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Civil Case No. 04-B-1295 (CBS) GALLEGOS ET. AL. v. SWIFT & COMPANY
MOTION EXHIBIT 1
Case 1:04-cv-01295-LTB-CBS
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Morrell Law Office
The information in the parenthesis after each identified employee is designed to assist your client avoid confusion regarding the identity of the employee. If your client wishes to qualify its answer based upon an error of the date of hire or the time frames I have identified - it may do so, but I will aggressively question your client on any unequivocal answer. With respect to the Pick Product Conveyor Position - the employee is correctly identified as Maria Hernandez with Date of Hire of August 7, 2000. She can be found first appearing on the LMS Sheet in the Pick Product Conveyor Position on 10/20/02 Report, Page 309 of 388. She is listed, unabated, in each succeeding LMS Supervisory Detail Report through 9/1/04. If you require I can supply each and every page number of each report showing her employment at the plant. Request Number Three:
I again disagree with your claim of confusion and compound nature. The time period of "after [each Plaintiff's] layoff refers to the days, weeks, and months that passed after your client placed Plaintiff on involuntary leave. This would mean, for example, if your client placed Plaintiff on involuntary medical leave on March 15, 2003 then we are talking about any time after that date. Again the information in parenthesis is for your assistance - it is the date that the identified employee was listed as performing that position. For example, according to the LMS Sheets, Olga Barrios performed the Flush Large Intestine position on 2/4/04 (LMS 2/4/04 Page 52 of 411). She is listed as performing the Pick Product Conveyor Position on 2/18/04 (LMS 2/18/04 Page 241 of 411) CONCLUSION Please advise your client that if it chooses not to fully answer the requests for admission within ten days of the email, I will file a motion to compel and for sanctions.
Britton Morrell Attorney at Law 1305 8th Street Greeley, Colorado 80631 (970) 356-9898
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STAFF:
ATTORNEY & COUNSELOR AT LAW
Britton Morrell
Brandy Gutierrez Paralegal Frank Zamora Paralegal Gina Rivera Morrell Accounts Sylvia Felix Paralegal
January 22, 2006 W.V. Bernie Siebert, Esq. SHERMAN & HOWARD LLC 633 17th Street, Ste. 3000 Denver, Colorado 80202 Re: Concerns regarding Swift Deposition and Discovery
Dear Mr. Siebert: With respect to the Concerns regarding Swift's Deposition B.3 A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's understanding of each plaintiff's medical limitations or restrictions. Your statement of Swift's understanding of each Plaintiff's medical restrictions does not substitute for your client's testimony under oath in discovery. Just as you had questions regarding my client's understanding of their restrictions I do as well. B.4. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's understanding of the essential functions and physical demands of all positions performed by each Plaintiff following imposition of permanent restrictions described in the lay off letter. I have limited the scope of my inquiry into the positions performed by my clients after the imposition of the permanent restrictions identified in the letter informing each plaintiff that he or she would be placed on involuntary medical leave. With respect to you request that I "identify" the positions performed by Plaintiffs I would direct you to your client's answer to each Plaintiff's Interrogatory One and Two. I have provided you the following: · Each Plaintiff has identified the positions he or she performed (by means of interrogatory answers and deposition testimony);
1305 8TH Street · Greeley, CO 80631 970-356-9898 · Fax 970-356-9899 [email protected]
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·
I have provided you my own understanding of the positions performed by each Plaintiff. (See my letter to you dated November 28, 2005.) Please recall that I have requested, but not yet received, a statement from your client if the lists of positions performed by each Plaintiff is incorrect.
To the extent that the above identifications conflict with your client's view, it is time that I gain a clear statement of your client's understanding of the positions each Plaintiff performed under permanent restrictions for which your client claimed later to be unable to accommodate. B.5. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's understanding of the each plaintiff's job performance in the positions covered in item 4. You claim this request is overbroad and burdensome. If Swift is willing to admit that each plaintiff satisfactorily performed the positions assigned following the imposition of permanent restrictions, then I have no need to further question under this heading. If, however, Swift claims that any Plaintiff was, as a result of the imposition of Permanent Restrictions, unable to satisfactorily perform the positions they occupied then I insist you designate one or more individuals to so testify at the deposition. Swift may designate anyone it chooses who will testify as to the corporation's position in the matter, even if such testimony does not come from personal knowledge. PPM Finance, Inc. v. Norandal USA, Inc., D.C.Ill.2004, 297 F.Supp.2d 1072. However, I expect this witness or witnesses to be prepared, and educated regarding the topics designated. Dravo Corp. v. Liberty Mut. Ins. Co., D.C.Neb.1995, 164 F.R.D. 70. Swift may prepare and educate a designee with information reasonably available, whether from documents, past and current employees, or other sources. U.S. v. Taylor, D.C.N.C.1996, 166 F.R.D. 356. B.6 A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's actions with respect to the review of any available positions to place each Plaintiff in the month prior to placing the affected Plaintiff on involuntary medical leave following implementation of The Policy. You claim this request is overboard and burdensome. I have therefore limited it to the month prior to each Plaintiff's layoff. Swift claims that it had reviewed such positions for each Plaintiff. Please designate one or more individuals who can testify about such claimed review. B.7 A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's decision to subject each Plaintiff to The Policy, and all actions taken in connection with applying the policy to each Plaintiff.
