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Case: 1:11-cv-00103-GHD-DAS Doc #: 203 Filed: 08/02/13 1 of 8 PageID #: 1281

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants NOTICE OF CORPORATE DEPOSITION OF THE KROGER CO. TO:

The Kroger Co. Through its Counsel of Record, Mr. David Norris McGlinchey Stafford 200 S. Lamar Street, Suite 1100 Jackson, Mississippi 39201

PLEASE TAKE NOTICE that Plaintiff, Kmart Corporation, will take the corporate deposition of Defendant, The Kroger Co., pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, on the issues and subject matter set forth herein. This deposition will take place on August 8, 2013 at 9:30 a.m. at the law offices of McGlinchey Stafford, 200 S. Lamar Street, Suite 1100, Jackson, Mississippi 39201 and will be continued day-to-day until completed. The deposition will be for all purposes, including use at trial, pursuant to the Federal Rules of Civil Procedure, before a court reporter or other official duly authorized to administer oaths and record oral testimony. You are invited to attend and participate as you deem appropriate. Pursuant to Federal Rule of Civil Procedure 30(b)(6), The Kroger Co. shall designate a witness or witnesses competent to testify regarding the areas of inquiry set forth in Exhibit “A.”


Case: 1:11-cv-00103-GHD-DAS Doc #: 203 Filed: 08/02/13 2 of 8 PageID #: 1282

/s/ Ryan O. Luminais

__________________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification to all known counsel of record. August 2, 2013 /s/ Ryan O. Luminais ___________________________________________ RYAN O. LUMINAIS


Case: 1:11-cv-00103-GHD-DAS Doc #: 203 Filed: 08/02/13 3 of 8 PageID #: 1283

EXHIBIT “A” DEFINITIONS AND INSTRUCTIONS

“KROGER” means The Kroger Co., its representatives, agents, management companies, directors, officers, employees, independent contractors, or anyone else answering or speaking on its behalf. “KMART” means Kmart Corporation, its parent, affiliated, and/or related companies, directors, officers, employees, independent contractors, or anyone else answering or speaking on its behalf. “PREMISES” means the land, roadways, buildings, improvements, and/or structure associated with the shopping center in Corinth, Mississippi on Highway 72 W that is currently occupied by KMART and Kroger Co. “FULTON” means Fulton Improvements, LLC, its predecessors, successors, and/or assigns, its representatives, agents, management company, employees, directors, officers, staff, and/or any other person or entity speaking on its behalf. Lease

1.

Any information regarding the terms, provisions, and conditions of the lease between FULTON and KROGER.

2.

Any information regarding FULTON’s obligations under the terms, provisions, and conditions of the lease between FULTON and KROGER.


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3.

Any information regarding KROGER’s understanding of the facts and circumstances surrounding the original lease between Food World (and/or any affiliated company of Bruno’s) and Fulton Crossing, Ltd.

4.

Any information regarding KROGER’s understanding of the facts and circumstances surrounding the location, design, development, construction, and building of the PREMISES.

5.

Any information regarding all due diligence performed by KROGER related to the PREMISES.

6.

Any information regarding all efforts, actions, and/or measures taken by KROGER related to the May 2010 flooding event or any other flooding event at the PREMISES.

7.

Any information regarding all protective, safeguard, and/or emergency measures available to, contemplated by, and/or used by KROGER TO mitigate and/or avoid any water and/or flood damage to the PREMISES.

8.

Any information regarding all protective, safeguard, and/or emergency measures available to, contemplated by, and/or used by KROGER to mitigate and/or avoid any fire, wind, or other casualty damage to the PREMISES.

9.

Any information regarding all contractors, subcontractors, consultants, and/or other persons or companies that KROGER communicated with to mitigate and/or avoid any flood, water, wind, fire, and/or other casualty damage to the PREMISES.


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10.

Any information regarding the costs, time, and/or effort to research, employ, and/or utilize any protective, safeguard, and/or emergency measure to mitigate and/or avoid any flood and/or water damage to the PREMISES.

11.

All protective, safeguard, and/or emergency measures available to, contemplated by, and/or used by KROGER to mitigate and/or avoid any fire, wind, flood, water or other casualty damage to any property that it owns and/or leases.

