Preview
FILED
DALLAS COUNTY
7/29/2014 4:57:10 PM
GARY FITZSIMMONS.
DISTRICT CLERK
CAUSE No. 11-14542
HOSPIRA WORLDWIDE, INC. § IN THE DISTRICT COURT
Plaintiff,
Vv. 162" JUDICIAL DISTRICT
DALLAS COUNTY HOSPITAL DISTRICT §
D/B/A PARKLAND HEALTH AND §
HOSPITAL SYSTEM, §
§
Defendant. § OF DALLAS COUNTY, TEXAS
PARKLAND’S MOTION FOR SANCTIONS AND TO COMPEL PRODUCTION OF
DOCUMENTS AND IDENTIFICATION OF KEY PERSONS WITH KNOWLEDGE
Defendant Parkland, after giving Plaintiff an opportunity to satisfy this Court’s order to
produce documents and persons with knowledge to support its claim, files this Motion for
Sanctions and Motion to Compel due to Plaintiff's failure to produce any support for the claim it
filed more than two and a half years ago.
I. SUMMARY OF THE ARGUMENT
This is the third time Defendant has been required to involve this court in a discovery
dispute in this matter. Hospira continues to resist the most basic discovery without any plausible
reason. (As the court will see below, Hospira's version of “Where's Waldo” is known as “hiding
Howard”). Plaintiff filed this suit claiming its own “billing error” caused a more than $1 million
debt and Plaintiff allegedly did not discover the “error” during more than four years of consistent
acts to the contrary by both parties. Despite this contention of an error, and after this court
overruled objections made by Plaintiff in connection with the deposition of its Corporate
Representative, Plaintiff refuses to produce documents or identify even the name of the person
Defendant’s Motion to Compel and for Sanctions Page 1
who supposedly made the “error” at the center of this lawsuit.
The testimony set out below will demonstrate why this conduct is worthy of sanction.
Further, the sanction should fit the conduct and Plaintiff should be precluded from claiming that
Parkland breached a contract; and that Hospira made an error or incorrectly billed Parkland.
Plaintiff claims it has identified the person who made the alleged error, but Plaintiff still has not
provided this person’s name to Defendant other than to testify that his first name is believed to
be “Howard” and that his middle name may be “Dwayne.” Hospira also claims that “Howard
Dwayne” is still employed. Further, more than two and a half years after filing suit, Plaintiff
says in sworn responses to discovery it discovered its alleged “error” on April 28, 2010. Even
though this “error” is the basis of Plaintiff's claim, Plaintiff is withholding documents it claims
show the occurrence or discovery of the alleged “error.”
I. PLAINTIFF HAS INTENTIONALLY WITHHELD EVIDENCE AND THE
IDENTITY OF KEY PERSONS WITH KNOWLEDGE
Plaintiff's Original Petition is based entirely on Plaintiff's own alleged “error,” but
Plaintiff has not presented any documentation or identified key persons with knowledge to show
the parties did not intend the 5 years of consistent and continuous business despite direct
testimony from it's own representative that documents exist and that an un-named witness has
been identified as the individual who made the “error.”
a. Plaintiff is withholding the identity of key persons with knowledge
Plaintiffs Original Petition hinges on Plaintiff's own “error” occurring. First Plaintiff
alleged the error was caused by a computer glitch. This Court ordered Plaintiff to produce
documents showing that a glitch caused the error. Instead, Plaintiff changed its position and now
states an employee made a manual error. Plaintiff refuses to identify this employee.
Defendant’s Motion to Compel and for Sanctions Page 2
Plaintiff's corporate representative, Barbara Leach, stated at deposition, “We know the
individuals at Hospira that were responsible for the accounting error.” Exhibit A, pages 14-
16. Despite this employee’s pivotal role in Plaintiff's claim, Barbara Leach could not identify
the employee’s name. See Exhibit B, pages 17-20, (Barbara Leach claims to not know the
employee’s last name even though she allegedly knows the employee’s first name is Howard,
which she claims to have derived from the name “Dwayne” on Hospira’s Form 243). In fact, the
only effort Leach claims to have made to determine this employee’s name was to “review the
information on the CIW,” the document that doesn’t even say “Howard” on it. Exhibit C, pages
21-24. Further, Plaintiff did not identify this employee as a person with knowledge in its most
recent supplemental response to requests for disclosure, which was served on Defendant more
than a month after Barbara Leach testified Plaintiff knows who the employee is. To date, this
case has been pending for more than 2 and a half years and discovery has closed, but Plaintiff
has still not identified this essential person with knowledge. Apparently Hospira’s position is that
although it claims error, and although the “error maker” is known and still employed, it does not
have to identify this person as a witness. Clearly this is not true and, just as clearly, this conduct
is sanctionable by this Court.
Hospira’s actions deprive Defendant of the opportunity to prepare its defense. Defendant
requests this Court prohibit Plaintiff from claiming breach of contract or that some “error” was
made in Hospira’s billings.
b. Plaintiff is withholding documents showing any alleged “error” actually
occurred or was discovered
In sworn interrogatory responses, Plaintiff stated employee Amy Bode discovered the
alleged “error” on April 28, 2010. Exhibit D, pages 25-30. Consistent with Plaintiffs constant
Defendant’s Motion to Compel and for Sanctions Page 3
refusal and inability to produce documents and persons with knowledge, one day after serving
responses to interrogatories Plaintiff's Corporate Representative Barbara Leach attempted to
change this date to be consistent with emails actually produced by Plaintiff. See Exhibit E, pages
31-42, (Barbara Leach identified an email dated May 27, 2010 as the aha moment on April 28,
2010 where Hospira discovered the “error” but this email doesn’t relate to any “error,” “billing
error,” or “shortfall”). The emails were completely unrelated to any claim of “error” or
“shortfall.” When confronted about the change, Leach testified “I believe there is something—
there is a piece of paper that has [April 28, 2010] on there.” Exhibit E, pages 31-42. Plaintiff
has not provided defendant this “piece of paper.”
Plaintiff has not provided any documents showing an “error” was discovered at any time
during or after the contract, let alone on April 28, 2010. Whether an alleged “error” was ever
discovered is essential to this lawsuit. Without any proof of the alleged “error,” the conclusion is
just that the parties performed as agreed during the term of the contract.
Plaintiff is withholding this essential area of discovery, Defendant requests this Court
prohibit Plaintiff from claiming that Parkland breached the contract or that some “error” was
made in Hospira’s billings.
c. Plaintiff violated this Court’s order to produce documents
On May 28, 2014, this Court heard Plaintiff's Objections to Defendant’s Second Request
for Production. This Court ordered Plaintiff to produce responsive documents to the following
Requests for Production: 15, 19, 20, 21, 28, 29, 38, and 39. Plaintiff also withdrew its objections
to Request for Production 18.
These requests are directly related to whether an “error” actually occurred, and include:
e any adverse employment action pertaining to the alleged “billing error;”
Defendant’s Motion to Compel and for Sanctions Page 4
¢ internal or external written communications regarding the alleged “billing error;”
e audits relating to the subject contract;
These documents directly relate to whether an “error” actually occurred. Therefore,
Defendant requests this court prohibit Plaintiff for claiming breach of contract or that some
“error” was made in Hospira’s billings. In fact, one document Plaintiff did produce says that the
“error” was discovered as a result of an “audit finding.” Yet, despite this email and this Court’s
order, no audits have been produced. Not a single document has been produced noting the “aha”
moment when Plaintiff supposedly discovered an error that it claims was made for at least 51
straight months. This court should also know that there is a mountain of evidence supporting
that no error ever occurred and that Plaintiff ratified the conduct of the parties and waived any
claim it may have had.
