Document zbjmwJRX5xj3MRwqx7m8NJd57

Telephone: (702) 385-4202 BRADLEY & MERRELL c/o Jones, Jones, Close & Brown 300 South Fourth Street, Seventh Floor Las Vegas, Nevada 89101-6026 Fax: (702) 385-1655 July 23, 1993 VIA HAND DELIVERY Honorable Lawrence R. Leavitt Magistrate Judge of the United States District Court District of Nevada 300 Las Vegas Boulevard South Las Vegas, Nevada 89101 Re: Nevada Power Company v. Monsanto Company, et al. USDC, District of Nevada Case CV-S-89-555-LDG (LRL) Dear Judge Leavitt Enclosed please find a courtesy copy of "Plaintiff Nevada Power Company's Motion for Order for Counsel to Meet and Confer or, in the Alternative, Motion to Compel Interrogatory Responses and Motion for Protective Order." Exhibits to this Motion are still assembled and will be delivered to you shortly. Sincerely BRADLEY & MERRELL PAUL E. MERRELL Coordinating Attorney PEM:lsg Enclosure cc: Steven R. Kuney (via fax - w/enclosure) Arvin Maskin (via fax - w/enclosure) J. Bruce Alverson (via fax - w/enclosure) John L. Thorndal (via fax - w/enclosure) Bruce A. Featherstone (via fax - w/enclosure) P:\USERS\lSG\NVPOWER\LEAVITT.L29 1 J. RANDALL JONES, ESQ. CHARLES H. McCREA, SR., ESQ. 2 DOUGLAS M. COHEN, ESQ. JONES, JONES, CLOSE 3 & BROWN, CHARTERED 700 Bank of America Plaza 4 300 South Fourth Street Las Vegas, Nevada 89101-6026 5 Telephone: (702) 385-4202 6 RALPH A. BRADLEY, ESQ. PAUL E. MERRELL, ESQ. 7 BRADLEY & MERRELL c/o JONES, JONES, CLOSE 8 & BROWN, CHARTERED 700 Bank of America Plaza 9 300 South Fourth Street Las Vegas, Nevada 89101-6026 10 Telephone: (702) 385-4202 11 Attorneys for Plaintiff NEVADA POWER COMPANY 12 a Nevada corporation 13 14 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 15 16 NEVADA POWER COMPANY, etc., ) ) 17 Plaintiff, ) 18 vs. ) ) 19 MONSANTO COMPANY, etc., et al., ) ) ) 20 Defendants. ) _____________________________________________ ) 21 CASE CV-S--89-555-LDG (LRL) PLAINTIFF NEVADA POWER COMPANY'S MOTION FOR ORDER FOR COUNSEL TO MEET AND CONFER OR, IN THE ALTERNATIVE, MOTION TO COMPEL INTERROGATORY RESPONSES AND MOTION FOR PROTECTIVE ORDER 22 Plaintiff Nevada Power Company moves for an order requiring 23 counsel for Monsanto Company further to meet and confer regarding two 2 4 Rule 30(b)(6) deposition notices to Nevada Power and two sets of 25 Monsanto interrogatory responses to Nevada Power, all discussed 2 6 further below. These four discovery pleadings are all interrelated 2 7 and are attached hereto as EXHIBITS 1-4. In the alternative, Nevada 28 m 9 . f1,L 1 Power moves for a protective order regarding the deposition notices 2 and moves to compel adequate responses to the interrogatories. 3 MOTION FOR ORDER TO MEET AND CONFER 4 As will be explained at hearing today, Nevada Power has been 5 engaged in a good faith effort to negotiate a resolution to these 6 interrelated discovery issues and had been led to believe that the 7 depositions at issue would be postponed by stipulation so that the 8 negotiations would be completed. These discussions were being 9 fruitful, and Nevada Power reasonably relied upon Monsanto counsel's 10 statements that these deposition notices would probably be reset to 11 be taken following the July 23, 1993 cut-off date to allow time for 12 further negotiation. Nevada Power was not advised that Monsanto 13 intended to go ahead with these depositions as scheduled until the 14 morning of Thursday, July 22. Upon being advised that Monsanto would 15 force the issue to hearing, Nevada Power advised Monsanto that, as it 1 6 had repeatedly stated, it would file this alternative motion to 17 compel and for a protective order. 