Tobacco Documents - Case Management Order (March 29, 1995)
STATE OF MINNESOTA
COUNTY OF RAMSEY
| DISTRICT COURT
SECOND JUDICIAL DISTRICT
Case Type: Other Civil
COURT FILE NO. Cl-94-8565
THE STATE OF MINNESOTA,
BY HUBERT H. HUMPHREY, III,
ITS ATTORNEY GENERAL,
and
BLUE CROSS AND BLUE SHIELD
OF MINNESOTA,
vs.
PHILIP MORRIS INCORPORATED,
R.J. REYNOLDS TOBACCO COMPANY,
BROWN & WILLIAMSON TOBACCO CORPORATION,
B.A.T. INDUSTRIES P.L.C.,
LORILLARD TOBACCO COMPANY,
THE AMERICAN TOBACCO COMPANY,
LIGGETT GROUP, INC.,
THE COUNCIL FOR TOBACCO RESEARCH U.S.A., INC., and
THE TOBACCO INSTITUTE, INC.
CASE MANAGEMENT ORDER
I. GENERAL TERMS OF CASE MANAGEMENT
A. Purpose
The purpose of this Case Management Order is to secure the just, speedy, and inexpensive determination of this action in accordance with Rule 1 of the Minnesota Rules of Civil Procedure. Except as otherwise provided by this Case Management Order or any subsequent order, the Minnesota Rules of Civil Procedure and the General Rules of Practice for the District Courts shall govern this case. This Case Management Order may be modified by the Court sua sponte or upon motion of the parties for good cause shown.
B. Substantive Issues of Law
Nothing set forth in this Case Management Order shall be deemed to affect any substantive claim, or defense of any party to this matter or constitute any ruling or order on any question right, of law.
C. Cooperation of Counsel: Non-Waiver of Privilege
Counsel for the respective parties are directed to cooperate to the greatest extent possible to promote the expeditious and efficient handling of these proceedings. Among other things, such cooperation shall include, whenever feasible, the preparation and presentation of joint positions, claims, and defenses by the plaintiffs and defendants who are aligned on respective sides. To facilitate this cooperation, the exchange or disclosure of information or documents between or among co- counsel for plaintiffs, or between or among co-counsel for defendants, in the course of such joint preparation from August 17, 1994 forward shall not be construed as a waiver of any attorney-client, work-product, or other privilege or any other exemption from any disclosure requirement that may apply to the information or documents so exchanged or disclosed.
A Special Master may be appointed by the Court during the period of discovery.
D. Status Conferences
Except as otherwise ordered or agreed among the parties, general status conferences shall be held on the first Tuesday of every other month, commencing two (2) months following the May 2, 1995 hearing date. The conferences will commence at 9:30 A.M. Any party can request of the Court additional status conferences as needed. Counsel shall use their best efforts to prepare a status conference agenda to be filed five days prior to the conference date.
E. Hearing Dates
Motion hearing dates under Rule 115.02 of the General Rules of Practice for the District Courts shall be obtained directly from the clerk of the presiding judge after consultation with Administrative Liaison Counsel for both plaintiffs and defendants.
F. Administrative Liaison Counsel
The plaintiffs and defendants shall each appoint two Administrative Liaison Counsel. Defendants shall appoint one Minnesota counsel and one national counsel to serve as Administrative Liaison Counsel. The Administrative Liaison Counsel or their designee(s) are vested by this Court with the responsibility:
1. To receive orders, notices, and correspondence from the Court and the District Court Administrator on any matter pertaining to this case, and notify all counsel for whom they serve as Administrative Liaison Counsel of all such orders, notices and correspondence from the Court; and
2. To perform such other duties as may be expressly authorized by further order of this Court or agreed to by counsel for all parties.
G. Pro Hac Vice Admission of Counsel
Attorneys who apply to this Court for pro hac vice admission in this case shall agree to abide by the Minnesota Rules of Professional Conduct and subject themselves to the jurisdiction of this Court for the pendency of this action. See Rule 5, General Rules of Practice for District Courts.
