IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

Transcription

1 IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA PATRICK DESMOND AND MARY DESMOND, INDIVIDUALLY AND MARY C. DESMOND, AS ADMINISTRATRIX OF THE ESTATE OF PATRICK DESMOND, Plaintiffs, v. NARCONON OF GEORGIA, INC, DELGADO DEVELOPMENT, INC, SOVEREIGN PLACE, LLC, SOVEREIGN PLACE APARTMENT MANAGEMENT, INC, LISA CAROLINA ROBBINS, M.D, THE ROBBINS GROUP, INC, AND NARCONON INTERNATIONAL, CIVIL ACTION FILE NO. 10-A Defendants. BRIEF IN SUPPORT OF DELGADO DEVELOPMENT. INC.'S MOTION FOR PROTECTIVE ORDER Comes Now, Defendant Delgado Development, Inc., pursuant to O.C.G. A , and files this Brief in Support of its Motion for Protective Order and shows this Court as follows: DOWNEY & CLEVELAND. LLP Attorneys at Law 288 Washington Avenue Marietta, Georgia (770) Statement of Facts The Plaintiffs noticed the depositions of nonparties, Maria Delgado and her exhusband Don Delgado, for October 24,2011. The Plaintiffs' Notices state the depositions will be "for discovery and all other purposes allowable under the Georgia Civil Practice

2 Act." (Plaintiffs' Notices to Take Videotape Deposition of Maria Delgado and Don Delgado). The Delgados do not object to being deposed; however, they should only have to be deposed once. ; In the present suit, which was filed in May of 2010, the Plaintiffs seek to recover for the death of their 28 year-old son who died as result of a drug overdose. (Plaintiffs' Complaint at para, at 33). Before his death, the Plaintiffs' son underwent treatment for!' drug abuse. He relapsed and he was again undergoing drug rehabilitation in June of (Id. at paras ). While undergoing treatment, the decedent left the apartment where : he was living on June 10, (Id. at 31). After leaving the apartment, he obtained 11 heroin. The Plaintiffs' son overdosed on heroin while he was riding in a car on on j! i l 11 June 11, (Id. at 33). The Plaintiffs allege that Delgado Development had failed to j; jj keep the premises safe where the decedent was living during his drug rehabilitation. (Id. j at 48 through 51).! Defendant Delgado Development, Inc. was a Georgia corporation. However, it was i!! dissolved in September of2009. (Attached as Exhibit "A" is a true and correct copy of the Georgia Secretary of State's "Business Name History"). Maria Delgado is listed as an I j i j officer of Delgado Development, Inc. This corporation has no employees and is no longer j ; in business. The only corporate representatives would likely be Maria or Don Delgado. ; I! ; In connection with the scheduling of the Delgados' depositions, counsel for ' j I Delgado Development asked Plaintiffs' counsel if the Plaintiffs would depose the j

3 Delgados regarding any personal knowledge they might have as well as in a representative capacity of Delgado Development, Inc., pursuant to O.C.G.A (b)(6), at the same time. The Plaintiffs flatly refused. Specifically, after the Plaintiffs asked for dates for the Delgados' depositions, counsel for Delgado Development wrote to the Plaintiffs' attorney on October 3,2011 and stated: "[w]e are working on dates for the Delgados. In doing so, it occurred to me that we have not discussed whether you want to take their depositions individually or if you want to depose a representative of... Delgado Development. I would assume one or the other would be the representative, but if you do want to depose a representative, please provide me with the topics you would like to question the representative about so there is no issue of whether or not we make the appropriate person available." (See attached Exhibit "B"). The Plaintiff did not respond to this . Next, on October 5, 2011, counsel for Delgado Development again wrote to the Plaintiffs in an effort to "to work out an arrangement so that we do the individual and 30(b)(6) depos for whoever is going to be the representative on the same day..." (See attached Exhibit "C"). In response, to this counsel for the Plaintiffs stated only that they had not asked for a 30(b)(6) witness. Specifically, counsel for the Plaintiffs wrote: DOWNEY & CLEVELAND, LLP Attorneys at Law 288 Washington Avenue Marietta, Georgia (770) I have not asked for a 30(b)6 depo. All I have asked for is depo dates for the DelGado's. In the event we decide we need a 30b6 we can cross that bridge. Obviously you can elect to put up whoever you want as a deponent if and when the time comes that we make a decision for such a deposition. Based on your we will go ahead and schedule the depositions of the DelGado's on the next available Monday. -3-

