This conviction led Leonard through Harrison County where he served as a Deputy Sheriff until 1999. Upon leaving the Sheriff’s Department, Leonard went to work for the Mississippi Public Service Commission as a utility investigator where he worked until 2003. In 2004 Commissioner Bentz ran for and was elected to the Mississippi House of Representatives representing District 116. He served in the House of Representatives until April 2006.

After Hurricane Katrina in 2005, the Southern District Commissioner’s office was vacated, leaving an unexpired term to fill. Governor Barbour appointed Leonard to fill the unexpired term.

In 2007, Commissioner Bentz ran for and was elected to the office of Southern District Public Service Commissioner. He said, “It has been an honor to serve the people of Mississippi and especially the Southern District.”

He continued, “Serving on the Commission has been challenging at times. Some of the issues are mind-boggling. Dealing with issues that impact ratepayers like the cost of generating electricity, the cost of doing business in Mississippi, or dealing with the sometimes unrealistic regulations out of Washington can be very complex.”

So how do you handle these admittedly complex and difficult issues? He laughed and replied, “With lots of prayer. That’s a great start to any day. And I’ve got to say that I’ve been blessed with a tremendous staff. Without their commitment and hard work, we’d all be lost.”

He continued, “The issues may be more complex than I thought they would be, but I see in them a great opportunity to serve the public. A rule that I believe in is to regulate by common sense principles. It is easy to be against something. It’s tough to make a decision that you know impacts both sides and can impact utilities and ratepayers for the next 20 or 30 years. We’ve got to be forward thinkers, proactive in our approach in making sure that Mississippi is stronger when we leave than when we got here.”

Making decisions that ensure the viability of utility companies and at the same time protect the ratepayers can be a real balancing act at times. Commissioner Bentz said, “You can’t take sides on these kinds of issues. For me, the solution is this one thing only: ‘Do the right thing.’ A decision has to be made. We have to act on the information we have at the time. If your intent is honorable, and you are off track somehow, there will be time to change later.”

Commissioner Bentz was asked, “What are your thoughts on the Mississippi Damage Prevention Council’s (MDPC) proposal to create a stronger and more effective damage prevention program?”

He said, “As a resident of Mississippi, I applaud their efforts. Our underground infrastructure is vital to our entire state and we need to work together to protect it, first of all for the safety of our citizens, but also to help keep Mississippi competitive in the business markets. Getting the stakeholders involved is critical. I would encourage the MDPC to continue to identify other stakeholders and bring them to the table, even those who may not see things the way you do. Stakeholder participation and perspective is crucial to creating lasting change.”

He said, “I believe the will of the Commission is to do what is in the best interests of the ratepayers and utilities. Damages are not in the best interests of either group. Utilities that are disrupted can shut down industry or disrupt our economy. The cost of repairing damaged utilities certainly impacts the budgets of utility companies, and that can impact rates. And that’s true from the smallest rural water system to the largest utility in the state.”

What do you think about the PSC getting involved in the effective enforcement process? He said, “As you know, we have an outstanding Pipeline Safety Division. Their mission is to protect the public and environment, so it seems that it could be a fit. I am pleased to hear that the proposal includes a review board made up of stakeholders to ensure that throughout the entire process, their perspectives can be heard.”

He continued, “Some level of enforcement will be required in the end, but I’m convinced the solution to damages to our infrastructure is education, education and more education. Enforcement should be reserved for those who disregard the safety of others. I mean a case could be made that this is part of our responsibility to protect the public.”

What about the concern that this would give the PSC an opportunity to get involved in regulating rates for companies currently not regulated by the Commission? He paused for a moment then continued, “I’m a member of Mississippi Rural Water Association and I believe they do a good job of regulating themselves. Really, why in the world would anybody want to get in the way of these systems that are doing a good job? I don’t want the authority to meddle in their business, and I’m sure the law says we don’t have that authority.”

Commissioner Bentz concluded, “This Commission works diligently to promote the best interests of our state, our utilities and our ratepayers. I think that even though we may see things differently at times, we have worked together for a stronger and better Mississippi.”
“I personally appreciate the privilege given to me by the voters of the Southern District, and if given the opportunity to serve another four years I will continue working to do the right thing.”

By 1992 MS 811, needing more room for the Call Center, moved to a two-story office building. The center occupied the entire top floor. Donna said, “There were five full-time CSRs, the manager and a secretary/CSR. In 1995 the center manager became the office manager and I became the Call Center manager.”

