Document45 Filed 11/19/07 PagelD.451 Pagelof 22 John P. McCormick, Esq. (SBN 38064) Konrad M. Rasmussen, Esq. (SBN 157030) Fl LED MCCORMICK MITCHELL 4' 8885 Rio San Diego Drive, Suite 212 NOV 1 9 2007 San Diego, CA 92108 Telephone: (619) 294-8444 ICT Facsimile: (619) 294-8447 33?? 3 02pm Walter M. Yoka, Esq. (SBN 94536) Anthony F. Latiolait, Esq. (SBN 132378) I 0 YOKA SMITH, LLP 777 S. Figueroa Street, Suite 4200 Los Angeles, California 90017 i - Telephone: (213) 427-2300 Facsimile: (213) 427?2330 wyoka@yokasmith.com alatiolait@yokasmith.com Attorneys for Defendant, THE 00 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA HAROLD J. PHILLIPS and GEORG-ANNE CASE NO: 02 CV 1642 (NLS) PHILLIPS, DECLARATION OF JOHN P. Plaintiffs, IN REPLY TO THE OPPOSITION OF GUY RICCIARDULLI TO VS- APPLICATION FOR ORDER TO SHOW CAUSE UNDER SEAL THE GOODYEAR TIRE RUBBER COMPANY, an Ohio Corporation, and DOES 1 DEPT: THROUGH X, Inclusive, JUDGE: Hon. Nita Storrnes Defendants. CONDITIONALLY UNDER SEAL This envelope is sealed subject to a motion or an application to ?le the record under seal and contains material designated con?dential in this action by The Goodyear Tire Rubber Company and is not to be opened or the contents thereof displayed or revealed except by the L5 mil CONDITIONALLY UNDER SEAL Court or upon order of the Court. 02 CV 1642 (NLS) Case Document45 Filed 11/19/07 Page20f22 John P. McCormick, Esq. (SBN. 38064) Konrad M. Rasmussen, Esq. (SBN. MITCHELL 157030) 8885 Rio San Diego Drive, Suite 212 San Diego, California 92108 Telephone: (619) 294?8444 Facsimile: (619) 294-8447 Attorneys for Defendant THE GOODYEAR TIRE RUBBER COMPANY UNITED STATES DIST RICT COURT SOUTHERN DISTRICT OF CALIFORNIA HAROLD J. PHILLIPS and GEORG- ANNE PHILLIPS, Plaintiffs, THE GOODYEAR TIRE RUBBER COMPANY, an Ohio Corporation, and DOES 1 THROUGH X, Inclusive, Defendants. I, John P. McCormick, say: CASE NO: 02 CV 1642 (NLS) DECLARATION OF JOHN P. MCCORMICK IN REPLY TO THE OPPOSITION OF GUY RICCIARDULLI TO APPLICATION FOR ORDER TO SHOW CAUSE Date: Time: Ctrm: Judge: Hon. Nita Stormes 1. If called as a witness in the above- captioned matter, I am competent to and would in fact testify to the following facts of which I have personal knowledge except as otherwise indicated. 2. I am now and have appearance of The Goodyear been since the first Tire Rubber Company (?Goodyear?) in the within action one of the attorneys for Goodyear. As such, in April of 2003 I was the 338865 v_01 109472.0049 360043v_01\1094710156 Cas 93:02-cv-01642-B-N6 Document45 Filed 11/19/07 Page30f22 recipient of five deposition notices and demands for production of documents from Mr. Ricciardulli's office dated April 19, 2003. 3. One of these deposition notices requested a Goodyear representative who was ?the person most knowledgeable regarding the resolution of the claims made by plaintiffs to defendants regarding the alleged tire failures which occurred on or about August 2000 in Nebraska.? Please see Exhibit A hereto, page 2, lines 2?4. 4. This deposition notice also requested the production of correspondence with third persons relating to the August 2000 tire failures and documents generated by or referred to by any Goodyear employee relating to the investigation or inspection of the tires involved in the August 2000 claim. Please see Exhibit A, page 2, lines 10-16. 5. Prior to the service of this deposition notice, I had received from the plaintiffs an unsigned letter to Harold Phillips from Goodyear which bore initials of and a facsimile transmittal indication that it came from Cox?. My investigation and the investigation of Goodyear personnel, located a gentleman by the name of Kim Cox who had handled the Phillips property damage claim arising out of their August 2000 incident in Nebraska, which was different from the incident giving rise to 2 338865 v_01 109472.0049 Case 3:02-cv-01642-B-N6 Document45 Filed 11/19/07 PielD.454 Page40f22 I this litigation. 