If. SPECIFIC DOCUMENTS IDENTIFIED BY PLAINTIFF
During the depositions of the corporate representatives, the Plaintiff's designated
representatives identified additional documents that have been withheld by the Plaintiff. The
following documents have been identified by the Plaintiff, have not been produced, and are
responsive to Defendant’s requests for production.
a. Contract Implementation Worksheets and Form 243s
In its supplemental responses to interrogatories, Plaintiff identifies for the first time what
it claims caused the alleged “billing error.” Barbara Leach testified about Plaintiffs
supplemental responses to discovery, which were served on June 9, 2014, one day before her
deposition. More than four years after the contract expired, Plaintiff has identified a “Contract
Implementation Worksheet (CIW)” and a “Form 243” as relevant documents. Relevant CIWs
and Form 243s were not produced. Plaintiff's interrogatory response states that, at the time the
Defendant’s Motion to Compel and for Sanctions Page 5
contract was signed, the CIW was filled out correctly but Form 243 was not, Exhibit D, pages
025-030. At this time, Plaintiff has only produced one CIW, and it is dated more than 3 years
after the contract started. According to Leach, the CIW produced is for a modification of the
contract, dated July 18, 2008. A corresponding Form 243 was not produced.
Further, Plaintiff has produced two separate Form 243s, one dated May 17, 2005 and the
other for a modification in June 2005. ClWs for these forms were not provided, even though
Plaintiffs Interrogatories and the Corporate Representative both state that at least the CIW dated
May 17, 2005 exists, Exhibit D, pages 025-030.
Based on Plaintiffs discovery responses and the corporate representative’s testimony,
Plaintiff has withheld key documents which it has identified and relied on as relevant in this
case. Therefore, Defendant requests this Court prohibit Plaintiff from claiming breach of contract
or that some “error” was made in Hospira’s billings.
b. Statements of Account allegedly provided by Hospira
Barbara Leach stated that each month Hospira allegedly sent “Statements of Account” to
Parkland. Barbara Leach stated Hospira keeps a copy of these Statements of Account. But
Hospira has not produced any Statements of Account, even though Defendant requested all
accounting documents related to the contract which Plaintiff has called into issue in this case.
Also, Barbara Leach stated these are documents “Hospira has in terms of an accounting ledger
document which reflects an amount due or an accounts receivable amount” for the more than $1
million claimed by Plaintiff. While such a document is clearly relevant and essential to
Plaintiff's claim, this Court has also ordered production of accounting documents relating to
Plum A+ devices and disposables. Despite this Court’s order and the obvious relevance of these
documents, Plaintiff has not produced any “Statements of Account” to Defendant.
Defendant’s Motion to Compel and for Sanctions Page 6
Plaintiff is withholding documents necessary for Defendant to prepare its defense,
Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some
“error” was made in Hospira’s billings.
c. Incentive pay or commission programs
Plaintiff's Corporate Representative Ryan Nitzel stated Plaintiff's incentive pay program
changed annually and may have varied by department. Defendant requested documents relating
to such programs ranging from 2004 through the date Plaintiff filed this suit. Plaintiff has only
provided the incentive pay program for 2005. Plaintiff's corporate representative stated that this
program was changed significantly from 2005 to 2010, but Plaintiff has not produced any other
documents evidencing the incentive pay program requested by Defendant.
Plaintiff is withholding documents necessary for Defendant to prepare its defense,
Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some
“error” was made in Hospira’s billings.
IV. DUCES TECUM
This court also ordered that Plaintiff's corporate representatives to produce:
e all reports, inspections, evaluations, or investigations, whether formal or informal,
regarding the incident(s) made the basis of this lawsuit; and
A copy of all accounting records kept by Plaintiff relating to the Plum A+ Devices
and disposables identified and provided for under the contract made the basis of this
lawsuit.
Plaintiff has still not produced documents relevant to these requests, even though its
corporate representative testified that annual audits would have occurred on a contract with a
Defendant’s Motion to Compel and for Sanctions Page 7
price increase, as Plaintiff alleges here. These documents are essential to Plaintiff's claim of a
“billing error” and necessary for Defendant to prepare its defense.
Plaintiff is withholding documents necessary for Defendant to prepare its defense,
Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some
“error” was made in Hospira’s billings.
V. ADDITONAL PRODUCTION DEFICIENCIES
Plaintiff has also not produced any documents identified in and missing from Plaintiff's
May 28, 2014 production. These documents were identified by Defendant as identified and
missing in Plaintiff's May 28, 2014 production of documents. Defendant informed Plaintiff such
documents were missing on July 3, 2014. These documents include:
1) “Lease shortfall.zip;”
2) Emails attached by Wes Cornelison;
3) A spreadsheet from Sandy Rauschenberg; and
4) Pages 1 and 2 to the fax dated May 13, 2005.
Plaintiff is withholding these documents even though Defendant has specifically
requested them. Therefore, Defendant requests this Court prohibit Plaintiff from claiming breach
of contract or that some error was “made” in Hospira’s billings.
VI. CORPORATE REPRESENTATIVE
Plaintiff was ordered to designate a corporate representative to testify on twelve specific
topics identified in Defendant’s Notice of Intent to Take the Oral Deposition of a Designated
Corporate Representative(s) for Hospira Worldwide, Inc. with Duces Tecum. Plaintiff designated
Barbara Leach and Ryan Nitzel to testify on certain of those twelve topics. However, Plaintiff's
Defendant’s Motion to Compel and for Sanctions Page 8
designated representatives were not able to testify on the following topics (as numbered in the
Subpoena Duces Tecum):
4) The internal auditing and reconciliation of Hospira’s contracts with Parkland
between 2005 and 2011;
5) The meaning and interpretation of the data contained on the invoices attached
to Plaintiff's Original Petition;
6) The discovery of the “mistake”, “billing error” and/or “shortfall” by Hospira;
7) Communications within Hospira regarding the “mistake”, “billing error” and/or
“shortfall” claimed by Hospira in its planning from the date of discovery until the
filing of this lawsuit including emails, letters, and memos;
9) The preparation of invoices sent to Parkland for payment.
10) Hospira’s alleged “discovery of a shortfall” and/or “error”; and
12) Personnel or disciplinary action including reprimand taken against any
Hospira employee related to the “mistake”, “billing error” and/or “shortfall” made
the basis of this lawsuit.
Plaintiff designated Barbara Leach to answer questions regarding topics 5, 6, 7, 9, 10, and
12. When asked questions related to these topics, Barbara Leach did not investigate the topics
sufficient to answer relevant questions, for example:
5) Leach could not interpret the data on invoices attached to Plaintiff's petition and didn’t
bring a product catalog which she stated would help interpret some of the data on the
invoices. See, e.g., Exhibit F, pages 43-60.
