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Kazan, McClain, Satterley & Greenwood
Oakland,
+ ww. kazanlaw.com
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A Professional Law Corporation
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Joseph Satterley, Esq. (C.S.B. # 286890)
Ted W. Pelletier, Esq. (C.S.B. # 172938)
Ryan Harris, Esq. (C.S.B. # 287105)
tpelletier@kazanlaw.com
KAZAN, McCLAIN, SATTERLEY & GREENWOOD
A Professional Law Corporation
55 Harrison Street, Suite 400
Oakland, California 94607
Telephone: (510) 302-1000
Facsimile: (510) 835-4913
Attorneys for Plaintiffs
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
MAR 26 2014
Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and NANCY KARIDIS-
KOEPKE,
Plaintiffs,
vs.
FORD MOTOR COMPANY, ef ai.,
Defendants.
Case No. CGC13276217
PLAINTIFFS’ OPPOSITION TO
VWGoA’S MOTION FOR PROTECTIVE
ORDER AND REQUEST FOR
MONETARY SANCTIONS [Code Civ.
Proc. § 2025.420(h)]
Date: April 9, 2014
Time: 9:30 a.m.
Dept. 503
Action Filed:
Trial Date:
December 3, 2013
June 16, 2014
PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
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TABLE OF CONTENTS
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INTRODUCTION... cccssseecsessneccsessserensssssseesesebonessvansonsssvsensseqssuecnnassusessnsennssegnnsssaeensaneenanecans 1
FACTUAL HISTORY on. eesessseesssesssessssessescssesensscssseesssscessessusansscsnassanacensecenesssanecsarecsanecennsese® 3
A. Underlying factual issues. ..
B. The deposition notice and VW-America’s meager meet-and-confer efforts. ............ 4
c. VW-Armerica’s Motion... usseesesseseesesersessecaseccsseareasaneeseaseneesnensenesansnersaseceaed 6
D. Plaintiffs agreed to continue the Perkins deposition to April 24 — at the same
time and place as his deposition in another Case. .....scccceseresesneesssseeeeenseseneneenesceenee 7
ARGUMENT oo cece sceseseseeetecreneseseseresesesesesenaserscssneaversesiensensasectevensaseseeseneeastaaaneans ane 7
A. This motion is improper: VW-America cannot properly seek to “protect” a
separately-represented former employee from “harassment” that the
employce himself has not asserted. ......ccsccesssecsnsessseesecsnsessnenesecnnieessnescarensenseeeaseese 7
B. The Perkins deposition is proper. .
1. This is not an “apex” deposition — as VW-America knew before
filing its MOtON, ....ccecssesssesssestsseessesesssersseesaneesirnennesennecsnscsnasessassentensauentanenys 9
2. Mr. Perkins appears to have personal knowledge on several material
SSUES. oo. eeseeccesecseceeseceeeeneesecessnesuesssacesesnesscaserassersesuseugapssecssanennssneaneaeeateanerattes 10
Cc. Plaintiffs’ have consistently agreed to minimize any potential
inconvenience from the Perkins deposition. .......ccsccesseseeseereneennecssseeneeneenteres 12
D. Because VW-America’s motion bypassed proper meet-and-confer efforts
and lacks “substantial justification,” this Court should impose mandatory
MONCTATY SANCTIONS. ......eccsecrssseeeesersesseesseneeesnesessnenesarecesrserensectsrecranmenaeensresenennanecsees 12
i. Inadequate meet-and-confer effort.
2. Motion not substantially justified... ccssseesseaesseeseressteseesrsseeneeneeseesees 14
CONCLUSION cscccccscssssescscsescsssessnssensssssessessascasseegsenenssenansnersseeersegenysecsmssesescensereneransetsees 15
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
+ Oakland, California 94007
+ www.kazanlaw.com
Street, Suite 400,
0) 835-4913.
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TABLE OF AUTHORITIES
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CASES
Jones v. BorgWarner Corp., et al. (Volkswagen), Fla. Circ. Ct. No. 10-13549(Z) weerenreecrns 7
Liberty Mut. Ins. Co. v. Superior Ct. (Frysinger) (1992) 10 Cal App.4" 1282 wees 1,4,9, 11
United States v. Volkswagen of Amer., Inc, (1960) 182 F.Supp. 405 ....cssecsesseeesneesseseennees 2,4, 11
STATUTES
Code of Civil Procedure § 2016.040 ooo. secseessesseeseeanecseeenecnatsattenenasenesmnennegs 3, 13, 14
Code of Civil Procedure § 2023.020 ....cceccssssessesssnsscssseesesesmssscscseeseeneenssersernssseeaseneneennees passim
Code of Civil Procedure § 2024.420(8) ....cscscsecscsssseesssssesssessesrensesssessecseeeneeseestecneqasesnesnranectnesanens 8
Code of Civil Procedure § 2025.420
Code of Civil Procedure § 2025.420(8) oc... cccscsccssesssscessssnsseesssnesscencsesssseaneesssessesnneassasenenneenns 2,12
Code of Civil Procedure § 2025,420(D) oo... csceeccccieseesscenescsessscssecseesessecssesnensaserseaecseteaseneeneetinennens 7
Code of Civil Procedure § 2025.420(h) .
Code of Civil Procedure §2023.030(€) ....cecccsessecsessecssssessseeseessenssnecsestsssssesnssesaserensersesecerenneneenersess 15
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
* Oaldand, Cali
+ owww.kazaslaw.com
Suite 400,
35-4913
L INTRODUCTION
This Court should deny defendant Volkswagen Group of America, Inc.’s (VW-America)
motion for a protective order “barring the deposition” of J. Stuart Perkins, who without dispute
was VW-America’s President from 1965 to 1978. [Motion MPA (“MPA”) at 5:21-22.]
VW-America is not entitled to a protective order for three reasons:
1. The deposition does not affect the rights of VWW-America. Mr. Perkins does not
work for VW-America. VW-America’s counsel who filed this protective-order motion does not
represent Mr. Perkins. Mr. Perkins is separately represented by Florida counsel (Mr. Shapiro),
who has worked with plaintiffs on the deposition scheduling and is fully capable of protecting Mr.
Perkins from any asserted annoyance or harassment. VW-America’s motion does not assert any
annoyance, harassment, burden, or prejudice that the deposition would cause VW-America.
2. Plaintiffs have every right to depose Mr. Perkins. Contrary ta VW-America’s
assertion, this deposition is not an “apex” deposition (under Liberty Mut. Ins. Co. v. Superior Ct.
(Frysinger) (1992) 10 Cal.App.4” 1282) because Mr. Perkins has not worked for VW-America for
35 years. Moreover, plaintiffs have (repeatedly) identified relevant and proper areas of inquiry for
Mr. Perkins:
a Corporate knowledge: Plaintiffs assert defective-products based causes of
action against VW-America (in strict product liability and negligence) and seek both
compensatory and punitive damages. Material to these claims is information about what VW-
America knew, and should have known, about its products’ hazards. In recent litigation involving
defects in its automobile products, VW-America has consistently hidden behind, and deferred its
knowledge to, its German parent company Volkswagen AG (“VW-Germany”) ~ most notably in
multiple depositions of VW-America’s designated person most knowledgeable (“PMK”’), Robert
Cameron. Plaintiffs fully expect Mr. Cameron to answer in this way at his PMK deposition in this
case (scheduled to begin March 27). If he does so, plaintiffs intend to explore with Mr. Perkins
the flow of information between VW-Germany and VW-America — a topic clearly within the
personal knowledge of VW-America’s former President.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
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b. Corporate existence: VW-America already brought an unsuccessful
demurrer in this action on the factual basis that it assertedly was not incorporated in the United.
States until the early 1950s, rendering any pre-1950s corporate or scientific knowledge immaterial.
Plaintiffs expect that VW-America will attempt to raise this factual issue again, on summary
judgment or at trial. Mr. Perkins appears to have knowledge on this topic, which is relevant to
plaintiffs’ claims for negligence, fraud, conspiracy, and punitive damages. Indeed, he has
previously filed a declaration, based on his asserted personal knowledge, about the actions of VW-
Germany in the 1940s, the creation of VW-America, and the “genesis of Volkswagen sales in this
country.” [See United States v. Volkswagen of Amer., Inc. (1960) 182 F.Supp. 405, 409-410.]!
c Current assertions of ignorance: VW-America supports its motion with a
declaration of Mr. Perkins, in which he disavows any knowledge of “asbestos in any automotive
parts that may have been supplied by [VW-America].” [Perkins Decl., ]6.] Plaintiffs certainly
need not accept this claim at face value — they are entitled to explore it in deposition. And this
claim actually shows that Mr. Perkins has material information here. In a case resting in part on
VW-America’s corporate knowledge of product hazards and seeking punitive damages, the fact
that VW-America’s 13-year President claims not to have known in the 1970s that the products
even contained asbestos will most certainly be relevant ~ and is thus a proper ground for plaintiffs
to explore in deposition.