4 (See attached Exhibit "D"). After receiving the Plaintiffs' , counsel for Delgado Development again tried to resolve this issue and reach an agreement to have one deposition of the Delgados. Delgado Development asked the Plaintiffs if they could "resolve... whether the Plaintiffs want to depose a 30(b)(6) representative of Delgado Development. (I assumed they would and that the Plaintiffs would want to get all of the Delgado depositions taken around the same time)." (See attached Exhibit "E"). At the same time, counsel for Delgado suggested that the Delgados' individual depositions and any deposition in a representative capacity should be taken at the same time and proposed as follows: [i]f the Plaintiffs do plan to take a 30(b)(6) representatives deposition, I propose that you let me know the topics and then we can do the Delgados' depositions individually and in their representative capacity at the same time or on the same day(s). As you know, Delgado Development is defunct. The representative(s) will in all likelihood be Mr. or Ms. Delgado or both. It seems fair and reasonable not to require them to give separate depositions on separate dates on the exact same issues. (Exhibit "E"). Counsel for Delgado Development also made several other proposals in the same , including waiting to schedule the Delgados' depositions until after the Plaintiffs determined if they would depose a corporate representative. (Id.). Rather than discussing any proposal by Delgado Development or even making a DOWNEY» CLEVELAND, LLP Attorneys at Law 288 Washington Avenue Marietta, Georgia (770) counter proposal, the Plaintiffs simply refused to agree to anything. Specifically, in response to the above proposals, the Plaintiffs stated: "I am not agreeing to anything -4-

5 related to a 30b6 at this point..." (See attached Exhibit "F") (Emphasis added). At the same time, the Plaintiffs suggested that the Delgados move for a protective order. (Id.). Arguments and Citations of Authority The Delgados have not refused to be deposed. Rather, Delgado Development, Inc. asks for the Court to allow the Plaintiffs to depose them only one time. The Plaintiffs, for some unknown reason, will not agree. The Georgia Civil Practice Act addresses deposing representatives of corporations, such as Delgado Development, Inc. The applicable code section states as follows: [a] party may, in his or her notice, name as the deponent a public or private corporation or a partnership or association or a governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he or she will testify. The persons so designated shall testify as to matters known or reasonably available to the organization O.C.G.A. 9-1 l-30(b)(6). In the present case, Delgado Development, Inc. has not been asked to designate a corporate representative. It has offered to do so and requested that the Plaintiffs designate the topics they wish to depose a representative about, but the Plaintiffs refused. Rather than proceeding under O.C.G.A. 9-ll-30(b)(6), the Plaintiffs seek to DOWNEY & CLEVELAND, LLP Attorneys at Law 268 Washington Avenue Marietta. Georgia (770) depose the Delgados and, it appears, the Plaintiffs will later seek to depose a corporate representative. This would not be fair as the representative of Delgado Development, Inc. -5- j i i