Defendant’s Motion to Compel and for Sanctions Page 9
6) Leach could not state whether it had been more than two and a half years or 30 days
since she learned Amy Bode was known to have discovered the alleged “error.” See, e.g.,
Exhibit G, pages 61-65.
7) Leach could not even identify the date or document on which Hospira allegedly
discovered an “error,” let alone testify as to other communications related to planning
between the alleged discovery of an “error” and subsequent filing of this suit. See, e.g.,
Exhibit H, pages 66-69.
9) Leach could not testify about the preparation of invoices sent to Parkland. See, e.g.,
Exhibit F, pages 49-50.
10) Leach couldn’t testify about the discovery of the alleged error, or even identify the
documents relevant to the alleged discovery of the “error” or “shortfall.” See, e.g.,
Exhibit H, pages 66-69.
12) Leach refused to even investigate the full name of the person she claims made the
more than $1 million “error,” and despite this Court’s order further refused to check
whether any disciplinary actions occurred. See, e.g., Exhibit I, pages 070-074, (she did
not make an effort to determine the last name of the employee she claims made the
alleged “error”); Exhibit I, pages 75-78, (She didn’t even ask whether any actions had
occurred).
Plaintiff designated Ryan Nitzel as the corporate representative for questions 4, 6, 7, 10,
and 12. When asked questions related to these topics, Ryan Nitzel did not investigate the topics
sufficient to answer relevant questions, for example:
4) Nitzel only knew that audits occurred, but could not even state whether Hospira has a
separate audit department or the frequency of audits. See, e.g., Exhibit J, pages 79-85.
Defendant’s Motion to Compel and for Sanctions Page 10
6), 7), and 10) Nitzel was not even aware how the alleged error happened, so he could not
testify as to the alleged error, discovery of that error, or any communications regarding
the planning from the date of the alleged discovery until the filing of suit. See, e.g.,
Exhibit K, pages 86-89.
12) Nitzel did not even ask anyone about any disciplinary actions, despite this Court’s
order. See, e.g., Exhibit K, pages 86-89.
Defendant therefore requests this court prohibit Plaintiff from claiming breach of contract
or that some “error” was made in Hospira’s billing.
VII. MOTION FOR SANCTIONS
Defendant requests this Court prohibit Plaintiff from claiming any breach of contract
occurred. The Texas Rules of Civil Procedure expressly authorize orders refusing to allow claims
of a party who doesn’t comply with discovery orders and requests. Tex. R. Civ. P. 215.2.
Plaintiff is withholding documents and key persons with knowledge even though this case was
filed more than two and a half years ago and this Court has ordered production on numerous
matters. Defendant is prejudiced by Plaintiff's refusal to provide necessary documents and
persons with knowledge. Plaintiff's refusal prevents Defendant from having an adequate
opportunity to prepare a defense.
This Court can impose sanctions against Plaintiff for refusing to comply with proper
discovery requests and for disobeying an order compelling discovery. Tex. R. Civ. P. 215.2(b).
Sanctions are appropriate to: 1) secure compliance with the discovery rules; 2) deter other
litigants from violating the same discovery rules; and 3) punish parties for violating the
discovery rules. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).
Defendant’s Motion to Compel and for Sanctions Page 11
Sanctions are appropriate and just in this case because Plaintiff has refused to provide
documents and key persons with knowledge, prejudicing Defendant by depriving its ability to
prepare a defense. This Court has already ordered Plaintiff to produce documents and identify
certain persons with knowledge, but Plaintiff is withholding such documents and is refusing to
identify key persons with knowledge.
Defendant therefore requests this Court prohibit the Plaintiff from claiming breach of
contract since Plaintiff has refused to identify persons with knowledge of and produce
documents relating to any alleged “error.” Defendant further requests such other sanctions as this
Court deems appropriate, such as attorney fees incurred by Defendant for reasonable discovery
expenses and the costs incurred preparing this motion and presenting it to this Court.
VI. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court enter an
order prohibiting Plaintiff from claiming breach of contract or that some “error” was made in
Hospira’s billings, and for such other relief both at law and in equity, to which Defendant is
justly entitled.
Defendant’s Motion to Compel and for Sanctions Page 12
Respectfully submitted,
WATSON, CARAWAY, MIDKIFF & LUNINGHAM, L.L.P.
309 W. 7th Street, Suite 1600
Fort Worth, Texas 76102
Telephone: (817) 870-1717
Facsimile: (817) 338-4842
E-mail: dluningham@watsoncaraway.com
and jkornely@watsoncaraway.com
By
DAVID LUNINGHAM
State Bar No.A2698850
JOSHUA IY KORNE
State Bar {o. 24087861
ATTO) ‘YS FOR DEFENDANTS
CERTIFICATE OF SERVICE
This is to certify that on the Asittay of July, 2014 a true and correct copy of the
foregoing was forwarded to all counsel of record as follows:
Mark A. Bukaty Fax: 214-672-9362
8117 Preston Road, Suite 300
Dallas, Texas 75225
DAVID LUN [AM
Defendant’s Motion to Compel and for Sanctions Page 13
Exhibit A
Defendant's Motion to Compel and for Sanctions Page 14
Barbara Leach 6/10/2014
CAUSE NO. DC-11-14542
HOSPIRA WORLDWIDE, INC. *
IN THE DISTRICT COURT
Plaintiff,
VS. *
162ND JUDICIAL DISTRICT
DALLAS COUNTY HOSPITAL *
DISTRICT D/B/A PARKLAND
HEALTH AND HOSPITAL SYSTEM
Defendant. *
DALLAS COUNTY, TEXAS
FR IRR RR
10 RO ROTO TIT ROR EER RRR RR
ORAL AND VIDEOTAPED DEPOSITION OF
11 CORPORATE REPRESENTATIVE OF HOSPIRA WORLDWIDE, INC.,
BARBARA LEACH
12 JUNE 10, 2014
FORT IT TO VOLUME 1
13 R RR OK RR ERE RK EK RRR E
14
15
16 ORAL AND VIDEOTAPED DEPOSITION OF BARBARA
17 LEACH, a witness produced at the instance of the
18 Defendant, was taken in the above-styled and -numbered
19 cause on the 10th day of June, 2014, from 9:27 a.m. to
20 4:45 p.m., before Brooke Barr, CSR in and for the
21 State of Texas, reported by machine shorthand, at the
22 law office of Mark A. Bukaty, 8117 Preston Road, Suite
23 300, Dalias, Texas 75225, pursuant:to the Texas Rules
24 of Civil Procedure and any provisions stated on the
25 record or attached hereto.
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 15
46
BarbaraLeach 6/10/2014
person?
A We know the individuals at Hospira that were
responsible for the accounting error.
Q And who is that?
A I believe his name is Howard, I don't
remember his last name.
Q And how do you -- how did you make this
discovery?
A Through review of the documents for this
10 invoice.
11 Q Okay. And -- and when you say the documents,
12 what documents are you talking about?
13 A The contract.
14 Q Okay. Through the -- how did the contract
15 lead you to Howard?
16 A The contract was then implemented through a
17 form we call a CIW.
18 Q All right. I want you to look at a group of
19 documents and tell me if the CIW you're talking about
20 is in any of these documents?
21 A Okay. Let's see here. All right. Well,
22 that's a bad copy, but I think that's it right there.