3. A protective order is not necessary to protect Mr. Perkins form any “annoyance” or
“burden.” [See Code Civ. Proc. § 2025.420, subd. (a).] Indeed, Mr. Perkins himself does not
assert any such burden. [Perkins Decl. at 1-2.] Moreover, plaintiffs have consistently agreed to
work with Mr. Perkins and his counsel to minimize any potential inconvenience in taking the
deposition. Plaintiffs will take the deposition near his residence in Florida; they have already
agreed to move the deposition from March 17 to April 24 (after the Cameron PMK deposition is
taken and after this motion is heard), at the same time and place that he is already being deposed in
' A copy of this published case is attached as Exhibit D to the accompanying Declaration of Ted
W. Pelletier (“Pelletier Deci.”).
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PLAINTIFES’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
> Oakland, California 94607,
+ www.kaxanlaw.com
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Vax: (510) 835-4913
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another matter; they have withdrawn their initial request for documents from Mr. Perkins based on
counsel’s representation that Mr. Perkins does not have responsive documents; and they have
offered to agree to reasonable limitations on the deposition’s length.
In sum, VW-America’s motion does not come close to justifying the requested protective
order, which should be denied.
Moreover, this Court should impose a monetary sanction on VW-America and/or its
counsel because (1) its motion was not preceded by a “reasonable and good faith” meet-and-confer
effort [Code Civ. Proc. §§ 2016.040], and (2) the motion lacks “substantial justification” [id., §
2025,420, subd. (h).] Indeed, the reasons that the motion should be denied were known to VW-
America before it filed the motion and are bolstered by the motion itself. Under sections 2023.020
and 2025.420, monetary sanctions are mandatory.
i. FACTUAL HISTORY
A. Underlying factual issues.
In this action, plaintiffs assert defective-products based causes of action against VW-
America (in strict product liability and negligence), seeking both compensatory and punitive
damages. Material to these claims is information about what VW-America knew and should have
known about its products’ hazards, VW-America’s decisions to give or not to give warnings about
its products’ hazards, and its corporate managing agents’ decisions in these regards. [Pelletier
Decl., | 2.]
VW-America demurred to the complaint, raising the factual defense that it assertedly was
not incorporated in the United States until the early 1950s, rendering any pre-1950s corporate or
scientific knowledge immaterial. [Pelletier Deel. {3.] This demurrer was denied, but plaintiffs
expect that VW-America will attempt to raise this factual issue again (on summary judgment or at
trial). [/d.]
Because Mr. Koepke is very sick and rapidly dying, this case has been granted preference,
with trial set for June 16, 2014, and all deadlines hastened accordingly. [Pelletier Decl., 4.]
Plaintiffs noticed the deposition of VW-America’s PMK for March 27, and VW-America
designated Mr, Cameron, [/d.] Review of several prior depositions of Mr. Cameron (as the PMK)
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
+ Oakland, California 94607
* wwwkaxanlaw.com:
55 [arrison Strece, Suite 400,
Jack London Market *
Van: (510) 835-4913
(510) 302-1000 +
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showed plaintiffs’ counsel that Mr. Cameron regularly answers questions about VW-America’s
knowledge and actions by referring and deferring to VW-Germany. [Pelletier Decl. ] 5 and Exhs.
A at 228-231 (VW-America “relied upon” VW-Germany about the existence of product hazards
and whether any warnings were necessary or appropriate), B at 113-114 (VW-America saw no
testing but “trust[ed]” representations from VW-Germany that the brake products were not
hazardous), C at 167-170 (“engineers” from VW-Germany “assured [VW-America] that the
asbestos . . . in our cars was not causing any type of injury”).] Plaintiffs expect that Mr. Cameron
will testify similarly in this action. Accordingly, plaintiffs’ counsel sought to obtain discovery
about the flow of information between VW-Germany and VW-America from other sources.
{Pelletier Decl., 9 5.]
Counsel determined that an appropriate witness as to both the America~-Germany
information flow and the corporate history of VW-America and VW-Germany is Mr. Perkins. As
the former VW-America President during the time that Mr. Koepke was exposed to VW products,
Mr. Perkins can speak to the information flow at that time. [Pelletier Decl., |6.] And because
Mr. Perkins has already filed a declaration on personal knowledge about the VW corporate history
[id Exh. D (U.S. v. Volkswagen of Amer., Inc., 182. F.Supp. at 409-410)], he appears able to offer
information on this topic.
B. The deposition notice and VW-America’s meager meet-and-confer efforts.
On about February 26, 2014, Plaintiffs subpoenaed Mr. Perkins in Florida and noticed his
deposition for March 17 in Sarasota, Florida. [Pelletier Decl., (7; Declaration of Garrett
Sanderson [SO Motion (“Sanderson Decl.”), Exh. A.] Plaintiffs also sought the production of
documents regarding, inter alia, brake design, product specifications and manuals, and “warnings
regarding the health hazards of asbestos on drum brake assembly in automobiles.” [Sanderson
Decl., Exh. A at 4 (Attachment 4).]
One day later (February 27), counsel for VW-America requested by letter that plaintiffs
“withdraw the deposition notice and subpoena” of Mr. Perkins on the sole asserted ground that it
would be an improper “apex” deposition (of an officer at the corporate “apex”) under Liberty
Mutual, supra, 10 Cal.App.4® at 1282. [Sanderson Decl., Exh. B at 1.] VW-America’s counsel
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
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also represented that “Mr. Perkins does not have any knowledge about the subject matter of this
case, the composition of automotive parts, or asbestos.” [/d.] The letter did not assert that a
deposition would subject Mr. Perkins to “unwarranted annoyance, embarrassment, or oppression
or undue burden and expense” (per the protective-order statute, Code of Civil Procedure section
2025.420). [Id.] Indeed, VW-America’s counsel did not even claim to represent Mr. Perkins.
Ud)
That same day, plaintiffs received a similar letter from the actual counsel for Mr. Perkins:
Ari Shapiro of the Gordon & Rees firm in Florida. [Pelletier Decl., 4] 8 and Exh. E.] Mr. Shapiro
and Gordon & Rees also represent VW-America and VW-Germany. [/d., Exh. F.] On Mr.
Perkins’s behalf, Mr. Shapiro also requested the withdrawal of the deposition notice and
subpoena, with language identical to VW-America’s letter: “Mr. Perkins does not have any
knowledge about the subject matter of this litigation, the composition of automotive parts, or
asbestos.” [/d., Exh. E (emphasis omitted).]
The next day (Friday, February 28), plaintiffs’ counsel replied to both letters, explaining
that (1) this is not an “apex” deposition because Mr. Perkins does not work for VW-America, and
(2) Mr. Perkins appears to have “knowledge relevant to this case,” including about “the
relationship and flow of knowledge” between VW-America and VW-Germany. [Sanderson Decl.,
Exh. C at 1.] Plaintiffs noted that Mr. Perkins’s claimed “lack of knowledge” about some topics
“does not obviate our need to take discovery on matters of high-level corporate organization,
hierarchy, knowledge, or the decision-making of managing agents.” [/d. at 1-2.] Plaintiffs agreed,
though, to withdraw their document request (based on counsel’s representation that Mr. Perkins
had no responsive documents). [{/d. at 1.] And plaintiffs offered to “minimize the burden on Mr.
Perkins in any way we can,” including “rescheduling the date and time and agreeing to reasonable
limitations on the duration of the deposition.” [/d. at 1, 2.] Plaintiffs suggested that counsel “meet
and confer further.” [/d. at 2.]
VW-America’s counsel never responded in substance to plaintiffs’ letter, and he made no
further attempts to “meet and confer.” [Pelletier Decl., | 9; see Sanderson Decl., {ff 4-5 (not
claiming any further meet-and-confer efforts)]. The next business day, Monday March 3, VW-
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
California 94607,
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America’s counsel announced by e-mail that he would “file tomorrow” a “motion for a protective
order.” [Pelletier Decl., 4 10 and Exh. G at 3.]
‘The parties then discussed (by e-mail) the timing of the motion and deposition ~ but VW-
America made no attempt to respond to plaintiffs’ letter or narrow the issues. [Jd., Exh. 3 at 1-3.]
VW-America’s counsel asked to postpone the deposition from March 17 to a later date to allow
the motion to be heard first. [Pelletier Decl., § 11 and Exh. G at 3.] Plaintiffs’ counsel agreed to
postpone the deposition if VW-America would agree that plaintiffs would not need to re-subpoena.
Mr. Perkins for the later deposition date. [Jd. at 2.] WW-America’s counsel stated that he could
not agree to this condition because “I don’t represent Mr. Perkins,” who “has his own counsel.”
[ld]
Cc VW-America’s motion.
Despite the insistence of counsel that he does not “represent” Mr. Perkins, who “has his
own counsel” [id.], VW-America brought the instant motion to “protect” Mr. Perkins from
“unadulterated harassment” and “annoyance.” [MPA at 2:1-2, 3:10-11.] Although Mr. Perkins
has not worked for VW-America for over 35 years, VWW-America based its motion on the assertion
that he has “no knowledge” about this case. [MPA at 1:24-25.]
Indeed, the motion attaches a declaration from Mr. Perkins averring that he never knew
anything about any asbestos in the company’s products, [Perkins Decl., § 6.] But Mr. Perkins
does not aver that the deposition will cause him any annoyance, harassment, or burden. [/d.]
2 As noted above, Mr. Perkins is represented by Mr. Shapiro, who also represents both VW-
America and VW-Germany in other matters. [See Pelletier Decl., 48 and Exh. F.] VW-America
clearly remains in touch with Mr. Perkins, who signed a declaration in support of the instant
motion. But VW-America’s counsel’s insistence that he could not facilitate an agreement to
postpone the March 17 deposition led to a significant waste of time and resources — including an
ex parte application to hear this motion on shortened time (before March 17), a hearing in this
Court on that application (taken under submission), and several hours of communications ~ before
Mr, Perkins’s Florida counsel finally agreed to accept service of any new subpoena on behalf of
his client. [Pelletier Decl., | 12.] With that agreement, plaintiffs promptly agreed to continue the
deposition to April 24 -- after the Cameron PMK deposition (March 27) and the hearing on this
motion. [/d.]
