In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 2947

LETTER addressed to Judge Shira A. Scheindlin from Nicholas G. Campins dated 9/2/09 re: The City writes to address the issue of whether the 7/11/00 deposition of Mr. Larkins may be played in advance of the deposition of the 3/6/08 Mr. Larkins in MDL 1358. As an initial matter, the City notes that it has looked into the issue of whether the Tahoe Deposition was a so called person Motion Knowledgeable deposition and it was not. ExxonMobil is correct on that point. Document filed by City of NY.Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-03417-SAS(mro)

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In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation Doc. 2947 26912872 Nicholas G. Campins 415.348.8300 x202 Sep 2 2009 8:12PM September 2, 2009 Via Email & Hand Delivery Hon. Shira A. Scheindlin United States District Judge U.S. District Court, Southern District of New York 500 Pearl Street New York, New York 10007 Re: City of New York v. Amerada Hess, et al., 04 CV 3417 (SDNY) In re MTBE Products Liability Litigation, MDL 1358 Deposition of Robert Larkins Dear Judge Scheindlin: The City of New York ("the City") writes to address the issue of whether the July 11, 2000 deposition of Mr. Larkins in South Tahoe Public Utility District v. Atlantic Richfield et al., Docket No. 999128 (S.F. Superior Court) ("Tahoe Deposition") may be played in advance of the deposition of the March 6, 2008 Mr. Larkins in MDL 1358 ("MDL Deposition"). As an initial matter, the City notes that it has looked into the issue of whether the Tahoe Deposition was a socalled Person Most Knowledgeable deposition and it was not. ExxonMobil is correct on that point. Nevertheless, the City should be allowed to play the Tahoe Deposition in its case-in-chief, before the MDL Deposition for the following reason: the deposition notice for the MDL Deposition does not contain any indicia that the deposition was "De Bene Esse." Instead, the notices merely state that the deposition is being taken "pursuant to Federal Rule of Civil Procedure 30(a)(1)." See Exhibits 1 -2 (attached for convenience). Such notice is plainly deficient if, as ExxonMobil contends, it was intended to be binding trial testimony that must be played before other deposition testimony. In contrast, in a recent decision stating that a particular deponent's De Bene Esse deposition was to be treated as trial testimony there was an express directive from the Court instructing the parties that deposition was a "substitute for trial testimony and that the parties conduct themselves at this deposition as though they were at trial." Manley v. AmBase Corp., 337 F.3d 237, 248 (2d Cir. 2003). Based on the City's research this evening, there was no such directive and there was no such notice. Indeed, approximately one hour ago, the City asked ExxonMobil to point it to such a directive or notice, but as of the writing of this letter, the City has not received a reply. See Exhibit 3. In sum, the Court should treat the MDL Deposition as a discovery deposition. Pursuant to Case Management Order No. 6, the MDL Deposition and the Tahoe Deposition are therefore no 450 Mission Street, Suite 400 San Francisco, California 94105 tel (415) 348-8300 fax (415) 348-8333 Hon. Shira A. Scheindlin September 2, 2009 Page 2 different. See Case Management Order No. 6 at 4 (reattached for convenience as Exhibit 4). We look forward to discussing these issues with Your Honor. Please contact me if the Court requires any additional information. The City appreciates Your Honor's attention to these matters. Respectfully submitted, /S/ NICHOLAS G. CAMPINS Nicholas G. Campins Cc: All Counsel via LNFS & Email 26912872 E Sep 2 2009 8:12PM xhibit 1 18503047 Feb 8 2008 12:21PM E xhibit 2 18503896 1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 2 Including Professional Corporations JEFFREY J. PARKER, Cal. Bar No. 155377 3 WHITNEY JONES ROY, Cal. Bar No. 211541 333 South Hope Street, 48th Floor 4 Los Angeles, California 90071-1448 Telephone: 213- 620- 1780 5 Facsimile: 213- 620- 1398 6 PETER J. SACRIPANTI (admitted in California pro hac vice) MICHAEL R. O'NEILL (SBN 173342) 7 MCDERMOTT WILL & EMERY LLP 18191 Von Karman Avenue, Suite 500 8 Irvine, CA 92612-7108 Telephone: 949- 851- 0633 9 Facsimile : 949- 851- 9348 Feb 8 2008 9:06AM 10 Attorneys for Defendant EXXON MOBIL CORPORATION 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF SACRAMENTO 13 D.J. NELSON, TRUSTEE, for D.J. NELSON CASE NO. 02AS00535 14 TRUST dba FRUITRIDGE VISTA WATER COMPANY, 15 Plaintiff, AMENDED NOTICE OF VIDEOTAPED 16 DEPOSITION OF ROBERT LARKINS v. 17 ATLANTIC RICHFIELD COMPANY, et al., 18 Date: March 6-7, 2008 Defendants. Time: 9:30 a. m. (Central) 19 Place: Fulbright & Jaworski, LLP Fulbright Tower AND OTHER RELATED ACTIONS. 