Loading...
HomeMy WebLinkAbout05-2986 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY TRIAL DIVISION HEAL THSOUTH CORPORA nON v. NO. OS; - 'd.9Pc:' C!.'-u:L~82-~ BENCHMARK MEDICAL, INC.,.eWll,. PETITION FOR ISSUANCE OF A SUBPOENA TO TAKE DEPOSITIONS Pursuant to Pa.R.C.P. 234.1 and 42 Pa.C.S.A. Section 5326, the issuance of a subpoena duces tecum is requested on the following grounds: L Petitioner is HealthSouth Corporation, Plaintiff, above-named. 2. Petitioner, by its counsel, issued a Notice to Take the Deposition of the following person at the offices of Vaira & Riley, P.C., 1600 Market Street, Suite 2650, Philadelphia, Pennsylvania 19103 at the date and time set forth below: DEPONENT: Records Custodian ATTN: Michael Tarvin, General Counsel Select Medical Corporation 4716 Gettysburg Road Mechanicsburg, P A 17055 DATE AND TIME: June 27, 2005 at 9:00 a.m. 3. A Commission was issued for the taking of this deposition on May 27, 2005. 4. Petitioner requires the issuance of a subpoena by this Court to compel the attendance of the Deponent as set forth in said Notice. WHEREFORE, Petitioner prays that the Court direct the issuance of a subpoena duces tecum to the person named in paragraph 2 of this Petition. DATE: June 6, 2005 Respectfully submitted, V AIRA & RILEY, P.C. BY: Local Counsel for PetitionerlPlaintiff, HealthSouth Corporation 2 VERIFICATION I, William J. Murray, Jr., hereby state that I am an attorney for Petitioner/Plaintiff HealthSouth Corporation. I verify that the statements made in the foregoing are true and correct to the best of my knowledge, information, and belief. I understand that the statements are made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE I, William 1. Murray, Jr., Esquire, hereby certify that on June 6, 2005, a true and correct copy of the foregoing was served on all counsel of record via First Class Mail upon the following: Mary A. Smigielski Deborah Davidson Christopher M. Scalia Morgan, Lewis & Bockius LLP 77 West Wacker Drive, Fifth Floor Chicago, IL 6060 I . Rider to the SubDoena of Select Medical CorDoration DEFINITIONS AND INSTRUCTIONS The following definitions and instructions are applicable to each category of documents listed below and are incorporated into each such category of documents. Definitions A. As used herein, the term "communication" means any transmission of words or thoughts between or among two or more persons, whether written or oral, telephonic or in person, including notes from telephone conversations and electronic mail. Each category of documents described below shall include all communications with respect thereto, whether or not expressly stated. B. As used herein, the term "documents" means all written or graphic matters of every kind and description, however produced or reproduced, whether draft or final, original or reproduction, stored electronically, or however else denominated, including but not limited to communications, which are in the possession, custody or control of "Select Medical Corporation" or over which it has or can obtain access. C. As used herein, the term "Select Medical Corporation" refers to and includes Select Medical Corporation, and any name currently or formerly used by that entity to conduct business, and any division, subsidiary, affiliate, designee, successor and assign of that entity, including NovaCare Rehabilitation, and each and everyone of those entities' employees, representatives, agents, accountants and attorneys, and any and all persons acting or purporting to act on their behalf. D. As used herein, the term "Benchmark" refers to and includes Benchmark Medical, Inc. and Benchmark Holdings, Inc., or any of their divisions, subsidiaries, affiliates, designees, successors