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
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The motion also does not assert that the Perkins deposition would in any way
inconvenience or prejudice VW-America’s rights in this action. [MPA at 1-7.]
Although the protective-order statute authorizes numerous forms of lesser relief (including
“specified terms and conditions” such as limits on the time or “scope” of the deposition) [Code
Civ. Proc. § 2025.420, subd. (b)], VW-America sought only an order wholly “barring” any
Perkins deposition. [Notice of Motion at 1:23-23; MPA at 5:21-22.]
D. Plaintiffs agreed to continue the Perkins deposition to April 24 — at the same
time and place as his deposition in another case.
After VW-America filed the instant motion, plaintiffs agreed to continue the deposition
from March 17 to April 24, after the Cameron PMK deposition (March 27) and the hearing on this
motion (April 9), [Pelletier Decl., € 13.] Consistent with their prior offer to “minimize the burden
on Mr. Perkins in any way we can,” including “rescheduling the date and time” of the deposition
{Sanderson Decl., Exh. C at 2], plaintiffs agreed to depose Mr. Perkins on April 24, at the same
time and place that Mr. Perkins will be deposed in another matter (Jones v. BorgWarner Corp., et
al. (Volkswagen), Fla. Cire. Ct. No. 10-13549(Z). [Pelletier Decl., {13 and Exh. H; see Sanderson
Deci., Exh. A at 1:23-27 (also setting deposition at the Courtyard Sarasota Bradenton Airport
hotel).]
I. ARGUMENT
VW-America’s motion does net come close to justifying a protective order barring the
Perkins deposition and should thus be denied. Moreover, this Court should find that the motion
(1) was not preceded by an adequate meet-and-confer effort, and (2) lacks “substantial
justification,” and accordingly should grant mandatory monetary sanctions against VW-America
and/or its counsel.
A. This motion is improper: VW-America cannot properly seek to “protect” a
separately-represented former employee from “harassment” that the
employee himself has not asserted.
The motion should be denied first because VW-America cannot properly move to “protect”
Mr. Perkins, a separately represented third party, from “annoyance,” “harassment,” or a “burden”
that Mr. Perkins himself does not even assert.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER.Kazan, McClain, Satterley & Greenwood
A Professional Law Corporation
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VW-America seeks an order “barring plaintiffs from deposing” Mr. Perkins. [Notice of
Motion at 1:23-25.] The motion rests solely on Code of Civil Procedure section 2025,420. [Jd.]
‘That provision authorizes “any party, any deponent, or any other affected natural person or
organization” to “move for a protective order.” [Code Civ. Proc. § 2024.420, subd. (a).] A
resulting order may properly “protect” any “party, deponent, or other natural person or
organization” from “unwarranted annoyance, embarrassment, or oppression or undue burden and
expense.” [/d., subd. (b).]
VW-America lacks standing to move to “protect” Mr. Perkins here. Although a motion
may properly be brought by “any party,” the mirrored language of these subdivisions (“party,”
“deponent,” etc.) indicates that the motion is intended to protecting the moving party from
“annoyance,” “burden,” etc. Indeed, who but the moving party can attest that pending discovery
would be “annoying” or “burdensome” to him? The provision does not suggest that such
annoyance or burden can be asserted by somcone else.
But even if this motion is not technically improper, it is factually untenable. VW-America
cannot decide what might be annoying or burdensome to a third party. Mr. Perkins is represented
by his own counsel — as VW-America’s counsel was quick to tell plaintiffs when it suited his
purpose. [See Pelletier Decl., Exh. G at 2.] That separate counsel (Mr. Shapiro) initially
complained to plaintiffs about the deposition by letter [id., Exh. E] but has brought no motion for a
protective order here. Notably, even Mr. Perkins’ declaration in support of VW-America’s instant
motion does not assert that the deposition would be annoying, harassing, embarrassing,
burdensome, or expensive. [Perkins Decl. at 1-2.]
Moreover, VW-America does not assert that the Perkins deposition would in any way
inconvenience or prejudice its rights in this action. [MPA at 1-7.]
Accordingly, this motion is improper. VW-America cannot properly or factually justify an
order to protect a separately-represented former employee based on asserted harassment that even
the employee does not claim exists.
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
* Oakland, California 94607
Jack ]ondon Market * 55 I larrisoa Street, Suite 400
(510} 302-1000 * Hax; (510) 835-4913 * www.karanlaw.com
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B. The Perkins deposition is proper.
Next, even if VW-America can properly move to “protect” someone else, its motion lacks
merit. Plaintiffs have every right to depose Mr. Perkins, who appears to have knowledge relevant
to plaintiffs’ claims — as shown by his declaration in a prior case and bolstered by his declaration
here. Moreover, plaintiffs have offered to accept reasonable limitations to minimize any inconve-
nience to Mr. Perkins — but VW-America ignored this offer and simply filed the instant motion.
1. This is not an “apex” deposition — as VW-America knew before filing
its motion.
VW-America’s motion rests on its assertion that plaintiffs are seeking an improper “apex”
deposition under Liberty Mutual. [MPA at 3-5.]
Not so. An improper “apex” deposition occurs when a plaintiff sues a corporation and
then “seeks to depose” someone currently “at the apex of the corporate hierarchy” as a first
discovery method, without “less intrusive discovery methods,” [Liberty Mutual, 10 Cal.App.4 at
1287.] The purpose of this rule is to “prevent a plaintiff from leap-frogging to the apex of the
corporate hierarchy in the first instance, without the intermediate steps of seeking discovery from
lower level employees more involved in everyday corporate operations.” [/d.] This rule rests on
the proposition that the “head of a large national corporation will generally not have knowledge of
a specific incident or case handled several levels down the corporate pyramid” — ¢.g., in an
“insurance” case, the “day-to-day processing of claims.” [/d.] Thus, deposing a sitting corporate
president requires a “reasonable indication of the officer’s personal knowledge of the case.” [/d.]
Here, Mr. Perkins is not in the VW-America “corporate hierarchy” ~ he has not worked for
VW-America for 35 years. The apex rule simply does not apply.
Moreover, even if the rule could apply, plaintiffs are not seeking to depose Mr. Perkins
about a “specific incident” involving lower-level employees. As set forth above, and more fully in
the following section, plaintiffs have a “reasonable indication” of his “personal knowledge” on
material issues here.
9
PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
teeet, Suite 400 + Oakland, California 94607
510} 835-4913 + warw.kazanlaw.com
Jack London Market * 55 LLacri
(510) 302-1060 + Ma
2. Mr. Perkins appears to have personal knowledge on several material
issues.
Mr. Perkins is a proper deponent because he appears to have personal knowledge on at
least three material issues:
1. Corporate knowledge: Plaintiffs’ claims against VW-America, sounding in strict
liability and negligence and seeking compensatory and punitive damages, rest on information
about what VW-America knew, and should have known, about its products’ hazards.
VW-America’s motion complains that plaintiffs noticed the Perkins deposition before
starting the deposition of Mr. Cameron, whom VW-America designated as its PMK in this case.
[E.g., MPA at 2:20-25.]
But Mr. Cameron, in numerous recent PMK depositions, has consistently and repeatedly
testified that VW-America relied on VW-Germany for information and knowledge about its
products’ hazards. As set forth above, VW-America (via Mr. Cameron) consistently defers to
VW-Germany on issues involving corporate knowledge. [See Pelletier Decl., [5 and Exhs. A-C.]
Key issues in this case include what VW-Germany knew, what it told VW-America, and
what VW-America did to get information from VW-Germany. Mr. Cameron has demonstrated
that he does not have this information. But Mr. Perkins, the President of VW-America at the time
that Mr. Koepke was exposed to its products, will certainly have information about the flow of
information between VW-Germany and VW-America.*
2. Corporate existence: VW-America demurred to the complaint here on the factual
basis that it assertedly was not incorporated in the United States until the early 1950s, rendering
immaterial plaintiffs’ allegations of pre-1950s corporate and scientific knowledge. This factual
demurrer was properly overruled. But plaintiffs expect VW-America to raise the issue again (on
summary judgment or at trial). [Pelletier Decl., 4 3.]
3 In this preference case, plaintiffs lacked the luxury of waiting until the completion of the
Cameron PMK deposition before noticing the Perkins deposition. But they have now continued
that deposition until late April. If Mr. Cameron provides complete information about the flow of
information from Germany, plaintiffs may not need to depose Mr. Perkins on this topic.
10 :
PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERornia 94607
A Professional Law Corporation
10) 302-1000 * Kax: (510) 835-4913 + www-kavantaw.com
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Mr. Perkins has previously filed a declaration, on asserted personal knowledge, about the
actions of VW-Germany in the 1940s, the creation of VW-America, and the “genesis of
Volkswagen sales in this country.” [Pelletier Decl., Exh. D (attaching U.S. v. Volkswagen, 182
F.Supp. at 409-410 (Perkins declaration “of my own knowledge”)).] Plaintiffs properly seek to
explore that information here.
3. Current assertions of ignorance: Mr. Perkins’ declaration here further
demonstrates his personal knowledge of material issues in this case.