23 Let me double-check.
24 Q And I'11 represent to you that this is
25 exactly the way the documents have been given to us --
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 16
Exhibit B
Defendant's Motion to Compel and for Sanctions Page 17
Barbara Leach 6/10/2014
CAUSE NO. DC-11-14542
HOSPIRA WORLDWIDE, INC. *
IN THE DISTRICT COURT
Plaintiff,
Vs. *
162ND JUDICIAL DISTRICT
DALLAS COUNTY HOSPITAL *
DISTRICT D/B/A PARKLAND
HEALTH AND HOSPITAL SYSTEM
Defendant. *
DALLAS COUNTY, TEXAS
TRO RO FO TIT TO RR RAR RRR
10 RRR RK EKER ERE RE
ORAL AND VIDEOTAPED DEPOSITION OF
11 CORPORATE REPRESENTATIVE OF HOSPIRA WORLDWIDE, INC.,
BARBARA LEACH
12 JUNE 10, 2014
FOR
VOLUME 1
RO RFR RR IR RR
13 RK
14
15
16 ORAL AND VIDEOTAPED DEPOSITION OF BARBARA
17 LEACH, a witness produced at the instance of the
18 Defendant, was taken in the above-styled and -numbered
19 cause on the 10th day of June, 2014, from 9:27 a.m. to
20 4:45 p.m., before Brooke Barr, CSR in and for the
21 State of Texas, reported by machine shorthand, at the
22 law office of Mark A. Bukaty, 8117 Preston Road, Suite
23 300, Dallas, Texas 75225, pursuant to the Texas Rules
24 of Civil Procedure and any provisions stated on the
25 record or attached hereto.
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 18
55
Barbara Leach 6/10/2014
entry form?
A Correct.
Q And then there is a contract implementation
worksheet, which is Exhibit Number 9?
A Correct.
Q All right. And first of all, if -- like we
were talking about, these are not documents that you
prepare in general, correct?
A Correct.
10 Q And certainly did not prepare these
11 specifically?
12 A Correct.
13 Q And you mentioned someone named Howard. Do
14 you see the name Howard on here anywhere?
15 A No. I believe there are his initials. Let
16 me see here. Let me see where they are. Not being
17 familiar with the form, I can't point him directly to
18 you at the moment. On -- is it this form here? I
19 don't see where the initials are on this form, unless
20 I'm missing it. Let's see here. I don't see it on
21 your copies here.
22 Q All right. I see the name Dwayne at the top
23 of Exhibit Number --
24 A Is it on that one?
25 Q -- Number 7, and I think on Number 8. Yes.
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 19
56
Barbara Leach 6/10/2014
The name Dwayne; do you know who Dwayne is?
A Dwayne is his middle name.
Q All right. So are you able to tell me the
name of Dwayne or Howard at all?
A I don't know his full name, but I've -- I
understand it to be Howard Dwayne, and I -- I can't
remember the last name.
Q Don't know the last name?
A No, huh-uh.
10 Q But it is your understanding or you -- you
11 think from looking at the documents, that he is a
12 person who entered this information?
13 Yes.
14 All right. Now, have you talked to him about
15 this?
16 No.
17 Do you know if he is still at Hospira?
18 I believe he is.
19 Q Do you have any knowledge as to why this
20 person named Howard Dwayne has never been listed as a
21 witness in this case?
22 MR BUKATY: Objection; form.
23 Qa (BY MR LUNINGHAM) Do you know?
24 MR BUKATY: You can go ahead and answer.
25 A I have no idea.
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 20
Exhibit C
Defendant's Motion to Compel and for Sanctions Page 21
Barbara Leach 6/10/2014
CAUSE NO. DC-11-14542
HOSPIRA WORLDWIDE, INC. *
IN THE DISTRICT COURT
Plaintiff, *
*
Vs. *
162ND JUDICIAL DISTRICT
DALLAS COUNTY HOSPITAL
DISTRICT D/B/A PARKLAND *
HEALTH AND HOSPITAL SYSTEM
*
Defendant. DALLAS COUNTY, TEXAS
10 FRR FR FOI IR IRI IR IRI ee de ek
ORAL AND VIDEOTAPED DEPOSITION OF
11 CORPORATE REPRESENTATIVE OF HOSPIRA WORLDWIDE, INC.,
BARBARA LEACH
12 JUNE 10, 2014
VOLUME 1
13 FTI
IR OI IO TOTO RK
14
15
16 ORAL AND VIDEOTAPED DEPOSITION OF BARBARA
17 LEACH, a witness produced at the instance of the
18 Defendant, was taken in the above-styled and -numbered
19 cause on the 10th day of June, 2014, from 9:27 a.m. to
20 4:45 p.m., before Brooke Barr, CSR in and for the
21 State of Texas, reported by machine shorthand, at the
22 law office of Mark A. Bukaty, 8117 Preston Road, Suite
23 300, Dallas, Texas 75225, pursuant to the Texas Rules
24 of Civil Procedure and any provisions stated on the
25 record or attached hereto.
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 22
102
Barbara Leach 6/10/2014
individual that -- that is -- is name appears on some
of these documents?
A No.
Q Stil] don't know that name?
A No, I don't.
Q And this is the person that you believe from
your review to have been responsible for this -- the
entry of the data that Hospira is cal Ting an error?
A Yes.
10 Q Okay. Does it concern you're here today as
11 the corporate representative of Hospira and that you
12 don't even know the last name of the person who
13 supposedly made this error?
14 MR. BUKATY: Objection; form.
15 A No.
16 Q (BY MR. LUNINGHAM) Did you make any effort
17 to learn that last name before coming here?
18 A Yes.
19 Q And what did you do to try and figure that
20 out?
21 A Reviewed the information on the CIW.
22 Q And this is a person you still believe is
23 employed?
24 A Yes.
25 Q Well, did you do anything else besides review
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 23
103
Barbara Leach 6/10/2014
the documents we've got here today; Exhibit 7, 8 and
9, in particular?
A No.
Q Did you call that department where this
person, Henry Dwayne works, to ask, well, what's his
last name?
A No.
Q Did you -- and I take it, you didn't talk to
Henry Dwayne himself to inquire as to what happened or
10 how this happened?
11 A No.
12 Q That's correct?
13 A That is correct.
14 Q Okay. Now, we talked about invoices. And I
15 want to get back to that subject for a -- for a
16 minute. And I wanted to -- yeah, this is the --
17 MR. BUKATY: Which exhibit?
18 Q (BY MR. LUNINGHAM) All right. I want to
19 talk a little bit about Exhibit 3 and Exhibit 10.
20 A Okay.-
21 Q If we could.
22 (Sotto voce discussion.)