H. Document Preservation
The parties to this action shall be bound by the Amended Order for Preservation of Documents entered in the Castano case, a copy of which is attached hereto as Exhibit 1, as well as the following provisions regarding the preservation of documents. Both the attached Castano order and the following additional provisions shall be enforceable in this Court.
1. For these purposes, the phrase ". . .documents containing information that may be relevant to, or may lead to the discovery of information relevant to . . .any claim of the plaintiffs in this case, any defense urged by the defendants in this case . . . " found in paragraph 2(b) of the Castano order, shall be deemed to refer to the claims and defenses in the matter of The State of Minnesota, et al. v. Philip Morris, et al.
2. To the extent that it is a normal business practice of any party to transfer documents to microfilm, it will not be a violation of this Order to do so and to discard the originals on the express condition that no document is destroyed or doctored before it is fully and accurately transcribed to microfilm.
3. Medical records, x-rays, MRI films, CT scans and other such medical reports and diagnostic films, relating to individual patient care, obtained by the parties to this litigation from third-party health care providers may be discarded pursuant to existing retention policies in effect as of August 1, 1994, unless such documents are obtained for the purposes of this litigation.
4. Except to the extent that outside counsel acts as custodian for documents: (a) once in the possession or control of a party, but no longer in the party's possession or control, or (b) generated in connection with scientific research relating to smoking and health and in connection with outside counsel's participation in selecting or retaining scientists and/or generating, directing or supervising such scientific research for or on behalf of one or more of the parties, this Order shall not apply to the files of outside counsel.
5. Each party is responsible for complying with this Order (as defined in Exhibit I and the Case Management Order) as to documents in that party's actual or constructive care, custody and control; and is also responsible to take appropriate steps to seek the preservation of documents (as defined in Exhibit 1 and the Case Management Order) as to which a party at one time retained and stored in its possession but later decided to transfer its only copy to a corporate affiliate or a third party.
6. In addition to the obligation of the parties to retain documents as set forth in paragraph 2(b) of the Castano order, the obligations of Minn. R. Civ. P. Rule 26.05 and Minn. R. Prof. Cond. Rules 3.4 and 8.4 apply and provided further, that the parties will preserve periodic and final reports) final memoranda, patent applications, publications by the parties' scientists, and laboratory notes or notebooks concerning research which may have been conducted at any time after March 29, 1994, and which may hereafter be conducted on (a) smoking and health, including but not limited to epidemiological studies and animal studies; (b) the alleged "addictive" properties of nicotine; and (c) the development of an allegedly "safer cigarette."
I. Service Of Pleadings Motions And Briefs
All pleadings, motions, and briefs shall be served by hand-delivery on local counsel no later than 5 p.m. on the date the pleading, motion, or brief is due. In addition to the required filing of the originals with the clerk, all parties are encouraged to submit proposed findings, memoranda, and orders on 3½ inch computer diskettes formatted for Wordperfect 5.1 for Dos.
II. INCREMENTAL CASES MANAGEMENT
The case shall be managed on an Incremental Case Management basis and proceed according to the following general provisions and schedule:
A. Motions on the Pleadings
All motions on the pleadings under Rule 12 of the Minnesota Rules of Civil Procedure must have been filed with the Court on or before January 26, 1995.
B. Commencement of Discovery
Except as to expert discovery, which is addressed in Section III. F., written discovery on all claims and defenses remaining in the case following the Court's rulings on the Rule 12 motions shall commence thirty (30) days after the Court has ruled on all of the Rule 12 motions. Other than as set forth in the Minnesota Rules of Civil Procedure or by order of this Court, there shall be no limitation as to the subject of discovery.
C. Form of Discovery
The parties shall be free to serve written discovery as soon as the discovery period begins. No depositions shall be scheduled except by agreement of the parties or by order of the Court. The parties shall meet and confer no later than six months after the commencement of written discovery to exchange proposals regarding the taking of fact depositions in this case, which proposals shall include the timing and scheduling of such depositions and all other issues regarding depositions in this case.