and assigns, and each and every one of their employees, representatives, - agents, accountants and attorneys, and any and all persons acting or purporting to act on their behalf. E. As used herein, the term "Integrity" refers to and includes Integrity Physical Therapy, Inc., or any of its divisions, subsidiaries, affiliates, designees, successors and assigns and each and every one of its employees, representatives, agents, accountants and attorneys; and any and all persons acting or purporting to act on its behalf. F. As used herein, the term "HealthSouth Corporation" refers to and includes HealthSouth Corporation, or any of its divisions, subsidiaries, affiliates, designees, successors and assigns and each and everyone of its employees, representatives, agents, accountants and attorneys; and any and all persons acting or purporting to act on its behalf. G. As used herein, the term "relate to" means constitute, contain, refer to, reflect upon, arise out of, evidence, or in any way logically or factually connect with the matter discussed. Instructions G. Whenever appropriate, the singular form of a word should be interpreted in the plural. The term "and," as well as the term "or," shall be construed either disjunctively or conjunctively as necessary to bring within the scope of a request for production any documents which might otherwise be construed to be outside its scope. H. The period of time encompassed by the requests shall be from January 1,2003, until the present. 1. All documents shall be produced for inspection and copying as they are kept in the usual course of business or the documents produced shall be organized and labeled to correspond with the categories in this Request. Each document produced in accordance with this Request shall, whenever possible be provided in its original file, folder, binder, cover or - 2 - - container. Any document which must be removed from its original file, folder, binder, cover or container in order to be produced shall be identified in such a way as to clearly specify the place from which it was so removed. 1. For each document not produced on the grounds that it is an attorney-client privileged communication, or that it is an attorney-work product, or that it is not subject to production for any other reason, identify: (I) the author(s); (2) the recipient(s); (3) the date of the document or, ifnot dated, the approximate date of the document; (4) the general subject matter of the document; and (5) the specific basis upon which Select Medical Corporation claims that the document is not subject to production. DOCUMENTSREOUESTED I. Any and all documents that relate to any communication with Eric Williams. 2. Any and all documents that relate to any communication with Floyd Stahl. 3. Any and all documents that relate to "Project Integrity" or any other plan relating to the takeover, acquisition, or start-up of physical therapy facilities currently or formerly operated by HeaJthSouth Corporation. - 3 - - , " Commission to Take Deposition Outside lIIinois IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS (10/17/03) CCG 0038 A HealthSouth Corporation No. 04 CH 10479 v. Benchmark Medical, Inc., et al. COMMISSION TO TAKE DEPOSITION OUTSIDE ILLINOIS To: Cumberland County Courthouse, One Courthouse Square Carlisle, PA 17013 YOU ARE COMMISSIONED to take the subpoena duces tecum deposition of the custodian of records for Select Medical Corporation whom you are authorized to bring before you at such time and place as you designate for examination upon June 20, 2005 The names of all parties are: (Plaintiff) HealthSouth Corporation Inc. Eric Williams Flo d Stahl John Lowe Brandon Brown, Denise