UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

Transcription

1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN DAVID S. GRONIK, JR., MARY K. GRONIK, S.C.G., M.A.G., DAVID S. GRONIK, JR. LIVING TRUST and OPIO BOAT MOON, LLC, vs. Plaintiffs, Case No. 10-CV-954 SUSAN BALTHASAR, and the Estate of NORMAN BALTHASAR by its Personal Representative Susan Susan Balthasar, Defendants, and SHOREWEST REALTORS, INC., CONTINENTAL CASUALTY COMPANY, and ANNE SCHWARTZ, and Third-Party Defendants, OPIO BOAT MOON, LLC, and DAVID S. GRONIK, JR., Plaintiffs, Case No. 11-CV-697 vs. CHUBB INDEMNITY INSURANCE COMPANY, Defendant THE BALTHASAR DEFENDANTS RESPONSE IN OPPOSITION TO THE PLAINTIFFS MOTION TO COMPEL FURTHER DEPOSITION OF SUSAN BALTHASAR Case 2:10-cv LA Filed 06/13/12 Page 1 of 5 Document 125

2 On October 20, 2011, Susan Balthasar appeared for her deposition in Case No. 10-CV She appeared at 9:00 a.m. and the deposition did not conclude until 5:30 p.m. Actual time on the record totaled six hours and 43 minutes due to bathroom breaks, discussion off the record and a 45-minute lunch break. Norman Balthasar and both plaintiffs, David and Mary Gronik, were present at Mrs. Balthasar s deposition. During the course of Mrs. Balthasar s deposition, the Groniks acted with a lack of civility at points laughing at Mrs. Balthasar s responses and otherwise taunting and intimidating her. At one point, Mary Gronik pushed a handwritten note to Mr. Balthasar. On the note, Mary Gronik had written in large block letters, LIAR! The following day Mr. Balthasar appeared for his deposition. Shortly after it began, he suffered a fatal heart attack. Since that time the plaintiffs have deposed or have scheduled depositions of a multitude of the contractors who either performed or bid on work at the residence that forms the subject matter of this litigation. The plaintiffs also have deposed other potential buyers and their agents. These depositions have gone on for extended periods of time covering any and all topics even remotely relevant to claims at issue. For example, over two separate days and approximately 16 hours, plaintiffs counsel deposed Steve Barnekow, a window contractor hired by the Balthasars, who made recommendations for and coordinated the repair and replacement of windows at the property. The plaintiffs now seek an Order compelling Susan Balthasar to submit to a second deposition for an additional four hours. They argue the additional time is necessary because Mrs. Balthasar possesses unique information which, due to her husband s death at his own deposition, they contend is unavailable from any other source. The plaintiffs motion should be denied because there are other suitable means under the Rules for the plaintiffs to obtain Mrs. 2 Case 2:10-cv LA Filed 06/13/12 Page 2 of 5 Document 125

3 Balthasar s unique information, and the Court has an obligation to protect this witness from the harassing and intimidating conduct in which the plaintiffs have engaged. The Balthasar defendants have informed plaintiffs counsel that he can obtain information from Mrs. Balthasar by conducting Mrs. Balthasar s deposition by written questions as authorized by Federal Rule of Civil Procedure 31. The plaintiffs refused that option, insisting upon further oral testimony. There is no credible reason why written questions, as opposed to oral questions, would be insufficient to provide the plaintiffs with information concerning Mrs. Balthasar s unique knowledge. Although the plaintiffs argue the complexity of the case and the number of parties involved argues in favor of additional time, they fail to note to the court that their counsel was the only lawyer who questioned Mrs. Balthasar during her deposition. As such, contrary to plaintiffs implication, plaintiffs counsel s questioning of Mrs. Balthasar was not limited because of the involvement of counsel for other parties. Moreover, after already having been deposed for approximately seven hours, during which she was subjected to the Groniks snickering, sneering and laughter and was actually called a LIAR! by the Mrs. Gronik, Mrs. Balthasar also was present when her husband died during his deposition the next day. Given the fact that the plaintiffs have other means with which to inquire into Mrs. Balthasar s knowledge about the facts of this case, there is no compelling need to force her to attend another deposition. The plaintiffs have either already deposed or have scheduled to be deposed a multitude of contractors as well as prospective buyers of the residence and their agents. Testimony from the individuals who actually proposed and performed work at the subject residence also militates against the need to subject Mrs. Balthasar to another deposition. Mrs. Balthasar does not have any unique knowledge of the work 3 Case 2:10-cv LA Filed 06/13/12 Page 3 of 5 Document 125

4 actually or proposed to be performed by these contractors and, ultimately, her testimony would be duplicative of the actual contractors testimony. The Court should also note that the Balthasar defendants have not asked to depose David Gronik for 14 hours. This matter, consolidated at the plaintiffs instance, is comprised of two lawsuits: the Groniks versus the Balthasars and the Groniks versus Chubb Indemnity Insurance Company. As the defendants in one of the lawsuits commenced by the plaintiffs, the Balthasar defendants are entitled to depose David Gronik consistent with the time limitations contained in Federal Rule of Civil Procedure 30, irrespective of the interests of other parties to this litigation. Had the plaintiffs not consolidated this matter with their other lawsuit against Chubb, the Balthasar defendants and Chubb would each unquestionably be entitled to their own seven-hour deposition of Mr. Gronik. The Balthasar defendants will make every effort to complete Mr. Gronik s deposition within the seven hours contemplated by Rule 30. Finally, in addition to Deposition by Written Questions, the plaintiffs also are able to obtain additional discovery of Mrs. Balthasar via Interrogatories pursuant to Federal Rule of Civil Procedure 33 and Requests for Production pursuant to Federal Rule of Civil Procedure 34. Given these additional avenues there is clearly no need to compel Mrs. Balthasar to endure four additional hours of examination. The plaintiffs have not made a sufficient showing that the information they seek from Mrs. Balthasar is so unique to her that they can only discovery her information by compelling her to give yet another four hours of deposition testimony. The plaintiffs have other means under the Federal Rules to discover this information from Mrs. Balthasar, but have declined to use them. Given the plaintiffs behavior during Mrs. Balthasar s deposition, one can only conclude that the plaintiffs want to compel a second deposition simply to provide them with 4 Case 2:10-cv LA Filed 06/13/12 Page 4 of 5 Document 125

5 another opportunity to harass and intimidate Mrs. Balthasar. This court, which has the authority to ensure that parties conduct discovery judiciously and in good faith, should deny the plaintiffs motion. Dated this 13th day of June, BASCOM, BUDISH & CEMAN, S.C. /s Jacob A. Sosnay Timothy A. Bascom State Bar No Valerie R. Jonas State Bar No Jacob A. Sosnay State Bar No North Mayfair Road, Suite 1140 Wauwatosa, WI (414) SMITH, GUNDERSON & ROWAN, S.C. Ms. Wendy G. Gunderson State Bar No West Capitol Drive, Suite 100 Brookfield WI (262) Attorneys for Defendants Susan Balthasar and Estate of Norman Balthasar 5 Case 2:10-cv LA Filed 06/13/12 Page 5 of 5 Document 125