2012-00128969-CU-BT

Altergy Systems vs. Terry Carlone

Nature of Proceeding:  Motion to Compel Deposition Testimony (Two Joinders)

Filed By: Thomas, David A.

Motion to Compel Deposition Testimony and production of documents listed in
deposition notice/subpoena of Amy Tucker is granted.

Cross-defendant Jerrold Franklin and Eric S. Mettler’s Joinders are granted.

Tucker has filed a non-opposition, stating that she has no objection to appearing for
the completion of her deposition.  Tucker does not oppose to responding to the
questions in the separate statement and did not raise any objections to the deposition
notice.

Amy Tucker was employed by Altergy from April 2006 to November 2012.  Her last
position was as Director of Administration, including Human Resources matters. Amy
Tucker appeared at her deposition without counsel.  She suspended the deposition
after two hours on the ground that she felt cornered and she did not want to respond to
questions without her attorney present about bonuses she received and how they were
approved by Mettler, President and CEO of Altergy.   Tucker expressed her fear of
defendant Eric Mettler and Carlone’s attorney. Mr. Sims, commented at the deposition
about how Tucker was trembling and crying.  Altergy contends that Tucker’s conduct
was consistent with someone who has been found to have embezzled money from her
employer and that Sims comment about her condition appeared not genuine and
“planned.”

Altergy seeks an order to compel the completion of Tucker’s deposition before
December 31, 2013, and payment of monetary sanctions for the improper suspension
of the deposition. Altergy seeks $32,526 in sanctions, contending that these fees were
incurred in preparing for the first deposition and in bringing this motion.

In opposition Tucker explains that she did not want to continue with the deposition
because she wanted to retain an attorney before she answered questions about
bonuses paid to her by Mettler.  Tucker contends that she believed the scope of the
deposition was to be concerned with Carlone, not the payment of bonuses to her by
Altergy, although the deposition notice sought documents concerning Tucker’s
compensation.  Tucker contends that questions regarding defendant Eric Mettler’s
approval of bonuses paid to her, implicated years of personal threats made by Mettler
since 2007, including threats to her personal safety and death threats that she has
never made public.   Tucker states she wanted to make the threats public before
answering questions to prevent them from coming to fruition. Tucker states she is in
the process of reporting the threats to law enforcement.  (Declaration of Tucker)

In Reply, Altergy contends that there was no good cause to suspend the deposition
when Tucker made the conscious decision not to retain an attorney before her
deposition, knowing that her compensation was an area of inquiry that would be raised
at the deposition.  Altergy contends that having an attorney present would not have
made a difference to her ability to respond.

The Court finds that the suspension of the deposition was not without reasonable
justification and the court will not sanction Tucker for doing so. Sanctions are denied.

The parties are ordered to meet and confer to schedule the completion of the
deposition to take place no later than January 15, 2014.  The scope of the deposition
will not be limited to the questions that gave rise to the present motion, as requested
by Tucker.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.