McGowan, and Tim Pugliese The names of all attorneys are: (Plaintiff) Robert M. Andalman and Charles A. Duffield, Sonnenschein Nath & Rosenthal LLP A. Smi ielski Deborah Davidson and Christo her M. Scalia Mor an Lewis & Bockius LLP The deposition is to be taken, certified and filed in accordance with the instructions on the back of this commission. (See back oftbis form for Illinois Supreme Court Rules Applicable to the Taking of Depositions) Atty. No. 90784 Name: C. Duffield, Sonnenschein Nath & Rosenthal LLP Atty. for: Plaintiff Address: 8000 Sears Tower 233 S. Wacker Dr. City/State/Zip: Chicago, IL 60606 Telephone: (312) 876-8000 (Seal of Court) ,. DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLtNOIS (OVER) -.. j . Commission to Take Deposition Outside Illinois Illinois Supreme Court Rules Applicable to the Taking of Depositions (10/17/03) CCG 0038 B Rille 206. Method of Taking Depositions Oil Oral Examination (Q Record of Examination, Oath, Objections. The offi", hefore whom the deposition i, to be takeo shall put the wito", ou oath aud shall pmonally. or hy 'omeoue acth'g nnd" the officer', ditectiou and io hi, 0' h" pr"euce. record the t"timouy of the witu",. The t"timony shall he taken "enog"ph"ally. hy ,ound-recording d""e, hy audio-visual ","'ding device. '" hy any comhiuation of all th'ee. Tbe t"timony 'hall be t"n"ribed at tbe "que" of any party. Obj"tions made at tbe time of the e"mination to tbe qnalificatinn, nctbe nm", takiug the depo.,;'ion, to tbe manner of taking it, to the evidence p","nted. 0' to the conduct of any pmon. and any other ohjection to the proceeding'. ,ball he ineluded iu the deposition. Evidence objected to shall be taken ..bject to tbe objection. In tieu or patticipating in thc 0'" "amination, patti" se"'d with notice oftaking a depositioo may t"'''mit written que"ions to the om"" who shall pmpound them to the wito", and """d the answers verbatim. (g) Videotoped Depo.,ition.,. E'cept a, oth"wise pcovided in this n"e. the col" go,'eming the pmtice. pmcedn", aod use ur deposition.,. ""II apply to videotaped depo,\-itioll.\'. (I) Depo.,ition., wh"h ate to be mo'ded on ao audio-visual monling dev"e 'hall hegin by the ope"tor ofthe device "ating. ou came". (') the Op"aI",', name and addres,. (2) tbe dale. time and place of the depo.,ition. (3) the caption of the cm, (4) name of the witn",. (5) the party on whose hehalfthe depo.,ition i, being tal"n. and (6) the p"'y at whose inseance the depo,ition is heing 'ecorded on an audio-vi,ual mO'ding device. The office, hefo" whom the depo.,ition i, heing taken shall ideotity himself 0'. hmelf and "veat the witn", 00 <amera. At the coo elusion of the deposition the Ope"tu,' ,hall "ate on eam"a that the depo.,ithm i., conelnded. If ""depo.,ition "qu"",, th,' u'" ofmo"than one videotape. theend oreach videotap..nd heginningofeach 'neeeeding tape ,hall beannnunced on camera by theopmto,. (21 The opm"" ,hall initially take cn"ody or the videutape of the depo.,ition and ,hall ,un th,.ongh the videotape to det"mine the "act leng'h of time of 'he depo.,ition. The ope"t", shall sigo an affidavit "ating the 'eog'h or lime octhe depo,ition and shall "'lily that the videotape i, a tn" "co,d ofthe depo.,ition and ,hall ""if) 'hat the Opemto, h" not edited 0' Oth"wise altmd the Videotape. A dep....ition so "'tified "qni"s no r""h" pmof of "'theoticity. If "quested by any pmy at the ""'''n'ion of the taking or the depo.,ition. the Op"at,,, shall make a COpy or 'he videotape and delim it to 'he patty "qn"ting it at the CO" or that pmy. (3) A videotape or a depo.,ifion f", p'''pom of discomy on'y ,hall be "tumed '0 the allon"y f",. the pat'y at whose iu,tance the depo.,ifion w" ,ideotaped. Said