18 Nevada Power negotiated in good faith and did not realize that 19 Monsanto had a secret agenda. While negotiations regarding these 2 0 discovery requests were going forward, Monsanto was persuading 21 counsel for Nevada Power to rush Nevada Power's previously scheduled 22 depositions of Monsanto officials, as a courtesy, so that senior 23 counsel for Monsanto could visit with his daughter on Friday, July 2 4 23. Nevada Power extended this courtesy, not realizing that 2 5 Monsanto's real agenda was to free up its senior counsel to conduct 2 6 the 30(b)(6) depositions at issue. It appears that senior counsel 27 for Monsanto misled Nevada Power and would not have been available to 28 conduct these depositions but for a subterfuge. 2 iff 1 ALTERNATIVE MOTION FOR PROTECTIVE ORDER 2 Monsanto should not be allowed to proceed with its Rule 30(b)(6) 3 notice regarding "reliance11 issues because the issues are such that 4 they can only be answered by Nevada Power's attorneys if they were 5 treated as interrogatories. The Court has previously granted a 6 defense motion for a protective order requiring Nevada Power to seek 7 similar information through interrogatories only. Monsanto's Rule 8 30(b)(6) notices are a straightforward end run around the discovery 9 cut-off date for written discovery. 10 ALTERNATIVE MOTION TO COMPEL ADEQUATE INTERROGATORY RESPONSES 11 Monsanto is attempting to take further discovery on Nevada 12 Power's damages calculation despite the fact that Monsanto has never 13 provided its contentions on what it believes to be wrong with 14 plaintiffs' damages report, which defendants have had since January 15 and upon which they have taken extensive discovery. It would be 16 grossly unfair for Nevada Power to continue providing unfettered 17 discovery on the damages issue if their is to be no quid pro quo. 18 Therefore, Nevada Power seeks an order requiring Monsanto to provide 19 contentions regarding the flaws it sees in Nevada Power's damages 20 report. 21 Nevada Power also asks the Court to compel Monsanto to 22 adequately respond to its statute of limitations defense 23 interrogatories. The Court has previously prevented Nevada Power, 24 upon defendants' motion, from acquiring this information through Rule 25 30(b)(6) depositions and confined Nevada Power to interrogatories. 26 Monsanto's claims are spurious that its answers to most of these 27 interrogatories are privileged or otherwise objectionable. Without 28 m 3 1 this information, Nevada Power has no way of preparing for trial on 2 the sole issue left remaining by the Ninth Circuit, 3 DATED: July 23, 1993 4 5 6 BRADLEY & MERRELL RALPH A. BRADLEY PAUL E. MERRELL DEBORAH N. MAI LANDER DAVID E. SCHALK ROBERTA J. STRAUB 7 8 By: __ PAUL E. MERRELL 9 Coordinating Attorney BRADLEY & MERRELL 10 C / O JONES, JONES, CLOSE & BROWN 300 South Fourth S t . , Suite 700 11 Las Vegas, Nevada 89101 (702) 385-4202 12 Attorneys for Plaintiff 13 NEVADA POWER COMPANY, a Nevada corporation 14 Other Counsel for 15 Plaintiff Nevada Power Company: 16 DAVID S. McCREA, ESQ. McCREA & McCREA 17 119 South Walnut Street Post Office Box 1310 18 Bloomington, Indiana 47402 Telephone: (812) 336-4840 19 FREDERICK M. BARON, ESQ. 20 RUSSELL WILLS BUDD, ESQ. JANE N. SAGINAW, ESQ. 21 BRIAN D. WEINSTEIN, ESQ. PAUL F. DONSBACH, ESQ. 22 BARON & BUDD 3102 Oak Lawn Avenue, Suite 1100 23 Dallas, Texas 75219 Telephone: (214) 521-3605 24 MICHAEL T. GALLAGHER, ESQ. 2 5 CRAIG LEWIS, ESQ. JOHN H. KIM, ESQ. 26 FISHER, GALLAGHER & LEWIS, L.L.P. 1000 Louisiana, 70th Floor 27 Houston, Texas 77002 Telephone: (713) 654-4433 2 8 P:\USERS\LSG\PLD\MEETC0NF.M0T 4 . 