In 2000 MS 811 implemented a GIS Department and again had to move, this time to an area with twice as much room as the previous building. In 2002, Donna was moved to GIS. On her work in this department, Donna said, “I love this side of the work, making sure the streets are correct for the CSRs and keeping our members database updated. Now it almost seems like I have come full-circle because I am once again training the new GIS people and answering their questions.”

Of course, Donna’s work at MS 811 cannot be summarized in only a few sentences. She says, “There have been many ups and downs and a lot of people have come and gone. I know that you know my bosses will be reading this, but that is not why I say I have loved working here. MS 811 has always been there for me no matter what. They have helped me grow and were patient while I did it.”

I thought surely this was some kind of joke. The question had nothing at all to do with algebra. I had passed him in the hallway several times. He looked like a janitor was supposed to look like. He was tall, kind of gray headed and a lot older than me, but how would I know his name?

I handed in my paper, leaving the last question blank. Just before class ended, one of the students asked if the last question would count toward our quiz grade.
“Absolutely,” said the professor. “In your careers, you will meet many people. All are significant. They deserve your attention and care, even if all you do is smile and say hello.”
I missed the question, but I’ve never forgotten that lesson. I learned his name was Henry and he had a lot to offer by way of perspective to anyone who took the time to learn that he wasn’t always a janitor.

In like manner, all stakeholder perspectives are important in defining what is fair and what will be effective in protecting our vital underground facilities. Issues of trust and fairness must be recognized, understood and fairly resolved.

The very nature of partnerships involves the perceptions of the participating stakeholders in how their interests and concerns are being addressed. If we fail to genuinely respect the points of view of other stakeholders, coming together will not culminate in staying together.

I encourage all stakeholders to take the time to learn about the other industries, personalities and perspectives that sit at the table with you. We also must learn to value each other’s insight into the business practices and the “practical considerations” that exist in our companies. Such insight and respect for insight is crucial to successful program development and implementation.

In damage prevention to say that my utility’s success is not tied to your utility’s success is like saying “Your end of the boat is sinking.”
Let’s work together to make it happen right here in our state!

Let’s begin our discussion by asking you to answer the following questions about your damage prevention team:
1. Do you want your team members to be mediocre?
2. Do you want your team members to be complacent?
3. Do you want your team members to be average? (Remember average is the best of the least and least of the best.)

My guess is that you answered “No!” to each of the above. Am I correct? Who in his right mind would want a low or mediocre performing team?

So let’s consider another question: Who is responsible for helping team members have the knowledge and skills to be successful? Correct. Supervisors. Whoops! Some supervisors have told me that employees should have the necessary knowledge and skill sets as a condition of their employment. I agree that would be nice. We also know the difficulty of finding high- performing talent.

So that leads us to wondering about those employees who are underperforming. Are you a supervisor? If so, I have another question for you to ponder and I want you think about it before responding. Are you willing to accept the responsibility of teaching your employees, including your underperformers, how to be successful? Pause … think … now answer.

I’ve asked thousands of supervisors to identify the number one responsibility of being a leader. Most of them respond with such phrases as “get things done,” “manage the assets,” “work safely” or other descriptions of their technical responsibility. Very few mention developing their people assets – which is their number one responsibility. If you think about it for a moment, people constitute your team’s resource with the greatest potential to develop.

Let me tell you a story that I’ve heard more times than I can remember. A supervisor complains about the performance of one of his employees. When I’ve asked, “What was the employee’s response when you discussed it with him?” What would you guess the answer is? “Well I suppose I should talk to him!”

Whose fault is it that the employee is not performing to the expected level in this scenario? When a supervisor points a finger at the employee, consider the fact that three are pointed back at him. A supervisor is not helping anyone by not having that conversation.

It’s confusing to understand why a company would not emphasize developing its people when considering the fact that people drive the company’s success. The fact is people must improve before the company improves. If you want a first class company, you must have first class people.

So where do you go from here? First, if you’re a supervisor you must embrace the responsibility to help your people succeed. Second, that means ensuring that your people know the results expected to achieve peak performance both in terms of their technical responsibilities as well as interpersonal performance. Note I said results instead of listing responsibilities. Of these two, defining technical expectations is the easier to discuss. For some reason, talking about interpersonal skills is a “sacred cow” and as such, this most critical subject is usually avoided. When that happens, everyone loses.