2 6. At the time of Mr. Cox's deposition which I 3 believe was on June 20, 2003 (by agreement the noticed 4 date was changed), certain documents which had been 5 either previously produced or which were produced at 6 the time of the deposition and which related to the 7 aforementioned property damage claim were considered 8 proprietary and confidential and were accordingly so 9 stamped pursuant to a Protective Order which has been 10 referred to in my earlier declaration and which had 1] been issued by the Honorable Nita Stormes pursuant to 12 stipulation. l3 7. Attached as Exhibit is a true and correct [4 electronic reproduction of a letter to Mr. 15 Ricciardulli dated May 7, 2003 in which I state at 16 page 2, paragraph 1: ?We are waiting on your and Mr. 17 Regan?s signatures on the Protective Order. If we 18 receive those signatures soon, you should have the 19 documents prior to the depositions." Also attached as 20 Exhibit hereto is a .true and correct electronic 2] reproduction of a letter I sent to Mr. Ricciardulli 22 wherein I state at page 1, paragraph 4 and page 2, 23 paragraph 1 that upon my receipt of the Protective 24 Order I will forward requested documentation to him 25 and, as to documents to be produced at the referenced 26 deposition, they will be produced subject to 27 appropriate objection and the Protective Order. 28 3 338865 v__01 109472.0049 3600-13 v_0 Case 3:02-cv-01642-B-N8 Document45 Filed 11/19/07 Page50f22 1 B. These confidential and proprietary 2 documents were, accordingly, designated as such and 1 3 were presented to Mr. Ricciardulli under the i 4 protection of the Protective Order above referred to. 5 9. Mr. Cox was offered for deposition to 6 testify only about the handling of the Phillips? prior 7 property damage claim arising out of their Nebraska 8 accident. Mr. Cox was not offered as a witness 9 regarding any topics other than the handling of the 10 Phillips prior property damage claim arising out of their Nebraska accident. 12 10. I have read the declaration of Guy 13 Ricciardulli dated August 16, 2007 and have the following specific comments: 16 A. His statement in paragraph 4 that his 17 deposition notice was ?with respect to the processing 18 of property damage claims? is in error. The deposition 19 notice spoke directly and specifically to the handling 20 of the prior property damage claim submitted by the 21 Phillips regarding an incident in Nebraska. (See 22 Exhibit A attached hereto.) 23 B. As to the contents of paragraph 5 of Mr. 24 Ricciardulli?s declaration claiming Mr. Cox testified 25 concerning Goodyear's awareness of a certain claimed 26 proposition the substance of Mr. Cox's testimony is 27 subject to the protective Order in this case and will 28 not be discussed herein. However4 I note that Mr. Cox 338865 01 109472.0049 360043 v_Ol ?094720156 Ca393202-cv-01642-B-N8 Document45 Filed 11/19/07 #90456 Page6of22 was produced to testify regarding the handling of the i 2 prior Nebraska claim and he was not designated to 3 testify regarding the suitability of any tire in any 4 particular application nor do I know him to be 5 qualified to do so. 6 C. In response to the contents of paragraph 6 7 of Mr. Ricciardulli?s declaration regarding my state 8 of mind and the reason for the adjournment of the 9 deposition, I refer to paragraph 5 of my declaration '0 of June 22, 2007 which was filed with the moving '1 papers wherein I state: 12 5. Prior to the commencement of the Cox deposition, Mr. Ricciardulli had inquired 13 into Goodyear's willingness to defer depositions and enter into an agreement to l4 mediate this litigation. I was unable to obtain the necessary authority from my '5 client prior to the start of Mr. Cox's deposition. However, shortly after the 16 commencement of the deposition, I received authority from Goodyear to agree to mediate 17 the case, which I immediately communicated to Mr. Ricciardulli. At that juncture, Mr. 18 Ricciardulli and I agreed to adjourn the . incomplete deposition of Mr. Cox, at which 19 point I reiterated that contents of the deposition were subject to the provisions 20 of the Court's Protective Order. Again, Mr. Ricciardulli agreed to this designation 2 and did not challenge it. 22 D. Mr. Ricciardulli?s statement in paragraph 8 23 of his declaration that he never considered the 24 subject testimony of Mr. Cox within the Protective 25 Order is contradicted by: 26 (1) The fact that the deposition which he 27 noticed and the documents which he requested be 28 5 1 338865 v_01 1094720049 360043 v_0l l09472.0156 Case 3:02-cv-01642-B-N8 Document45 Filed 11/19/07 Page7of22 I produced were delayed pending issuance of the 2 Protective Order: 3 (2) Mr. Cox was designated to testify 4 regarding ?the resolution of the claims made by 5 plaintiffs to defendants regarding the alleged tire 6 failures which occurred on or about August 2000 in 7 Nebraska.? (See Exhibit A hereto.) 8 (3) The affidavit of Tim Casey, paragraph 9 6, subparagraph located at page 5 and beginning at 10 line 7 states, ?Mr. Ricciardulli declined to provide me with any documentation from the Phillips case '2 citing the protective order existing in that case and 13 the Phillips-Goodyear settlement agreement.? (See '4 Exhibit to the moving papers.) '5 (4) My letter of May 27, 2003 directed to 16 Mr. Ricciardulli a copy of which is attached as 17 Exhibit made it clear that all documents to be ?8 produced at or incidental to the noticed deposition 19 would be subject to the protective order. 20 E. In Paragraph 9 of his declaration Mr. 2] Ricciardulli expresses doubt that he agreed to treat 22 the Cox deposition as confidential. However, it is 23 uncontradicted that Mr. Riccardulli agreed to keep the 24 testimony of the Cox deposition confidential under the 25 protective order by co?signing a letter to the court 26 reporter instructing her to return or destroy all 27 notes or transcripts from the deposition. 28 6 338865 01 109472.0049 360043 v__0l ?09472.0 56 Case Document45 Filed 11/19/07 Page8of22 1 ?11. At the time of the adjournment of the Cox 2 deposition, the agreement to seal the testimony and 3 the documents referenced in that testimony and 4 produced pursuant to it was, to my understanding, 5 clearly pursuant to the provisions of the protective 5 order issued by Judge Stormes. This procedure I 7 believe to be authorized by FRCP 30 (2) . 3 I declare under penalty of perjury under the laws 9 of the State of California that the foregoing is true 10 and correct. ll 12 13 Dated: Madame? W?c l4 ohn P. McCormick 338865 01 109472.0049 360043 v_0l \?Iosmzm 56 Case 3:02-cv-01642-B-N8 Document45 Filed 11/19/07 Pag990f22 A Case 3:02-cv-01642-B-N8 Document 45 Filed 11/19/07 Page 10 of 22 EXHIBIT A I Has 06am: 3d?1-3w1642?b?ilaacwnenh?c?ued Page 11 of .222 . 21: am: A. RICCIARDULLI. #116128 0 ATTORNEY AT LAW 12395 WORLD TRADE DRIVE. #305 SAN DIEGO. CA 92128 (850) 487-8006 (858) 487-8109 Attorney for Plaintiffs UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 HAROLD J. PHILLIPS and GEORG-ANNE PHILLIPS 11 CASE NO. (CGA) AMENDED NOTICE OF I Plaintiffs, I TAKING DEPOSITIONS AND 12 v. I DEMAND FOR PRODUCTION OF I DOCUMENTS l3 GOODYEAR TIRE S: RUBBER COMPANY) an Ohio Corporation, I4 and DOES I through x, inclusive. I 15 I Defendants. I 16 I 17 TO: ALL PARTIES TO THE WITHIN LITIGATION AND TO THEIR 18 RESPECTIVE ATTORNEYS OF RECORD HEREIN: 19 PLEASE TAKE NOTICE that the law office of Guy A. Ricciardulli, 20 attorney of record for the Plaintiffs herein, will take the 21 deposition set forth below before a Certified shorthand Reporter 22 and Notary Public, said deposition to continue from day to day 23 until completed, Sundays and holidays excepted: 24 1. PLACE: Merrit Lowe Court Reporters, #330 Quaker Square, 25 120 E. Mill, Akron, Ohio 44308 303 434-1333. 26 2 . DATE: MAY 20, 2003 27 3. TIME: 9:00 A.M. 28 AMENDED NOTICE OF TAKING DEPOSITION AND DEMAND FOR PRODUCTION DOCUMENTS Haul ocaee Page 12 013223 4. DEPONENT: Defendant Goodyear Tire Rubber Company's person most knowledgeable regarding the resolution of the claims made by Plaintiffs to defendants regarding the alleged tire failures which occurred on or about August 2000, in Nebraska. NOTICE IS FURTHER GIVEN that you are hereby required to bring with you to this deposition the following documents and things which are either in your possession or under your control or under the control of your representative: 1. Any and all correspondence received or sent by Defendant to any third party including Plaintiffs which references or relates u?o in any way to the August 2000 tire failures. [3 2. Any and all documents generated by or referred to by any 14: Goodyear employee which relates in any way to any investigation or 15 inspection related to the subject tires which were the subject of 16 Plaintiffs' August 2000 claim. 17 18 19 DATED: April 29, 2003 20 GUY IC IARDULL 21 Attorney for Plaintiff AMENDED NOTICE OF TAKING DEPOSITION AND DEMAND FOR PRODUCTION OF DOCUMENTS Case 3:02-cv-01642-B-N3 Document 45 Filed 11/19/07 PaelD.463 Page 13 of 22 Case 3:02-cv-01642-B-Nli Document 45 Filed 11/19/07 Page 14 of 22 EXHIBIT Case 3:02-cv-01642-B-N8 Document 45 Filed 11/19/07 Page 15 of 22 MCCORMICK MITCHELL APC ATTORNEYS AT LAW. Founosn I971 KONRAD M. RASMUSSEN DIRECT DIAL NO.: (619) 235-8444 DIRECT FAX NO.: (619) 235-9432 ADDRESS: May 7, 2003 Guy A. Ricciardulli, Esq. LAW OFFICES OF GUY A. RICCIARDULLI 12396 World Trade Drive, Suite 305 San Diego, CA 92128 Re: Phillips v. Goodyear, et a1. United States District Court Case No.: 02 CV 16428 (CGA) Dear Guy: Enclosed are Goodyear?s objections to your five amended notices of taking depositions and demand for production of documents at deposition. Although the notices are still technically defective in that they do not name the Goodyear Tire Rubber Company as the deponent, as indicated in earlier correspondence, we are attempting' to identify the appropriate Goodyear representatives and provide you with available dates for the depositions. The amended notices also do not comply with the Rule 30(b)(5) requirement of 30 days notice when seeking production of documents at deposition. Goodyear will need at least the statutory time to gather the responsive documents. I would therefore ask that you agree to continue these depositions to dates which are mutually agreeable and which provide Goodyear the requisite time for document production. If you won't agree to continue them,please advise as soon as possible and explain why so Goodyear can move for a protective order. One of your notices seeks written communications sent or received by Goodyear from Monaco Coach Corporation or Monaco coach users regarding the use, performance, or maintenance of any Goodyear 275170R22.5 LR H, 6159 tires. These documents were sought in your earlier request for production to Goodyear, so there will be no additional documents