D. Dispositive Motions
Any motions for summary judgment or other motions that parties seek to file after discovery begins shall be filed no later than sixty (60) days after the conclusion of all discovery.
E. Trial
This matter shall be tried to a jury on all of the issues pled in the complaint which are so triable and shall be set for trial during the calendar year 1998. At a time no later than eight (8) months before the conclusion of discovery, the parties shall meet and confer to discuss pretrial matters and propose a pretrial management schedule to the Court, including a schedule for the exchange of witness lists, exhibit lists, the filing of motions in limine and dispositive motions and other such pretrial issues. At that time, the parties will propose a more specific trial date setting in 1998 to the Court for its consideration.
III. INCREMENTAL DISCOVERY MANAGEMENT
A. Joint Discovery
It shall be the general rule in this case that all discovery generic to issues of liability and damages shall be conducted jointly by the plaintiffs as a group and by the defendants as a group, including interrogatories, document requests, requests for admission, and depositions. If a party objects to an opposing party's conducting discovery independent of the other opposing parties, the parties shall meet and confer before applying to the Court for relief.
B. Discovery Relating to the Motion of B.A.T. Industries p.l.c. to Dismiss the Complaint
1. In accordance with the Court's order of December 30, 1994, the Court's decision on the pending motion of B.A.T. Industries p.l.c. to dismiss the Complaint for lack of personal jurisdiction is stayed pending discovery relating to the factual issues necessary to the Court's determination of the motion. All other discovery as against B.A.T. Industries p.l.c. is stayed during the pendency of the motion.
2. The jurisdictional discovery set forth above shall be commenced and completed within 180 days from the date upon which the Court has ruled upon all of the Motions for Judgment on the Pleadings filed in accordance with paragraph 2 of the Court's order of December 30, 1994. Any discovery dispute which results in any delay in this jurisdictional discovery shall automatically toll the 180-day discovery period for an amount of time equal to the delay in resolving the dispute, absent a ruling of the Court that for good cause shown there shall be no tolling or that tolling shall be limited. Notwithstanding other provisions of this Case Management Order, all time periods as set forth in the Minnesota Rules of Civil Procedure shall apply to this discovery, unless otherwise agreed.
3. Within 30 days (30) days after the expiration of the jurisdictional discovery period, B.A.T. Industries p.l.c.'s shall file a brief and any supporting papers in further support of its motion. Plaintiffs shall file a responsive brief and any supporting papers within 30 days following service of B.A.T. Industries p.l.c. papers. B.A.T. Industries p.l.c. shall file its reply brief and any supporting papers within 15 days following service of plaintiffs' responsive papers. The Court will schedule a hearing on the motion to take place on a date subsequent to the filing of all such papers.
4. Neither paragraphs 2 and 3 of the Court's order of December 30, 1994 nor the provisions of this Case Management Order relating to Motions for Judgment on the Pleadings shall apply to such motions that may be made by or against B.A.T. Industries p.l.c. However, should B.A.T. Industries p.l.c. interpose a responsive pleading, plaintiffs and B.A.T. Industries p.l.c. agree to be bound by rulings made on "generic" issues (i.e., legal issues of uniform application regardless of a party's identity or status) presented in the Motions for Judgment on the Pleadings brought pursuant to the Court's order of December 30, 1994, while reserving their rights to seek adjudication of any unique issues presented by their respective pleadings.
C. Interrogatories
1. Number of Interrogatories: Plaintiffs shall answer no more than 40 interrogatories; Defendant's shall answer no more than 60 interrogatories, including subparts, with the exception of interrogatories seeking the following information:
(a) the identity of witnesses;
(b) the location, identity and foundation of documents; or
(c) the corporate structure, organization, and inter-relationships among the parties and affiliates.
2. Expansion of Interrogatory Limits: The limit on interrogatories may be expanded by the Court upon a showing of good cause or by agreement of the party from whom the discovery is sought to be obtained.
3. Contention Interrogatories: Contention interrogatories shall not be permitted in this case except by leave of the Court.