6 j j would likely be Don or Maria Delgado. The Plaintiffs should not be permitted to depose the Delgados on the exact same issues twice under O.C.G.A i i The common practice in Georgia is that witnesses are deposed one time. The Federal Rules of Civil Procedure expressly state this common practice. Fed. R. Civ. Pr. 30 generally provides that a witness may only be deposed one time. Under Rule 30, "[a] party must obtain leave of court,... [if] the deponent has already been deposed in the case..." Admittedly, O.C.G.A. 9-ll-30(b)(6), does not contain identical language; j however, the Federal Rules of Civil Procedure and the decisions interpreting these rules are given "great weight" as persuasive authority in Georgia. Numerous Georgia Courts have noted that: the Georgia Civil Practice Act was taken from the Federal Rules of Civil Procedure and with slight immaterial variations its sections are substantially j identical to corresponding rules. Because of this similarity it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts. Barn urn v. Coastal Health Services. Inc Ga. App. 209,215 (2007) (citing Bicknell! v. CBT Factors Corp Ga. App ) (1984). See also Global Van Lines. Inc. v. ' Daniel Moving & Storage. Inc Ga. App. 124 (1981). Under Rule 30, taking multiple depositions of the same witness is greatly DOWNEY S CLEVELAND, LLP Attorneys at Law j 288 Washington Avenue! Marietta, Georgia (770) j :l disfavored. Requiring a non-party to appear for a duplicative deposition is contrary to the fair and efficient administration of justice. Dickson v. Certainteed Corp., 164 F.R.D. 685, 690 (D. Kan. 1996). See also Lone Star Industries. Inc. v. River's Bend Red-E-Mix. Inc.. -6-

7 No V, unpublished opinion at 4 (D. Kan. Oct. 6, 1992); and Miller v. Federal Express. Corp. 186 F.R.D. 376, 389 (W. D. Ten. 1999) (holding that a second deposition is disfavored). Courts generally disfavor second depositions. 7 Moore's Federal Practice 30.05[l][c], at (Lexis 2006). Further, repeat depositions are particularly disfavored when the person sought to be re-examined is not a party to the action. See Bonnie & Co. Fashions. Inc. v. Bankers Trust Co F. Supp. 693, (S.D. N.Y. 1996). Under the above rules and cases, Delgado Development seeks only a ruling that the Plaintiff depose Maria Delgado and Don Delgado one time for all purposes. Don Delgado and Maria Delgado are not parties to the present suit. The above cases demonstrate that particular care should be taken to prevent nonparties from being deposed more than one time. Thus, the Court should rule that the Plaintiffs can depose the Delgados one time as to all issues. Further, the Delgados are not refusing to be deposed. Rather, they should only have to be deposed about any knowledge they have of the facts and circumstances regarding this case, as well as any topics for which they would be a corporate representative under 30(b)(6), on one occasion. The is no valid reason, and the Plaintiffs' have offered no valid DOWNEY i CLEVELAND, LLP Attorneys at Law 286 Washington Avenue Marietta, Georgia (770) reason, for deposing the Delgados more than one time on the exact same issues and about the same facts. Along with offer no valid reason for taking multiple depositions of the Delgados, -7-

8 the Plaintiffs refused to even try to reach any agreement with Delgado Development regarding this issue. Indeed, when the Plaintiffs were asked again about resolving this issue and reaching an agreement, counsel for the Plaintiff flatly refused to agree to anything and he stated: "the Plaintiffs stated: "I am not agreeing to anything related to a30b6..."(exhibit"f"). It was disappointing that the Plaintiffs could not articulate any valid reason to take multiple depositions of the Delgados. It was even more disappointing that the Plaintiffs refused to "agree to anything" regarding the Delgados' depositions. The Plaintiffs should also not be heard to argue that the do not yet know if they intend to take a 30(b)(6) deposition of Delgado Development. The Plaintiffs filed suit in May of In the fifteen months that this case has been pending, the Plaintiffs certainly determined which topics about which they wish to depose Delgado Development, Inc. Moreover, Delgado Development also proposed that if the Plaintiffs did not yet know if they wished to depose a corporate representative, that the Plaintiffs could take more time to decide and then depose the Delgados. (Exhibit "E"). The Plaintiffs' response, as noted above, was that they would not agree to anything. Under the rules set forth above and in the interests of fairness to the parties and the Delgados, Delgado Development, Inc. respectfully requests that this Court enter an Order DOWNEY 4 CLEVELAND, LLP Attorneys at Law 266 Washington Avenue Marietta, Georgia (770) granting this Motion and rule that the Plaintiffs are permitted to depose Maria Delgado and Don Delgado one time as to all issues. Conclusion -8-