Third, people need a continuous stream of feedback to guide their performance. You don’t want them to be the blind hog that luckily finds the acorn. You want to help that hog fatten up to reach market weight. Providing feedback is critical for employees to become peak performers. Providing feedback is simply an accountability tool. Unfortunately, instead of viewing accountability as a teaching opportunity, many supervisors perceive it to be a negative event. There is nothing negative about helping people to succeed. Receiving feedback from a supervisor shows employees that they are cared for. We can look at this situation from another perspective. Is a supervisor helping anyone when he allows an employee to continue performing at an undesirable level and not intercede? Obviously not.
Take a poll among members of your damage prevention team sometime and ask if they want to be taught to be successful. My guess is you’ll like the results of your poll. Your damage prevention team is really a “schoolhouse.”

The news media’s announcement that the U. S. Postal Service is in trouble wasn’t a huge surprise to most of us. The world has shifted; we are using email so that business is down for the postal service. E-mail is immediate and doesn’t require postage. Perhaps it has the greatest cost of all, the cost of diminishing relationships. By using email we risk fading into the crowd and failing to stand out. This change in society offers an opportunity for you to separate yourself from competition while developing solid relationships with your prospects and customers.

Jeff, my postman, walked into my office and as he picked up a letter I had laid out to mail said “Nothing for you today.” I immediately thought “Great, no bills.” Bills and flyers are what I typically receive. While cleaning out my inbox recently, I discovered a note from a former associate that I received many months ago. I hadn’t discarded it because of the emotional impact it had on me when I received it. Interestingly, it had the same impact when I re-read it. That’s obviously why I kept it. In 2011 it has become rare to receive a personal hand-written note. That rarity creates an opportunity!

A personal hand-written note doesn’t have to be long. Actually, being simple and short is often preferred. “Thank you for your business. We value loyal customers like you. I enjoy working with you.” Now you’re standing out from your competition for only 44 cents!

A pre-printed card that says the same thing has a totally different effect. We quickly throw those in the trash. When something is hand written we have a tendency to value it. You see, it’s about making a personal connection and strengthening a relationship.

If you would like to make the note more specific, tell people what you like, admire, respect or appreciate about them. Next, tell them why you like or appreciate it, then share how you personally benefit. For example: “I enjoy working with you. Your sense of humor creates a bright spot in my day.”

I’m encouraging you to hop on the REA 44-10-10 Express. It’s a train for which you don’t have to purchase tickets or wait. It’s ready to go when you are. Invest 44 cents, 10 minutes and express your Recognition, Encouragement or Appreciation to another person with a hand-written note. Hop the express daily for 10 days.
Don’t limit yourself to customers; it’s applicable for all of the important people in your life. Look for opportunities to encourage folks who are facing a challenge. Provide recognition when people achieve a goal or have a success. You’ll find that you’re developing a habit which will endear you to others and set you apart. You will launch one of the most effective advertising-/relationship-building campaigns known to modern man. There is no replacement for genuine one-on-one interaction.

None of us would stand by and allow important people in our lives to starve without taking immediate action. The reality is, often without our awareness, people in our lives are starved for recognition, encouragement or appreciation and we do nothing. Let’s make sure they know they’re important to us.
I received a quote recently that impressed me and sums up my thoughts. “My religion is very simple. My religion is kindness.” ~ Dalai Lama, 1935
So start today and get on the REA 44-10-10 Express. Now you’re creating ZING!

There was a little patch of timber across the road from our house probably no more than 10 acres total. There was plenty of hard wood and lots of squirrels. I was allowed to go hunting in that little patch of woods by myself. Auntie would always say, “Son, don’t cross that fence into the big woods.”

“Yes, ma’am,” and off I’d go. Actually hunting inside the fence was usually pretty good, but today was not a day to brag about. There I was sitting in my usual spot looking at my favorite tree and nothing was happening on my side of the fence.

But on the other side, I could hear hundreds, maybe thousands of squirrels barking. Some of them even sounded like they were laughing at me. I couldn’t stand it. I reasoned, “If I crawled under the fence to get my limit, who would know?”

Though I had heard about people getting lost in the big woods, it never crossed my mind that I could, even with the sun hanging low in the west. After all, I was going to stay close to the fence and I was only going to be in there long enough to get my limit.

When I crawled under the fence, I heard a squirrel jumping from limb to limb. I looked up, took aim, fired and down he came. Just a few seconds later, I heard another squirrel and I began walking toward the sound. I don’t know exactly how long I walked, but I guess the squirrel heard me walking and hid.