D. Document Production
1. Technology For Document Production:
The plaintiffs and defendants shall each appoint a technology liaison manager who will work in conjunction with a court appointed technology expert to determine the appropriate technology to be used for the production of documents. Regardless of the technology used, all parties, upon a representation that good cause exists, shall have reasonable access to the original paper copies of such documents so identified. If the producing party objects to providing such access to the original paper copies, the moving party shall present its showing of good cause to the court, ex parte and in camera.
2. Protective Order
The parties shall meet and confer on a Protective Order that shall govern the use of documents produced in this litigation. The Court shall resolve any remaining disputes before any party is obliged to produce documents.
3. Copies
Unless a party raises the objection of undue burden in which event the matter shall promptly be submitted to the Court (unless the parties otherwise resolve the issue), all copies of any particular document must be produced, including but not limited to drafts, blind copies, written copies, routing slips, copies of the front of folders and labels on the folders which contain the documents in the files of the parties. However, identical copies of a document which contain no distinguishing marginalia or other distinguishing feature need not be produced.
4. Document Numbering
Any party producing documents shall number all produced documents as provided herein. Copies of any produced documents shall be marked by the producing party with an identifying number using a Bates stamp, computerized label, or similar marking system that provides a unique identification number of the document. An explanation of the numbering system -- which shall allow identification of which party produced which documents -- shall be provided by the producing party. Documents produced by non-parties shall be numbered with a comparable identification system.
The identifying number assigned to the document shall be used to identify the document for all subsequent pretrial and discovery purposes, provided that once a document has been assigned a deposition exhibit number, it may be cited by such exhibit number.
5. Document Indexes
Each party shall produce an index of documents along with the production of its documents, to the extent that each party has an existing index of the documents. To the extent that a party does not have an existing index at the time of production, such index shall be produced at the time it may be created. Such indexes shall include only objective information, such as author, recipient, date, and title of documents and shall not include any subjective information which may be arguably protected by the attorney-client or work product privileges
6. Identity of Responsive Request
Each party shall produce documents to correspond to the appropriate categories in the request for production. If a document is responsive to more than one request, the producing party shall so indicate, unless unduly burdensome to do so.
7. Privileged Documents. Any document withheld from production based upon a claim of privilege shall be identified in a privilege log which shall include, for each document:
(a) Document production number;
(b) Date;
(c) Author;
(d) Addressees and recipients of copies;
(e) Type of document;
(f) Subject matter of document;
(g) Nature of claimed privilege (e.g. attorney-client; work product).
Such identification of privileged documents shall designate specifically the document request number(s) to which the privileged documents are responsive.
The privilege log shall include all documents withheld from production on grounds of privilege and otherwise responsive to a request for production, including but not limited to documents generated by in-house counsel. The privilege log shall also include documents generated by or in the possession of outside counsel but only to the extent that the request seeks documents over which outside counsel act as custodian which were once in the possession or control of a party but are no longer in the party's possession or control. At such time, however, that plaintiffs request documents generated by or in the possession of outside counsel which relate to research on smoking and health where outside counsel acted as an agent for or on behalf of one or more of the parties, to the extent that such documents are not available from the parties' own files, the parties agree to promptly meet and confer, discuss the scope of the request and seek early resolution of any dispute which might arise as to the production of such documents or the identification of such documents on the privilege log.
The privilege log need not list attorney-client or work product privileged documents first created on or after August 17, 1994 for this case specifically unless ordered by the Court.
No non-privileged document shall be withheld from production solely on the ground that it is attached or appended to a privileged document.
8. Redaction of Documents
There shall be no redaction of documents except on the basis of privilege or pursuant to a Protective Order agreed upon by the parties or ordered by the Court. If redacted, the document must be marked as redacted in the location of the document where it is redacted. Each and every redaction shall be listed in the privilege log unless otherwise agreed to by counsel or ordered by the Court.