23 Q (BY MR. LUNINGHAM) First of all, with
24 respect to the -- these numbers under the line we
25 talked about, that that refers to the purchase order
Corona Court Reporting
214.528.7912
Defendant's Motion to Compel and for Sanctions Page 24
Exhibit D
Defendant's Motion to Compel and for Sanctions Page 25
“ SMO SYAT SASADM ras. purr 2146729362 p.&
CAUSE NO, DC-11-14542 JIN =§ any
HOSPIRA WORLDWIDE, INC, § INTHE DISTRICT CourT
Plaintiff
§
Vv. § 162NP JUDICIAL, DISTRICT
§
DALLAS COUNTY HOSPITAL
DISTRICT d/b/a Parkland Health and §
Hospital System,
Defendant § DALLAS COUNTY, TEXAS
PLAINTINYS OBJECTIONS AND RESPONSES TO DEFENDANT’S
THIRD
INT SETERR
OF OGATOR
TO IES
PLAINTIEE
To: Defendant, by and. through Defendant's attorney of record, David Luningham,
Watson, Caraway, Midkiff & Luningham, L.LP., 1600 Oil & Gas Building, 309
W. 7"
Preview
FILED DALLAS COUNTY 7/29/2014 4:57:10 PM GARY FITZSIMMONS. DISTRICT CLERK CAUSE No. 11-14542 HOSPIRA WORLDWIDE, INC. § IN THE DISTRICT COURT Plaintiff, Vv. 162" JUDICIAL DISTRICT DALLAS COUNTY HOSPITAL DISTRICT § D/B/A PARKLAND HEALTH AND § HOSPITAL SYSTEM, § § Defendant. § OF DALLAS COUNTY, TEXAS PARKLAND’S MOTION FOR SANCTIONS AND TO COMPEL PRODUCTION OF DOCUMENTS AND IDENTIFICATION OF KEY PERSONS WITH KNOWLEDGE Defendant Parkland, after giving Plaintiff an opportunity to satisfy this Court’s order to produce documents and persons with knowledge to support its claim, files this Motion for Sanctions and Motion to Compel due to Plaintiff's failure to produce any support for the claim it filed more than two and a half years ago. I. SUMMARY OF THE ARGUMENT This is the third time Defendant has been required to involve this court in a discovery dispute in this matter. Hospira continues to resist the most basic discovery without any plausible reason. (As the court will see below, Hospira's version of “Where's Waldo” is known as “hiding Howard”). Plaintiff filed this suit claiming its own “billing error” caused a more than $1 million debt and Plaintiff allegedly did not discover the “error” during more than four years of consistent acts to the contrary by both parties. Despite this contention of an error, and after this court overruled objections made by Plaintiff in connection with the deposition of its Corporate Representative, Plaintiff refuses to produce documents or identify even the name of the person Defendant’s Motion to Compel and for Sanctions Page 1 who supposedly made the “error” at the center of this lawsuit. The testimony set out below will demonstrate why this conduct is worthy of sanction. Further, the sanction should fit the conduct and Plaintiff should be precluded from claiming that Parkland breached a contract; and that Hospira made an error or incorrectly billed Parkland. Plaintiff claims it has identified the person who made the alleged error, but Plaintiff still has not provided this person’s name to Defendant other than to testify that his first name is believed to be “Howard” and that his middle name may be “Dwayne.” Hospira also claims that “Howard Dwayne” is still employed. Further, more than two and a half years after filing suit, Plaintiff says in sworn responses to discovery it discovered its alleged “error” on April 28, 2010. Even though this “error” is the basis of Plaintiff's claim, Plaintiff is withholding documents it claims show the occurrence or discovery of the alleged “error.” I. PLAINTIFF HAS INTENTIONALLY WITHHELD EVIDENCE AND THE IDENTITY OF KEY PERSONS WITH KNOWLEDGE Plaintiff's Original Petition is based entirely on Plaintiff's own alleged “error,” but Plaintiff has not presented any documentation or identified key persons with knowledge to show the parties did not intend the 5 years of consistent and continuous business despite direct testimony from it's own representative that documents exist and that an un-named witness has been identified as the individual who made the “error.” a. Plaintiff is withholding the identity of key persons with knowledge Plaintiffs Original Petition hinges on Plaintiff's own “error” occurring. First Plaintiff alleged the error was caused by a computer glitch. This Court ordered Plaintiff to produce documents showing that a glitch caused the error. Instead, Plaintiff changed its position and now states an employee made a manual error. Plaintiff refuses to identify this employee. Defendant’s Motion to Compel and for Sanctions Page 2 Plaintiff's corporate representative, Barbara Leach, stated at deposition, “We know the individuals at Hospira that were responsible for the accounting error.” Exhibit A, pages 14- 16. Despite this employee’s pivotal role in Plaintiff's claim, Barbara Leach could not identify the employee’s name. See Exhibit B, pages 17-20, (Barbara Leach claims to not know the employee’s last name even though she allegedly knows the employee’s first name is Howard, which she claims to have derived from the name “Dwayne” on Hospira’s Form 243). In fact, the only effort Leach claims to have made to determine this employee’s name was to “review the information on the CIW,” the document that doesn’t even say “Howard” on it. Exhibit C, pages 21-24. Further, Plaintiff did not identify this employee as a person with knowledge in its most recent supplemental response to requests for disclosure, which was served on Defendant more than a month after Barbara Leach testified Plaintiff knows who the employee is. To date, this case has been pending for more than 2 and a half years and discovery has closed, but Plaintiff has still not identified this essential person with knowledge. Apparently Hospira’s position is that although it claims error, and although the “error maker” is known and still employed, it does not have to identify this person as a witness. Clearly this is not true and, just as clearly, this conduct is sanctionable by this Court. Hospira’s actions deprive Defendant of the opportunity to prepare its defense. Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some “error” was made in Hospira’s billings. b. Plaintiff is withholding documents showing any alleged “error” actually occurred or was discovered In sworn interrogatory responses, Plaintiff stated employee Amy Bode discovered the alleged “error” on April 28, 2010. Exhibit D, pages 25-30. Consistent with Plaintiffs constant Defendant’s Motion to Compel and for Sanctions Page 3 refusal and inability to produce documents and persons with knowledge, one day after serving responses to interrogatories Plaintiff's Corporate Representative Barbara Leach attempted to change this date to be consistent with emails actually produced by Plaintiff. See Exhibit E, pages 31-42, (Barbara Leach identified an email dated May 27, 2010 as the aha moment on April 28, 2010 where Hospira discovered the “error” but this email doesn’t relate to any “error,” “billing error,” or “shortfall”). The emails were completely unrelated to any claim of “error” or “shortfall.” When confronted about the change, Leach testified “I believe there is something— there is a piece of paper that has [April 28, 2010] on there.” Exhibit E, pages 31-42. Plaintiff has not provided defendant this “piece of paper.” Plaintiff has not provided any documents showing an “error” was discovered at any time during or after the contract, let alone on April 28, 2010. Whether an alleged “error” was ever discovered is essential to this lawsuit. Without any proof of the alleged “error,” the conclusion is just that the parties performed as agreed during the term of the contract. Plaintiff is withholding this essential area of discovery, Defendant requests this Court prohibit Plaintiff from claiming that Parkland breached the contract or that some “error” was made in Hospira’s billings. c. Plaintiff violated this Court’s order to produce documents On May 28, 2014, this Court heard Plaintiff's Objections to Defendant’s Second Request for Production. This Court ordered Plaintiff to produce responsive documents to the following Requests for Production: 15, 19, 20, 21, 28, 29, 38, and 39. Plaintiff also withdrew its objections to Request for Production 18. These requests are directly related to whether an “error” actually occurred, and include: e any adverse employment action pertaining to the alleged “billing error;” Defendant’s Motion to Compel and for Sanctions Page 4 ¢ internal or external written communications regarding the alleged “billing error;” e audits relating to the subject contract; These documents directly relate to whether an “error” actually occurred. Therefore, Defendant requests this court prohibit Plaintiff for claiming breach of contract or that some “error” was made in Hospira’s billings. In fact, one document Plaintiff did produce says that the “error” was discovered as a result of an “audit finding.” Yet, despite this email and this Court’s order, no audits have been produced. Not a single document has been produced noting the “aha” moment when Plaintiff supposedly discovered an error that it claims was made for at least 51 straight months. This court should also know that there is a mountain of evidence supporting that no error ever occurred and that Plaintiff ratified the conduct of the parties and waived any claim it may have had. If. SPECIFIC DOCUMENTS IDENTIFIED BY PLAINTIFF During the depositions of the corporate representatives, the Plaintiff's designated representatives identified additional documents that have been withheld by the Plaintiff. The following documents have been identified by the Plaintiff, have not been produced, and are responsive to Defendant’s requests for production. a. Contract Implementation Worksheets and Form 243s In its supplemental responses to interrogatories, Plaintiff identifies for the first time what it claims caused the alleged “billing error.” Barbara Leach testified about Plaintiffs supplemental responses to discovery, which were served on June 9, 2014, one day before her deposition. More than four years after the contract expired, Plaintiff has identified a “Contract Implementation Worksheet (CIW)” and a “Form 243” as relevant documents. Relevant CIWs and Form 243s were not produced. Plaintiff's interrogatory response states that, at the time the Defendant’s Motion to Compel and for Sanctions Page 5 contract was signed, the CIW was filled out correctly but Form 243 was not, Exhibit D, pages 025-030. At this time, Plaintiff has only produced one CIW, and it is dated more than 3 years after the contract started. According to Leach, the CIW produced is for a modification of the contract, dated July 18, 2008. A corresponding Form 243 was not produced. Further, Plaintiff has produced two separate Form 243s, one dated May 17, 2005 and the other for a modification in June 2005. ClWs for these forms were not provided, even though Plaintiffs Interrogatories and the Corporate Representative both state that at least the CIW dated May 17, 2005 exists, Exhibit D, pages 025-030. Based on Plaintiffs discovery responses and the corporate representative’s testimony, Plaintiff has withheld key documents which it has identified and relied on as relevant in this case. Therefore, Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some “error” was made in Hospira’s billings. b. Statements of Account allegedly provided by Hospira Barbara Leach stated that each month Hospira allegedly sent “Statements of Account” to Parkland. Barbara Leach stated Hospira keeps a copy of these Statements of Account. But Hospira has not produced any Statements of Account, even though Defendant requested all accounting documents related to the contract which Plaintiff has called into issue in this case. Also, Barbara Leach stated these are documents “Hospira has in terms of an accounting ledger document which reflects an amount due or an accounts receivable amount” for the more than $1 million claimed by Plaintiff. While such a document is clearly relevant and essential to Plaintiff's claim, this Court has also ordered production of accounting documents relating to Plum A+ devices and disposables. Despite this Court’s order and the obvious relevance of these documents, Plaintiff has not produced any “Statements of Account” to Defendant. Defendant’s Motion to Compel and for Sanctions Page 6 Plaintiff is withholding documents necessary for Defendant to prepare its defense, Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some “error” was made in Hospira’s billings. c. Incentive pay or commission programs Plaintiff's Corporate Representative Ryan Nitzel stated Plaintiff's incentive pay program changed annually and may have varied by department. Defendant requested documents relating to such programs ranging from 2004 through the date Plaintiff filed this suit. Plaintiff has only provided the incentive pay program for 2005. Plaintiff's corporate representative stated that this program was changed significantly from 2005 to 2010, but Plaintiff has not produced any other documents evidencing the incentive pay program requested by Defendant. Plaintiff is withholding documents necessary for Defendant to prepare its defense, Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some “error” was made in Hospira’s billings. IV. DUCES TECUM This court also ordered that Plaintiff's corporate representatives to produce: e all reports, inspections, evaluations, or investigations, whether formal or informal, regarding the incident(s) made the basis of this lawsuit; and A copy of all accounting records kept by Plaintiff relating to the Plum A+ Devices and disposables identified and provided for under the contract made the basis of this lawsuit. Plaintiff has still not produced documents relevant to these requests, even though its corporate representative testified that annual audits would have occurred on a contract with a Defendant’s Motion to Compel and for Sanctions Page 7 price increase, as Plaintiff alleges here. These documents are essential to Plaintiff's claim of a “billing error” and necessary for Defendant to prepare its defense. Plaintiff is withholding documents necessary for Defendant to prepare its defense, Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some “error” was made in Hospira’s billings. V. ADDITONAL PRODUCTION DEFICIENCIES Plaintiff has also not produced any documents identified in and missing from Plaintiff's May 28, 2014 production. These documents were identified by Defendant as identified and missing in Plaintiff's May 28, 2014 production of documents. Defendant informed Plaintiff such documents were missing on July 3, 2014. These documents include: 1) “Lease shortfall.zip;” 2) Emails attached by Wes Cornelison; 3) A spreadsheet from Sandy Rauschenberg; and 4) Pages 1 and 2 to the fax dated May 13, 2005. Plaintiff is withholding these documents even though Defendant has specifically requested them. Therefore, Defendant requests this Court prohibit Plaintiff from claiming breach of contract or that some error was “made” in Hospira’s billings. VI. CORPORATE REPRESENTATIVE Plaintiff was ordered to designate a corporate representative to testify on twelve specific topics identified in Defendant’s Notice of Intent to Take the Oral Deposition of a Designated Corporate Representative(s) for Hospira Worldwide, Inc. with Duces Tecum. Plaintiff designated Barbara Leach and Ryan Nitzel to testify on certain of those twelve topics. However, Plaintiff's Defendant’s Motion to Compel and for Sanctions Page 8 designated representatives were not able to testify on the following topics (as numbered in the Subpoena Duces Tecum): 4) The internal auditing and reconciliation of Hospira’s contracts with Parkland between 2005 and 2011; 5) The meaning and interpretation of the data contained on the invoices attached to Plaintiff's Original Petition; 6) The discovery of the “mistake”, “billing error” and/or “shortfall” by Hospira; 7) Communications within Hospira regarding the “mistake”, “billing error” and/or “shortfall” claimed by Hospira in its planning from the date of discovery until the filing of this lawsuit including emails, letters, and memos; 9) The preparation of invoices sent to Parkland for payment. 