CSC claims it cannot force former counsel to attend depositions in Colossus class action

Michelle Massey, East Texas Bureau Apr. 16, 2008, 8:46am

TEXARKANA, Ark. – When asked why former Computer Science Corporation senior counsel Kirby Cronin has not appeared at court-ordered depositions for the Colossus class action suit, a company official told the judge that CSC no longer has power over Cronin.

Dan Fisk, corporate vice president and the former vice president, general counsel and secretary of Computer Science Corporation, appeared at a hearing April 14 in the Miller County Circuit Court to testify regarding why it has been unable to force Kirby Cronin, a former CSC senior counsel, to be deposed.

The original class action complaint was filed in the Miller County Circuit Court on Feb 7, 2005, against CSC's software Colossus, Insurance Services Office's software COA, Claim IQ Inc.'s software Injury IQ and the insurance companies who use that software.

The plaintiffs allege that the insurance companies who use these "cost containment" software programs are engaging in conspiracies to systematically underestimate bodily-injury claim settlements in an attempt to profit to the detriment of those insured.

On Jan. 24, the plaintiffs filed a motion to compel and for sanctions regarding the attempts to have Cronin deposed. Within the motion, the plaintiffs argue that CSC still maintains control over Cronin although he left the corporation to work at the Austin law firm of Daffer McDaniel.

The plaintiffs state that Cronin was a former "managing agent" employee and remains actively engaged in this case because his law firm is outside counsel of CSC. The motion argues that the defendants' failure to present Cronin is sanctionable conduct.

On March 6, 2008, Circuit Court Judge Kirk Johnson ordered in favor of the plaintiffs' motion to compel and ordered that Cronin provide a deposition within 14 days. The court stated that because outside counsel for CSC currently employs Cronin, he is subject to CSC's control.

"The Court is confident that the witness would appear to give his deposition if demanded to do so by the Defendant," stated the court order.

Further, the court suggested if Cronin would not abide by reasonable requests, then CSC should terminate its relationship with the Daffer McDaniel Law Firm. The court declined to impose sanctions against CSC.

The plaintiffs hope the deposition of Cronin will confirm their theory regarding Cronin's ability to keep Colossus out of court. The plaintiffs believe Cronin could provide answers to whether it was CSC's active policy not to produce discoverable information, even when ordered by the court.

CSC's corporate vice president, Dan Fisk testified regarding his efforts to obtain Cronin's testimony but said the attempts were made but to no avail. Fisk argued that the plaintiffs were wrong and that CSC had no pretense to keep Cronin from testifying.

"We don't have power over him," responded Fisk on Monday.

Further, Fisk testified that in Cronin's previous position as senior counsel, Cronin was unable to exercise discretion, only had limited authority and did not possess unique knowledge of CSC Colossus's software.

Fisk detailed how he spoke with Cronin, Cronin's attorney, and Cronin's employer Jeff McDaniel of the Daffer McDaniel law firm, all in attempts to gain Cronin's presence in the Miller County courtroom. However, even when discussing discharging the Daffer McDaniel law firm, Fisk stated he was told it would still not compel Cronin to testify, as he would resign his position, if necessary.

The testimony briefly discussed the reason Cronin's lawyer presented for not coming to the deposition, which included not subjecting himself to Arkansas service of process procedures and jurisdiction. Fisk suggested that the plaintiffs should depose Cronin in Texas, to which Cronin is agreeable and available. Defendant CSC stated that they would not seek protections from a Texas deposition.

The issue will be discussed further at additional hearings this month.

Case No.: CV-2005-0059-3.

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