Court Order - Depositions

TVARS board members Jim Hovious and I made it clear to the entire TVARS board, and in separate letters to the court, that we do not oppose the taking of any depositions, including our own.  See the letters and the court orders to file them as part of the record in the case here. Tammy Wilson was TVARS’ executive secretary at the time of the contested 2009 TVARS rule changes.  

The October 16, 2014 court order regarding depositions requested by the plaintiffs does the following:

• Permits the deposition of Tammy Wilson. 
• Denies the deposition of TVA actuary Towers Watson & Company at this point in time.
• Determines that the potential information to be gained from taking the depositions of Les Bays, Frank Alford or Tom Kilgore about their meeting five years ago is so minimal that it does not justify the additional time that would be required. 

The court order is available here and is reproduced below.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JERRY DUNCAN, et al., Plaintiffs
v.
TENNESSEE VALLEY AUTHORITY RETIREMENT SYSTEM, et al., Defendants

No. 3:10-0217

Judge Trauger/Brown

Jury Demand

O R D E R
The Magistrate Judge conducted a hearing in this matter
on October 15, 2014, to discuss the three discovery issues that
remain. The issues to be argued were summarized in the Magistrate
Judge’s order of October 1, 2014 (Docket Entry No. 197).

First, the Plaintiff wanted to continue the deposition of
Mr. Christie’s TVARS Rule 30(b)(6) witness or to take the
deposition of Ms. Tammy Wilson, TVARS Executive Secretary in 2009.
The Magistrate Judge will permit the Plaintiffs to take the
deposition of Ms. Wilson on or before November 21, 2014.

The deposition will be limited to those areas concerning
her handling of materials sent to the board members that Mr.
Christi was unable to answer at his deposition.

The second request was to take the deposition of TVA’s
actuary, Towers Watson & Company. Plaintiff’s counsel believes that
this is necessary in order for them to respond to TVA’s motion for
summary judgment (Docket Entry 128, pp. 1700-1701).

The Magistrate Judge will DENY this request at this point
in the case. TVA’s motion for summary judgment at the cited pages
raises what appears to be a legal argument that TVA is not required
to make any minimal contributions to TVARS other for benefits that
had vested. Plaintiffs have certainly raised issues as to why TVA’s
actuary should list unfunded benefits for 2009 at $2.6 billion,
while the TVARS actuary lists the amount at $1.3 billion, and why
for 2013 TVA’s actuary estimates the under-funding at $4.2 billion,
while TVARS shows it at $2 billion.

If the District Judge determined that there are minimum
requirements for funding then this information could be relevant
and Plaintiffs would be entitled to depose Towers Watson & Company.
This discovery can wait for that legal determination.

Likewise, to the extent the rule amendments that the
TVARS board adopted in 2009 are held invalid, information on
current and past funding will be relevant.

TVA is directed to recheck the information that is in the
administrative record to insure that Towers Watson & Company has
provided all actuary information that was available to the board at
the time they made their decision to amend the rules in 2009. If
the Plaintiffs have any specific information as to the items they
think may have been omitted from the administrative record, they
should specifically convey that to counsel for TVA and TVARS and
they must check to be sure that the administrative record* contains
all information that was available to the board from Towers Watson
& Company.

Finally, the Plaintiffs have requested in the depositions
of TVARS board members Les Bays and Frank Alford, or in lieu of
their depositions, a deposition of then TVA CEO Tom Kilgore.

This is a close question, but given the information
provided in the talking points for the meeting, TVA’s proposal to
the TVARS’ board and Mr. Alford’s published statement, the
Magistrate Judge believes that the potential information to be
gained about a meeting five years ago is so minimal that it does
not justify any additional time needed for such depositions.
Additionally, the Magistrate Judge believes that depositions of the
board members Mr. Bay and Mr. Alford would stray off into probing
their decision-making processes in this case, which the Magistrate
Judge believes is precluded by United States v. Morgan, 313 U.S.
405 (1941) and its prodigy.

In view of the Magistrate Judge’s ruling on what he
believes are the remaining issues that were referred to him, the
parties should, within 21 days, submit to Judge Trauger a proposed
order scheduling the deadlines for the remaining issues this 2010
case.

It is so ORDERED.

/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
____________________
*Although this is not an administrative record in the strict sense
of a classic ERISA case, the Magistrate Judge will use that term as a
reasonable shorthand for the record that has been filed so far.

Case 3:10-cv-00217 Document 203 Filed 10/16/14