9 i Delgado Development, Inc. respectfully requests that this Court permit the Plaintiffs to depose Maria Delgado and Don Delgado only one time. The Plaintiffs noticed the depositions of the Delgados for all purposes. Counsel for Delgado Development tried to reach an agreement with the Plaintiffs to depose the Delgados one time regarding their individual knowledge and, if applicable, as 30(b)(6) representatives of Delgado Development (which is defunct). The Plaintiffs refused to even attempt to reach an agreement. The Delgados do not oppose being deposed. However, they should not be forced to give a deposition once only to then have the Plaintiffs notice a 30(b)(6) deposition, which would be about the exact same issues and circumstances. As set forth expressly in the Federal Rules of Civil Procedure, which are given "great weight" by Georgia Courts, this Court should permit the Plaintiffs to depose the Delgados only one time as to all issue. WHEREFORE, Delgado Development, Inc. respectfully urges this Court to enter an Order GRANTING its Motion for Protective Order and permitting the Pl^mtiffsjp^ depose Maria Delgado and Don Delgado once as to all issues. Respectfully Submitted, DOWNEY & CLEVELAND, LLP DOWNEY & CLEVELAND, LLP Attorneys at Law 286 Washington Avenue Marietta, Georgia (770) SEAN L. HYNES Georgia State Bar No fct;; Attorneys for Defendant tg^-

10 Business Entity «os.state.ga.us/corp/soskb/corp.asp? Georgia Secretary o f State Brian P, Kemp Archives Corporations Elections News Room Professional Licensure Securities State Capitol Search By Business Name By Control No By Officer By Registered Agent Verify Verify Certification New Filing Click here to file online for: New Limited Liability Company (LLC) New Business Corporation New Non-Profit Corporation New Professional Corporation (PC) Annual Registration Annual Registration Name Reservation File Name Reservation Online Online Orders Register for Online Orders Order Certificate of Existence Order Certified Documents View Filed Documents Date: 10/14/2011 (Annual Registration History Business Name History Name etc.) DELGADO DEVELOPMENT, INC. Name Type Current Name Profit Corporation - Domestic - Information Control No.: Status: Entity Creation Date: 8/28/2006 Dissolve Date: 9/29/2009 Jurisdiction: Principal Office Address: Registered Agent Agent Name: Office Address: Agent County: Diss./Cancel/Terminat GA 2810 VALLEY BROOK DRIVE Marietta GA Delaado. Maria 2810 VALLEY BROOK DRIVE Marietta GA Cobb Officers Title: Name: Address: CEO MARIO DELGADO 1536 PINEBREEZE DRIVE Marietta GA EXHIBIT 1 of 1 10/14/2011 4:30 PM

11 From: Sent: To: Subject: Monday, October 03, :32 AM 'Jeff Harris' Desmond v. Narconon, et al. Jeff, We are working on dates for the Delgados. In doing so, it occurred to me that we have not discussed whether you want to take their depositions individually or if you want to depose a representative of the Delgado Development. I would assume one or the other would be the representative, but if you do want to depose a representative, please provide me with the topics you would like to question the representative about so there is no issue of whether or not we make the appropriate person available. Thanks and again I appreciate you working with me last week on the Taylor deposition. Sean

12 From: Sent: To: Cc: Subject: Wednesday, October 05, :46 AM Jeff Harris Kate Whitlock; Re: Desmond v. Narconon, et Jeff and Rebecca, Jackson, TN may be in some odd cell service area and I can't tell which s I sent yesterday actually went out. Did you receive the I sent yesterday afternoon? I sent it while Rebeccawas looking for Taylor. Anyway as said in that and as Rebecca and I discussed, Mondays are generally good (except the week of Halloween). However, I would like to work out an arrangement so that we do the individual and 30(b)(6) depos for whoever is going to be the representative on the same day. If you would like, I will of course be glad to talk with you about that issue. Thanks Sean Sent from my ipad On Oct 5, 2011, at 9:18 AM, "Jamie Davis" <Jamie@hpllegal.com wrote: I attach a.pdf copy of the deposition notice for Mr. Parsons. Jamie Davis Paralegal - Atlanta Harris Penn Lowry DelCampo, LLP 400 Colony Square 1201 Peachtree St., N.E. Suite 900 Atlanta, Georgia (404) Fax: (404) Savannah Office: 405 East Perry Street