Letter of Map Revision/Amendment 12.

Any information regarding any knowledge, awareness, and/or understanding by KROGER of the facts and circumstances related to any letter of map revision and/or amendment related to the Kroger Store and/or any other building, improvement, and/or structure located at the PREMISES.

13.

All communications between and/or among KROGER, FULTON, the City of Corinth, and/or the Federal Emergency Management Agency regarding any flooding and/or water related events in or around Corinth, Mississippi.

14.

KROGER’s knowledge and/or understanding as to the location of the PREMISES, its susceptibility to flood and/or water damage, and/or any prior flooding and/or water damage at the PREMISES.

15.

Any information regarding any benefit of any kind that KROGER received as a result of any letter of map revision and/or related to the PREMISES.

Flood and/or Water Mitigation Measures 16.

All actions, efforts, and/or measures taken and/or contemplated by KROGER, including any omissions, to repair, remediate, restore, and/or rebuild any portion of the PREMISES, or any of KROGER’s contents, equipment, inventory, tenant


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improvements, or other property located therein, following the May 2010 flood event or any other flooding event. 17.

All expenses, fees, and/or charges incurred by KROGER to repair, remediate, restore, and/or rebuild the PREMISES, or any of KROGER’s contents, equipment, inventory, tenant improvements, or other property located therein, following the May 2010 flooding event or any other flooding event.

18.

Any information regarding all contractors, subcontractors, consultants, specialists, and/or other persons or entities retained by KROGER to repair, remediate, restore, and/or rebuild the PREMISES, or any of KROGER’s contents, equipment, inventory, tenant improvements, or other property located therein, following the May 2010 flooding event or any other flooding event.

19.

The timing, schedule, and calendar of all actions, efforts, and/or measures taken by KROGER to repair, remediate, restore, and/or rebuild the PREMISES, or any of KROGER’s contents, equipment, inventory, tenant improvements, or other property located therein, following the May 2010 flooding event or any other flooding event.

20.

The timing, schedule, and calendar of all actions, efforts, and/or measures taken by KROGER to repair, remediate, restore, and/or rebuild the PREMISES, or any of KROGER’s contents, equipment, inventory, tenant improvements, or other property located therein, following the May 2010 flooding event or any other flooding event.

21.

The timing, schedule, and calendar of all actions, efforts, and/or measures taken by FULTON, and/or its contractors or representatives, to repair, remediate,


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restore, and/or rebuild the Kroger store in Corinth, Mississippi following the May 2010 flooding event or any other flooding event. 22.

The scope, extent, and amount of all damages of any kind suffered by KROGER as a result of the May 2010 flooding events at its store in Corinth, Mississippi.

23.

The timing, schedule, and calendar of all actions, efforts, and/or measures taken by KROGER to reopen its store in Corinth, Mississippi following the May 2010 flooding event and/or any other flooding event.

24.

All money, consideration, and/or benefits of any kind that KROGER received from FULTON, or any of its representatives and/or insurers, following the May 2010 flooding event and/or any other flooding event.

Communications 25.

All oral or written communications between FULTON and KROGER related to the May 2010 flooding event or any other flooding event at the PREMISES.

26.

All oral and/or written communications between KROGER, FULTON, the City of Corinth, E&A Southeast Limited Partnership, Kansas City Southern Railway Company, the Federal Emergency Management Agency, and/or any other person prior to the commencement of this litigation related to the May 2010 flooding event or any other flooding event at the PREMISES.

27.

Any information regarding any demands made or contemplated by KROGER on FULTON or any other party in connection with the May 2010 flooding event, any other flooding event, or any issue related to the repair, maintenance, restoration, and/or safeguard of Kroger’s Corinth store and/or of the PREMISES.


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Litigation 28.

Any information regarding all documents produced by KROGER or any other party in this litigation.

29.

Any information regarding any expert witnesses retained by KROGER, whether jointly or alone, in defense of KMART’s claims in this litigation.

30.

Any information regarding KROGER’s understanding of all claims asserted against it by KMART in this litigation.

31.

The identities of any person with discoverable knowledge in this litigation.


203 depositionnotice kmart kroger