That’s when I first noticed it was graveyard quiet and getting serious dark as well. Then I heard the night birds rustling around in the bushes. I think it was then that I realized that I was in the big woods and in deep trouble. It was dark, and because I had been walking around looking at the timber, I wasn’t really sure where the fence was. I wasn’t even sure where I was.

That’s when it dawned on me. I was a goner!

I stumbled around in the dark until I remembered my old friend Dillard telling me one time that if I ever got lost the best thing to do was to stay calm, sit down and pick out a landmark and walk to it. That part about staying calm was easier when I was on Dillard’s front porch. But I did sit down and began to peer through the ever increasing black night.

I knew that if I ever got out of this alive, my Auntie would kill me. Worse than that, she’d take my gun, tell our neighbors, the Shepherds and their oldest boy, Hugh, would make fun of me from now on.

Oh, what a tangled web I had weaved.

“What is that?’ I thought to myself. I could see the smallest bit of light no bigger than a lightning bug. I wasn’t sure where it was, but it seemed like a better place than where I was. I stood up and focused on that landmark and started walking. On and on I slowly walked toward the dim light that seemed so far away.

Each step was measured. I could hear things behind me that made me want to have a runaway. One step, find the light and take another step. Then I felt something grab me. It was so dark I didn’t see the barbed-wire fence that separated me from where I wanted to be.

I took one more look at the light, got down on the ground and crawled under the fence, stood up and found the light once more. I’m confident that was the feeling Moses had when the Egyptians were bearing down on him, and he turned in time to see the waters parting.

As I walked across the pasture I never took my eyes off the light that kept getting bigger each step. I soon recognized the 60-watt light bulb on the front porch of our house. I later told Dillard about how dim the light was when you were standing on the porch and how bright it seemed that night. He smiled and said, “The light was not there to see the house, it was there to see how to get to the house.” I knew that was going to be one of those things that I’d have to figure out when I got older.

So I crossed the gravel road to our house and got a “I’m so glad you’re safe” hug and then a “don’t you ever do that again” whipping all the way into the house.
But somehow it all seemed worth it to me. I had stared “lost” in the face and had the key to finding my way out. Now all these years later, I’m reminded that we don’t have to know everything there is to know before we can be successful. Just be true to the light you have and you’ll find a way to win.
“Hey Auntie,” I said while she was tucking me in for the night, “can I go over to Dillard’s tomorrow and tell him about how I stayed calm?”
“And oh, one more thing, let’s not tell the Shepherds. There are some things that Hugh just doesn’t need to know.”
“Thank you Auntie… I love you too.”

Pictured left to right: Randall Zeringue, Phil Barker, Ed Landgraf, Gweneyette Broussard, David Brignac and Teri Wohlgemuth.

The 811 logo made appearances at the Martinsville Speedway, Texas Motor Speedway, Talladega Superspeedway and the Richmond International Raceway.

Rushing on building, landscaping or excavation projects can lead to both poor quality work and dangerous situations. Hitting an underground facility can knock out power or gas to an entire neighborhood, in addition to potentially causing injury to the digger and other people in the vicinity. A digger could be held financially responsible for repairs if they don’t call 811 and damage infrastructure while digging. Every digging project requires a call to 811 – even small projects, like planting trees or shrubs.

“We are excited to have 811 represented on the No. 22 Shell-Pennzoil Dodge during every race in April,” said the President of Shell Pipeline Company LP, Greg Smith, last spring. “In three years of leveraging our motorsports alliances, we have seen tremendous increase in calls to 811 and awareness of National Safe Digging Month. Capitalizing on the entire month of April allowed us to reach key audiences, including many who will be conducting home digging projects in the coming year.”

A quick and easy call to 811 will connect you with a local One Call Center operator who will record information about your dig location and notify the underground facility operators so they can mark the approximate location of underground utilities such as natural gas and oil pipelines below your project. Once the lines are marked, you can begin to dig, confident that you know what’s below.
For more information, visit www.call811.com.

As both of my regular readers know, I was raised by my Uncle Alva and Aunt Beulah, and they’d got a letter from my dad.  He was coming to see us for a few days. It had been almost two years since the last time I saw him. So when I got home, I sat on the front porch looking up the gravel road hoping to get a glimpse of him driving down the hill.

It was almost dark when he drove in the yard. I never really knew how to act when he came in. But he hugged me and I helped him get his stuff in the house and we all stayed up late talking. The next day we decided we’d go fishing on the river.

Anytime you’d go fishing on the river, it was an adventure. The best fishing holes were accessible by boat and that was an all day trip. My dad didn’t want to take the time to go that route, so Uncle loaded up his 1949 Chevy pickup and off to the river we went.

Of course you couldn’t drive to the best fishing hole on the river either.  That’s what made it the best fishing hole. You had to want to go there to get there. So we got out of the truck and began walking down the trail to the Roe hole.

The trail wound through a serious thicket of saw briars and cane. Uncle Alva was in the lead busting the brush, my dad was a few steps behind him and I was bringing up the rear. As the trail wound closer to the river, I heard Uncle Alva warn us, “Be careful at the bend.  The bank is slippery and looks like it’s caving in.” I couldn’t see him, but I could still hear him cutting through the cane.

I stopped and looked at the spot he was talking about and it really did look spooky to me. The water was about four feet below the bank. Over the years trees had fallen into the bend of the river and had become home to turtles, snakes and eels.

Just then I felt the ground crack under my feet.  I jumped. I went nowhere. As I slid down the bank, my life flashed before my eyes. Of course that didn’t take long since I’d just finished the first grade. I thought for sure it was over for my kind.

I knew my dad was just in front of me and that Uncle Alva was in front of him cutting the trail. As I slid down the bank, I hollered, “Uncle, help me!”

My feet had barely hit the water, when I felt a strong grip around my arm. I looked up into the eyes of my Uncle Alva. He pulled me out of the water and set me safely on the trail. We picked up the stuff I’d lost and almost without a word, the three of us began walking toward the best fishing hole in the county. The fishing was good. We had a great time and too soon the afternoon was gone and we headed back home.

All afternoon long, I kind of felt guilty that I’d called for my uncle to help me when my dad was so much closer to me. I just couldn’t shake the feeling.

My dad left in a couple of days and the following weekend I went to see my friend Dillard. He was in his favorite chair on the front porch just a rocking.   He asked me why the long face. I told him the story and that part about me feeling guilty for not calling out to my dad when I fell.

He thought about it for a minute and said, “Son, you love your dad, and always will. But in desperate situations we always reach out to people who have been there for us in times past. You yelled with your mouth, but the name came from your heart. You called for your uncle because you knew he’d be there for you.”

We sat in total silence until it was time to go in for supper. I looked up at him and nodded as if I got it. All I understood then was that when I grew up I knew I wanted to be the name in somebody’s heart.

Lynn Posey, Chairman of the Commission.

Lynn Posey is currently serving as Central District Public Service Commissioner and is also Chairman of the Commission. Commissioner Posey served in the Mississippi State Senate from 1988-2007. While in the Senate, Commissioner Posey served 16 years as Chairman of Wildlife, Fisheries, and Parks and was a member of the Public Utilities Committee for 16 years. He also served as a sub-committee chairman on Appropriations, Business and Financial Institutions, Economic Development and Forestry.

Commissioner Posey has been on the Commission for three years and has had to hit the ground running. He says, “In my estimation, one of the biggest challenges the Commission faces is simply dealing with the complexity of the issues before us.  Think about it, we deal with a variety of issues from rates to complaints.” He continued, “There is no question but that the utility has to make a profit, but we are here to protect the rate payer.  After all, it is their money.”

The Public Service Commission regulates telecommunications, electric, gas, water and sewer utilities. The agency is charged with assuring that rates and charges for services are just and reasonable, that the service rendered is reasonably adequate, and that any facilities constructed or acquired are required for the convenience and necessity of the public. Additionally, the agency exercises safety jurisdiction over gas pipelines and has area jurisdiction over all public utilities.
In part, protecting the rate payer is why Commissioner Posey is interested in the direction the Mississippi Damage Prevention Council (MDPC) is going with proposed legislation to create effective enforcement for the “call before you dig” law in Mississippi.

Effective enforcement would require investigation of reported violations. One of the options on the table is to have the Pipeline Safety Division’s trained investigators provide that service.
So, Mr. Commissioner, what do you think of this as an option?  He replied, “Subject to the details being worked out, I don’t think the Commission would object to being involved. If the Commission were involved in the investigations of violations, the Pipeline Safety Division is the only department that could do it. The Commission has no other means or outside staff for such an undertaking.”

He continued, “I personally don’t have any objection to being  involved in this very important effort.  However, to do it and to do it effectively, we’ll need to know what’s involved. My personal feeling is that fines would always be a last resort.  And whatever we do must be done with the interest of rate payers.”