13 From: Sent: To: Cc: Subject: Jeff Harris Wednesday, October 05, :56 AM Kate Whitlock; Re: Desmond v. Narconon, et I didn't get any and I'm confused. I have not asked for a 30(b)6 depo. All I have asked for is depo dates for the DelGado's. In the event we decide we need a 30b6 we can cross that bridge. Obviously you can elect to put up whoever you want as a deponent if and when the time comes that we make a decision for such a deposition. Based on your we will go ahead and schedule the depositions of the DelGado's on the next available Monday. Thanks. On Oct 5, 2011, at 10:46 AM, "" <hvnes@downevcleveland.com wrote: Jeff and Rebecca, Jackson, TN may be in some odd cell service area and I can't tell which s I sent yesterday actually went out. Did you receive the I sent yesterday afternoon? I sent it while Rebeccawas looking for Taylor. Anyway as said in that and as Rebecca and I discussed, Mondays are generally good (except the week of Halloween). However, I would like to work out an arrangement so that we do the individual and 30(b)(6) depos for whoever is going to be the representative on the same day. If you would like, I will of course be glad to talk with you about that issue. Thanks Sean Sent from my ipad On Oct 5, 2011, at 9:18 AM, "Jamie Davis" <Jamie@hpllegal.com wrote:» I attach a.pdf copy of the deposition notice for Mr. Parsons.»» Jamie Davis» Paralegal - Atlanta»» Harris Penn Lowry DelCampo, LLP» 400 Colony Square» 1201 Peachtree St., N.E.» Suite 900

14 From: Sent: To: Cc: Subject: Wednesday, October 05, :39 AM 'Jeff Harris' Kate Whitlock; Barbara Marschalk Scott Kerew RE: Desmond v. Narconon, et Jeff, I don't know what happened with some of my s from yesterday. The cell service in Jackson, TN was spotty. It seems the issue I would like to resolve is whether the Plaintiffs want to depose a 30(b)(6) representative of Delgado Development. (I assumed they would and that the Plaintiffs would want to get all of the Delgado depositions taken around the same time). If the Plaintiffs do plan to take a 30(b)(6) representatives deposition, I propose that you let me know the topics and then we can do the Delgados' depositions individually and in their representative capacity at the same time or on the same day(s). As you know, Delgado Development is defunct. The representative(s) will in all likelihood be Mr. or Ms. Delgado or both. It seems fair and reasonable not to require them to give separate depositions on separate dates on the exact same issues. If the Plaintiffs do not intend to take a 30(b)(6) deposition of Delgado development, then we can schedule the individual depositions. Again, I merely want us all to avoid having multiple depositions on different dates of the same people on the same issues. If the Plaintiffs contend that they do not know yet if they will want to depose a 30(b)(6) representative of Delgado Development, please let me know when you think you might be able to make that decision. I will be glad to wait for you to make that decision and then schedule the necessary depositions. As stated in my earlier and to Rebecca yesterday, I am glad to discuss this with you further. My aim is to cooperate with you to get these depositions scheduled and to do so in a way that is fair to all the parties and witnesses. Thanks, Sean Original Message From: Jeff Harris [mailto:jeff@hpllegal.com] Sent: Wednesday, October 05, :56 AM To: Cc: Kate Whitlock; rebecca@franklinlawllc.com I

