Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Abbott v. Lockheed Martin Corp.

March 31, 2009

ANTHONY ABBOTT, ET.AL, PLAINTIFFS,
v.
LOCKHEED MARTIN CORPORATION, ET. AL., DEFENDANTS.



ORDER

The parties come before the Court on the eve of trial with several motions relating to discovery. Pursuant to this Court's rule, the parties contacted the Court with a discovery dispute. On March 11, 2009, the Court held a telephonic discovery dispute conference. Nelson Wolff participated on behalf of the Plaintiffs and James Martin participated on behalf of the Defendants. Defendants were ordered to file a motion and memorandum by March 13, 2009. Plaintiffs were ordered to respond by March 23, 2009. Now before the Court are Defendants' Motion to Compel Production of the Transcript From the Third Deposition of Al Otto in Spano v. Boeing (Doc. 200); Plaintiffs' Emergency Motion to Compel Supplementation of Defendants' Discovery Responses, Instanter, Including But Not Limited to, Recent Solicitation of Lower Record Keeping Fees (Doc. 208); Defendants' Motion to Strike Plaintiffs' Sealed Emergency Motion to Compel (Doc. 210); and Plaintiffs' Motion for Leave to File under Seal Plaintiffs' Emergency Motion to Compel Supplementation of Defendants' Discovery Responses, Instanter, Including but Not Limited To, Recent Solicitation of Lower Record Keeping Fees and Alternative Motion to Unseal the Motion (Doc. 211). For the following reasons Defendants' Motion to Compel Production of the Transcript From the Third Deposition of Al Otto in Spano v. Boeing (Doc. 200) is GRANTED.

Plaintiffs' Emergency Motion to Compel Supplementation of Defendants' Discovery Responses, Instanter, Including But Not Limited to, Recent Solicitation of Lower Record Keeping Fees (Doc. 208) is GRANTED. Defendants' Motion to Strike Plaintiffs' Sealed Emergency Motion to Compel (Doc. 210) is DENIED. Plaintiffs' Motion for Leave to File under Seal Plaintiffs' Emergency Motion to Compel Supplementation of Defendants' Discovery Responses, Instanter, Including but Not Limited To, Recent Solicitation of Lower Record Keeping Fees and Alternative Motion to Unseal the Motion (Doc. 211) is GRANTED IN PART AND DENIED IN PART.

FACTUAL BACKGROUND

Plaintiffs Anthony Abbott, Eric Fankhauser, Lloyd Demartini, Tom Johnson, Jack Jordan, Mark Lang, Edward Rosa, and Dennis Tombaugh filed a class action complaint against Lockheed Martin Corporation and Lockheed Martin Investment Management Company ("Defendants") on September 11, 2006. Plaintiffs allege that Defendants breached their fiduciary duties as defined contribution plan administrators in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C § 1001 et. seq. ("ERISA").

Plaintiffs are participants of the Lockheed Martin Corporation Hourly Savings Plan Plus (the "HSP Plan") and Lockheed Martin Corporation Salaried Savings Plan (the "Salaried Plan"). The Salaried Plan and the HSP Plan are both defined contribution plans.*fn1 They allege that the fees and expenses paid by the plan were excessive and unreasonable and not incurred for the benefit of the Plan and its participants. They further allege that the fees were not disclosed to the plan participants. Because of this conduct Plaintiffs allege the defendants violated their fiduciary obligations under ERISA.

DISCUSSION

MOTION TO COMPEL PRODUCTION OF THE TRANSCRIPT FROM THE THIRD DEPOSITION OF AL OTTO IN SPANO V.BOEING (Doc. 200)

Defendants ask the Court to order Plaintiffs to produce a transcript of the deposition testimony of Al Otto in his third deposition in the case of Spano v. Boeing, Case No. 3:06-cv-743-DRH (S.D. Ill., filed Sept. 27, 2006) pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). Spano v. Boeing ("Boeing"), is also a class action lawsuit being pursued in this Court on similar claims. Mr. Otto has been designated as an expert witness in both cases. Defendants argue that this deposition testimony has been designated as confidential pursuant to a confidentiality agreement between the parties in Boeing, and therefore, should not be produced prior to a resolution of that confidential designation between the parties in that case. Additionally, they argue that Defendants did not properly request Mr. Otto's deposition transcript, and therefore, have no standing to challenge the designation of confidentiality in the Boeing case.*fn2 Moreover, they argue that Plaintiffs have already questioned Mr. Otto regarding the claim that is the subject of the deposition in question.

Federal Rule of Civil Procedure 26(a)(2)(B) states in pertinent part that an expert retained or specifically employed to provide expert testimony in a case must provide a written report that provides "a complete statement of all opinions the witness will express and the basis and reasons for them" and "the data or other information considered by the witness in forming them."*fn3 The Court finds Brown v. Overhead Door Corporation, 2008 WL 1924885 (N.D. Ill. Apr. 29, 2008), persuasive. In Brown, the court found that neither medical provider-patient privilege, nor the protections of HIPAA were sufficient to prevent a defendant from discovering the prior testimony of a plaintiff's expert. Id. at 1. That court, as well as this Court, finds that pursuant to Fed.R.Civ.P. 26(b)(1) it is relevant:

"... to allow a party to explore [an]... experts' prior testimony in hopes of uncovering inconsistencies between the opinions they intend to express in this case and opinions expressed in other cases. Indeed, this type of inquiry is expressly contemplated by the federal rules of civil procedure, as evidenced by the requirement that and expert's written report must include a list of all other cases in which, during the previous four years, the witness has testified as an expert at trial or by deposition.

Id.

Mr. Otto is a specifically retained expert in both this case and the Boeing case. The cases are similar in nature as they both relate to breach of fiduciary duty as defined contribution plan administrators in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C § 1001 et. seq. ("ERISA"). The Court finds that Mr. Otto's expectation of privacy is limited. The testimony in the deposition in the Boeing case was done in a public forum, and the testimony may be admitted into the public record at trial. Moreover, Mr. Otto's testimony in Boeing was not compelled, he was retained by those plaintiffs to give an expert opinion. He could have declined that retention.

The Court is not persuaded by Plaintiffs' argument that the Mr. Otto's testimony has been designated as confidential pursuant to a confidentiality agreement between the parties in Boeing, and therefore, should not be produced prior to a resolution of that designation between the parties in that case. Even if arguendo, Mr. Otto is worried about liability in that case, there is a protective order in place in this case which the Court finds applies to the deposition testimony at issue here. Plaintiffs' argument that Mr. Otto has a right to protect his confidential information rings hollow, as stated above, because Mr. Otto agreed to the retention and testified in depositions that may become public.

Further, Plaintiffs argue that Defendants did not properly seek the deposition of Mr. Otto in the Boeing case. They argue that Defendants should have filed a request pursuant to Fed.R.Civ.P. 34 asking Plaintiffs to produce Mr. Otto's testimony. That argument fails because the deposition in question was taken after discovery had closed in this case. Moreover, Mr. Otto's opinion in this case goes to heart of the matter, that is, the calculation of damages. The deposition in question in Boeing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.