Opinion
Case No. 1:09 CV 00430-AWI (GSA)
04-03-2013
GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and BRYAN WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. DAIRYAMERICA, INC. and CALIFORNIA DAIRIES, INC., Defendants.
BERMAN DeVALERIO Anthony D. Phillips Joseph J. Tabacco, Jr. Christopher T. Heffelfinger Benjamin D. Brown (SBN 202545) Daniel A. Small Victoria S. Nugent COHEN MILSTEIN SELLERS & TOLL, PLLC George F. Farah COHEN MILSTEIN SELLERS & TOLL, PLLC Lynn L. Sarko Mark A. Griffin Juli E. Farris KELLER ROHRBACK L.L.P. Ron Kilgard KELLER ROHRBACK P.L.C. Counsel for Plaintiffs and the Proposed Class DAVIS WRIGHT TREMAINE LLP Charles M. English Allison A. Davis Christopher D. Bell BAKER MANOCK & JENSEN, PC Counsel for Defendant DairyAmerica, Inc.
Joseph J. Tabacco, Jr. (SBN 75484)
Christopher T. Heffelfinger (SBN 118058)
Anthony D. Phillips (SBN 259688)
BERMAN DeVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
Email: jtabacco@bermandevalerio.com
cheffelfinger@bermandevalerio.com
aphillips@bermandevalerio.com
[Additional Counsel Listed on Signature Page] Counsel for Plaintiffs and the Proposed Class
STIPULATION AND ORDER
REGARDING MERITS DISCOVERY
CLASS ACTION
Plaintiffs and defendant DairyAmerica, Inc. ("DairyAmerica" and, collectively with plaintiffs, the "parties"), by and through their respective counsel of record and subject to Court approval, recite and stipulate as follows with respect to the conduct of limited merits discovery prior to adjudication of DairyAmerica's pending motion to dismiss.
RECITALS
WHEREAS the Court conducted a Scheduling Conference on March 18, 2013;
WHEREAS the Court ordered limited discovery to proceed between plaintiffs and DairyAmerica as to the merits of the factual allegations in the case prior to adjudication of DairyAmerica's pending motion to dismiss;
WHEREAS the Court ordered that defendant California Dairies, Inc. has no obligation to provide Initial Disclosures or otherwise respond to, or participate in, discovery pending adjudication of defendants' motions to dismiss;
WHEREAS at the Scheduling Conference, the parties met and conferred respecting the extent of discovery to be undertaken;
WHEREAS since the Scheduling Conference, the parties have met and conferred further respecting the extent of discovery to be undertaken;
STIPULATION
Therefore, IT IS HEREBY STIPULATED AND AGREED, by the parties through their respective counsel of record, as follows:
1. The parties shall file a joint Protective Order by no later than April 26, 2013;
2. The parties shall file a joint Protocol governing the treatment of electronically-stored information ("ESI") by no later than May 17, 2013;
3. DairyAmerica shall disclose to plaintiffs, in writing, the following information by no later than April 26, 2013:
a. The names, addresses, and telephone numbers of each individual likely to have discoverable information relevant to the subject matter of this litigation;
b. The categories and locations of documents, including both paper and electronically-stored documents, in DairyAmerica's possession, custody, or control likely to contain discoverable information relevant to the subject matter of this litigation including, but not limited to, categories of electronically-stored information previously compiled by DairyAmerica in anticipation of document discovery in this case;
c. The existence of any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in this action or to indemnify or reimburse for payments made to satisfy such judgment.
4. Plaintiffs may serve discovery requests pursuant to Federal Rules of Civil Procedure, rules 26 and 33 through 36, inclusive, on DairyAmerica at any time. DairyAmerica shall have no obligation to provide responses or objections until 30 days after entry of an order denying DairyAmerica's motion to dismiss, including any subsequent motions to dismiss any amended complaint.
5. Plaintiffs may proceed with discovery of third parties pursuant to the Federal Rules of Civil Procedure, rule 45, except that no third party depositions shall be noticed before entry of an order denying DairyAmerica's motion to dismiss, including any subsequent motions to dismiss any amended complaint.
6. DairyAmerica shall conduct further investigation into the existence of discoverable information pertaining to inspections, investigations and/or audits conducted by the United States Department of Agriculture, Office of the Inspector General, at defendant DairyAmerica's offices in 2007 and 2008. The parties shall meet and confer further with respect to the production of any such discoverable material, which shall not be delayed pending resolution of DairyAmerica's motion to dismiss.
Respectfully submitted,
BERMAN DeVALERIO
By: ___________
Anthony D. Phillips
Joseph J. Tabacco, Jr.
Christopher T. Heffelfinger
Benjamin D. Brown (SBN 202545)
Daniel A. Small
Victoria S. Nugent
COHEN MILSTEIN SELLERS
& TOLL, PLLC
George F. Farah
COHEN MILSTEIN SELLERS
& TOLL, PLLC
Lynn L. Sarko
Mark A. Griffin
Juli E. Farris
KELLER ROHRBACK L.L.P.
Ron Kilgard
KELLER ROHRBACK P.L.C.
Counsel for Plaintiffs and the Proposed Class
DAVIS WRIGHT TREMAINE LLP
By: ___________(as authorized on 3/29/13)
Charles M. English
Allison A. Davis
Christopher D. Bell
BAKER MANOCK & JENSEN, PC
Counsel for Defendant DairyAmerica, Inc.
ORDER
IT IS HEREBY ORDERED that:
Limited discovery into the merits of the allegations in the above-captioned litigation shall proceed in accordance with the stipulation of the parties, as set forth above.
Other than the discovery described above, no other merits discovery shall take place between DairyAmerica and plaintiffs until such time as the Court enters an order denying DairyAmerica's motion to dismiss, including any subsequent motion to dismiss any amended complaint.
No discovery shall take place between defendant California Dairies, Inc. and plaintiffs until such time as the Court enters an order denying California Dairies, Inc.'s motions to dismiss, including any subsequent motion to dismiss any amended complaint.
Any further merits discovery shall commence following the Court ordered status conference with a schedule agreed to by the parties or by order of the Court.
No discovery shall take place with respect to class certification until further order of the Court expressly permitting such discovery to proceed. IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE