Roadrunner Intermodal Services, LLC v. T.G.S. Transportation, Inc.BRIEF Letter Brief Regarding Discovery DisputeE.D. Cal.March 15, 20191 McCORMlCK BARSTOW LLP ATTORNEYS AT LAW ScottJ. Ivy scotLlvy@niccormickbarstow.coin FRESNO,CAOFRCE 7647 North Fresno Street Fresno,Csliftimla 93720 P.O. Box 28912 Fresno, CA93729^912 Telephone (559) 433-1300 Fax(559) 433-2300 Other offices of MeCORMCX, BARSTOW, SHB>PARD WAYTEANDCARRUTN,LLP www.mccorrTtickbarstow.com BAKERSFIELD, CA OFFICE 5060 California Ave., Suite 1090 Bakersfield, Califomia 93309 Teleptione 661-616-1594 Fax 661-616-1595 CINCINNATI, OH OFFICE Scripps Center, Suite 1050 312 Walnut Street Cincinnati. Ohio 45202 Telephone (513) 762-7520 Fax (513) 762-7521 DENVER. 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Proposed Deposition ofThird Party Expeditors International Roadrunner ("RR") now seeks to take the deposition ofthird party Expeditors in April, roughly two months past the discovery cutoff. Expeditors is relevant to this case primarily due to conflicting declarations submitted in cormection with RR's request for Preliminary Injunction in October 2017. RR submitted a Declaration from Ben Kirkland in which he claimed RR lost Expeditors as a customer to TGS in July/August of2017 due to solicitation by TGS. (Doc. 32-2). TGS submitted a Declaration from Peter Schneider stating that Robert Flores of Expeditors had told him that Expeditors had actually fired RR as a customer in June of2017 due to poor service, and that Expeditors did not send that business to TGS but instead sent it to several other companies. (Doc. 48-2) RR took no steps for well over a year to depose Expeditors to confirm these facts until finally, in December 2018, serving a flurry ofthird party subpoenas for depositions to take place only weeks before the discovery cutoff. Expeditor's counsel initially requested to reschedule that deposition from late January until March 8^due to a severely broken leg that prevented her from traveling from Los Angeles to San Francisco for the deposition. All counsel agreed, and the Court approved a Stipulation allowing that one deposition to proceed in March of2019. (Doc. 180) However, numerous other third party customer depositions went forward in January, with all of the customers confirming they left RR not due to any solicitation from TGS, but due to RR's decision to fire Mr. Cox and/or service issues at RR that pre dated his termination. Many customers also confirmed that, contrary to RR's allegations, the business they pulled from RR was not even sent to TGS but to other companies. On February 26, Mr. Pickles indicated that March 8 was no longer a workable date for the Expeditor deposition and asked to proceed with the deposition in April. On March 7*'', Icalled Expeditors' counsel to confirm the deposition was not going forward on March 8. She confirmed that, and expressed puzzlement at why the deposition needed to go forward at all. I explained that Mr. Kirkland had previously provided a Declaration stating that Expeditors left RR in July/August of2017 and sent that business to TGS, and that Mr. Schneider had provided a Declaration stating that Expeditors had actually fired RR in June of2017 due to service issues and sent the business to companies other than TGS. She confirmed that it was her understanding that Mr. Schneider's version ofevents was correct, and that she may be able to provide a Declaration to that effect in an effort to avoid having to incur the time and expense to travel to San Francisco for a deposition. On March 11, 2018, I notified Mr. Pickles that Expeditors' counsel had confirmed that Expeditors fired RR in June of2017 and sent that business to companies other than TGS. In fact, Expeditors did not do any business with TGS until almost a year Case 1:17-cv-01056-DAD-BAM Document 190 Filed 03/15/19 Page 1 of 2 1 McCORMlCK BARSTOW LLP ATTORNEYS AT LAW March 15,2019 Page 2 after Expediters fired RR. I explained that I did not believe there was anyjustification for the parties, and especially a third party, to incur the time and expense oftraveling to San Francisco for the deposition. Therefore, I indicated I would oppose any efforts to further extend the discovery cutoff. On March 12^, I forwarded Mr. Pickles a copy of the Declaration I had received from Expeditors' counsel in which Mr. Flores confirms: "Expeditor's decision in June of2017 to move its business from Roadrunner to companies other than TGS was due to those performance issues, which had persisted for months prior to Roadrunner's termination, including multiple service failures and accounting issues. Expeditors did not terminate Roadrunner because of solicitation by Mr. Cox or TGS." Mr. Pickles' response was that RR intended to proceed with the deposition in April. I again notified Mr. Pickles that there was no longer any justification to force a third party, their counsel, and all counsel in this case to proceed with a deposition that will add nothing but additional cost and delay, let alone one that would not take place until 2 months after the discovery cutoff. The parties need to be focusing on timely completing expert discovery, not wasting time on a deposition that is not necessary and, even if it was, that RR could have taken at any point in the past 18 months. That a third party would be imposed upon is simply further reason to reject any claimed prejudice from not allowing RR to proceed with a deposition well after the discovery cut-offwhich could have been completed at any point in the past 18 months. 2. TGS' Attempts to Depose RR Expert Richard Eichmann Per the Court's scheduling Order RR designated Richard Eichmann as an expert on March 11,2019. As TGS' deadline to designate and provide a rebuttal report from its expert is March 29, I immediately contacted Mr. Pickles to discuss completing Mr. Eichmann's deposition in the next several weeks so we could obtain his documents and deposition intime to allow our expert to complete her rebuttal report by March 29^. I offered to travel to Mr. Eichmann's office in San Francisco for the deposition, and proposed March 22"^* and March 25 aspossible dates. Mr. Pickles' response was that Mr. Eichmann would be out ofthe country, recovering from travel or otherwise too busy with other matters to appear for deposition until the week ofApril 22,2019. It is the parties' obligation when designating experts to assure the expert will be available for deposition, which does not mean refusing to produce their expert for deposition until 6 weeks after the designation and weeks after our rebuttal report is due. TGS requests an Order requiring RR to produce Mr. Eichmann for deposition within the next 14 days and a modification of the Scheduling Order to allow TGS to designate its rebuttal expert and report within 7 days after Mr. Eichmann's deposition is completed. Very truly yours. Scott J. Ivy McCormick Barstd^ LLP Case 1:17-cv-01056-DAD-BAM Document 190 Filed 03/15/19 Page 2 of 2