May
20, 2014 (Australia time) and May 19, 2014 (Australia time) is the on/y reasonably available date
for the deposition. Mr. Green will not return from his trip until after the fact discovery deadline
and trial date in this case. Good cause further exists because VWGoA will be prejudiced if it does
not have an opportunity to depose Mr. Green concerning Mr. Koepke’s Australia work history that
pertains to its defense and plaintiffs’ claims in this case. Plaintiffs requested a preferential trial
date in this case, resulting in an extremely compressed discovery period that limited defendants*
ability to conduct investigation in the foreign countries where plaintiff Harold Koepke worked and
lived for years. Indeed, plaintiffs concede in a letter dated April 24, 2014, that the identity and
contact information of witnesses may no/ be discovered until after March 4, 2014, and that these
witnesses should not be precluded from testifying in this case. Good cause also exists because
Code of Civil Procedure section 2025.270(d) expressly authorizes this Court to grant VWGoA’s
request to conduct a deposition on shortened notice for good cause.

IL. Facts RELEVANT TO THIS APPLICATION

This is an alleged living mesothelioma case with a preferential trial date of June 16, 2014.
The fact discovery cutoff deadline is on May 30, 2014. In response to VWGoA’s interrogatories
requesting the identity of plaintiff Harold Koepke’s employers from age 16, on February 24, 2014,
plaintiffs responded that Mr. Koepke worked as a sheet metal worker at Athertons (N.S.W.) PTY
LTD in Australia from March 1961 until March 1962, and several other places located in Australia

and Germany. (Resp. to Interrogatory No. 27 at 7:6-16, Ex. A to Cruz Decl.)

CBM-PRODUCTS'SF62645 1-| -2-

MPA ISO DEFENDANT VWGOA’S EX PARTE APPLICATION FOR AN ORDER ALLOWING THE DEPOSITION OF BARRY
GREEN TO BE TAKEN ON SHORTENED NOTICEan

“I

27
28

Carron BuRnick &

MCDOROLGHLLP:

Based on these responses (and Mr. Koepke’s deposition testimony), VWGoA began an
investigation for witnesses who have information regarding Mr. Koepke’s employment and
employers in Australia and Germany. This has been an extremely difficult endeavor given Mr.
Koepke’s work at these places occurred in far-away foreign countries, dates as far back as the
1950s, and VWGoA has very little information about such work. (Cruz Decl. § 4.)

Through diligent investigatory efforts, VWGoA’s investigator in Australia was finally able
to identify and locate Barry Green of Richmond Hill, New South Wales, Australia. After making
initial contact with Mr. Green and confirming his shared work history with plaintiff Harold
Koepke, VWGoA immediately began efforts to schedule Mr. Green’s deposition, but he was on
vacation until May 9, 2014. On May 12, 2014, Mr. Green advised VWGoA’s investigator for the
first time that he would be willing to give a deposition, but is going on a month-long vacation to
the Australian Outback beginning on May 20, 2014 (Australia time), leaving May 19, 2014
(Australia time), as the on/y available and reasonable date for his deposition prior to the fact
discovery deadline and trial date in this case. Shortly before 10:00 a.m. PDT on May 13, 2014,

Mr. Green confirmed that he was available for a deposition at 10:00 a.m. AEST on Monday, May

19, 2014/5:00 p.m. PDT on Sunday, May 18, 2014. (/d. at | 5.) He subsequently asked to
reschedule his deposition for later in the day, so his deposition would begin at 2:00 p.m. AEST,
9:00 p.m. PDT on Sunday, May 18. (d.)

Mr. Green lives in a remote part of Australia, which is approximately a 10 hour drive from

Sydney. VWGoA intends to take his deposition by telephone and locally videotape his deposition.

(See Code of Civ. Proc. §2025.310(a) (“A person may take, and any person other than the
deponent may attend, a deposition by telephone or other remote electronic means.”) (/d. at 4 6.)
Notice of this instant ex parte application was provided as soon as possible after 10:00 a.m.

on May 13, 2014, because Mr. Green’s deposition availability was not confirmed by VWGoA’s

counsel until shortly before then, which justifies shorter time for notice, pursuant to Rules of Court
3.1203(a) and 3.1204(c)(1). (Ud. at € 7 & Ex. B thereto.) Plaintiffs have indicated they wil!

oppose this application. (/d. at 8.)

