Richardson v. Koch Foods of Alabama, LLC (CONSENT)

MOTION to Compel

M.D. Ala.October 23, 2017

4830-1141-2050 v1 2016061-000172 10/23/2017 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION HENRY WAYNE RICHARDSON, Plaintiff, v. KOCH FOODS OF ALABAMA, LLC, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO.: 2:16-cv-00828-SRW DEFENDANT KOCH FOODS OF ALABAMA, LLC'S MOTION TO COMPEL Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Defendant, Koch Foods of Alabama, LLC ("Koch Foods"), respectfully moves this Court to enter an Order compelling Plaintiff Henry Richardson ("Richardson") to supplement his Rule 26 Initial Disclosures and to fully respond to Defendant's Interrogatory 9 by providing the current address for third-party witness, Steve Bohannon. As grounds therefor, Defendant states as follows: 1. On December 16, 2016, Plaintiff submitted his Rule 26 Disclosures in which he identified Steve Bohannon ("Bohannon") as a witness. Bohannon is former employee of Defendant who was terminated more than six (6) months before Richardson. Richardson failed to provide Bohannon's current address and Case 2:16-cv-00828-SRW Document 23 Filed 10/23/17 Page 1 of 5 2 4830-1141-2050 v1 2016061-000172 10/23/2017 phone number as required by Rule 26, but still listed his address as that of counsel for Defendant. (See Plaintiff's Initial Disclosures, attached as Exhibit 1). 2. On January 12, 2017, Richardson responded to Defendant's first interrogatories in which Defendant requested Richardson identified all witnesses with knowledge concerning his claims. The term "identify" was defined to include the witnesses address and phone number. In response, Richardson referred Defendant to his Rule 26 Disclosures, but again failed to provide his address and phone number. (See Excerpts of Defendant's First Interrogatories and Richardson's Responses, attached as Exhibit 2). 3. On August 3, 2017, Defendant deposed Richardson. In his deposition testimony, Richardson again identified Bohannon as a witness with knowledge concerning an alleged negative remark that Richardson supervisors made about him having suffered a heart attack. 4. Accordingly, Defendant sought to depose Bohannon. Defendant conducted a background investigation on Bohannon using information from his personnel file to ascertain his current whereabouts. Defendant attempted numerous times to serve Bohannan with a Rule 45 subpoena for his deposition at various addresses. Each time Defendant's process server was informed that Bohannon no longer lived there. Case 2:16-cv-00828-SRW Document 23 Filed 10/23/17 Page 2 of 5 3 4830-1141-2050 v1 2016061-000172 10/23/2017 5. Richardson provided Bohannon's current telephone number during his deposition, but Bohannon refuses to answer Defendant's phone calls. Defendant also sought the assistance of a private investigative firm to locate Bohannon. The private investigator identified a new address at which Defendant attempted to serve Bohannon on October 11, 2017. (See Expedius Envoy Email re: Bohannon, filed as Exhibit 3). Again, Defendant was informed that Bohannon did not reside at the address. 6. The undersigned counsel has had numerous conversations and correspondence with Richardson's counsel concerning Bohannan's whereabouts. Bohannon willingly talks with Richardson's counsel, but apparently refuses to provide his current address. Bohannon has refused Richardson's counsel's request to appear for a deposition in person. In response, Richardson has only agreed to potentially be questioned over the telephone. Counsel for Defendant has relayed to Bohannon through Richardson's counsel that it will agree to set the deposition at a time and place which is convenient for Bohannon, including after business hours and on weekends, if necessary. Nevertheless, Bohannon has persisted in his refusal to either appear for a deposition or to provide his current address so that he may be issued a subpoena. (See Email Correspondence between Counsel for parties, attached as Exhibit 4). Case 2:16-cv-00828-SRW Document 23 Filed 10/23/17 Page 3 of 5 4 4830-1141-2050 v1 2016061-000172 10/23/2017 7. Because Bohannon is willingly communicating with Richardson's counsel, Defendant anticipates Bohannon will provide a sworn statement in opposition to Defendant's anticipated summary judgment. Unless Defendant is able to acquire Bohannon's current address, it will be deprived of an opportunity to cross-examine Bohannon under oath about his knowledge of Richardson's allegations. 8. Pursuant to Rule 37, the undersigned counsel has continually worked with Plaintiff's counsel to resolve this issue through multiple phone discussions and correspondence. (Ex. 4). 9. WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests this Court enter an order compelling Plaintiff to provide a current address for Bohannon and Order on Defendant's motion. Respectfully Submitted, s/ Rachel V. Barlotta RACHEL V. BARLOTTA SHARONDA C. FANCHER Attorneys for Defendant Koch Foods of Alabama, LLC OF COUNSEL: BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC Wells Fargo Tower 420 North 20th Street, Suite 1400 Birmingham, AL 35203 (205)328-0480 Telephone (205)322-8007 Facsimile Case 2:16-cv-00828-SRW Document 23 Filed 10/23/17 Page 4 of 5 5 4830-1141-2050 v1 2016061-000172 10/23/2017 Certificate of Service I certify that the foregoing has been served upon the following parties and counsel of record by email and electronic filing, this October 23, 2017: Julian McPhillips Chase Estes MCPHILLIPS SHINBAUM, LLP 516 South Perry Street Montgomery, AL 36104 (334) 262-1911 - Office (334) 263-2321 - Facsimile juliamcphillips@msg-lawfirm.com cestes@msg-lawfirm.com s/Rachel V. Barlotta Of Counsel Case 2:16-cv-00828-SRW Document 23 Filed 10/23/17 Page 5 of 5