9. Representations Concerning Production of All Documents
Any document authored by an employee of a party and produced by the party during the course of this litigation is, in the form produced during discovery, genuine, authentic, and a record of regularly-conducted business activities within the hearsay exception set forth in Rule 803(6) of the Minnesota Rules of Evidence, unless the producing party asserts an objection to the foundation of the document within thirty days of the production of the document, or upon application to the Court for good cause shown.
10. Third-Party Documents
Any party requesting documents from a third party (not a party to this action) through a subpoena shall insure that all parties in this action are notified of and have access to such documents.
11. Inadvertent Production of Privileged Material
A party responding to any request for discovery information shall be responsible to make a reasonable and diligent effort to assert any claims of attorney-client privilege, work-product protection or other recognized privilege when responding to any request for discovery information. However, in the interest of expediting discovery in these proceedings and avoiding unnecessary costs: (a) inadvertent disclosure in this litigation of privileged information shall not constitute a waiver of any otherwise valid claim of privilege; and (b) failure to assert a privilege in this litigation as to one document or communication shall not be deemed to constitute a waiver of the privilege as to any other document or communication allegedly so protected, even involving the same subject matter. Unless there is a disagreement among the parties as to the existence of a privilege, such inadvertently produced documents shall be promptly returned to the producing party, together with all copies thereof. Nothing in this paragraph shall preclude any party from challenging a claim of privilege as to any document on any basis other than an inadvertent waiver of privilege.
12. Minnesota Government Data Practices Act. Minn. Stat. § 13.01 et.seg.
Defendants are not prohibited from obtaining information under the Minnesota Data Practices Act. Defendants shall notify plaintiffs after obtaining such information and provide plaintiffs a listing of documents obtained under the Act.
13. Scheduling of Responses to Document Requests Other Than Discovery Relating to the Motion of B.A.T. Industries P.L.C. to Dismiss the Complaint
It is agreed in principle that certain categories of priority documents can be identified for an early production.
With respect to the remaining production of documents, the parties will meet and confer within two weeks after the service of a request for production of documents to discuss, for documents for which there is no objection to production, an estimate of the volume of documents which would be responsive and the timing of production. Within forty-five (45) days of service of any document request, the party from whom production is requested shall file and serve all written objections, including the basis for the objections, to the document request. Within this time frame, the parties shall also meet and confer and formulate a response plan. The response plan shall, at a minimum, address the following issues: (i) an estimate of the number of documents which will be produced; (ii) the logistics for production of the documents; (iii) a proposed place of production; (iv) the manner of numbering of the documents to be produced; and (v) dates for the production of documents and submission of an appropriate privilege log (as described herein in ¶ III.D.7).
E. Requests For Admissions
There shall be no limitation on the number of requests for admissions served in this case; provided, however, that nothing herein shall preclude a party from moving for an appropriate protective order.
F. Expert Discovery
The Court shall determine by subsequent order all matters pertaining to expert discovery. The parties shall meet and confer no later than December 1, 1995, to exchange proposals regarding expert discovery, which proposals shall include the manner and scope of expert discovery and the timing and sequence of expert discovery. A hearing before the Court shall be scheduled in early 1996 to resolve any differences between the parties regarding expert discovery.
Dated: March 29, 1995
/s/ Kenneth J. Patrick
The Honorable Kenneth J. Patrick
Judge of District Court
EXHIBIT A
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA
DIANNE CASTANO, et al. Plaintiffs, VERSUS THE AMERICAN TOBACCO CO., et al., Defendants. | CIVIL ACTION
No. 94-1044
SECTION "B"
MAGISTRATE 5
|
AMENDED ORDER FOR PRESERVATION OF RECORDS The Order for Preservation of Records entered April 18, 1994, is hereby AMENDED to read as follows:
1. PRESERVATION. During the pendency of this litigation, and until a final order is entered by the Court closing this case, each of the parties herein and their respective officers, agents, servants, employees, and attorneys, and all persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, are restrained and enjoined from altering, interlining, destroying, permitting the destruction of, or in any other fashion changing any "document" in the actual or constructive care, custody, or control of such person, wherever such document is physically located. Such persons are also enjoined from changing the location of any such documents to a location outside of the jurisdiction of the United States,