1 CERTIFICATE OF SERVICE 2 I hereby certify that on the 23rd day of July, 1993, the foregoing PLAINTIFF NEVADA POWER COMPANY'S MOTION FOR ORDER FOR 3 COUNSEL TO MEET AND CONFER OR, IN THE ALTERNATIVE, MOTION TO COMPEL INTERROGATORY RESPONSES AND MOTION FOR PROTECTIVE ORDER was served on 4 the following parties: 5 KEY: F - Via fax 6 FE - Via Federal Express H - Via hand delivery 7 Steven R. Kuney, Esq. 8 Williams & Connolly 725 12th Street, N.W. 9 Washington, DC 20005 Fax No.: (202) 434-5029 10 Attorneys for Defendants MONSANTO COMPANY, GENERAL ELECTRIC COMPANY and WESTINGHOUSE ELECTRIC CORPORATION 11 Arvin Maskin, Esq. 12 Konrad L. Cailteux, Esq. Weil, Gotshal & Manges 13 767 Fifth Avenue New York, NY 10153 14 Fax No.: (212) 310-8007 Attorneys for Defendant WESTINGHOUSE ELECTRIC CORPORATION f15 J. Bruce Alverson, Esq. 16 Alverson, Taylor, Mortensen & Nelson 3821 West Charleston Boulevard 17 Las Vegas, NV 89102 Fax No.: (702) 385-7000 18 Attorneys for Defendant GENERAL ELECTRIC COMPANY 19 John L. Thorndal, Esq. Thorndal, Backus, Maupin & Armstrong 20 1100 East Bridger Avenue Las Vegas, NV 89101 21 Fax NO.: (702) 366-0327 Attorneys for Defendants MONSANTO COMPANY and 22 WESTINGHOUSE ELECTRIC CORPORATION 23 Bruce A. Featherstone, Esq. Kirkland & Ellis 24 1999 Broadway, Suite 4000 Denver, CO JB0202 25 Fax No.: (303) 291-3300 Attorneys for Defendant MONSANTO COMPANY 26 27 28 Extended Page r. I, Ralph A- Bradley, under penalty of perjury and pursuant to statute, state that I am one of the attorneys for Plaintiff Nevada Power Company and that I have conducted most, if not a l l , of the depositions taken of employees of Monsanto Company. Because of the existing discovery deadlines, I scheduled depositions in St. Louis, Missouri, during last week, July 14-16, and this week, July 19-23. I spoke on the telephone with Bruce Featherstone, attorney for Monsanto, prior to the depositions scheduled for the week of July 19, 1993. Hr. Featherstone indicated that if possible he did not want depositions to occur July 23, 1993 because he needed to be in Denver, Colorado to be with his daughter. He stated he could cancel or alter his plans with his daughter, but requested that we conclude depositions on July 22, 1993, if at all possible. To accomodate Mr. Featherstone's personal request, I cut short several depositions during the week of July 19-23, and did not insist ,on the continuation of a deposition of Dr. Levinskas, whose FRCP 30(b)(6) deposition was halted to enable him to obtain information necessary to answer a question as Monsanto's corporate designee. Between July 14, 1993 and July 22, 1993, I was in St. Louis conducting depositions of Monsanto employees. On at least one occasion, I indicated to Mr. Featherstone that I would honor his personal request to have the depositions completed before Friday, 07/ 23/93 09:33 9 5 0 3 346 1561 UofO LAW SCHOOL @002 July 23, 1993. On at least one occasion, I informed Scott Bauer, an attorney who works for Mr. Featherstone, that I would honor Mr. Featherstone's personal request to have the depositions completed by July 22, 1993, to enable Mr. Featherstone to be in Denver July 23, 1993 with his daughter. I flew from St. Louis, Missouri on the same flight with Mr. Featherstone, though we did not sit together. He did speak, however, during our flight. Never did Mr. Featherstone indicate that his personal plans had changed. Instead, it was my understanding that