Again, a primary issue is VW-America’s knowledge of the asbestos hazard in its own
product. Mr. Perkins, the VW-America President at the time of Mr. Koepke’s exposures, declares
that he did not even know that VW-America’s products contained asbestos: “I do not know
anything about asbestos in any [VW-America] automotive parts.” [Perkins Decl., 6.] He also
avers that, during his entire “employment” (including as President), he “did not participate in any
discussions about asbestos in automotive parts” or “receive or review any information about
asbestos in automotive parts.” [/d. (emphasis added),]
That VW-America’s President claims never to have known anything about the hazards of
the company’s products is most certainly relevant in a case resting on VW-America’s corporate
knowledge of those hazards — and seeking punitive damages for corporate disregard of safety. Mr.
Perkins’s declaration thus supports plaintiffs here, showing his knowledge of information material
to their claims and therefore making his deposition proper.
But even if Mr. Perkins’ claim to know nothing about “asbestos” was helpful to VW-
America, plaintiffs are not required to accept this claim at face value. Instead, they are entitled to
explore the claim in deposition.
In sum, although it is not even necessary in this non-“apex” deposition, plaintiffs meet the
Liberty Mutual requirement of showing Mr. Perkins’s “personal knowledge” of material issues.
ll
PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
+ Oskland, California 94607
3) 835-4913 © www.kazankaw.com
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Cc. Plaintiffs’ have consistently agreed to minimize any potential inconvenience
from the Perkins deposition.
Finally, VW-America is wrong to claim that plaintiffs’ noticed deposition of Mr. Perkins is
“unadulterated harassment” that will cause Mr. Perkins “unwarranted annoyance.” [MPA at 2:1-2,
3:10-11.]
As noted above, a protective order may properly issue to prevent “unwarranted annoyance,
embarrassment, or oppression or undue burden and expense.” [Code Civ. Proc. § 2025.420). But
VW-America cannot itself establish that a deposition would be annoying or burdensome to Mr.
Perkins, who has not worked for VW-America for 35 years and is not represented by its counsel.
And Mr. Perkins’ declaration in support of the instant motion, although claiming a lack of
knowledge about the case, does not assert that being deposed would be annoying or burdensome
in any way. [Perkins Decl. at 1-2.
Moreover, plaintiffs immediately offered, and have now taken steps, to minimize any
potential inconvenience or burden, working with Mr, Perkins’s counsel to arrange a mutually
convenient time and place for the deposition — at the same time and place that he is already being
deposed in another matter. [Pelletier Decl., § 13 and Exh. H.] Plaintiffs have also offered to make
other “reasonable accommodations,” including “reasonable limitations on the duration of the
deposition.” [Sanderson Decl., Exh. C at 2.] Unfortunately, VW-America ignored these offers,
bypassing any further meet-and-confer efforts to instead get this Court involved.
VW-America simply cannot show that the deposition is a “burden” to it or to Mr. Perkins.
In sum, the motion wholly fails to justify a protective order and should be denied.
D. Because VW-America’s motion bypassed proper meet-and-confer efforts and
lacks “substantial justification,” this Court should impose mandatory
monetary sanctions,
In addition to denying the instant motion, this Court should impose mandatory monetary
sanctions on VW-America and/or its counsel for bringing the motion, which should never have
been brought, was not preceded by an adequate meet-and-confer effort, and cannot succeed. [See
Code Civ. Proc. §§ 2023.020, 2025.420, subd. (a).]
12
PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
A Professional Law Corporation
Suite 400 + Oakland, California 94607
4913 * www.kaxankaw.com
The protective-order statute provides for a mandatory “monetary sanction” against “any
patty, person, or attorney who unsuccessfully makes or opposes a motion for a protective order.”
[Code Civ. Proc. § 2025.420, subd. (h).] The only exception to this mandate is if this Court
“finds” that the motion was brought with “substantial justification” (or “other circumstances make
the imposition of the sanction unjust”).]
Moreover, this Court “shall impose a monetary sanction” on “any party or attorney who
fails to confer as required” by a discovery-motion statute. [/d., § 2023.020.]
Here, the motion was neither preceded by an adequate meet-and-confer effort nor close to
justified, let alone “substantially” justified. Sanctions must issue.
L Inadequate meet-and-confer effort.
The instant motion did not follow anything close to a sufficient meet-and-confer effort.
Motions for a protective order must attach a “meet and confer declaration,” which “shall
state facts showing a reasonable and good faith attempt at an informal resolution of each issue
presented by the motion.” [Code Civ. Proc. §§ 2016.040 (emphasis added), 2025.420.]
Here, VW-America and its counsel did not make a reasonable or good-faith attempt to
resolve anything, let alone “each issue presented by the motion.”
The motion’s purported “meet and confer declaration” is from its counsel, Mr. Sanderson.
That declaration makes little effort to “state facts showing a reasonable and good faith attempt” to
meet and confer on anything, averting only that counsel sent a letter “asking [plaintiffs] to
withdraw the deposition notice” and that plaintiffs “refus[ed].” [Sanderson Decl., { 4.] Instead,
the declaration simply attaches the two letters (as Exhibits B and C).
The attached letters also fail to constitute an adequate meet-and-confer effort. VW-
America’s letter demanded that plaintiffs “withdraw” the deposition notice for one reason only:
that plaintiffs supposedly sought an improper “apex” deposition. [/d., Exh. B.] The letter did not
assert that the deposition would subject Mr. Perkins to any unwarranted “annoyance” or “burden.”
[7d.] But VW-America’s motion now raises such purported annoyance or burden as an “issue.”
[MPA at 2:1-2, 3:10.] Because the meet-and-confer letter did not raise this “issue,” it was not
13
PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER,Kazan, McClain, Satterley & Greenwood
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adequate. [See Code Civ. Proc. § 2016.040 (meet and confer effort must make “reasonable and
good faith attempt at an informal resolution of gach issue presented by the motion”).]
Moreover, VW-America’s single letter was not a “reasonable and good faith” attempt to
resolve any issue. VW-America demanded withdrawal of the notice on a single, inapplicable
ground (supposed “apex” deposition). [Sanderson Decl., Exh. B.] Plaintiffs’ response letter the
next day (1) showed that no “apex” deposition was sought because Mr. Perkins does not work for
VW-America, (2) described the areas of personal knowledge on which Mr. Perkins would
properly be deposed, and (3) offered to work with VW-America to “make any reasonable
accommodations to minimize the burden on Mr. Perkins,” specifically asking counsel to “contact
us to meet and confer further.” [/d., Exh. C at 1-2.]
VW-America’s counsel did nothing further to meet-and-confer. He did not seek to
minimize any “burden” on Mr. Perkins. He did not assert that, although Mr. Perkins no longer
works for the company, the “rationale” of prohibiting an “apex” deposition still applies — yet
another “issue” now raised in the motion [MPA at 5:7-8] that was never the subject of a meet-and-
confer effort.
Instead, counsel (the next business day) simply announced to plaintiffs’ counsel that he
would “file tomorrow” a “motion for a protective order.” [Pelletier Decl., Exh. G at 3.]
In short, counsel made an unsupported demand to withdraw the deposition notice, ignored
efforts to minimize any burden, declined a request to meet and confer further, and ran directly to
this Court. This is manifestly an inadequate meet-and-confer effort. A monetary sanction is
mandatory. [Code Civ. Proc. § 2016.040, 2023.020.]
2. Motion not substantially justified.
A monetary sanction is mandatory also under section 2025.420, subdivision (h), because
the motion lacks “substantial justification” on the merits. As set forth above, (1) the deposition is
not an “apex” deposition (as plaintiffs told VW-America), (2) plaintiffs have identified multiple
issues on which Mr. Perkins appears to have personal knowledge (as plaintiffs told VW-America),
and (3) Mr. Perkins’s supporting declaration, purporting to have never known anything about
asbestos, alone warrants a follow-up deposition to test his claims and itself shows that he has
14
PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood
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personal knowledge of material issues, including (on lability and punitive damages) how VW-
America’s President could have possibly not known about the hazard or even the presence of
asbestos in its products. Although VW-America’s counsel knew all of this, he pressed his motion
that cannot succeed, ignoring plaintiffs’ efforts to limit or resolve any real issues. This was not
even minimally justified, let alone substantially so. Again, sanctions are mandatory.
IV. CONCLUSION
For all of the foregoing reasons, this Court should (1) deny VW-America’s motion for a
protective order, and (2) impose a monetary sanction on VW-America and/or its counsel, to be
paid to plaintiffs” counsel to compensate their “reasonable expenses, including attorney’s fees”
[Code Civ. Proc. §§ 2023.020, 2023.030, subd. (a)], in the amount of $10,260.00 (as supported by
paragraphs 14-16 of the accompanying Pelletier Decl.).