15 From: Sent: To: Cc: Subject: Jeff Harris Wednesday, October 05, :55 AM Kate Whitlock; Scott Kerew Re: Desmond v. Narconon, et Sean: I sent you a letter asking for the depositions of two fact witnesses. I asked you to provide dates when those witnesses could be deposed. I have asked you and the DelGado's previous attorneys for these dates repeatedly. Yet I still do not have any dates. Accordingly, the depos will be noticed today for the 17th. Please let me know whether you will accept service of subpoenas for the Delgado's. Once again I have not asked for a 30b6 and I am not agreeing to anything related to a 30b6 at this point. If and when I ask for such a deposition then file a motion for protective order if you think you have some basis for doing so. Thanks you. jeff On Oct 5, 2011, at 11:38 AM, "" <hynes(g),downeycleveland.com wrote: Jeff, I don't know what happened with some of my s from yesterday. The cell service in Jackson, TN was spotty. It seems the issue I would like to resolve is whether the Plaintiffs want to depose a 30(b)(6) representative of Delgado Development. (I assumed they would and that the Plaintiffs would want to get all of the Delgado depositions taken around the same time). If the Plaintiffs do plan to take a 30(b)(6) representatives deposition, I propose that you let me know the topics and then we can do the Delgados' depositions individually and in their representative capacity at the same time or on the same day(s). As you know, Delgado Development is defunct. The representative(s) will in all likelihood be Mr. or Ms. Delgado or both. It seems fair and reasonable not to require them to give separate depositions on separate dates on the exact same issues. If the Plaintiffs do not intend to take a 30(b)(6) deposition of Delgado development, then we can schedule the individual depositions. Again, I merely want us all to avoid having multiple depositions on different dates of the same people on the same issues. I

16 From: Sent: To: Cc: Subject: Wednesday, October 05, :58 PM 'Jeff Harris' Kate Whitlock; Scott Kerew; Michelle Simmons RE: Desmond v. Narconon, et Jeff, I already have a deposition scheduled for 1 p.m. on the afternoon on Monday, October 17th. I am open on the following Monday, October 24th. However, I do not understand the Plaintiffs' refusal to "agree[] to anything related to a 30b6 at this point..." Again, as I told Rebecca yesterday and as I have expressed in my s to you, I want to avoid having multiple depositions of the same people on the exact same issues. I cannot understand why the Plaintiffs would not want to streamline this process and depose the Delgados individually and the corporate representative at them same time or on the same days. If the Plaintiffs continue to refuse to "agree to anything" regarding a 30(b)(6) deposition, it seems we will simply have to ask the Court for some instruction. I remain willing to discuss this issue with you at your convenience. Thanks. Sean Original Message From: Jeff Harris [mailto:jeff@hpllegal.com] Sent: Wednesday, October 05, :55 AM To: Cc: Kate Whitlock; rebecca@franklinlawllc.com; MarschalkB@deflaw.com; Scott Kerew Subject: Re: Desmond v. Narconon, et Sean: I sent you a letter asking for the depositions of two fact witnesses. I asked you to provide dates when those witnesses could be deposed. I have asked you and the DelGado's previous attorneys for these dates repeatedly. Yet I still do not have any dates. Accordingly, the depos will be noticed today for the 17th. Please let me know whether you will accept service of subpoenas for the Delgado's. Once again I have not asked for a 30b6 and I am not agreeing to anything related to a 30b6 at this point. If and when I ask for such a deposition then file a motion for protective order if you think you have some basis for doing so. Thanks you. I

17 CERTIFICATE OF SERVICE This is to certify that I have this day served the following counsel of record with a true and correct copy of the foregoing pleading by depositing said copy in the United States Mail, with sufficient postage affixed thereon, and properly addressed to the following: Rebecca Franklin, Esq. Franklin Law, LLC Midtown Proscenium Center 1170 Peachtree Street Suite 1200 Atlanta, Georgia Robert C. Tanner, Esq. Scott Kerew, Esq. Jeffrey N. Amason, Esq. Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC 950 East Paces Ferry Road Suite 3000 Atlanta, Georgia Stevan A. Miller, Esq. Barbara A. Marschalk, Esq. Kathryn S. Whitlock, Esq. Drew, Eckl & Farnham 880 West Peachtree Street P.O. Box 7600 Atlanta, Georgia Jeffrey R. Harris, Esq. Harris, Penn & Lowry, LLP 1201 Peachtree Street, N. E. Suite 900 Atlanta, Georgia This 14th day of October, DOWNEY & CLEVELAND, LLP DOWNEY S CLEVELAND, LLP Attorneys al Law 288 Washington Avenue Marietta. Georgia (770) SEAN L. HYNES Ga. State Bar No