Mr. Featherstone was returning to Denver to be with his daughter. If Mr. Featherstone appears in Las Vegas, Nevada July 23, 19 93, it will be contrary to numerous statements he made to me, and to my paralegal. The depositions I hurried to accomodate Mr. Featherstone's personal request could have, and should have, continued into today, July 23, 1993. I would continued those depostions through July 23, 193 had I known that Mr. Featherstone apparently had no personal obligations to be in Denver July 23, 1993, as he indicated on some many occasions. I swear under penalty of perjury that the foregoing is true BRADLEY & MERRELL c/o JONES, JONES, CLOSE & BROWN, CHARTERED Seventh Floor -- Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101-6026 (702) 385-4202 MESSAGE FROM XEROX 7024: (702) 385-1655 DATE: July 23, 1993. TO: John Tatlock, Esq. FAX#: (303) 291-3334 PHONE #: (303) 291-3000 FROM: Paul E. MerreN, Esq. . CLIENT/MATTER: Nevada Power v. Monsanto, et al. CLIENT/MATTER NO.: 11927.2 DOCUMENT(S) DESCRIPTION: Copy of July 23, 1993 letter to Honorable Lawrence R. Leavitt; "Plaintiff Nevada Power Company's Motion for Order for Counsel to Meet and Confer or, in the Alternative, Motion to Compel Interrogatory Responses and Motion for Protective Order;" and July 23, 1993 Affidavit of Ralph A. Bradley NUMBER OF PAGES (including cover page): MESSAGE: THIS TELECOPY IS INTENDED ONLY FORTHE ADDRESSEE NAMED ABOVE. IT MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL IF YOU HAVE RECEIVED THE TELECOPY IN ERROR. PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, DESTROY ALL COPIES. AND DO NOT DISSEMINATE THE INFORMATION TO ANYONE. THANK YOU FOR YOUR ASSISTANCE. IF YOU EXPERIENCE PROBLEMS WITH THIS TRANSMISSION please call (702) 385-4202 and ask for: Operator, Ext. 615 BRA D LEY &. MERRELL c/a JO N E S , JO N E S . CLO SE B> BROWN. CH A R T E R ED Seventh Floor -- Bonk o f Am erica Plaza 300 South Fourth Street Loe V a g a i, Nova da 09101 -0 0 2 0 (702) 386-4-202 M E S S A B E FROM X E R O X 7Q2A: 17Q21 3 8 5 -1 6 6 6 DATE: July 23, 1993 TO: Jo h n Tatlock, Esc]. F A X #: <303) 291 -3 3 3 4 PH O N E #: <303) 2 9 1 -3 0 0 0 FROM: Raul E, Merrell, Esq. CLIEN T/M A TTER : Novadu Pow er V- Monsanto, at nl. CLIENT/MATTER NO.: 11927.2 DOCUMENTIS) DESCRIPTION: Copy o f J u ly 23, 1993 letter to Honorable Lawrence R. Leavitt; "Plaintiff Nevada Pow er Com pany's M otion fo r Order for Counsel to Meet and Confer or, in the Alternative, M otion to Com pel Interrogatory Responses and Motion for Protective Order;** end Ju ly 23, 1 9 9 3 A ffid a v it of Ralph A . Bradley N U M BER OF P A G E S (Including cover pegs): TM Ji TKLOOPr iS INTI tfOCP ONLVFR THERDDREAOSi NAMED AfeOVI. IT MJttT ODNTAM MFOAUATIDN THAT |S PfW ILSO lD r YOU N A V I RTCH W P YH0 TELaOPV M KvMOffc. PlW AtB NOTIFY UO BRUNIRLAT1 1THOY ni 1 AND DO MOT DIBCEM NATI TH I0AFOMMATIOM TO AN V N I. TMAlOC YOU FOR YOUR , IF YO U EXPERIENCE PR O B LEM S WITH THIS TRAN SM ISSIO N , plttaae cell (702) 385-4-202 and eek for: Operator, Ext- 61 B TRANSMISSION REPORT THIS DOCUMENT WAS CONFIRMED (REDUCED SAMPLE ABOVE - SEE DETAILS BELOW) ** COUNT ** TOTAL PAGES SCANNED : 9 TOTAL PAGES CONFIRMED : 9 *** SEND *** No. REMOTE STATION START TIME DURATION #PAGES MODE RESULTS 1 TATLOCK 7-23-93 9:50AM 10'32" 9/ 9 EC COMPLETED 4-800 NOTE No. OPERATION NUMBER 48 PD POLLED BY REMOTE SF MB SEND TO MAILBOX PG TOTAL 0:10132" 9 4800BPS SELECTED EC STORE & FORWARD RI POLLING A REMOTE MP ERROR CORRECT RELAY INITIATE MULTI-POLLING G2 : G2 COMMUNICATION RS : RELAY STATION RM : RECEIVE TO MEMORY