KAZAN, McCLAIN, SATTERLEY & GREENWOOD
A Professional Law Corporation
DATED: -March 26, 2014
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By: _
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Ted W Pelletiér
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PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER
Preview
Kazan, McClain, Satterley & Greenwood Oakland, + ww. kazanlaw.com ite 400 « A Professional Law Corporation 4 = {510} 302-1000 + Joseph Satterley, Esq. (C.S.B. # 286890) Ted W. Pelletier, Esq. (C.S.B. # 172938) Ryan Harris, Esq. (C.S.B. # 287105) tpelletier@kazanlaw.com KAZAN, McCLAIN, SATTERLEY & GREENWOOD A Professional Law Corporation 55 Harrison Street, Suite 400 Oakland, California 94607 Telephone: (510) 302-1000 Facsimile: (510) 835-4913 Attorneys for Plaintiffs ELECTRONICALLY FILED Superior Court of California, County of San Francisco MAR 26 2014 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO HAROLD KOEPKE and NANCY KARIDIS- KOEPKE, Plaintiffs, vs. FORD MOTOR COMPANY, ef ai., Defendants. Case No. CGC13276217 PLAINTIFFS’ OPPOSITION TO VWGoA’S MOTION FOR PROTECTIVE ORDER AND REQUEST FOR MONETARY SANCTIONS [Code Civ. Proc. § 2025.420(h)] Date: April 9, 2014 Time: 9:30 a.m. Dept. 503 Action Filed: Trial Date: December 3, 2013 June 16, 2014 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation t Ss ¥ & g & * Oakland, Cali www. kavaniaw.com Suite 400 (S10) 835-4913 + 35 (510) 302-1000 + Jack London Market + Cc em ND HW RB BR NY YN YN NY NR ND KR Be mm et oc WD A BRB YN = SO MW NY DH BP WwW NH & S I. Tl. IV. TABLE OF CONTENTS Page INTRODUCTION... cccssseecsessneccsessserensssssseesesebonessvansonsssvsensseqssuecnnassusessnsennssegnnsssaeensaneenanecans 1 FACTUAL HISTORY on. eesessseesssesssessssessescssesensscssseesssscessessusansscsnassanacensecenesssanecsarecsanecennsese® 3 A. Underlying factual issues. .. B. The deposition notice and VW-America’s meager meet-and-confer efforts. ............ 4 c. VW-Armerica’s Motion... usseesesseseesesersessecaseccsseareasaneeseaseneesnensenesansnersaseceaed 6 D. Plaintiffs agreed to continue the Perkins deposition to April 24 — at the same time and place as his deposition in another Case. .....scccceseresesneesssseeeeenseseneneenesceenee 7 ARGUMENT oo cece sceseseseeetecreneseseseresesesesesenaserscssneaversesiensensasectevensaseseeseneeastaaaneans ane 7 A. This motion is improper: VW-America cannot properly seek to “protect” a separately-represented former employee from “harassment” that the employce himself has not asserted. ......ccsccesssecsnsessseesecsnsessnenesecnnieessnescarensenseeeaseese 7 B. The Perkins deposition is proper. . 1. This is not an “apex” deposition — as VW-America knew before filing its MOtON, ....ccecssesssesssestsseessesesssersseesaneesirnennesennecsnscsnasessassentensauentanenys 9 2. Mr. Perkins appears to have personal knowledge on several material SSUES. oo. eeseeccesecseceeseceeeeneesecessnesuesssacesesnesscaserassersesuseugapssecssanennssneaneaeeateanerattes 10 Cc. Plaintiffs’ have consistently agreed to minimize any potential inconvenience from the Perkins deposition. .......ccsccesseseeseereneennecssseeneeneenteres 12 D. Because VW-America’s motion bypassed proper meet-and-confer efforts and lacks “substantial justification,” this Court should impose mandatory MONCTATY SANCTIONS. ......eccsecrssseeeesersesseesseneeesnesessnenesarecesrserensectsrecranmenaeensresenennanecsees 12 i. Inadequate meet-and-confer effort. 2. Motion not substantially justified... ccssseesseaesseeseressteseesrsseeneeneeseesees 14 CONCLUSION cscccccscssssescscsescsssessnssensssssessessascasseegsenenssenansnersseeersegenysecsmssesescensereneransetsees 15 i PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation + Oakland, California 94007 + www.kazanlaw.com Street, Suite 400, 0) 835-4913. B S § = 8 & S 5 Jack London Marker * oO OD Oo SD TABLE OF AUTHORITIES Page CASES Jones v. BorgWarner Corp., et al. (Volkswagen), Fla. Circ. Ct. No. 10-13549(Z) weerenreecrns 7 Liberty Mut. Ins. Co. v. Superior Ct. (Frysinger) (1992) 10 Cal App.4" 1282 wees 1,4,9, 11 United States v. Volkswagen of Amer., Inc, (1960) 182 F.Supp. 405 ....cssecsesseeesneesseseennees 2,4, 11 STATUTES Code of Civil Procedure § 2016.040 ooo. secseessesseeseeanecseeenecnatsattenenasenesmnennegs 3, 13, 14 Code of Civil Procedure § 2023.020 ....cceccssssessesssnsscssseesesesmssscscseeseeneenssersernssseeaseneneennees passim Code of Civil Procedure § 2024.420(8) ....cscscsecscsssseesssssesssessesrensesssessecseeeneeseestecneqasesnesnranectnesanens 8 Code of Civil Procedure § 2025.420 Code of Civil Procedure § 2025.420(8) oc... cccscsccssesssscessssnsseesssnesscencsesssseaneesssessesnneassasenenneenns 2,12 Code of Civil Procedure § 2025,420(D) oo... csceeccccieseesscenescsessscssecseesessecssesnensaserseaecseteaseneeneetinennens 7 Code of Civil Procedure § 2025.420(h) . Code of Civil Procedure §2023.030(€) ....cecccsessecsessecssssessseeseessenssnecsestsssssesnssesaserensersesecerenneneenersess 15 ii PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation * Oaldand, Cali + owww.kazaslaw.com Suite 400, 35-4913 L INTRODUCTION This Court should deny defendant Volkswagen Group of America, Inc.’s (VW-America) motion for a protective order “barring the deposition” of J. Stuart Perkins, who without dispute was VW-America’s President from 1965 to 1978. [Motion MPA (“MPA”) at 5:21-22.] VW-America is not entitled to a protective order for three reasons: 1. The deposition does not affect the rights of VWW-America. Mr. Perkins does not work for VW-America. VW-America’s counsel who filed this protective-order motion does not represent Mr. Perkins. Mr. Perkins is separately represented by Florida counsel (Mr. Shapiro), who has worked with plaintiffs on the deposition scheduling and is fully capable of protecting Mr. Perkins from any asserted annoyance or harassment. VW-America’s motion does not assert any annoyance, harassment, burden, or prejudice that the deposition would cause VW-America. 2. Plaintiffs have every right to depose Mr. Perkins. Contrary ta VW-America’s assertion, this deposition is not an “apex” deposition (under Liberty Mut. Ins. Co. v. Superior Ct. (Frysinger) (1992) 10 Cal.App.4” 1282) because Mr. Perkins has not worked for VW-America for 35 years. Moreover, plaintiffs have (repeatedly) identified relevant and proper areas of inquiry for Mr. Perkins: a Corporate knowledge: Plaintiffs assert defective-products based causes of action against VW-America (in strict product liability and negligence) and seek both compensatory and punitive damages. Material to these claims is information about what VW- America knew, and should have known, about its products’ hazards. In recent litigation involving defects in its automobile products, VW-America has consistently hidden behind, and deferred its knowledge to, its German parent company Volkswagen AG (“VW-Germany”) ~ most notably in multiple depositions of VW-America’s designated person most knowledgeable (“PMK”’), Robert Cameron. Plaintiffs fully expect Mr. Cameron to answer in this way at his PMK deposition in this case (scheduled to begin March 27). If he does so, plaintiffs intend to explore with Mr. Perkins the flow of information between VW-Germany and VW-America — a topic clearly within the personal knowledge of VW-America’s former President. 1 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation 5 2 3 5 3 s 3 & > www. kazanlay 835-4913, 2 S a & S & & win b. Corporate existence: VW-America already brought an unsuccessful demurrer in this action on the factual basis that it assertedly was not incorporated in the United. States until the early 1950s, rendering any pre-1950s corporate or scientific knowledge immaterial. Plaintiffs expect that VW-America will attempt to raise this factual issue again, on summary judgment or at trial. Mr. Perkins appears to have knowledge on this topic, which is relevant to plaintiffs’ claims for negligence, fraud, conspiracy, and punitive damages. Indeed, he has previously filed a declaration, based on his asserted personal knowledge, about the actions of VW- Germany in the 1940s, the creation of VW-America, and the “genesis of Volkswagen sales in this country.” [See United States v. Volkswagen of Amer., Inc. (1960) 182 F.Supp. 405, 409-410.]! c Current assertions of ignorance: VW-America supports its motion with a declaration of Mr. Perkins, in which he disavows any knowledge of “asbestos in any automotive parts that may have been supplied by [VW-America].” [Perkins Decl., ]6.] Plaintiffs certainly need not accept this claim at face value — they are entitled to explore it in deposition. And this claim actually shows that Mr. Perkins has material information here. In a case resting in part on VW-America’s corporate knowledge of product hazards and seeking punitive damages, the fact that VW-America’s 13-year President claims not to have known in the 1970s that the products even contained asbestos will most certainly be relevant ~ and is thus a proper ground for plaintiffs to explore in deposition. 3. A protective order is not necessary to protect Mr. Perkins form any “annoyance” or “burden.” [See Code Civ. Proc. § 2025.420, subd. (a).] Indeed, Mr. Perkins himself does not assert any such burden. [Perkins Decl. at 1-2.] Moreover, plaintiffs have consistently agreed to work with Mr. Perkins and his counsel to minimize any potential inconvenience in taking the deposition. Plaintiffs will take the deposition near his residence in Florida; they have already agreed to move the deposition from March 17 to April 24 (after the Cameron PMK deposition is taken and after this motion is heard), at the same time and place that he is already being deposed in ' A copy of this published case is attached as Exhibit D to the accompanying Declaration of Ted W. Pelletier (“Pelletier Deci.”). 