There are those who might be nervous about the Commission becoming involved in investigations of damages or violations of the law. Some have suggested it provides another connection to an agency that could somehow use that connection as leverage to get involved in additional regulation of their industry.  Commissioner Posey said he sees rate regulation and damage investigations as two completely separate issues. Should the Pipeline Safety Division provide investigations in the future, it should be because they are perceived as the best and most logical organization to do it, not because there is some hidden agenda.

Commissioner Posey offered this piece of advice to stakeholders committed to damage prevention.  “Calling before you dig is a matter of public safety. And building consensus outside the capitol is critical to your success. One thing I learned after 20 years in the Senate is that the legislative process rarely passes a perfect document. But if you work together to pass something that allows you to build on it as you go along, much can be accomplished.”

He concluded, “From a rate payer’s perspective, having a strong program is advantageous. For example, if a utility chooses not to be a member, or there is no accountability for choosing not to call before you dig, there is increased potential for injury or even death, there are unnecessary disruptions to vital services, and there is also unnecessary expense to the rate payer. Ultimately, the rate payer has to pay for the lack of a strong program. My interest in ensuring that the rate payer is getting the most for his money is one of the reasons why I am personally interested in learning more about this effort.”

by “Sandy” Sanford III, Attorney
Willoughby Law Group

The prior installment of this series focused on issues related to damages. In short, we explored how the damaged utility maximizes damages under the law, and how the excavator minimizes or eliminates categories of damages.
The vehicle for determining issues related to liability and damages is known as “discovery.” Discovery occurs after the litigation commences and before trial begins.   Discovery is defined as “compulsory disclosure, at a party’s request, of information that relates to the litigation.” Black’s Law Dictionary, definition 2 (7th Ed.).
While several methods of discovery are available, the most frequently used methods are (1) interrogatories, (2) requests for production of documents, (3) requests for admission, and (4) depositions. All may be used as effective discovery tools individually, or in combination. The parties conduct discovery without action by the court. The parties seeking discovery are generally only limited by their own creativity, quantity limits  set forth in the Rules of Civil Procedure, and the following standard: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party… It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Miss. R. Civ. P. 26(b) (emphasis added).
Importantly, according to this Rule 26(b) standard, the fact that information will be inadmissible is not a basis for denying a discovery request. If the request is reasonably calculated to lead to the discovery of admissible evidence, it is discoverable. This standard is much easier to satisfy than the admissibility standard, and it reflects a policy in favor of liberal discovery between the parties.
What are the typical issues to explore in the buried utility damage claim? Most discovery will focus on liability and damages. Therefore, the utility plaintiff will want to discover information regarding steps the excavator plaintiff took to prepare for the excavation and avoid the buried facility. For example, the plaintiff may propound interrogatories (written questions) to defendant relating to issues such as locate calls made to Mississippi 811,  the type of equipment used to excavate, the distance that defendant was from the painted markings when it excavated, and the steps defendant took to mitigate damages after the accident. The answer to these questions may reveal that defendant failed to call Mississippi 811, or that defendant excavated too close to the painted markings with mechanical equipment. These facts would help the utility establish liability against defendant.
Conversely, the defendant could explore what evidence the plaintiff possessed to suggest that defendant dug too close to the markings with mechanical equipment.  Defendant should also discover information on the plaintiff’s damages. For example, defendant could propound requests for production of documents to obtain items such as damage scene photos, methodology for overhead calculations, and invoices paid to contractors for damage repairs. These documents could help the excavator find avenues to reduce damages available to plaintiff.
Another very useful, though potentially costly and time-consuming option is the deposition. Any party to litigation “may take the testimony of any person, including a party by deposition upon oral examination.” Miss. R. Civ. P. 30. The deposition allows a party to orally ask questions which the deponent must answer under oath. Both parties may depose each other to find answers to questions regarding liability and damages. However, as Rule 30 suggests, the plaintiff, defendant and their employees are not the only people subject to deposition. Any person who can provide information “reasonably calculated to lead to the discovery of admissible evidence” may be deposed. Thus, the defendant who believes that the damage occurred because the utility was marked incorrectly, could depose the locate company employees who marked the utility. Defendant could explore the training of the locate company employees, the relationship between the locate company and the utility, and any damage investigation that the locate company performed.
In summary, discovery is the fact-finding portion of litigation. It helps the parties identify the strengths and weaknesses in their positions, and it can also help lead to a fair settlement prior to an expensive trial. At the very least, by the end of discovery, the parties should know WHO, WHAT, WHEN, WHERE AND HOW.