CSX plaintiffs suing Provost Umphrey will give depositions in N.C., judge rules

Steve Korris Jan. 6, 2011, 3:27am

WHEELING, W. Va. – Former CSX railroad workers from North Carolina who sued Beaumont's Provost Umphrey law firm in federal court at Wheeling, W. Va., don't have travel to Wheeling for depositions, U. S. Magistrate Judge James Seibert decided on Dec. 30.

He ordered Provost Umphrey and a separate defendant, Ed Cook of Atlanta, Ga., to depose 13 men and two widows near their homes. Seibert found it more economically feasible for three defense attorneys to travel to North Carolina than for the 15 to travel to Wheeling.

But Seibert chose to ignore claims of the North Carolina group that medical conditions made travel to West Virginia a hardship.

"Plaintiffs, however, have made a showing that depositions in West Virginia would create an undue financial burden," he wrote.

"Should plaintiffs be required to travel to this forum for depositions, they would incur the expense of 15 airline flights, rental car or automobile expenses, as well as hotel room expenses in comparison to the travel costs of the three defense attorneys," he wrote.

Four days later, the 15 moved to continue a trial that District Judge Frederick Stamp plans to start on May 24.

Their lawyer, Jay McCamic of Wheeling, wrote that depositions would have happened in November and December if disagreement hadn't arisen.

Cook originally filed suits for the group in Gwinnett County, Ga. After Provost Umphrey hired Cook, the firm dismissed the Gwinnett County actions and filed them in a mass of suits against CSX in Marshall County, W. Va.

Provost Umphrey settled the Marshall County cases, on terms that didn't suit the 15.

They sued in federal court at Wheeling, claiming they didn't know about the switch to West Virginia and wouldn't have approved if lawyers had asked.

When they resisted depositions in Wheeling, Provost Umphrey and Cook pleaded that they had to travel to West Virginia because they chose to sue there.
Seibert rejected the argument, writing that while plaintiffs chose the forum in this action, Provost Umphrey and Cook brought the underlying suit.

"Further, defendants' suggestion that plaintiffs had some hand in or could have objected to the circuit court of Marshall County, West Virginia, for the underlying action is, at best incredulous," he wrote.

He wrote that all parties provided lengthy analyses on possible jurisdiction in North Carolina, Texas and Georgia.

"Plaintiffs could have filed this action in those forums, however, that is not dispositive of this motion," Seibert wrote.

He considered curbing the cost of travel by waiving a rule requiring local counsel at all depositions, but he decided not to take the risk.

"This appears to be one of those cases where the lawyers are taking a 'scorched earth' stance," he wrote.

He ordered the railroad workers to pay for the trips he required.

They must pay Provost Umphrey's lawyer, Michael Garrison of Morgantown, and Cook's local counsel, Margaret Droppleman of Charleston, the mileage difference between trips to Wheeling and Rockingham, N.C.

But he ordered no payment for Elizabeth O'Neill, an Atlanta lawyer representing Cook, figuring he shortened her trip.

"Finally, the court expects all depositions to be taken within the same period, therefore, no hotel and meal expenses are granted," he wrote.

He gave Provost Umphrey and Cook 14 days to file objections with Stamp.

On Jan. 3, he set a Jan. 13 hearing in a discovery dispute. On the same day, the railroad workers moved to continue the trial.

McCamic wrote that depositions are necessary before parties can disclose expert witnesses and take other actions.

"In addition, the amount and nature of work necessary to be performed in the discovery phase of this case is enormous," he wrote.

Plaintiffs or defendants might revisit the configuration of the cases for trial purposes after taking depositions, McCamic wrote.

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