2 PLAINTIFES’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation > Oakland, California 94607, + www.kaxanlaw.com oni Street, Suite 400 Vax: (510) 835-4913 a 1a a Ss a Ss a Jack London. Market another matter; they have withdrawn their initial request for documents from Mr. Perkins based on counsel’s representation that Mr. Perkins does not have responsive documents; and they have offered to agree to reasonable limitations on the deposition’s length. In sum, VW-America’s motion does not come close to justifying the requested protective order, which should be denied. Moreover, this Court should impose a monetary sanction on VW-America and/or its counsel because (1) its motion was not preceded by a “reasonable and good faith” meet-and-confer effort [Code Civ. Proc. §§ 2016.040], and (2) the motion lacks “substantial justification” [id., § 2025,420, subd. (h).] Indeed, the reasons that the motion should be denied were known to VW- America before it filed the motion and are bolstered by the motion itself. Under sections 2023.020 and 2025.420, monetary sanctions are mandatory. i. FACTUAL HISTORY A. Underlying factual issues. In this action, plaintiffs assert defective-products based causes of action against VW- America (in strict product liability and negligence), seeking both compensatory and punitive damages. Material to these claims is information about what VW-America knew and should have known about its products’ hazards, VW-America’s decisions to give or not to give warnings about its products’ hazards, and its corporate managing agents’ decisions in these regards. [Pelletier Decl., | 2.] VW-America demurred to the complaint, raising the factual defense that it assertedly was not incorporated in the United States until the early 1950s, rendering any pre-1950s corporate or scientific knowledge immaterial. [Pelletier Deel. {3.] This demurrer was denied, but plaintiffs expect that VW-America will attempt to raise this factual issue again (on summary judgment or at trial). [/d.] Because Mr. Koepke is very sick and rapidly dying, this case has been granted preference, with trial set for June 16, 2014, and all deadlines hastened accordingly. [Pelletier Decl., 4.] Plaintiffs noticed the deposition of VW-America’s PMK for March 27, and VW-America designated Mr, Cameron, [/d.] Review of several prior depositions of Mr. Cameron (as the PMK) 3 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation + Oakland, California 94607 * wwwkaxanlaw.com: 55 [arrison Strece, Suite 400, Jack London Market * Van: (510) 835-4913 (510) 302-1000 + ID wu Bw NHN showed plaintiffs’ counsel that Mr. Cameron regularly answers questions about VW-America’s knowledge and actions by referring and deferring to VW-Germany. [Pelletier Decl. ] 5 and Exhs. A at 228-231 (VW-America “relied upon” VW-Germany about the existence of product hazards and whether any warnings were necessary or appropriate), B at 113-114 (VW-America saw no testing but “trust[ed]” representations from VW-Germany that the brake products were not hazardous), C at 167-170 (“engineers” from VW-Germany “assured [VW-America] that the asbestos . . . in our cars was not causing any type of injury”).] Plaintiffs expect that Mr. Cameron will testify similarly in this action. Accordingly, plaintiffs’ counsel sought to obtain discovery about the flow of information between VW-Germany and VW-America from other sources. {Pelletier Decl., 9 5.] Counsel determined that an appropriate witness as to both the America~-Germany information flow and the corporate history of VW-America and VW-Germany is Mr. Perkins. As the former VW-America President during the time that Mr. Koepke was exposed to VW products, Mr. Perkins can speak to the information flow at that time. [Pelletier Decl., |6.] And because Mr. Perkins has already filed a declaration on personal knowledge about the VW corporate history [id Exh. D (U.S. v. Volkswagen of Amer., Inc., 182. F.Supp. at 409-410)], he appears able to offer information on this topic. B. The deposition notice and VW-America’s meager meet-and-confer efforts. On about February 26, 2014, Plaintiffs subpoenaed Mr. Perkins in Florida and noticed his deposition for March 17 in Sarasota, Florida. [Pelletier Decl., (7; Declaration of Garrett Sanderson [SO Motion (“Sanderson Decl.”), Exh. A.] Plaintiffs also sought the production of documents regarding, inter alia, brake design, product specifications and manuals, and “warnings regarding the health hazards of asbestos on drum brake assembly in automobiles.” [Sanderson Decl., Exh. A at 4 (Attachment 4).] One day later (February 27), counsel for VW-America requested by letter that plaintiffs “withdraw the deposition notice and subpoena” of Mr. Perkins on the sole asserted ground that it would be an improper “apex” deposition (of an officer at the corporate “apex”) under Liberty Mutual, supra, 10 Cal.App.4® at 1282. [Sanderson Decl., Exh. B at 1.] VW-America’s counsel 4 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood ornia 94607 + Oaklas + www.le Suite 400 35-4943 A Professional Law Corporation 3 = 3 g 3 # 302-1000 + 14 Dn nv also represented that “Mr. Perkins does not have any knowledge about the subject matter of this case, the composition of automotive parts, or asbestos.” [/d.] The letter did not assert that a deposition would subject Mr. Perkins to “unwarranted annoyance, embarrassment, or oppression or undue burden and expense” (per the protective-order statute, Code of Civil Procedure section 2025.420). [Id.] Indeed, VW-America’s counsel did not even claim to represent Mr. Perkins. Ud) That same day, plaintiffs received a similar letter from the actual counsel for Mr. Perkins: Ari Shapiro of the Gordon & Rees firm in Florida. [Pelletier Decl., 4] 8 and Exh. E.] Mr. Shapiro and Gordon & Rees also represent VW-America and VW-Germany. [/d., Exh. F.] On Mr. Perkins’s behalf, Mr. Shapiro also requested the withdrawal of the deposition notice and subpoena, with language identical to VW-America’s letter: “Mr. Perkins does not have any knowledge about the subject matter of this litigation, the composition of automotive parts, or asbestos.” [/d., Exh. E (emphasis omitted).] The next day (Friday, February 28), plaintiffs’ counsel replied to both letters, explaining that (1) this is not an “apex” deposition because Mr. Perkins does not work for VW-America, and (2) Mr. Perkins appears to have “knowledge relevant to this case,” including about “the relationship and flow of knowledge” between VW-America and VW-Germany. [Sanderson Decl., Exh. C at 1.] Plaintiffs noted that Mr. Perkins’s claimed “lack of knowledge” about some topics “does not obviate our need to take discovery on matters of high-level corporate organization, hierarchy, knowledge, or the decision-making of managing agents.” [/d. at 1-2.] Plaintiffs agreed, though, to withdraw their document request (based on counsel’s representation that Mr. Perkins had no responsive documents). [{/d. at 1.] And plaintiffs offered to “minimize the burden on Mr. Perkins in any way we can,” including “rescheduling the date and time and agreeing to reasonable limitations on the duration of the deposition.” [/d. at 1, 2.] Plaintiffs suggested that counsel “meet and confer further.” [/d. at 2.] VW-America’s counsel never responded in substance to plaintiffs’ letter, and he made no further attempts to “meet and confer.” [Pelletier Decl., | 9; see Sanderson Decl., {ff 4-5 (not claiming any further meet-and-confer efforts)]. The next business day, Monday March 3, VW- 3 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood California 94607, + www.kavanlaw.com * Oal Suite 400 5 Harrison § 5 (S10) 302-1000 + Jack London Market * } € Bax: (510) 835-4913, Co oe RD mH Rw sors Oo © NY DR HW BR WY NW NN RR N YP NR NY VY WY ect KR A RB Be Ye = S America’s counsel announced by e-mail that he would “file tomorrow” a “motion for a protective order.” [Pelletier Decl., 4 10 and Exh. G at 3.] ‘The parties then discussed (by e-mail) the timing of the motion and deposition ~ but VW- America made no attempt to respond to plaintiffs’ letter or narrow the issues. [Jd., Exh. 3 at 1-3.] VW-America’s counsel asked to postpone the deposition from March 17 to a later date to allow the motion to be heard first. [Pelletier Decl., § 11 and Exh. G at 3.] Plaintiffs’ counsel agreed to postpone the deposition if VW-America would agree that plaintiffs would not need to re-subpoena. Mr. Perkins for the later deposition date. [Jd. at 2.] WW-America’s counsel stated that he could not agree to this condition because “I don’t represent Mr. Perkins,” who “has his own counsel.” [ld] Cc VW-America’s motion. Despite the insistence of counsel that he does not “represent” Mr. Perkins, who “has his own counsel” [id.], VW-America brought the instant motion to “protect” Mr. Perkins from “unadulterated harassment” and “annoyance.” [MPA at 2:1-2, 3:10-11.] Although Mr. Perkins has not worked for VW-America for over 35 years, VWW-America based its motion on the assertion that he has “no knowledge” about this case. [MPA at 1:24-25.] Indeed, the motion attaches a declaration from Mr. Perkins averring that he never knew anything about any asbestos in the company’s products, [Perkins Decl., § 6.] But Mr. Perkins does not aver that the deposition will cause him any annoyance, harassment, or burden. [/d.] 2 As noted above, Mr. Perkins is represented by Mr. Shapiro, who also represents both VW- America and VW-Germany in other matters. [See Pelletier Decl., 48 and Exh. F.] VW-America clearly remains in touch with Mr. Perkins, who signed a declaration in support of the instant motion. But VW-America’s counsel’s insistence that he could not facilitate an agreement to postpone the March 17 deposition led to a significant waste of time and resources — including an ex parte application to hear this motion on shortened time (before March 17), a hearing in this Court on that application (taken under submission), and several hours of communications ~ before Mr, Perkins’s Florida counsel finally agreed to accept service of any new subpoena on behalf of his client. [Pelletier Decl., | 12.] With that agreement, plaintiffs promptly agreed to continue the deposition to April 24 -- after the Cameron PMK deposition (March 27) and the hearing on this motion. [/d.] 6 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation Z g 4 g = g g + www. kavanlaw.com 