at",,'ney i., "'pon,ihle r,,, the sareguarding ofthe videotape and shall p"mit the viewing of and ,hall p,ovide a cnpy ncthe videotape Upon the "quest and at the cu" of any pa"y. A video'ape of a disco"ry depo.,ition shall not be tiled with the co,,,, "'ept by lea" or cou,t ror good eause shown. (4) A video'ape or a depo.,ifion r,,, use in evidence ,hall b"ecn,,'y 'ea'ed hy the ope"to" in an envelnpe beadng the !;tIe and nnmh" or the action, and matked "Depo.,ition(s) of(h"e inmt name(,) of deponent(,))... a nd p'omplly med 0' sent hy c"tit;ed mail to the e1"k ofthe "m,t fo, ming. Upon payment of"a"",able charges therefor, the Operator shall furnish a copy of the videotape to any party or the deponent. (5) The pa<ty at whose instance the videotape deposition is taken ,hall pay the cha<ges of the videotape operato, fo, altending and shall pay any cha<ges ro, filing the videotape of an evidence deposition. (6) The videotape of a deposition may be p"sented at trial in lieu of 'eadlng f'om the "enog"phic t"nseription or the depo.,ition. Rule 207. Sigfling and Filing Depositions lal Suh",i.",ion to I)epone"" Change.v; Signing. Unless ,ignaln" i, waived by the deponent, the omce, shall in""uct the deponent thal ifthe testimony i, t,'an"'ibed the deponent wiil be alru'ded an Opp""unity to e"mine the depo,ition al tbe office ofthe om", 0' "purt", o,elsewhm, by "",on able a"angemen' at thedeponent', "pense, and that comction, based on "''''' in "po,ting 0' "an"'iption which the deponent desi"s to make wiH be entmd Upon 'he deposition with 'ta'ement by the deponent that the "1""'" emd in "po,ting 0' t,an,eriblng the anm" oi answers involved. The deponent may not othenvise change eith" the f",m 0' sub,tance of hi, 0'. h" anmm. The depouen' ,hail provide the office, with an add"" '0 which notice is to he sent wben 'he t"n'nipt is available r,,, "aminalion and "gning. Wben 'he deposition i, ruily t"""cdhed. 'he offi", shall mail to 'he deponent. al'he add"" la" ,npplied, notice 'hat it is availahle and may be e"mined at a "aled place at s'aled times. 0" po"uant '0 a"'ngemenl. Mtenhe deponent h" "amined the deposition. the om", shall ent" npon it any changes the deponent desi"s '0 make, with the "a"ms the deponen' gives 10' making them. Ifthe deponent does no' appea< at the place 'pecified in the ootice within 28 day. art". 'he mailing Mthe notice, '" within the 'ame 2" days mal" oth" amngemen's fm' e"mination oCthe deposition. '" art" e"minlng the deposition "ro,es to ,igo it. 0' art". It has h..n made availahle to 'he deponent by a"'ngement it "mains unsigned "" 2" days. the offi",', "'tificate ,hall state 'he "a,on 10, the omissioo ""'he ,ignalU". inc'udlng any ,,"son given by the deponent ro,. a "efusal'o sign. The depo,ition may 'hen be nsed" ruily as thmugh signed, unle" on a motion to sopp"" ond" Rule" I(d) the "'o,t hold, Iha< tbe ""on, given hy the deponen, ro, a "fu,"1 to ,ign "qui" "iection of 'he deposition in who'e "'. in pan. (h) Certljicutioll, Filing, and ,.Volice of Filing. (I) Icthe 'estimony i, "an""ibed. 'he om", ,hall c"'i~y on 'he depo.,ition that the deponent w" duly 'wom by him and ""t the depo'ltion i, a ltue "co,d of 'he "stimony given by the del' on en I. A depo,ition so ",tified "qnim no rU"h" pmor or authenticity. At the "quest of any pany. the om", shall 'hen secu,,'y seal the deposition. 'ogell,,, with all "hiblt,. 0' copies 'hmuf, in ao enve'ope beadng the tille and numb" oCthe action and ma<ked, "Depo'ition(,) or (he" inmt name(,) of deponent(,))" and pmmplly file it 0" send it by "gi,tmd 0' "'tiHed mail to the ci"k or 'he cou,t ro, filing. (2) The party calJsing a deposition to be filed shall promptly serve notice thereof Oil the other parties. Rille 2/0. Depo,\"itions on Written Questions (a) Smiug Que.'tious, Notice. A pa"y desi'ing to take lhe depo,ition olany person upon wdtten question, ,hail m" them opon the other pa<ties with a notice stating the name and add,'ess or the pmon who i, '0 an,w" them ir known. 