produced at the deposition. Guy A. Ricciardulli, Esq. 625 BROADWAY. SUITE 1400. SAN DIEGO. CALIFORNIA 9210i TELEPHONE (619) FACSIMILE (619) 235-9432 E-MAIL ADDRESS: Case 3:02-cv-01642-B-N8 Document 45 Filed 11/19/07 Page 16 of 22 Re: Ehillips v. Goodyear, et al. May 7, 2003 Page 2 Your letter of April 30 complains Goodyear's discovery responses shed no light on its position. This complaint is premature, as documents are yet to be produced. We are waiting on your and Mr. Regan?s signatures on the protective order. If we receive those signatures soon, you should have the documents prior to the depositions. Having a protective order in place will also expedite the production at deposition of any additional documents which Goodyear considers trade secret, proprietary; or otherwise confidential. As requested in the transmittal letter which accompanied the proposed protective order, I would ask that if you have any objections to signing and returning it, you let me know so that I can seek the court's assistance prior to the depositions. Sincerely, MCCORMICK MITCHELL Konrad M. Rasmussen KMR/amc cc: Thomas Regan RNIA 92101 BROADWAY. SUITE 1400. SAN DIEGO. CALIFO 615 TELEPHONE (619) 135-8444 0 FACSIMILB (619) 235-9432 .9 innings: . . Case 3:02-cv-01642-B-k? Document 45 Filed 11/19/07 Page 17 of 22 EXHIBIT Case 3:02-cv-01642-B-N3 Document 45 Filed 11/19/07 P390468 Page 18 of 22 EXHIBIT Case 3:02-cv-01642-B-Nli Document 45 Filed 11/19/07 Page 19 of 22 MCCORMCK [3 APC ATTORNEYS AT LAW. FOUNDED 1971 JOHN P. DIRECT DIAL N0.: (619) 235-8444 DIRECT FAX NO.: (619) 235-9432 E-MAIL ADDRESS: May 27, 2003 VIA FACSIMILE (858) 487-8109 TRANSMISSION CONTAINS TWO Guy A. Ricciardulli, Esq. LAW OFFICES OF GUY A. RICCIARDULLI 12396 World Trade Drive, Suite 305 San Diego, CA 92128 Re: Phillips v. Goodyear, et a1. United States District Court Case No.: 02 CV 16428 (CGA) Date of Incident: 02/07/02 Dear Guy: We have identified those deponents required by four of your five deposition notices. As previously mentioned, we will stand on our objection regarding your request to depose the person most knowledgeable regarding the post?accident condition of plaintiffs' tire. We believe that is a proper subject of expert witness discovery. As to the balance of the requested areas to be covered, we have identified three persons who appear to be the. most knowledgeable. At least one of these persons is not available on the following dates: June 5 and 6, June 10, June 17, June 20, the week of June 23, and July 4 through July 11. May I request you schedule these depositions to avoid these dates. In connection with your document request, as soon as we have received the judge's signature on the protective order, I will contact your office to confirm that the documents to be produced in response to your request for production are available. Those documents have been identified and are here in our office properly stamped with the restrictive endorsement. 625 BROADWAY. SUITE 1400. SAN DIEGO. CALIFORNIA 92101 TELEPHONE (619) 235-8444 0 FACSIMILE (619) 235-9432 E-MAIL ADDRESS: Case Document 45 Filed 11/19/07 PaelDAm Page 20 of 22 Guy Ricciardulli Re: PHILLIPS May 27, 2003 Page 2 In connection with the documents to be produced at deposition, to the extent they are not included in the previously requested documents, they will be, subject to appropriate objection and the protective order, produced at deposition. However, in one of your deposition notices, you request the person most knowledgeable regarding the ?manufacturing and warranty? of the referenced tire. In that same notice you seek all documents ?generated as a result of the manufacturing process of the subject tire, including but not limited to any and all quality control documentation.? Both the area to be covered by deposition testimony and the documents requested are too vague to allow appropriate response. If you can limit this request in some appropriate manner, we will do our best to comply. I trust this letter will avoid the necessity of the meeting scheduled for this afternoon. If not, please give me a call. Thank you. Sincerely, MCCORMICK MITCHELL John P. McCormick JPM/amc 625 BROADWAY. SUITE 1400. SAN DIEGO. 