Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 2601

MEMORANDUM AND ORDER. The Court held a telephone conference on June 12, 2018, to address several discovery issues that have arisen between the parties. The Court makes the following orders. (See Full Order for Details and Deadlines.) Signed by District Judge E. Richard Webber on 6/13/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JO ANN HOWARD & ASSOCIATES, P.C.,
et al.,
Plaintiff(s),
v.
J. DOUGLAS CASSITY, et al.,

Defendant(s).

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No. 4:09CV01252 ERW

MEMORANDUM AND ORDER
The Court held a telephone conference on June 12, 2018, to address several discovery
issues that have arisen between the parties. The Court makes the following orders.
1.

The final deadline for fact discovery will be extended to July 17, 2018. This

deadline includes depositions for any 30(b)(6) witnesses.
2.

The five additional fact witnesses noticed for deposition by Plaintiffs need to be

produced in a timely manner. Defendants shall notify Plaintiffs and the Court of the status of
locating the two witnesses who are not represented by Defendants no later than June 15, 2018.
3.

All depositions of fact witnesses discussed in the telephone conference shall be

scheduled no later than July 2, 2018, although they may be taken after July 2, 2018, but before
July 17, 2018.
4.

If Defendants take the position National City asked Allegiant to divest itself of the

trusts because National City had prior bad experiences with pre-need trusts, then Defendants
shall produce a 30(b)(6) witness to testify as to what prior bad experiences National City refers.
If the names of the trusts are included in any documents filed with the Court, the documents shall

be filed under seal. The witness shall also testify as to whether National City accepted any preneed trusts after Allegiant and National City merged. If the witness testifies National City did
accept pre-need trusts after the merger, then Plaintiffs are permitted to ask how many pre-need
trusts it administered. If, after the merger, National City abandoned any other pre-need trusts it
held before the merger, the witness shall testify as to why National City abandoned any pre-need
trusts, and produce documents containing information as to why the trusts were abandoned.
Finally, the witness shall testify as why National City’s decided not to provide pre-need trust
services for the NPS pre-need trusts.
5.

If Defendants take a different position with respect to David Wulf and whether his

decisions were reasonable or independent, then Defendants need to produce a 30(b)(6) witness to
testify on these topics. This deposition will be limited to four hours.
6.

In its order on June 8, 2018, ruling Defendants’ Motion for Protective Order, ECF

No. 2566, the Court addressed several topics listed by Plaintiffs in their Notice for Rule 30(b)(6)
depositions. Topic 1 requested testimony on National City’s investigation, analysis, due
diligence, and valuation of Allegiant as a possible acquisition. The Court allowed this topic in its
entirety but limited the deposition on this topic to four hours. See ECF No. 2599, pgs. 8, 9-10.
Topic 2 requested testimony on National City’s communications with PNC Bank about
Allegiant’s trust department, NPS, NPS Pre-Need Trusts, or the Cassitys. Topic 2 was limited to
communications between National City and PNC Bank concerning the potential liability of
National City for the pre-need trusts. See ECF No. 2599, pgs. 8, 10. “Potential liability” means
anything that alerted PNC there is anything about NPS, the pre-need trusts, or the Cassitys that
might be the source of any liability to National City or PNC.

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Request for Production 11 asked for documents and communications about PNC’s due
diligence or valuation of National City. The Court permitted this request but limited it to
documents of PNC’s that discuss the potential liability of National City for the pre-need trusts.
See ECF No. 2599, pgs. 8, 11. “Potential liability,” as stated here, references any documents or
communications that alerted PNC there is anything about NPS, the pre-need trusts, or the
Cassitys that might be the source of any liability to National City or PNC.
In its order ruling Defendants’ Motion for Protective Order, ECF No. 2580, the Court
addressed Plaintiffs’ Second Post-Remand Set of Discovery Requests. Request 2 asked for
documents or communications between PNC and National City about any potential liabilities of
National City from the pre-need trusts. The Court ordered Defendants to produce this discovery.
See ECF No. 2599, pgs. 12, 13. “Potential liabilities” references any documents or
communications that alerted PNC there is anything about NPS, the pre-need trusts, or the
Cassitys that might be the source of any liability to National City or PNC. Requests 5 and 6
asked for identification of individuals that represented, advised, or acted on behalf of National
City during its merger with PNC and identification of individuals that represented, advised, or
acted on behalf of PNC during its merger with National City. The Court limited these requests to
only individuals with information about any potential liability of National City from the pre-need
trusts. See ECF No. 2599, pgs. 12, 13-14. Identification of any individuals means individuals that
alerted PNC there is anything about NPS, the pre-need trusts, or the Cassitys that might be the
source of any liability to National City or PNC is included in the Court’s order.
In its order ruling Plaintiffs’ Motion to Compel, ECF No. 2582, the Court addressed
Plaintiff SDR’s prior discovery requests. Requests 2, 3, and 4 asked for documents related to the
1

This number corresponds with the Court’s numbering of the requests on page 8 of ECF No.
2599.
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merger of National City and PNC that concern the pre-need trusts or successor liability of the
pre-need trusts, documents and communications between National City and PNC prior to the
merger of the two banks that relate to the pre-need trusts or the Cassitys, and documents and
communications related to PNC’s investigation, analysis, and review of National City as a
possible acquisition that relate to the pre-need trusts or the Cassitys. The Court ordered this
discovery produced, but limited it to communications between National City and PNC which
concern any potential liability of National City for the pre-need trusts. “Potential liability”
references any documents, communications, or information that alerted PNC there is anything
about NPS, the pre-need trusts, or the Cassitys that might be the source of any liability to
National City or PNC.
7.

The parties shall continue to meet and confer regarding the topics included in

Defendants’ 30(b)(6) notice to Plaintiffs. The Court will limit deposition testimony about death
claim payments made by Plaintiffs to those made since the last deposition on this topic was
taken, in the absence of any further showing by Defendants of the need for other depositions.
8.

The parties shall meet and confer about any issues raised in Plaintiffs’ counsel’s

letter to Defendants’ counsel once Defendants have had the opportunity to read the letter.
So Ordered this 13th Day of June, 2018.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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