UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Transcription

1 CASE 0:09-cv DWF-LIB Document 244 Filed 01/20/12 Page 1 of 5 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Owner-Operator Independent Drivers Association, Inc., a Missouri non-profit entity, and Stephen K. House, a natural person, Court File No.: 09-CV-1116 (DWF/LIB) vs. Plaintiffs, AFFIDAVIT OF MARSHA ELDOT DEVINE Mark Dunaski, Ken Urquhart, Christopher Norton, James Ullmer, Doug Thooft And John Doe 1, Personally, Individually, and in their Official Capacities, Defendants. STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) follows: MARSHA ELDOT DEVINE, being first duly sworn, deposes and states as 1. I am an Assistant Attorney General for the State of Minnesota and have represented Defendants throughout the pendency of the above-entitled matter. Thus, I am familiar with the files, records and proceedings concerning the matter. 2. I have reviewed Plaintiffs Memorandum in Support of Plaintiffs Motion for Award of Attorney Fees and Expenses and provide this affidavit in response.

2 CASE 0:09-cv DWF-LIB Document 244 Filed 01/20/12 Page 2 of 5 3. I have also reviewed the bills that Plaintiffs have submitted in support of their motion. The bills are misleading, difficult to follow, and seem to charge more than one time for the same activities. 4. Plaintiffs incorrectly claim that Defendants late and incomplete discovery responses prolonged discovery. Plaintiffs discovery requests were overly broad and sought data from current and former employees of the State from all geographical locations, which required coordination with the Patrol to search employee laptops and hard-drives as well as the Patrol s network for archived documents. Then the Patrol had to review those documents to determine whether they were responsive to Plaintiffs discovery requests as well as whether the classification of the documents (e.g., whether documents were confidential because they were part of an active investigation) had to be addressed before they could be sent to me for further review, Bates-stamping and disclosure. 5. Plaintiffs assert that discovery was prolonged because Defendants, such as Christopher Norton, had not been shown the discovery requests or asked to look for documents or s. Norton did not search his account prior to his deposition, but at his deposition, he testified that he did not have any s regarding the lawsuit or out of service incident, other than from counsel. Norton Depo. pp With respect to the disclosure of other documents in Norton s possession, I indicated on the deposition record that just because Norton had not seen the Request for Production of Documents did not mean he had not been asked to produce documents in his possession, and in fact, Defendants had already produced over 5,000 documents, many of which included 2

3 CASE 0:09-cv DWF-LIB Document 244 Filed 01/20/12 Page 3 of 5 inspection and fatigue reports. Norton Depo, pp The State Patrol s IT personnel subsequently searched Patrol employee laptops and hard-drives and the Patrol s network system for archived data, and the Patrol updated Defendants discovery responses accordingly. 6. Discovery was not extended due to Defendants. Rather, discovery was extended due to Plaintiffs extensive and unrelenting discovery requests. For example, Plaintiffs assert that they spent unnecessary time researching for, preparing for and taking depositions of Denise Nichols and Lt. Doug Thooft on subjects of which witnesses had no knowledge. However, the length of time that Plaintiffs spent deposing these witnesses shows that Plaintiffs believed they were obtaining useful information from them during the depositions. With the exception of short breaks, Plaintiffs counsel deposed Denise Nichols on November 18, 2009 from 2:21 p.m. to 5:53 p.m. Nichols Deposition Transcript, generally. Plaintiffs also deposed Lt. Doug Thooft on November 12, 2009 from 9:23 a.m. to 6:31 a.m. Thooft Deposition Transcript, generally. 7. Except for four of the fifteen depositions taken by Plaintiffs counsel and the two depositions they defended, two Plaintiffs counsel were present throughout each entire deposition and sometimes a third attorney would also attend. For example, during the depositions of Chris Norton on November 10, 2009, Douglas Thooft on November 12, 2009, Howard Steele on November 15, 2009, Denise Nichols on November 18, 2009, James Ullmer on December 16, 2009, and Al Smith on March 4, 2010, Daniel Cohen, Paul Cullen Jr., and Albert Goins, Sr. were all in attendance. During the depositions of Stephen Lubbert on November 12 and 13, 2009, Wes Pemble on November 18, 2009, 3

4 CASE 0:09-cv DWF-LIB Document 244 Filed 01/20/12 Page 4 of 5 Mark Dunaski on November 19, 2009, Ken Urquhart on November 20, 2009, Glen Bjornberg on March 3, 2010, and Marcus Erickson on March 3, 2009, Dan Cohen and Paul Cullen Jr. were in attendance. Only the depositions of Michele Tuchner and Al Smith, taken by Paul Cullen, Sr., and Richard Fjestad and Mark Keirchbaum, taken by Daniel Cohen, were attended by one attorney. 8. During the depositions of Plaintiff Stephen House and James Johnston, President of OOIDA, which I took on December 17 and 18, 2009, respectively, Daniel Cohen, Paul Cullen, Jr. and Albert Goins, Sr. were in attendance. 9. I have reviewed the time records of the Attorney General s Office (AGO) for this case. AGO time spent on OOIDA s collateral state court case was excluded. The AGO spent a total of attorney hours on this case through January 3, Most of the AGO hours spent on the case were mine. The Cullen firm indicates that it spent attorney hours on this case. Cullen Aff. Exh. B. Mr. Goins and Mr. Ward indicate that they spent 257 hours on the case. (Mr. Goins reports total bills of $89,976. Goins Aff. Exh. B. That amount divided by $350/hour yields 257 hours.) Therefore, OOIDA spent a total of 6, hours on the case. Thus, the AGO spent 37.2% of the attorney time spent by OOIDA on this case. In other words, OOIDA spent more than two and one-half times as much attorney time as did the AGO. 4

5 CASE 0:09-cv DWF-LIB Document 244 Filed 01/20/12 Page 5 of 5 FURTHER YOUR AFFIANT SAYETH NOT. Subscribed and sworn to before me this 20th day of January, s/sharon L. Owen NOTARY PUBLIC AG: # v1 s/marsha Eldot Devine MARSHA ELDOT DEVINE 5