Roadrunner Intermodal Services, LLC v. T.G.S. Transportation, Inc.BRIEF Letter Brief Regarding Discovery DisputeE.D. Cal.Mar 18, 2019 ALBANY AMSTERDAM ATLANTA AUSTIN BERLIN¬ BOCA RATON BOSTON CHICAGO DALLAS DELAWARE DENVER FORT LAUDERDALE HOUSTON LAS VEGAS LONDON* LOS ANGELES MEXICO CITY+ MIAMI MILAN** NEW JERSEY NEW YORK NORTHERN VIRGINIA ORANGE COUNTY ORLANDO PHILADELPHIA PHOENIX ROME** SACRAMENTO SAN FRANCISCO SEOUL∞ SHANGHAI SILICON VALLEY TALLAHASSEE TAMPA TEL AVIV^ TOKYO¤ WARSAW~ WASHINGTON, D.C. WESTCHESTER COUNTY WEST PALM BEACH ¬ OPERATES AS GREENBERG TRAURIG GERMANY, LLP * OPERATES AS A SEPARATE UK REGISTERED LEGAL ENTITY + OPERATES AS GREENBERG TRAURIG, S.C. * * STRATEGIC ALLIANCE ∞ OPERATES AS GREENBERG TRAURIG LLP FOREIGN LEGAL CONSULTANT OFFICE ̂ A BRANCH OF GREENBERG TRAURIG, P.A., FLORIDA, USA ¤ OPERATES AS GT TOKYO HORITSU JIMUSHO ~ OPERATES AS GREENBERG TRAURIG GRZESIAK SP.K. GREENBERG TRAURIG, LLP ATTORNEYS AT LAW WWW.GTLAW.COM 1201 K Street, Suite 1100, Sacramento, California 95814 Tel: 916.442.1111 Fax 916.448.1709 Todd A. Pickles Tel 916.442.1111 Fax 916.448.1709 picklest@gtlaw.com March 15, 2019 VIA EMAIL: bamorders@caed.uscourts.gov Magistrate Judge Barbara A. McAuliffe Eastern District of California, Fresno Division 2500 Tulare Street Courtroom 8, 6th Floor Fresno, CA 93721 Re: Roadrunner Intermodal Services, LLC, v. T.G.S. Transportation, Inc. Consolidated Case No. 1-17-cv-01056-DAD-BAM Dear Judge McAuliffe: Per the Court’s minute order of March 14, 2019, please find the statement of Roadrunner Intermodal Services (Roadrunner) concerning (1) the date of deposition of third-party Expeditors and (2) the date of deposition of Roadrunner’s retained expert. 1. Deposition of Expeditors: As the Court may recall, the parties stipulated to permit Roadrunner to take the deposition of Expeditors in March 2019, which was after the non- expert discovery deadline. See ECF No. 180. (Expeditors is one of the customers that Roadrunner believes was wrongfully procured by T.G.S. Transportation, Inc. (TGS) through the conduct of Jeffrey Cox.) Roadrunner had originally noticed the deposition for January 2019, but counsel for Expeditors had a medical emergency that made her unavailable until March 8 or later. The Court adopted the parties’ stipulation and permitted the deposition to occur on March 8 or another date in March that was mutually agreeable to the parties. Unfortunately, counsel for Expeditors had complications from the initial medical issue and indicates that she is still not cleared for travel for the deposition. (She is in Los Angeles and the Expeditors’ witness is in Northern California, where the deposition is to occur.) Roadrunner inquired whether another attorney from counsel’s firm could cover the deposition, but Expeditor’s counsel stated that was not possible. Expeditors’ counsel proposed a deposition the first week of April, including April 2 through 5, as well as the following week, when she would be able to attend. Roadrunner then proposed those dates to the parties. Nonetheless, TGS objects because it is later than March 2019 and because it believes the deposition is “unnecessary” and “disproportional,” having obtained a declaration from a witness at Expeditors. Cox has joined in these objections. There is good cause to permit the deposition to occur in early April. But for a medical issue beyond the control of Roadrunner, the deposition of Expeditors would have been completed months ago. Extending the Court’s deadline as few as two days to accommodate the legitimate medical issues of a fellow member of the bar is Case 1:17-cv-01056-DAD-BAM Document 192 Filed 03/18/19 Page 1 of 2 Hon. Barbara A. McAuliffe March 15, 2019 Page 2 Greenberg Traurig, LLP ATTORNEYS AT LAW WWW.GTLAW.COM reasonable. Further, although it is TGS’s opinion that the deposition is a waste of time, Roadrunner has the right to seek to obtain discovery from third parties consistent with the Federal Rules. That does not change because TGS obtained a declaration. To the contrary, Roadrunner has the right to use the vehicle of a deposition to obtain testimony on all of the topics it noticed. It would be inconsistent with the traditional justice system if a defendant were able to thwart a plaintiff’s ability to obtain evidence by obtaining a barebones declaration from the witness to be deposed. To the extent that TGS and Cox do not wish to “waste time,” they can elect not to participate. Further, Roadrunner has indicated they can appear by telephone. In truth, the only salient issue is whether the Court will agree to modify its order to permit Roadrunner to take the deposition in early April 2019. Here, there is a substantial showing of good cause in light of the medical issues beyond Roadrunner’s control. 2. Deposition of Roadrunner’s Expert: On March 11, 2019, Roadrunner produced the initial report of Richard Eichmann, Ph.D. regarding the extent of damages Roadrunner has sustained with respect to the conduct of TGS and Cox. TGS did not produce any initial reports. On Tuesday, March 12, counsel for TGS indicated that it wanted to take Dr. Eichmann’s deposition on March 22 or 25, both of which are prior to the date for supplemental reports, which is March 29, 2019. Roadrunner inquired of Dr. Eichmann about his availability. Unfortunately, Dr. Eichmann is traveling out of the country to Japan from March 15, and returning sometime on the evening of March 24. Thereafter, he may be attending a conference in Washington, D.C. from March 25 through March 27, although Dr. Eichmann candidly stated that he might not attend the conference in order to allow himself to physically and mentally recuperate from his foreign travels. Under either scenario, Dr. Eichmann will not be available to be deposed on March 22 or 25. To be very clear, Roadrunner is not depriving TGS of its ability to take Dr. Eichmann’s deposition. The date for the close of expert discovery is May 3, 2019, and Roadrunner had proposed dates in April 2019 even before learning of TGS’s intention for an early deposition. Indeed, the Court’s scheduling order contemplates that depositions could and would occur after the exchange of the supplemental reports, providing over a month to complete expert discovery after the reports. For strategic reasons, TGS wanted to take the deposition early, and if Dr. Eichmann were available, Roadrunner would have no objections, particularly where Dr. Eichmann may still issue a supplemental report on March 29. But he is not physically present in the United States until March 25 and, assuming he does not then travel to Washington DC, will need some reasonable amount of time to recover from a trans-Pacific flight from Tokyo where he would have spent over a week. It would be prejudicial to require any person, much less an expert, to sit for a deposition within less than a day of returning from abroad via a flight across the globe. As such, the Court should permit Roadrunner to make Dr. Eichmann available on a date mutually agreeable to the parties and when Dr. Eichmann is physically and mentally able to sit for the deposition. Sincerely, Todd A. Pickles Case 1:17-cv-01056-DAD-BAM Document 192 Filed 03/18/19 Page 2 of 2