92101 TELEPHONE (619) 235-8444 0 FACSIMILE (619) 235-9432 E-MAIL ADDRESS: lawyers?mccormickandm?che?rom Case 3:02-cv-01642-B-Na Document 45 Filed 11/19/07 P360471 Page 21 of 22 PROOF OF SERVICE PHILLIPS v. GOODYEAR TIRE RUBBER COMPANY UNITED STATES DISCTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA Case No.: 02 CV 1642 (NLS) GOOD.31886 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 777 S. Figueroa Street, Suite 4200, Los Angeles, California 90017. On November 15, 2007 I served the foregoing document: DECLARATION OF JOHN P. MCCORMICK IN REPLY TO THE OPPOSITION OF GUY RICCIARDULLI TO APPLICATION FOR ORDER TO SHOW CAUSE on the interested party or parties in this action as contained on the attached service list (BY MAIL) I deposited such envelope in the mail at Los Angeles, Califomia. The envelope was mailed with postage thereon fully prepaid. (VIA OVERNIGHT MAIL) I deposited such envelope in the Overnite Express box at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. (BY FACSIMILE) In addition to regular mail, I sent this document via facsimile, number(s) as listed on the attached mailing list, on May 16, 2007. (BY PERSONAL SERVICE) Such envelope was delivered by an agent of Document Delivery Service by hand to the of?ce of the addressee. (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (FEDERAL) I declare that I am employed in the of?ce of a member of the bar of this Court at whose direction the service was made. Executed on November 15, 2007, at Los Angeles, California. Samar Quintero Case 3:02-cv-01642-B-Ni Document 45 Filed 11/19/07 PaelD.472 Page 22 of 22 PHILLIPS v. GOODYEAR TIRE RUBBER COMPANY UNITED STATES DISCTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA Case No.: 02 CV 1642 (NLS) SERVICE LIST Guy Ricciardulli, Esq. 12396 World Trade Drive Suite 202 San Diego, CA 92128 Tel.: (858) 487-8006 Fax: (858) 487-8109 Attorney for Plaintiffs, HAROLD J. AND GE ORG-ANNE PHILLIPS David L. Kurtz, Esq. THE KURTZ LAW FIRM 7420 East Pinnacle Peak Road, #128 Scottsdale, AZ. 95255 Attorney for the Haegers in Arizona Timothy J. Casey, Esq. SNECK, HERROD, PC. 1221 East Osborn Road, Suite 105 Phoenix, AZ. 85014 Attorneys for the Haleys in Arizona Thomas F. Dasse, Esq. David Medina, Esq. LAW OFFICE OF THOMAS F. DASSE, P.C. 14646 North Keirland Blvd, Suite 235 Scottsdale, AZ. 85254 Attorneys for the Bogaerts in Arizona John P. McCormick, Esq. (SBN 38064) Konrad M. Rasmussen, Esq. (SBN 157030) MCCORMICK MITCHELL 8885 Rio San Diego Drive, Suite 212 San Diego, CA 92108 Telephone: (619) 294-8444 Facsimile: (619) 294-8447 Attorneys for The Goodyear Tire Rubber Company Thomas M. Regan COZEN 501 West Broadway, Suite 1610 San Diego, CA 92101 Tel.: (619) 234-1700 Fax: (619) 234-7831 Attorney for Plaintiff-in-Intervention, AMERICAN AND FOREIGN INSURANCE COMPANY Jere Beasly, Esq. Rick Morrison, Esq. BEASLY, ALLEN, CROW, METHVIN, PORTIS MILES, P.C. PO. Box 4160 Montgomery, Alabama 36103 Attorneys for the Wodds in Alabama Robert E. Ammons, Esq. THE AMMONS LAW FIRM, LLP 3700 Montrose Blvd. Houston, TX. 77006 Attorneys for the Antons in Texas Hugh N. Smith, Esq. SMITH FULLER, PA. 455 North Indian Rocks Road Suite A Belleair Bluffs, FL. 33770 Attorneys for the Schalmos in Florida