535-8913, a 8 & Ss o A Ww oN The motion also does not assert that the Perkins deposition would in any way inconvenience or prejudice VW-America’s rights in this action. [MPA at 1-7.] Although the protective-order statute authorizes numerous forms of lesser relief (including “specified terms and conditions” such as limits on the time or “scope” of the deposition) [Code Civ. Proc. § 2025.420, subd. (b)], VW-America sought only an order wholly “barring” any Perkins deposition. [Notice of Motion at 1:23-23; MPA at 5:21-22.] D. Plaintiffs agreed to continue the Perkins deposition to April 24 — at the same time and place as his deposition in another case. After VW-America filed the instant motion, plaintiffs agreed to continue the deposition from March 17 to April 24, after the Cameron PMK deposition (March 27) and the hearing on this motion (April 9), [Pelletier Decl., € 13.] Consistent with their prior offer to “minimize the burden on Mr. Perkins in any way we can,” including “rescheduling the date and time” of the deposition {Sanderson Decl., Exh. C at 2], plaintiffs agreed to depose Mr. Perkins on April 24, at the same time and place that Mr. Perkins will be deposed in another matter (Jones v. BorgWarner Corp., et al. (Volkswagen), Fla. Cire. Ct. No. 10-13549(Z). [Pelletier Decl., {13 and Exh. H; see Sanderson Deci., Exh. A at 1:23-27 (also setting deposition at the Courtyard Sarasota Bradenton Airport hotel).] I. ARGUMENT VW-America’s motion does net come close to justifying a protective order barring the Perkins deposition and should thus be denied. Moreover, this Court should find that the motion (1) was not preceded by an adequate meet-and-confer effort, and (2) lacks “substantial justification,” and accordingly should grant mandatory monetary sanctions against VW-America and/or its counsel. A. This motion is improper: VW-America cannot properly seek to “protect” a separately-represented former employee from “harassment” that the employee himself has not asserted. The motion should be denied first because VW-America cannot properly move to “protect” Mr. Perkins, a separately represented third party, from “annoyance,” “harassment,” or a “burden” that Mr. Perkins himself does not even assert. 7 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER.Kazan, McClain, Satterley & Greenwood A Professional Law Corporation lifornia 94607 35-4913 * wwwikazaniaw.com 3 Z 8 = 3 a 2 E Jack Jondon Market + 55 Hac 2 2 s S z = & VW-America seeks an order “barring plaintiffs from deposing” Mr. Perkins. [Notice of Motion at 1:23-25.] The motion rests solely on Code of Civil Procedure section 2025,420. [Jd.] ‘That provision authorizes “any party, any deponent, or any other affected natural person or organization” to “move for a protective order.” [Code Civ. Proc. § 2024.420, subd. (a).] A resulting order may properly “protect” any “party, deponent, or other natural person or organization” from “unwarranted annoyance, embarrassment, or oppression or undue burden and expense.” [/d., subd. (b).] VW-America lacks standing to move to “protect” Mr. Perkins here. Although a motion may properly be brought by “any party,” the mirrored language of these subdivisions (“party,” “deponent,” etc.) indicates that the motion is intended to protecting the moving party from “annoyance,” “burden,” etc. Indeed, who but the moving party can attest that pending discovery would be “annoying” or “burdensome” to him? The provision does not suggest that such annoyance or burden can be asserted by somcone else. But even if this motion is not technically improper, it is factually untenable. VW-America cannot decide what might be annoying or burdensome to a third party. Mr. Perkins is represented by his own counsel — as VW-America’s counsel was quick to tell plaintiffs when it suited his purpose. [See Pelletier Decl., Exh. G at 2.] That separate counsel (Mr. Shapiro) initially complained to plaintiffs about the deposition by letter [id., Exh. E] but has brought no motion for a protective order here. Notably, even Mr. Perkins’ declaration in support of VW-America’s instant motion does not assert that the deposition would be annoying, harassing, embarrassing, burdensome, or expensive. [Perkins Decl. at 1-2.] Moreover, VW-America does not assert that the Perkins deposition would in any way inconvenience or prejudice its rights in this action. [MPA at 1-7.] Accordingly, this motion is improper. VW-America cannot properly or factually justify an order to protect a separately-represented former employee based on asserted harassment that even the employee does not claim exists. 8 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation * Oakland, California 94607 Jack ]ondon Market * 55 I larrisoa Street, Suite 400 (510} 302-1000 * Hax; (510) 835-4913 * www.karanlaw.com wa 2 «oe ND 10 i 12 13 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 B. The Perkins deposition is proper. Next, even if VW-America can properly move to “protect” someone else, its motion lacks merit. Plaintiffs have every right to depose Mr. Perkins, who appears to have knowledge relevant to plaintiffs’ claims — as shown by his declaration in a prior case and bolstered by his declaration here. Moreover, plaintiffs have offered to accept reasonable limitations to minimize any inconve- nience to Mr. Perkins — but VW-America ignored this offer and simply filed the instant motion. 1. This is not an “apex” deposition — as VW-America knew before filing its motion. VW-America’s motion rests on its assertion that plaintiffs are seeking an improper “apex” deposition under Liberty Mutual. [MPA at 3-5.] Not so. An improper “apex” deposition occurs when a plaintiff sues a corporation and then “seeks to depose” someone currently “at the apex of the corporate hierarchy” as a first discovery method, without “less intrusive discovery methods,” [Liberty Mutual, 10 Cal.App.4 at 1287.] The purpose of this rule is to “prevent a plaintiff from leap-frogging to the apex of the corporate hierarchy in the first instance, without the intermediate steps of seeking discovery from lower level employees more involved in everyday corporate operations.” [/d.] This rule rests on the proposition that the “head of a large national corporation will generally not have knowledge of a specific incident or case handled several levels down the corporate pyramid” — ¢.g., in an “insurance” case, the “day-to-day processing of claims.” [/d.] Thus, deposing a sitting corporate president requires a “reasonable indication of the officer’s personal knowledge of the case.” [/d.] Here, Mr. Perkins is not in the VW-America “corporate hierarchy” ~ he has not worked for VW-America for 35 years. The apex rule simply does not apply. Moreover, even if the rule could apply, plaintiffs are not seeking to depose Mr. Perkins about a “specific incident” involving lower-level employees. As set forth above, and more fully in the following section, plaintiffs have a “reasonable indication” of his “personal knowledge” on material issues here. 9 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation teeet, Suite 400 + Oakland, California 94607 510} 835-4913 + warw.kazanlaw.com Jack London Market * 55 LLacri (510) 302-1060 + Ma 2. Mr. Perkins appears to have personal knowledge on several material issues. Mr. Perkins is a proper deponent because he appears to have personal knowledge on at least three material issues: 1. Corporate knowledge: Plaintiffs’ claims against VW-America, sounding in strict liability and negligence and seeking compensatory and punitive damages, rest on information about what VW-America knew, and should have known, about its products’ hazards. VW-America’s motion complains that plaintiffs noticed the Perkins deposition before starting the deposition of Mr. Cameron, whom VW-America designated as its PMK in this case. [E.g., MPA at 2:20-25.] But Mr. Cameron, in numerous recent PMK depositions, has consistently and repeatedly testified that VW-America relied on VW-Germany for information and knowledge about its products’ hazards. As set forth above, VW-America (via Mr. Cameron) consistently defers to VW-Germany on issues involving corporate knowledge. [See Pelletier Decl., [5 and Exhs. A-C.] Key issues in this case include what VW-Germany knew, what it told VW-America, and what VW-America did to get information from VW-Germany. Mr. Cameron has demonstrated that he does not have this information. But Mr. Perkins, the President of VW-America at the time that Mr. Koepke was exposed to its products, will certainly have information about the flow of information between VW-Germany and VW-America.* 2. Corporate existence: VW-America demurred to the complaint here on the factual basis that it assertedly was not incorporated in the United States until the early 1950s, rendering immaterial plaintiffs’ allegations of pre-1950s corporate and scientific knowledge. This factual demurrer was properly overruled. But plaintiffs expect VW-America to raise the issue again (on summary judgment or at trial). [Pelletier Decl., 4 3.] 3 In this preference case, plaintiffs lacked the luxury of waiting until the completion of the Cameron PMK deposition before noticing the Perkins deposition. But they have now continued that deposition until late April. If Mr. Cameron provides complete information about the flow of information from Germany, plaintiffs may not need to depose Mr. Perkins on this topic. 