10) Hospira’s alleged “discovery of a shortfall” and/or “error”; and 12) Personnel or disciplinary action including reprimand taken against any Hospira employee related to the “mistake”, “billing error” and/or “shortfall” made the basis of this lawsuit. Plaintiff designated Barbara Leach to answer questions regarding topics 5, 6, 7, 9, 10, and 12. When asked questions related to these topics, Barbara Leach did not investigate the topics sufficient to answer relevant questions, for example: 5) Leach could not interpret the data on invoices attached to Plaintiff's petition and didn’t bring a product catalog which she stated would help interpret some of the data on the invoices. See, e.g., Exhibit F, pages 43-60. Defendant’s Motion to Compel and for Sanctions Page 9 6) Leach could not state whether it had been more than two and a half years or 30 days since she learned Amy Bode was known to have discovered the alleged “error.” See, e.g., Exhibit G, pages 61-65. 7) Leach could not even identify the date or document on which Hospira allegedly discovered an “error,” let alone testify as to other communications related to planning between the alleged discovery of an “error” and subsequent filing of this suit. See, e.g., Exhibit H, pages 66-69. 9) Leach could not testify about the preparation of invoices sent to Parkland. See, e.g., Exhibit F, pages 49-50. 10) Leach couldn’t testify about the discovery of the alleged error, or even identify the documents relevant to the alleged discovery of the “error” or “shortfall.” See, e.g., Exhibit H, pages 66-69. 12) Leach refused to even investigate the full name of the person she claims made the more than $1 million “error,” and despite this Court’s order further refused to check whether any disciplinary actions occurred. See, e.g., Exhibit I, pages 070-074, (she did not make an effort to determine the last name of the employee she claims made the alleged “error”); Exhibit I, pages 75-78, (She didn’t even ask whether any actions had occurred). Plaintiff designated Ryan Nitzel as the corporate representative for questions 4, 6, 7, 10, and 12. When asked questions related to these topics, Ryan Nitzel did not investigate the topics sufficient to answer relevant questions, for example: 4) Nitzel only knew that audits occurred, but could not even state whether Hospira has a separate audit department or the frequency of audits. See, e.g., Exhibit J, pages 79-85. Defendant’s Motion to Compel and for Sanctions Page 10 6), 7), and 10) Nitzel was not even aware how the alleged error happened, so he could not testify as to the alleged error, discovery of that error, or any communications regarding the planning from the date of the alleged discovery until the filing of suit. See, e.g., Exhibit K, pages 86-89. 12) Nitzel did not even ask anyone about any disciplinary actions, despite this Court’s order. See, e.g., Exhibit K, pages 86-89. Defendant therefore requests this court prohibit Plaintiff from claiming breach of contract or that some “error” was made in Hospira’s billing. VII. MOTION FOR SANCTIONS Defendant requests this Court prohibit Plaintiff from claiming any breach of contract occurred. The Texas Rules of Civil Procedure expressly authorize orders refusing to allow claims of a party who doesn’t comply with discovery orders and requests. Tex. R. Civ. P. 215.2. Plaintiff is withholding documents and key persons with knowledge even though this case was filed more than two and a half years ago and this Court has ordered production on numerous matters. Defendant is prejudiced by Plaintiff's refusal to provide necessary documents and persons with knowledge. Plaintiff's refusal prevents Defendant from having an adequate opportunity to prepare a defense. This Court can impose sanctions against Plaintiff for refusing to comply with proper discovery requests and for disobeying an order compelling discovery. Tex. R. Civ. P. 215.2(b). Sanctions are appropriate to: 1) secure compliance with the discovery rules; 2) deter other litigants from violating the same discovery rules; and 3) punish parties for violating the discovery rules. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). Defendant’s Motion to Compel and for Sanctions Page 11 Sanctions are appropriate and just in this case because Plaintiff has refused to provide documents and key persons with knowledge, prejudicing Defendant by depriving its ability to prepare a defense. This Court has already ordered Plaintiff to produce documents and identify certain persons with knowledge, but Plaintiff is withholding such documents and is refusing to identify key persons with knowledge. Defendant therefore requests this Court prohibit the Plaintiff from claiming breach of contract since Plaintiff has refused to identify persons with knowledge of and produce documents relating to any alleged “error.” Defendant further requests such other sanctions as this Court deems appropriate, such as attorney fees incurred by Defendant for reasonable discovery expenses and the costs incurred preparing this motion and presenting it to this Court. VI. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court enter an order prohibiting Plaintiff from claiming breach of contract or that some “error” was made in Hospira’s billings, and for such other relief both at law and in equity, to which Defendant is justly entitled. Defendant’s Motion to Compel and for Sanctions Page 12 Respectfully submitted, WATSON, CARAWAY, MIDKIFF & LUNINGHAM, L.L.P. 309 W. 7th Street, Suite 1600 Fort Worth, Texas 76102 Telephone: (817) 870-1717 Facsimile: (817) 338-4842 E-mail: dluningham@watsoncaraway.com and jkornely@watsoncaraway.com By DAVID LUNINGHAM State Bar No.A2698850 JOSHUA IY KORNE State Bar {o. 24087861 ATTO) ‘YS FOR DEFENDANTS CERTIFICATE OF SERVICE This is to certify that on the Asittay of July, 2014 a true and correct copy of the foregoing was forwarded to all counsel of record as follows: Mark A. Bukaty Fax: 214-672-9362 8117 Preston Road, Suite 300 Dallas, Texas 75225 DAVID LUN [AM Defendant’s Motion to Compel and for Sanctions Page 13 Exhibit A Defendant's Motion to Compel and for Sanctions Page 14 Barbara Leach 6/10/2014 CAUSE NO. DC-11-14542 HOSPIRA WORLDWIDE, INC. * IN THE DISTRICT COURT Plaintiff, VS. * 162ND JUDICIAL DISTRICT DALLAS COUNTY HOSPITAL * DISTRICT D/B/A PARKLAND HEALTH AND HOSPITAL SYSTEM Defendant. * DALLAS COUNTY, TEXAS FR IRR RR 10 RO ROTO TIT ROR EER RRR RR ORAL AND VIDEOTAPED DEPOSITION OF 11 CORPORATE REPRESENTATIVE OF HOSPIRA WORLDWIDE, INC., BARBARA LEACH 12 JUNE 10, 2014 FORT IT TO VOLUME 1 13 R RR OK RR ERE RK EK RRR E 14 15 16 ORAL AND VIDEOTAPED DEPOSITION OF BARBARA 17 LEACH, a witness produced at the instance of the 18 Defendant, was taken in the above-styled and -numbered 19 cause on the 10th day of June, 2014, from 9:27 a.m. to 20 4:45 p.m., before Brooke Barr, CSR in and for the 21 State of Texas, reported by machine shorthand, at the 22 law office of Mark A. Bukaty, 8117 Preston Road, Suite 23 300, Dalias, Texas 75225, pursuant:to the Texas Rules 24 of Civil Procedure and any provisions stated on the 25 record or attached hereto. Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 15 46 BarbaraLeach 6/10/2014 person? A We know the individuals at Hospira that were responsible for the accounting error. Q And who is that? A I believe his name is Howard, I don't remember his last name. Q And how do you -- how did you make this discovery? A Through review of the documents for this 10 invoice. 11 Q Okay. And -- and when you say the documents, 12 what documents are you talking about? 13 A The contract. 14 Q Okay. Through the -- how did the contract 15 lead you to Howard? 16 A The contract was then implemented through a 17 form we call a CIW. 18 Q All right. I want you to look at a group of 19 documents and tell me if the CIW you're talking about 20 is in any of these documents? 21 A Okay. Let's see here. All right. Well, 22 that's a bad copy, but I think that's it right there. 23 Let me double-check. 24 Q And I'11 represent to you that this is 25 exactly the way the documents have been given to us -- Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 16 Exhibit B Defendant's Motion to Compel and for Sanctions Page 17 Barbara Leach 6/10/2014 CAUSE NO. DC-11-14542 HOSPIRA WORLDWIDE, INC. * IN THE DISTRICT COURT Plaintiff, Vs. * 162ND JUDICIAL DISTRICT DALLAS COUNTY HOSPITAL * DISTRICT D/B/A PARKLAND HEALTH AND HOSPITAL SYSTEM Defendant. * DALLAS COUNTY, TEXAS TRO RO FO TIT TO RR RAR RRR 10 RRR RK EKER ERE RE ORAL AND VIDEOTAPED DEPOSITION OF 11 CORPORATE REPRESENTATIVE OF HOSPIRA WORLDWIDE, INC., BARBARA LEACH 12 JUNE 10, 2014 FOR VOLUME 1 RO RFR RR IR RR 13 RK 14 15 16 ORAL AND VIDEOTAPED DEPOSITION OF BARBARA 17 LEACH, a witness produced at the instance of the 18 Defendant, was taken in the above-styled and -numbered 19 cause on the 10th day of June, 2014, from 9:27 a.m. to 20 4:45 p.m., before Brooke Barr, CSR in and for the 21 State of Texas, reported by machine shorthand, at the 22 law office of Mark A. Bukaty, 8117 Preston Road, Suite 23 300, Dallas, Texas 75225, pursuant to the Texas Rules 24 of Civil Procedure and any provisions stated on the 25 record or attached hereto. Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 18 55 Barbara Leach 6/10/2014 entry form? A Correct. Q And then there is a contract implementation worksheet, which is Exhibit Number 9? A Correct. Q All right. And first of all, if -- like we were talking about, these are not documents that you prepare in general, correct? A Correct. 10 Q And certainly did not prepare these 11 specifically? 12 A Correct. 13 Q And you mentioned someone named Howard. Do 14 you see the name Howard on here anywhere? 15 A No. I believe there are his initials. Let 16 me see here. Let me see where they are. Not being 17 familiar with the form, I can't point him directly to 18 you at the moment. On -- is it this form here? I 19 don't see where the initials are on this form, unless 20 I'm missing it. Let's see here. I don't see it on 21 your copies here. 22 Q All right. I see the name Dwayne at the top 23 of Exhibit Number -- 24 A Is it on that one? 25 Q -- Number 7, and I think on Number 8. Yes. Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 19 56 Barbara Leach 6/10/2014 The name Dwayne; do you know who Dwayne is? A Dwayne is his middle name. Q All right. So are you able to tell me the name of Dwayne or Howard at all? A I don't know his full name, but I've -- I understand it to be Howard Dwayne, and I -- I can't remember the last name. Q Don't know the last name? A No, huh-uh. 10 Q But it is your understanding or you -- you 11 think from looking at the documents, that he is a 12 person who entered this information? 13 Yes. 14 All right. Now, have you talked to him about 15 this? 16 No. 17 Do you know if he is still at Hospira? 18 I believe he is. 19 Q Do you have any knowledge as to why this 20 person named Howard Dwayne has never been listed as a 21 witness in this case? 22 MR BUKATY: Objection; form. 23 Qa (BY MR LUNINGHAM) Do you know? 24 MR BUKATY: You can go ahead and answer. 25 A I have no idea. Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 20 Exhibit C Defendant's Motion to Compel and for Sanctions Page 21 Barbara Leach 6/10/2014 CAUSE NO. DC-11-14542 HOSPIRA WORLDWIDE, INC. * IN THE DISTRICT COURT Plaintiff, * * Vs. * 162ND JUDICIAL DISTRICT DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND * HEALTH AND HOSPITAL SYSTEM * Defendant. DALLAS COUNTY, TEXAS 10 FRR FR FOI IR IRI IR IRI ee de ek ORAL AND VIDEOTAPED DEPOSITION OF 11 CORPORATE REPRESENTATIVE OF HOSPIRA WORLDWIDE, INC., BARBARA LEACH 12 JUNE 10, 2014 VOLUME 1 13 FTI IR OI IO TOTO RK 14 15 16 ORAL AND VIDEOTAPED DEPOSITION OF BARBARA 17 LEACH, a witness produced at the instance of the 18 Defendant, was taken in the above-styled and -numbered 19 cause on the 10th day of June, 2014, from 9:27 a.m. to 20 4:45 p.m., before Brooke Barr, CSR in and for the 21 State of Texas, reported by machine shorthand, at the 22 law office of Mark A. Bukaty, 8117 Preston Road, Suite 23 300, Dallas, Texas 75225, pursuant to the Texas Rules 24 of Civil Procedure and any provisions stated on the 25 record or attached hereto. Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 22 102 Barbara Leach 6/10/2014 individual that -- that is -- is name appears on some of these documents? A No. Q Stil] don't know that name? A No, I don't. Q And this is the person that you believe from your review to have been responsible for this -- the entry of the data that Hospira is cal Ting an error? A Yes. 10 Q Okay. Does it concern you're here today as 11 the corporate representative of Hospira and that you 12 don't even know the last name of the person who 13 supposedly made this error? 14 MR. BUKATY: Objection; form. 15 A No. 16 Q (BY MR. LUNINGHAM) Did you make any effort 17 to learn that last name before coming here? 18 A Yes. 19 Q And what did you do to try and figure that 20 out? 21 A Reviewed the information on the CIW. 22 Q And this is a person you still believe is 23 employed? 24 A Yes. 25 Q Well, did you do anything else besides review Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 23 103 Barbara Leach 6/10/2014 the documents we've got here today; Exhibit 7, 8 and 9, in particular? A No. Q Did you call that department where this person, Henry Dwayne works, to ask, well, what's his last name? A No. Q Did you -- and I take it, you didn't talk to Henry Dwayne himself to inquire as to what happened or 10 how this happened? 11 A No. 12 Q That's correct? 13 A That is correct. 14 Q Okay. Now, we talked about invoices. And I 15 want to get back to that subject for a -- for a 16 minute. And I wanted to -- yeah, this is the -- 17 MR. BUKATY: Which exhibit? 18 Q (BY MR. LUNINGHAM) All right. I want to 19 talk a little bit about Exhibit 3 and Exhibit 10. 20 A Okay.- 21 Q If we could. 22 (Sotto voce discussion.) 23 Q (BY MR. LUNINGHAM) First of all, with 24 respect to the -- these numbers under the line we 25 talked about, that that refers to the purchase order Corona Court Reporting 214.528.7912 Defendant's Motion to Compel and for Sanctions Page 24 Exhibit D Defendant's Motion to Compel and for Sanctions Page 25 “ SMO SYAT SASADM ras. purr 2146729362 p.& CAUSE NO, DC-11-14542 JIN =§ any HOSPIRA WORLDWIDE, INC, § INTHE DISTRICT CourT Plaintiff § Vv. § 162NP JUDICIAL, DISTRICT § DALLAS COUNTY HOSPITAL DISTRICT d/b/a Parkland Health and § Hospital System, Defendant § DALLAS COUNTY, TEXAS PLAINTINYS OBJECTIONS AND RESPONSES TO DEFENDANT’S THIRD INT SETERR OF OGATOR TO IES PLAINTIEE To: Defendant, by and. through Defendant's attorney of record, David Luningham, Watson, Caraway, Midkiff & Luningham, L.LP., 1600 Oil & Gas Building, 309 W. 7"