Swift Rule 30 FU.doc//bm
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You claim this is unclear. With respect to each plaintiff, I seek to understand what actions Swift took in determining that the Policy should apply to him or her, that the position he or she performed was a temporary accommodation, what positions were reviewed for possible placement in lieu of layoff, what communications took place with Plaintiff in informing him or her of the policy, what efforts were taken to determine whether a considered position was within his or her restrictions. C. 8. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain each and every "LMS Report" which Swift has prepared and/or produced pursuant to discovery in the above-referenced lawsuit. I seek to understand certain entries of the LMS sheet, and certain gaps. I seek to establish that the LMS sheets are the final, complete and truthful answer with respect to what positions performed, and by whom for each covered week. C. 9. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain any positions that became available from March 1, 2003 ongoing. I will limit my inquiry to positions that became available during the month prior and the month-and-a-half after each Plaintiff's layoff. As this is the time frame that Swift claims it reviewed all open available positions in an effort to accommodate Plaintiffs, these positions are clearly relevant. I would suggest that the individual who provided the answer to Swift General Interrogatories Four and Five would be the individual with this information. C. 10. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the Essential Functions and Physical Demands of all positions at the Plant. I will limit my inquiry to the essential functions of the following positions: A. Positions performed by each Plaintiff following imposition of permanent restrictions for which Swift placed the Plaintiff on forced medical leave of absence. Positions which Swift claims it considered for each Plaintiff. Positions offered by Swift to each Plaintiff. Positions that became available during the month prior and the month-and-a-half after each Plaintiff's layoff.
B. C. D.
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D. 11. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain Swift's consideration or lack thereof in placing Plaintiff in any available position following his or her layoff. It is not Plaintiff's responsibility to list the positions that Swift considered, especially when your client has yet to provide a definitive list of what positions it considered. I require your client to give testimony regarding its consideration of each and every position it considered Plaintiff that includes, but is not limited to, the identity of the position considered, when it was considered, and why the position was approved or not approved. Earlier, in my letter of November 28, 2005, I listed what positions I could determine from your client's casual reference to multiple medical and employment records. I asked for a confirmation that my list was correct or supplementation. Your client's response of December 22, 2005 falls short of a clear and definitive statement requested and required. D. 12. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain all efforts made to communicate with Plaintiff, Plaintiff's representatives, or Plaintiff's medical providers regarding accommodation of his or her medical limitations. Regardless of the total number of such witnesses, Plaintiffs are entitled to be apprised of all communications which Swift as a corporate entity claims it engaged in an effort to accommodate Plaintiffs. I am willing to limit the inquiry to the time frame after imposition of permanent medical restrictions for which Swift placed the Plaintiff on forced medical leave. E. 14 16 and 18. Please review Ecrix Corp. v. Exabyte Corp. 95 F.Supp 2d 1155 (D.Colo 2000). (Seeking knowledge of facts supporting claims and defenses does not require production of attorney's mental impressions.) E.17. A Swift representative(s) who has knowledge and information about, and is authorized to discuss and explain the any document produced in response to Plaintiff's Requests for Production. I am happy to limit this inquiry to documents produced by my office at least three business days prior in the Deposition Exhibits. Other areas of Concern I have not yet had a response as to my efforts to resolve your objections to Plaintiff's request for admission.
Swift Rule 30 FU.doc//bm
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I have not yet received a response to my concerns raised about your December 22, 2005 response to our request for Supplementation. Given our problems in obtaining answers to requests for admissions, proper supplemental responses, and inability to have you confirm Deposition attendance for all but two areas noticed, my office is in the process of obtaining a conference with Magistrate Shaffer to resolve these issues and concerns. I am willing to work out any agreeable compromise, including, if needed a short extension of time to conduct the depositions past the discovery cut off. However if I am not able to resolve these issues, I will file a motion to compel. Sincerely, Britton Morrell
Swift Rule 30 FU.doc//bm
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From: Subject: Date: To:
"SIEBERT, Bernie"
We understand that you are attempting to set up a telephone call/conference with Judge Shaffer. Please advise us in detail as to specifically what you want to "discuss" and if you are going to be attempting to seek any form of relief.
