Judge makes MEA pay

MAT-SU -- Matanuska Electric Association may face as much as $1,000 in fines for not showing up to two depositions, according to a recent Palmer Superior Court ruling.

In two orders filed on Jan. 2 in Palmer Superior Court, Judge Beverly Cutler denied without prejudice a motion to bring the case to a close and grant Janecek a seat on the MEA board.

Cutler did, however, order MEA attorneys to pay fees incurred by Ingaldson Maassen for setting up depositions that MEA attorneys and two board members ultimately skipped. She also ordered Janecek to produce a list of names of those who contributed less than $100 during his campaign. That list will be reviewed by Cutler in her chambers, where she will determine whether it should be released to MEA attorneys.

The lawsuit stems from MEA's 2001 board of directors election, in which Janecek won a seat on the MEA board. At the board's April 30 meeting, board members decided 5-2 not to seat Janecek, claiming his campaign disclosures were inaccurate and did not demonstrate a good faith effort to comply with MEA bylaws. Shortly after the decision, Scott Waterman, a member-owner of MEA and would-be constituent of Janecek's, filed a complaint and subsequent request for a restraining order and injunctive relief against the decision.

The case has been in the works for several months. For much of that time, the two sides have been working through a discovery phase. The two parties dispute when the discovery phase was to draw to a close, and that seems to be what's at issue in a motion filed by Waterman's attorneys on Nov. 30.

The motion by Waterman's attorneys requests that the court decide in favor of Waterman and grant Janecek his seat because "the defendants intentionally and willfully failed to appear at their depositions."

According to information in the memorandum in support of the motion, depositions were set up for Nov. 15 and 16 for MEA board members Wesley Pollock and Linda Shattuck, respectively. Notice of the depositions was given on Nov. 1, and Mayberry sent a letter objecting to the depositions.

The letter states that the time for depositions has passed.

"Since the deadline passed for taking depositions, your client has not had the 'right' to depose any of MEA's witnesses," the letter states, "You know full well that the discovery deadline for depositions has passed, and you have no authority to notice depositions."

As the date for depositions approached, Waterman's attorneys sent a letter to the MEA attorney in the case, David Mayberry of Patton Boggs L.L.C., and responded to the objections, requesting that Mayberry inform Waterman's attorneys whether Pollock and Shattuck would appear at the depositions. Waterman's attorneys claimed they never received a confirmation.

Through the first weeks of November, the two parties continued to discuss whether the disputes over discovery could be worked out, but no agreement was reached.

The day before the first depositions were to take place, Waterman's attorneys called MEA's attorneys to find out if Polluck planned to be at the depositions, but the message left was not returned. In the meantime, Waterman's attorneys secured a court reporter and rented a conference room. According to court documents, "defendant made no attempt to respond to these letters or to the November 14, 2001 phone call until 9:20 a.m. on November 15, 2001, when counsel was en route to Wasilla for the deposition of Mr. Pollock."

"It was particularly frustrating for us," Waterman attorney Bill Ingaldson said. "We called and said, if you're not [coming], all you had to do is have the courtesy to say 'We're not coming.'"

But MEA attorneys and spokesman Mike Pauley purport that skipping the depositions was a misunderstanding -- that although Waterman's attorneys continued to request confirmation that they would attend, no depositions would actually take place.

"We obviously disagree with the judge's ruling," Pauley said. "We think the record of the case is very clear. Quite honestly, from our perspective, it looks like a disingenuous stunt."

Pauley said Waterman's attorneys did nothing on the case from June through August, the time that was initially agreed upon as the discovery phase. Then, when the discovery phase drew to a close, the attorneys began requesting depositions.

"The deadline for depositions to end was Aug. 31," Pauley said. "From our perspective, we've been cooperative in that we immediately agreed to an extension of the deadline."

But Ingaldson said they were unable to schedule depositions earlier because they were waiting on documents from MEA.

"The goal was to try to get some depositions done in July and August," Ingaldson said. "We weren't getting any documents -- and they complained that they weren't getting any documents. [Then] they weren't available and, when they were available, there were documents that we were waiting to get. You only get one crack at a deposition."

Pauley asserted that Ingaldson could have saved his time and money by not attending the deposition at all.

"Did they have a reasonable expectation that our witnesses were going to show up?" Pauley asked. He added that MEA plans to appeal Cutler's decision at a later date.

Ingaldson said he had no choice but to show up at the deposition.

"If we didn't show up at the deposition and they're there, we would have to pay all their fees and costs," Ingaldson said, "and we'd probably never get a chance to depose [that witness]. We had no choice but to show up."

Cutler ultimately decided that Ingaldson's assertion that a deposition could be noticed at any time, as long as there is no pending motion for a protective order against taking depositions, was correct.

"Defendant appears to have been acting outside the spirit of paragraph one of the [Report of Parties' Discovery Plan] … [and] that procedural delay now serves to thwart plaintiff's objective goal," Cutler wrote in her order.

Cutler gave the parties a time line in which the depositions must be completed, and ordered MEA to reimburse Waterman for "the costs of noticing and setting up the depositions, and for plaintiff's attorney's travel time and attorney time that was wasted."

Ingaldson estimated that the cost is between $500 and $1,000. He added that depositions with Shattuck and Pollock are scheduled to take place today.

"A simple phone call was warranted to save much of this expense," Cutler wrote.