2. SCOPE.
(a) "Document" shall mean any writing, drawing, film, videotape, chart, photograph, phonograph record, tape record, mechanical or electronic sound recording or transcript thereof retrievable data (whether carded, taped, coded, electrostatically or electromagnetically recorded, or otherwise), or other data compilation from which information can be obtained, including (but not limited to) notices, memoranda, diaries, minutes, purchase records, purchase invoices, market data, correspondence, computer storage tapes, computer storage cards or discs, books, journals, ledgers, statements, reports, invoices, bills, vouchers, worksheets, jottings, notes, letters, abstracts, audits, charts, checks, diagrams, drafts, recordings, instructions, lists, logs, orders, recitals, telegram messages, telephone bills and logs, resumes, summaries, compilations, computations and other formal and informal writings or tangible preservation of information.
(b) This Order pertains only to documents containing information that may be relevant to, or may lead to the discovery of information relevant to (1) manufacturing methodology, testing, and/or composition and properties of tobacco, tobacco products, paper, filters, or any other materials contained in, relating to, or used in the manufacturing, testing, and/or composition and properties of tobacco and tobacco products; and (2) any claim of the plaintiffs in this case, any defense urged by the defendants in this case, and/or plaintiffs' request for class certification in this case. This order pertains only to documents which were written or generated from January 1, 1946 until March 29, 1994. Any document described or referred to in any discovery request made during this litigation and which otherwise is encompassed by this subparagraph (b) shall, from the time of the request, be treated for purposes of this order as containing such information unless and until the Court rules such information to be irrelevant. Nothing contained herein shall prevent a party from seeking to modify, expand, or restrict the scope of the documents described in this Paragraph 2(b) by consultation and agreement with opposing counsel or by application to the Court; and all parties reserve all of their rights in connection with any such requests.
(c) Counsel are directed to confer to resolve questions as to what documents are outside the Scope of this Order or otherwise need not be preserved and as to an earlier date for permissible destruction of particular categories of documents. If counsel are unable to agree, any party may apply to the Court for clarification or relief from this Order upon reasonable notice. A party which, within 30 days after receiving written notice from another party that specified documents will be destroyed, lost, or otherwise altered pursuant to routine policies and programs, fails to indicate in writing its objection shall be deemed to have agreed to such destruction.
3. IMPLEMENTATION. Each party will, within 10 days after receiving this Order, designate an individual who shall be responsible for ensuring that the party carries out the requirements of this Order.
4. AGREEMENT OF COUNSEL. Without leave of Court, Liaison Counsel for plaintiffs and for defendants may agree in writing, at any time and from time to time, that certain documents or categories of documents need not preserved in accordance with this Order. If any such agreement is reached, those documents or categories of documents automatically and without further order of the Court shall no longer be encompassed by or subject to this Order.
New Orleans, Louisiana, this 5th day of July, 1994.
Judge, United States District Court
AGREED TO:
/s/ Peter J. Butler Peter J. Butler
LOCKE PURNELL RAIN HARRELL
A Professional Corporation
Pan American Life Center
601 Poydras Street - Suite 2400
New Orleans, Louisiana 70130-6036
Telephone: (504) 558-5100
Liaison Counsel for Plaintiffs
/s/ Thomas J. Wyllie
Thomas J. Wyllie
ADAMS & REESE
4500 One Shell Square
New Orleans, Louisiana 70139
Telephone: (504) 581-3234
/s/ Joy G. Braun
Joy G. Braun
SESSIONS & FISHMAN
Place St. Charles Avenue,
35th Floor
201 St. Charles Avenue
New Orleans, Louisiana 70170-3500
Telephone: (504) 582-1500
/s/Phillip A. Wittmann
Phillip A. Wittmann
STONE, PIGMAN, WALTHER,
WITTMANN & HUTCHINSON
546 Carondelet Street
New Orleans, Louisiana 70130-3588
Telephone: (504) 581-3200
Liaison Counsel for Defendants