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From: Subject: Date: To: Cc:
Morrell Law Office
Bernie: I seek the Magistrate's assistance in resolving the following:
1. Defendant's Objections to Plaintiff's Request for Admission. Please see my email of January 13, 2006 3:01:40PM regarding my responses to your objections. Having received no response, I will file my motion this evening to compel your Client's answers. 2. Require Swift to supplement its answers in proper form and under oath as opposed to representations made by counsel in the form of the letter. (See my letter of January 16, 2006 (attached below). Having no response, I will prepare a Motion to compel and file such if this is not resolved by Monday the 30th. 3. Require Swift to supplement its answers with respect to the mis-labeled People Soft Forms. Having no response, I will prepare a Motion to compel and file such if this is not resolved by Monday the 30th. (See my letter of January 16, 2006 Item 2) 4. Require Swift to describe the essential functions of the two prior positions performed before the layoff or state it cannot so declare under oath. Having no response, I will prepare a Motion to compel and file such if this is not resolved by Monday the 30th. (See my letter of January 16, 2006 Item 3) 5. Require Swift to confirm that the Supervisory Detail sheets are the LMS Sheets given to the CD-ROM and such reports are the exhaustive answers as to what positions Swift contends each Plaintiff or other employees performed from September 1, 2002 to September 1, 2004. (See my letter of January 16, 2006 Item 4) Having no response, I will prepare a Motion to compel and file such if this is not resolved by Monday the 30th. 6. Require Swift to fully answer Plaintiff's interrogatories regarding communications it undertook with plaintiffs regarding accommodation of their restrictions. (See my letter of January 16, 2006 Item 7). Having no response, I will prepare a Motion to compel and file such if this is not resolved by Monday the 30th. 7. Require Swift to state specifically what positions it claims it considered for each plaintiff and why such position was not offered to Plaintiff. (See my letter of January 16, 2006 Item 6.) Having no response, I will prepare a Motion to compel and file such if this is not resolved by Monday the 30th. 8. I am extremely concerned that I have not received any confirmation from you regarding your client's deposition regarding the other areas of inquiry. (See my email to you of January 23, 2006) I have sent of our Notice, and having agreed with you as to the location, time, and area of inquiry for the first day - have sent of an amended notice indicating such. However I have heard nothing from you confirming that your client intends to participate in the succeeding days in our Notice as to the other areas. I was hopeful that we would be able to work this out, and schedule mutually agreeable times and locations to accommodate you and your client. Unfortunately I have only confirmation as to the first areas of inquiry. Consistent with out Notice I intend to appear and take your client's testimony each business day until it is completed. If I have to make a record of your client's failure to appear and seek sanctions afterwards I will, but I would prefer to continue the spirit of cooperation that guided us in the scheduling and taking of all 25 of Plaintiffs depositions. I am hopeful that a conference with Magistrate Shaffer will encourage such cooperation as well as help us resolve any disputed areas of inquiry beforehand. I remain willing to reach any reasonable compromise of our impasse. Britton Morrell Attorney at Law
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1305 8th Street Greeley, Colorado 80631 (970) 356-9898 ATTACHMENTS Email of January 13, 2006
Morrell Law Ofce
The information in the parenthesis after each identied employee is designed to assist your client avoid confusion regarding the identity of the employee. If your client wishes to qualify its answer based upon an error of the date of hire or the time frames I have identied - it may do so, but I will aggressively question your client on any unequivocal answer. With respect to the Pick Product Conveyor Position - the employee is correctly identied as Maria Hernandez with Date of Hire of August 7, 2000. She can be found rst appearing on the LMS Sheet in the Pick Product Conveyor Position on 10/20/02 Report, Page 309 of 388. She is listed, unabated, in each succeeding LMS Supervisory Detail Report through 9/1/04. If you require I can supply each and every page number of each report showing her employment at the plant. Request Number Three:
I again disagree with your claim of confusion and compound nature. The time period of "after [each Plaintiff's] layoff refers to the days, weeks, and months that passed after your client placed Plaintiff on involuntary leave. This would mean, for example, if your client placed Plaintiff on involuntary medical leave on March 15, 2003 then we are talking about any time after that date. Again the information in parenthesis is for your assistance - it is the date that the identied employee was listed as performing that position. For example, according to the LMS Sheets, Olga Barrios performed the Flush Large Intestine position on 2/4/04 (LMS 2/4/04 Page 52 of 411). She is listed as performing the Pick Product Conveyor Position on 2/18/04 (LMS 2/18/04 Page 241 of 411) CONCLUSION Please advise your client that if it chooses not to fully answer the requests for admission within ten days of the email, I will le a motion to compel and for sanctions.
Britton Morrell Attorney at Law 1305 8th Street Greeley, Colorado 80631 (970) 356-9898
Attorney 1:04-cv-01295-LTB-CBS Case at Law 1305 8th Street Greeley, Colorado 80631 (970) 356-9898
Britton Morrell
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January 16, 2002 Letter
SWMLO2.pdf (126 KB)
Email of January 23, 2006
SWMLO3.pdf (109 KB)
On Jan 26, 2006, at 3:02 PM, SIEBERT, Bernie wrote: We understand that you are attempting to set up a telephone call/conference with Judge Shaffer. Please advise us in detail as to specifically what you want to "discuss" and if you are going to be attempting to seek any form of relief.
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Civil Case No. 04-B-1295 (CBS) GALLEGOS ET. AL. v. SWIFT & COMPANY
MOTION EXHIBIT 2
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Civil Case No. 04-B-1295 (CBS) GALLEGOS ET. AL. v. SWIFT & COMPANY
MOTION EXHIBIT 3
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