0'. Ir the name is not known. a gene,,' desedption sofficien"o identit:v him, and the name '" demiptive tille and addms octhe orfic" befo" whom the depo,ition i, to be taken. Within 14 day' thmaft" a p".ty so se",d may likewise mve cm,.s que"ioos. Within 7 days art" being ""ed with cms qo"tions a p"'y may likewise serve "d"'ect question,. Within 7 day' aft" being se"'d with "dimt questions. a p"'y may likewise serve recro.~s questions. (b) Oilier. to Toke Re.'pon.ve., and Prepare lIecord. The pa<'y a' whose in"anee the deposition is taken .shall'"nsmit a copy of 'he notice and copi" of 'he initia' and ,n"sequent question, mved to 'be omc" designated in the notice who ,hall p'oceed pmmptty, in the mann" provided by '"tes 206(e) and 207. to 'ake 'he 'estimoo) of the deponent in "'ponse to the question, and to prepare. C"tlCy, and file 0' mail the depo,ition. attaching the"to the copy of the notice and questions "ceived by him. No p....y. altomey, 0' pmon Intmsted in the event oCt he action (unless he i, the deponent) shall be p"sent dndng the taking ofthe deposition 0' dictate. wdte. or draw up any answer to the questions. (c) Notice ol Filiug. Tbe pa"y can'ing a deposition to he filed ,hall pmmplly 'me notice 'h""or on the oth" p"'ies. --- . 1( t "C. ..., ~ (') = ~ ~; c~,? ...... -4 ',)i-: '- :r.:.." (\ ~. \, c::: J11;::.:: ~ 1/1 ';~:: 3"! ~~ - .' - I ' I ~,...-r ~ D- c> \.0 ?~Q --..... f':C ) ..0 -v .~ -c (2f-~ r- j5;c'_; ~, 5.:. ~~~.~~ - ~~rn J ~ '.:::.', ~~. <-11 55 :< U) .-<: COMMONWEALTH OF PENNSYL VANIA COUNTY OF CUMBERLAND HEALTHSOUTH CORPORATION v. FileNo. BENCHMARK MEDICAL, INC. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Records Custodian - Select Medical Corporation TO: ATrN: Michael Tarvin, General Counsel (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED RIDER Vaira & Riley, P.C. at 1600 Market Street. Suite 2650. PhiladF>lphia. PI\ lQ101 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compeIling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: William J. MUrray, Jr., Esquire ADDRESS: Vaira & Riley, P.C. 1600 Market Stre"'t. Suit", ;>6'i0 PhilanF>lphia. PI\ lQ101 TELEPHONE: 215-7'il-;>700 SUPREME COURT ID # 71Q17 ATTORNEY FOR: "'o~lt"'''Q'Jtl:1 C~ation BY THE COURT: Court Date: Seal of the Court Deputy \ RECEIVED JUN 1 0 200Sf IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY TRIAL DIVISION HEAL THSOUTH CORPORA nON v. NO. () S' -.;ZCt,p(.. C ,- uL'-r- ffl-~ BENCHMARK MEDICAL, INC., et-M: ORDER AND NOW, this ,S' day of June, 2005, upon consideration of the annexed Petition for Issuance of Subpoena to Take Deposition and upon motion of counsel for Petitioner, it is hereby ORDERED that the Prothonotary of Cumberland County issue a . subpoena duces tecum directed to the person named below, directing his or her attendance at a deposition to be conducted under the Illinois Rules of Civil Procedure and to held at the offices of Vaira & Riley, P.c., 1600 Market Street, Suite 2650, Philadelphia, Pennsylvania 19 I 03 at the times and dates set forth below: DEPONENT: Records Custodian ATTN: Michael Tarvin, General Counsel Select Medical Corporation 4716 Gettysburg Road Mechanicsburg, P A 17055 DATE AND TIME: June 27, 2005 at 9:00 a.m. r9 l7~erP ()\.i\ /ILl 1. FILED-oF~i('E OF THE PFion.{6~IOTARY 2005 JUll 15 AI'i 10: 56 curIe::.:"',c,"" .,j '.}.,]ur--ITY ':0 ~efP'()-' ~~ c-~.%Ylqf) ~.Q.OO . 0- 'w,\ \j' 0:' ,(). '\ R ~1 \\- e.e. .!t I {, 5 !).11.