10 : PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERornia 94607 A Professional Law Corporation 10) 302-1000 * Kax: (510) 835-4913 + www-kavantaw.com 3 € Kazan, McClain, Satterley & Greenwood Jack London Market * 55 Ilarrisoa Steet, Suite 400 * Oakland, Mr. Perkins has previously filed a declaration, on asserted personal knowledge, about the actions of VW-Germany in the 1940s, the creation of VW-America, and the “genesis of Volkswagen sales in this country.” [Pelletier Decl., Exh. D (attaching U.S. v. Volkswagen, 182 F.Supp. at 409-410 (Perkins declaration “of my own knowledge”)).] Plaintiffs properly seek to explore that information here. 3. Current assertions of ignorance: Mr. Perkins’ declaration here further demonstrates his personal knowledge of material issues in this case. Again, a primary issue is VW-America’s knowledge of the asbestos hazard in its own product. Mr. Perkins, the VW-America President at the time of Mr. Koepke’s exposures, declares that he did not even know that VW-America’s products contained asbestos: “I do not know anything about asbestos in any [VW-America] automotive parts.” [Perkins Decl., 6.] He also avers that, during his entire “employment” (including as President), he “did not participate in any discussions about asbestos in automotive parts” or “receive or review any information about asbestos in automotive parts.” [/d. (emphasis added),] That VW-America’s President claims never to have known anything about the hazards of the company’s products is most certainly relevant in a case resting on VW-America’s corporate knowledge of those hazards — and seeking punitive damages for corporate disregard of safety. Mr. Perkins’s declaration thus supports plaintiffs here, showing his knowledge of information material to their claims and therefore making his deposition proper. But even if Mr. Perkins’ claim to know nothing about “asbestos” was helpful to VW- America, plaintiffs are not required to accept this claim at face value. Instead, they are entitled to explore the claim in deposition. In sum, although it is not even necessary in this non-“apex” deposition, plaintiffs meet the Liberty Mutual requirement of showing Mr. Perkins’s “personal knowledge” of material issues. ll PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation + Oskland, California 94607 3) 835-4913 © www.kazankaw.com 2 = 3 BR eo 2 Jack London Marker ° 55 [arris (5105 302-10 CO me YD 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cc. Plaintiffs’ have consistently agreed to minimize any potential inconvenience from the Perkins deposition. Finally, VW-America is wrong to claim that plaintiffs’ noticed deposition of Mr. Perkins is “unadulterated harassment” that will cause Mr. Perkins “unwarranted annoyance.” [MPA at 2:1-2, 3:10-11.] As noted above, a protective order may properly issue to prevent “unwarranted annoyance, embarrassment, or oppression or undue burden and expense.” [Code Civ. Proc. § 2025.420). But VW-America cannot itself establish that a deposition would be annoying or burdensome to Mr. Perkins, who has not worked for VW-America for 35 years and is not represented by its counsel. And Mr. Perkins’ declaration in support of the instant motion, although claiming a lack of knowledge about the case, does not assert that being deposed would be annoying or burdensome in any way. [Perkins Decl. at 1-2. Moreover, plaintiffs immediately offered, and have now taken steps, to minimize any potential inconvenience or burden, working with Mr, Perkins’s counsel to arrange a mutually convenient time and place for the deposition — at the same time and place that he is already being deposed in another matter. [Pelletier Decl., § 13 and Exh. H.] Plaintiffs have also offered to make other “reasonable accommodations,” including “reasonable limitations on the duration of the deposition.” [Sanderson Decl., Exh. C at 2.] Unfortunately, VW-America ignored these offers, bypassing any further meet-and-confer efforts to instead get this Court involved. VW-America simply cannot show that the deposition is a “burden” to it or to Mr. Perkins. In sum, the motion wholly fails to justify a protective order and should be denied. D. Because VW-America’s motion bypassed proper meet-and-confer efforts and lacks “substantial justification,” this Court should impose mandatory monetary sanctions, In addition to denying the instant motion, this Court should impose mandatory monetary sanctions on VW-America and/or its counsel for bringing the motion, which should never have been brought, was not preceded by an adequate meet-and-confer effort, and cannot succeed. [See Code Civ. Proc. §§ 2023.020, 2025.420, subd. (a).] 12 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood A Professional Law Corporation Suite 400 + Oakland, California 94607 4913 * www.kaxankaw.com The protective-order statute provides for a mandatory “monetary sanction” against “any patty, person, or attorney who unsuccessfully makes or opposes a motion for a protective order.” [Code Civ. Proc. § 2025.420, subd. (h).] The only exception to this mandate is if this Court “finds” that the motion was brought with “substantial justification” (or “other circumstances make the imposition of the sanction unjust”).] Moreover, this Court “shall impose a monetary sanction” on “any party or attorney who fails to confer as required” by a discovery-motion statute. [/d., § 2023.020.] Here, the motion was neither preceded by an adequate meet-and-confer effort nor close to justified, let alone “substantially” justified. Sanctions must issue. L Inadequate meet-and-confer effort. The instant motion did not follow anything close to a sufficient meet-and-confer effort. Motions for a protective order must attach a “meet and confer declaration,” which “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” [Code Civ. Proc. §§ 2016.040 (emphasis added), 2025.420.] Here, VW-America and its counsel did not make a reasonable or good-faith attempt to resolve anything, let alone “each issue presented by the motion.” The motion’s purported “meet and confer declaration” is from its counsel, Mr. Sanderson. That declaration makes little effort to “state facts showing a reasonable and good faith attempt” to meet and confer on anything, averting only that counsel sent a letter “asking [plaintiffs] to withdraw the deposition notice” and that plaintiffs “refus[ed].” [Sanderson Decl., { 4.] Instead, the declaration simply attaches the two letters (as Exhibits B and C). The attached letters also fail to constitute an adequate meet-and-confer effort. VW- America’s letter demanded that plaintiffs “withdraw” the deposition notice for one reason only: that plaintiffs supposedly sought an improper “apex” deposition. [/d., Exh. B.] The letter did not assert that the deposition would subject Mr. Perkins to any unwarranted “annoyance” or “burden.” [7d.] But VW-America’s motion now raises such purported annoyance or burden as an “issue.” [MPA at 2:1-2, 3:10.] Because the meet-and-confer letter did not raise this “issue,” it was not 13 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER,Kazan, McClain, Satterley & Greenwood al Law Corporation é a % S 8 s & a S Jack London Marker adequate. [See Code Civ. Proc. § 2016.040 (meet and confer effort must make “reasonable and good faith attempt at an informal resolution of gach issue presented by the motion”).] Moreover, VW-America’s single letter was not a “reasonable and good faith” attempt to resolve any issue. VW-America demanded withdrawal of the notice on a single, inapplicable ground (supposed “apex” deposition). [Sanderson Decl., Exh. B.] Plaintiffs’ response letter the next day (1) showed that no “apex” deposition was sought because Mr. Perkins does not work for VW-America, (2) described the areas of personal knowledge on which Mr. Perkins would properly be deposed, and (3) offered to work with VW-America to “make any reasonable accommodations to minimize the burden on Mr. Perkins,” specifically asking counsel to “contact us to meet and confer further.” [/d., Exh. C at 1-2.] VW-America’s counsel did nothing further to meet-and-confer. He did not seek to minimize any “burden” on Mr. Perkins. He did not assert that, although Mr. Perkins no longer works for the company, the “rationale” of prohibiting an “apex” deposition still applies — yet another “issue” now raised in the motion [MPA at 5:7-8] that was never the subject of a meet-and- confer effort. Instead, counsel (the next business day) simply announced to plaintiffs’ counsel that he would “file tomorrow” a “motion for a protective order.” [Pelletier Decl., Exh. G at 3.] In short, counsel made an unsupported demand to withdraw the deposition notice, ignored efforts to minimize any burden, declined a request to meet and confer further, and ran directly to this Court. This is manifestly an inadequate meet-and-confer effort. A monetary sanction is mandatory. [Code Civ. Proc. § 2016.040, 2023.020.] 2. Motion not substantially justified. A monetary sanction is mandatory also under section 2025.420, subdivision (h), because the motion lacks “substantial justification” on the merits. As set forth above, (1) the deposition is not an “apex” deposition (as plaintiffs told VW-America), (2) plaintiffs have identified multiple issues on which Mr. Perkins appears to have personal knowledge (as plaintiffs told VW-America), and (3) Mr. Perkins’s supporting declaration, purporting to have never known anything about asbestos, alone warrants a follow-up deposition to test his claims and itself shows that he has 14 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDERKazan, McClain, Satterley & Greenwood 1 Law Corparation 8 ae wa ze gs #8 a2 oe 72 2 400) 0) 835-4913 2 8 a 5 S & Jack Loadon Marker + oC WM A A personal knowledge of material issues, including (on lability and punitive damages) how VW- America’s President could have possibly not known about the hazard or even the presence of asbestos in its products. Although VW-America’s counsel knew all of this, he pressed his motion that cannot succeed, ignoring plaintiffs’ efforts to limit or resolve any real issues. This was not even minimally justified, let alone substantially so. Again, sanctions are mandatory. IV. CONCLUSION For all of the foregoing reasons, this Court should (1) deny VW-America’s motion for a protective order, and (2) impose a monetary sanction on VW-America and/or its counsel, to be paid to plaintiffs” counsel to compensate their “reasonable expenses, including attorney’s fees” [Code Civ. Proc. §§ 2023.020, 2023.030, subd. (a)], in the amount of $10,260.00 (as supported by paragraphs 14-16 of the accompanying Pelletier Decl.). KAZAN, McCLAIN, SATTERLEY & GREENWOOD A Professional Law Corporation DATED: -March 26, 2014 f By: _ (ee Ted W Pelletiér | 15 PLAINTIFFS’ OPPOSITION TO MOTION FOR PROTECTIVE ORDER