20 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 21 22 23 24 25 26 27 28 W02-WEST:LWJ\400698523.1 [Complaint Filed: May 8, 2001] AMENDED NOTICE OF VIDEOTAPED DEPOSITION OF ROBERT LARKINS 1 2 3 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant Exxon Mobil Corporation 4 ("ExxonMobil") will take the deposition of Robert Larkins, pursuant to Section 2025, et seq, of 5 the Code of Civil Procedure, on March 6 and 7, 2008 at 9:30 a.m. (Central). The deposition 6 noticed herein will take place at Fulbright & Jaworksi, LLP, Fulbright Tower, 1301 McKinney, 7 Suite 5100, Houston, Texas 77010-3095 and will be taken pursuant to the provisions of California 8 Code of Civil Procedure section 2025, et seq. The deposition noticed herein will be taken before a 9 certified shorthand reporter, who shall be authorized to administer an oath, and will continue from 10 day-to-day (excluding Saturdays, Sundays or holidays), or to such day as the parties may agree, 11 until completed. 12 13 PLEASE ALSO TAKE NOTICE that the deposition will also be videotaped 14 pursuant to California Code of Civil Procedure section 2025.340. ExxonMobil reserves the right 15 to use at trial the videotaped deposition of the deponent. It is further intended that instant visual 16 display and streaming internet technology will be utilized to stenographically record and convey 17 the testimony. 18 19 ExxonMobil is informed and believes that Mr. Larkins ' address is : 140 Quail 20 Creak, Houston, Texas, 77024. 21 22 Dated: February 8, 2008 23 24 25 26 27 28 -- 1 -W02-WEST:LWJ\400698523.1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Whitney Jones Roy WHITNEY JONES ROY Attorneys for Defendant EXXON MOBIL CORPORATION AMENDED NOTICE OF VIDEOTAPED DEPOSITION OF ROBERT LARKINS 1 2 PROOF OF SERVICE VIA LEXISNEXIS FILE & SERVE D.J. Nelson, Trustee, for D.J. Nelson Trust dba Fruitridge Vista Water Co. v. ARCO, et al. 3 Sacramento Superior Court Case No. 02AS00535 4 I, Whitney Jones Roy, the undersigned, hereby declare: 5 6 1. I am employed in the County of Los Angeles, State of California. I am over 7 the age of 18 years and am not a party to the within action. I am employed by Sheppard, Mullin, 8 Richter & Hampton LLP in the City of Los Angeles, State of California. My business address is th 9 333 South Hope Street, 48 Floor, Los Angeles, California 90071. 10 11 12 2. On February 8, 2008, I served a copy of the attached document titled: AMENDED NOTICE OF VIDEOTAPED DEPOSITION OF ROBERT LARKINS 13 on all parties hereto by: 14 a.__X___ 15 16 b._____ 17 at approximately _________ a.m./p.m. Pacific Time 18 19 c._____ 20 21 22 I declare under penalty under the laws of the State of California that the foregoing 23 is true and correct. Executed this 8th of February, 2008 in Los Angeles, California. 24 25 26 27 28 -- 2 -W02-WEST:LWJ\400698523.1 Posting it directly to the LexisNexis File & Serve website,, at approximately 9:00 a.m. Pacific Time Sending it via facsimile transmission to LexisNexis File & Serve. at the fax Placing it an addressed, sealed envelope clearly labeled to LexisNexis File & Serve and causing it to be deposited with an overnight mail or courier service for delivery the next business day. /s/ Whitney Jones Roy Whitney Jones Roy AMENDED NOTICE OF VIDEOTAPED DEPOSITION OF ROBERT LARKINS E xhibit 3 Nick Campins From: To: Cc: Su bj e ct : Atta ch m e nt s: Nick Campins Sacripanti, Peter MDL1358; New York - MTBE RE: NY/MTBE: Larkins Deposition Sent: Wed 9/2/2009 3:48 PM Counsel: I have examined the South Tahoe Deposition Notice and Mr. Stack is apparently correct that the Larkins deposition was not a PMK deposition. However, I have not been able to find any reference to the MDL Lakins Deposition as being a so-called De Bene Esse deposition in the deposition notices. If you have a deposition notice you contend provided such notice, kindly forward it on. Nor have I found any basis in my research so far for your assertion that such depositions must be played before other percipient witnesses. I currently plan to write the Court expressing that position shortly, so your prompt response would be appreciated. Best, Nick Campins Sher Leff LLP 450 Mission Street, Suite 400 San Francisco, CA 94105 (415) 348-8300 x202 (phone) (415) 348-8333 (fax) <> The information in this E-mail message is legally privileged and confidential information intended only for the use of the individual(s) named above. If you, the reader of this message, are not the intended recipient, you are hereby notified that you should not further disseminate, distribute, or forward this E-mail message. 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