CBM-PRODUCTS|SF62643 1-1 -3-
MPA ISO DEFENDANT VWGOA’S EX PARTE APPLICATION FOR AN ORDER ALLOWING THE DEPOSITION OF BARRY
GREEN TO BE TAKEN ON SHORTENED NOTICEba

ue

9

10

28

Canmore, Burpice &

MeDowataat LLP

I. Tars Court Has AUTHORITY TO GRANT VWGOA’S REQUEST FOR A DEPOSITION TO BE
CONDUCTED ON SHORTENED TIME UNDER CODE OF CIVIL PROCEDURE SECTION 2025.270(D)

This Court may order Barry Green’s deposition to take place by telephone at 9:00 p.m.
PDT on May 18, 2014, pursuant to Code of Civil Procedure section 2025.270(d), which states:
“On motion or ex parte application of any party or deponent, for good cause shown, the court may
shorten or extend the time for scheduling a deposition . . ..” (italics added). Good cause exists, as
described in further detail below. for this Court to shorten time to notice Mr. Barry’s deposition.
IV. Goop Cause Exists TO GRANT THIS EX PARTE APPLICATION
Good cause exists for an order allowing the deposition of Barry Green to be taken on
shortened notice at 2:00 p.m. AEST on Monday, May 19, 2014, which is 9:00 p.m. PDT on
Sunday, May 18, 2014, because that is the only available date and time that Mr. Green can be
deposed prior to him leaving on his month-long vacation the following day, By the time that Mr.

Green returns from his trip, the imminent fact discovery deadline on May 30 and the June 16 trial

date would have passed. Given this small window of opportunity to depose him, there is
insufficient time to give the statutory regular notice.

Good cause further exists to grant this ex parte application because VWGoA will be

extremely prejudiced if it is deprived of an opportunity to depose Mr. Green. VWGoA seeks to
depose Mr. Green, because he will have re/evant information (which is discoverable under Code
of Civil Procedure section 2017.010) including, but not limited to, information about Mr.
Koepke’s employer, Athertons, opportunities to be exposed to asbestos at Athertons and while
working as a sheet metal worker, and names and contact information for other individuals with
relevant information in this case, among other relevant topics.

Information possessed by Mr. Green is relevant to VWGoA’s defense and will assist
VWGoA in understanding Mr. Koepke’s work at Athertons, which has been a difficult area on
which to conduct discovery. Despite diligent efforts by VWGoA, locating and contacting
witnesses, including Mr. Green, located in Australia and Germany has been challenging for

various reasons, including geographical location, the time frame at issue, and witness availability.

Plaintiffs cannot argue that this deposition should not go forward on shortened notice when they

CBM-PRODUCTS'SF626434-1 4.

MPA ISO DEFENDANT VWGOA’S EX PARTE APPLICATION FOR AN ORDER ALLOWING THE DEPOSITION OF BARRY
GREEN TO BE ‘TAKEN ON SHORTENED NOTICEbo

ww

Co em

CARROL, BURDICK &
MecDowonent

San Fras

themselves take the position in a letter dated April 24, 2014, that witnesses may not be identified
and located (i.¢., discovered) until after March 4, 2014, and would not be precluded from
testifying at trial. (Ex. C to Cruz Decl.) The inherent consequence of a compressed trial date is
that the time frame for investigation and discovery is also compressed. In a complicated matter
such as this one where witnesses are hard to identify, locate, and live in foreign countries, regular
notice is often impossible. Mr. Green only recently returned from a holiday on May 9, 2014, and
only recently confirmed his availability for deposition on May 13, 2014.

Good cause also exists because the Court is expressly authorized to do so under section
2025.270(d).

V. CONCLUSION

For the reasons discussed supra, this Court should grant this ex parte application for an
order allowing VWGoA to notice Mr. Green’s deposition on shortened time, to take place at 9:00
p.m. PDT on May 18, 2014.
Dated: May 15, 2014 CARROLL, BURDICK & McDONOUGH LLP

By

] fie
Peter H. Cruz Aye

Attorneys for Defendant Volkswagen Group of
America, Inc.

CBM-PRODUCTS'S 62643 1-1 5.

MPA ISO DEPENDANT VWGOA’S EX PARTE APPLICATION FOR AN ORDER ALLOWING THE DEPOSITION OF BARRY
GREEN 16 BE TAKEN ON SHORTENED NOTICE