Citing their ongoing efforts to emerge from bankruptcy, Swift Air corporate officers Jeffrey Conry and Boris Van Lier asked Sunday to postpone their depositions this month in Charlotte, North Carolina, in connection with Saipan Air Inc.’s $50-million racketeering lawsuit against them.
Saipan Air Inc., through counsel Steven P. Pixley, opposed the postponement of the depositions as he is already in Charlotte, having left Saipan on Sunday at 4:30am.
The depositions are scheduled on Oct. 9 to 11.
Deposition refers to the taking of testimony of a witness outside of court.
Pixley said he only learned that Conry and Van Lier asked to postpone the scheduled depositions upon landing in Houston that day, after traveling for roughly 20 hours and when he opened his e-mail.
Pixley said he flew halfway around the world to participate in the deposition.
“Under the circumstances…Conry and Van Lier should be compelled to attend their depositions,” Pixley said.
U.S. District Court for the NMI Magistrate Judge Heather L. Kennedy heard the motion yesterday; the hearing will continue today, Tuesday, at 10:30am.
Kennedy stated, though, that she was inclined to grant the rescheduling of the depositions, but this time on Saipan.
At the hearing, attorney Michael White, counsel for Conry and Van Lier, said he wants to consult first with an off-island counsel about rescheduling the depositions.
Attorneys Pixley and Vicent Seman appeared for Saipan Air. Pixley spoke via phone.
Although Conry and Van Lier have asked for a postponement of the depositions, White said that Swift Air executive Donald Stukes is willing to go ahead with his scheduled deposition.
White said that Swift Air LLC is in Chapter 11 bankruptcy in Arizona and that the company’s creditors, including Saipan Air, have agreed upon a confirmation plan.
The plan, the lawyer said, will allow Swift Air to emerge from bankruptcy.
“Swift Air is working extremely diligently to prepare for its imminent exit from bankruptcy. The timing of this event was not anticipated at the time that the depositions in question were scheduled,” he said.
White said both Conry and Van Lier are directly responsible for the fulfillment of Swift Air’s obligations to the company’s creditors under the plan.
As part of these obligations, he said, Swift Air is required to secure certain licenses and permits from the Federal Aviation Administration and deal with other regulatory matters.
White said his clients anticipated that they would have the entire week of Sept. 30 to Oct. 4 to accomplish these tasks.
White noted that on Oct. 1, the FAA cut non-essential services as part of the nationwide shutdown of the federal government.
This, the lawyer said, precluded Conry and Van Lier and Swift Air from being able to pursue these tasks with the FAA.
White said the aircraft must be secured by Oct. 11.
He said if the government shutdown ends, Conry and Van Lier, who are based in Arizona, will be required to deal with the FAA during the entire week of Oct. 7 to 11 to move these matters forward.
“If the government shutdown continues, [Conry and Van Lier] will be required to take emergency measures to secure the aircraft from other private sources around the country so that Swift Air can fulfill its obligations,” White said.
White said Conry and Van Lier are key operatives in this process and are essential to Swift Air’s efforts to emerge from bankruptcy and get back on its fee.
“There are no other company personnel who can fill their shoes during this critical period. Their presence in Phoenix during the week of Oct. 7 to 11 is absolutely necessary,” he said.
White also disclosed that Executive Jet Management, a former customer of Swift Air that suspended its affiliation with Swift Air during the Chapter 11 proceedings, is prepared to move forward with Swift Air once again upon the latter’s exit from bankruptcy.
EJM, White said, represents a significant source of income for Swift Air.
White said his clients do not ask for the depositions to be cancelled but only to postpone them because of the unforeseen circumstances.
He said his clients know that this will cause some inconvenience to Saipan Air and its counsel and that they sincerely regret this.
White said his clients will pay all the expenses of Saipan Air and its attorney in connection with the cancellation, if all three depositions are rescheduled.
In Saipan Air’s opposition, Pixley said that on Oct. 4 he received a call from defense counsel that Conry and Van Lier had conflicts.
Pixley said that shortly after the call, a letter was delivered to defense counsel stating that they had not sought a protective order and offering to appear in court on Friday to argue the motion.
Pixley said he also informed defense counsel that he was scheduled to leave on Sunday, Oct. 6.
“Notwithstanding the previous agreement, Conry and Van Lier apparently believe that their activities with Swift Air are more important than participating in a duly noticed deposition,” he said.
In addition, Pixley said, the representation of Conry and Van Lier are not made under oath.