Opinion
Civil Action Nos. 02-CV-3013 (LAK), 02-CV-7377 (LAK).
April 11, 2005
MILBERG WEISS BERSHAD SCHULMAN LLP, Daniel B. Scotti, Cary L. Talbot, BERNSTEIN LEIBHARD LIFSHITZ, LLP, Jeffrey M. Haber, Felecia L. Stern, New York, New York, Lead Counsel for Plaintiffs in No. 02 Civ. 3013.
THACHER PROFFITT WOOD, LLP, Robert Hermann, White Plains, New York, Attorneys for Plaintiffs in No. 02 Civ. 7377.
SCHULTE ROTH ZABEL, LLP, Brooks R. Burdette, David K. Momborquette, New York, New York, Attorneys for Defendants George S. Blumenthal, J. Barclay Knapp, Stephen Carter, and John F. Gregg.
KATTEN MUCHIN ZAVIS ROSENMAN, Joel W. Sternman, Julie Pechersky, New York, New York, Attorneys for Defendant George S. Blumenthal.
SKADDEN, ARPS, SLATE, MEAGHER FLOM, LLP, Seth M. Schwartz, New York, New York, Counsel for Defendant NTL Europe, Inc. formerly known as NTL, Inc.
[PROPOSED] SCHEDULING ORDER
WHEREAS, counsel for the parties have conferred regarding a proposed scheduling order, the parties hereby jointly propose the following schedule:
I. DISCOVERY
A. Initial Disclosures
The parties agree to waive automatic disclosure under Rule 26.
B. Class Discovery
1. Class Plaintiffs shall move for class certification no later than May 2, 2005.
2. Defendants shall commence discovery relating to class certification no later than fifteen (15) days after the filing of the class certification motion ("Class Discovery Requests").
3. Lead Plaintiffs shall respond to Defendants' Class Discovery Requests within thirty (30) days of the service thereof.
4. Depositions relating to class certification shall be taken no later than thirty (30) days after Class Plaintiffs respond to Defendants' Class Discovery Requests.
C. Fact Discovery
1. Discovery shall proceed pursuant to the applicable provisions of the Federal Rules of Civil Procedure immediately.
2. The parties shall commence fact discovery on or before May 2, 2005.
3. No later than April 8, 2005, the parties shall submit to the Court a mutually agreed upon stipulation and proposed order regarding confidentiality or, in the event of a failure of the parties to reach agreement on a form of stipulation, alternative proposed orders and supporting papers.
4. Subject to the submission of a mutually agreed upon stipulation and proposed order regarding confidentiality (or, in the event of a failure of the parties to reach agreement on a form of stipulation, then upon the entry by the Court of a confidentiality order), the parties shall produce documents responsive to any Request for Production of Documents on a rolling basis within thirty (30) days of the service thereof, and shall endeavor in good faith to complete substantial production of such documents within one hundred twenty (120) days of the service thereof.
5. In order to avoid delays resulting from taking discovery from foreign residents who may be witnesses during discovery or at trial, each party to this proceeding shall use their best efforts to secure voluntary compliance with any discovery request to a foreign resident witness who is reasonably within that party's control.
6. All foreign residents shall be deposed in their country of residence, unless the witness requests or voluntarily agrees to be deposed in New York, New York or another United States location agreed to by the parties, and all parties who are residents of the United States shall also be deposed in New York, New York or another United States location agreed to by the parties. All foreign depositions shall be conducted pursuant to and in accordance with the Federal Rules of Civil Procedure.
7. Any witness whose testimony is relevant to both actions shall provide such testimony during a single deposition.
8. Any party may request to participate in a deposition by video conference, or other manner of remote access, the full cost of which shall be paid by the requesting party. Such request shall not preclude any other party from participating in person in any deposition.
9. Fact discovery shall be completed on or before March 1, 2006.
10. In the event that a party commences formal proceedings to take discovery from such witness within a reasonable time under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, the fact discovery cut-off set forth in paragraph C.9. above shall not preclude the taking of such discovery, so long as the party seeking the discovery diligently proceeds with the procedure.
D. Expert Discovery
1. Lead Plaintiffs shall identify their testifying experts pursuant to Fed.R.Civ.P. 26(a)(2)(A) and produce expert reports pursuant to Fed.R.Civ.P.26(b)(4)(A) within twenty-one (21) days after the close of fact discovery.
2. Defendants shall identify their testifying experts pursuant to Fed.R.Civ.P. 26(a)(2)(A) and produce expert reports pursuant to Fed.R.Civ.P.26(b)(4)(A) within twenty-one (21) days after production of such Lead Plaintiffs' experts' reports.
3. The depositions of the parties' experts are to be concluded within twenty-one (21) days after production of Defendants' experts' reports.
4. The parties may supplement their expert disclosures to provide rebuttal expert testimony, which may include testimony of additional experts, within twenty-one (21) days after the last deposition of the opposing party's expert(s).
5. If any party elects to rely on the testimony of an additional expert in connection with its rebuttal report, that expert may be deposed on their rebuttal expert testimony within twenty-one (21) days of the production of the rebuttal expert report.
E. Contention Interrogatories And Requests For Admissions
The parties shall serve contention interrogatories or requests for admissions no later than thirty (30) days prior to the end of expert discovery.
II. JOINDER OF PARTIES AND AMENDMENTS TO THE PLEADINGS
1. Any motion for joinder of parties shall be made no later than six (6) months prior to the close of fact discovery and any motions for amendments to the pleadings in these actions shall be made by no later than sixty (60) days prior to the close of fact discovery. This provision is without prejudice to any party's right to raise, as a ground for opposing a motion made within the time frames specified in this paragraph, an argument to the effect that under the particular circumstances, the motion was unduly and prejudicially delayed.
2. Each party reserves the right to oppose such motion(s) on any grounds available under the Federal Rules of Civil Procedure, and to seek relief from this scheduling order in connection with such motion(s).
3. This scheduling order in no way waives or affects the applicable statute of limitations of any claim or any other defense in law or equity.
III. DISPOSITIVE MOTIONS
Dispositive motions, if any, shall be filed no later than forty-five (45) days after the close of fact and expert discovery. Responses to dispositive motions shall be filed no later than forty-five (45) days after the service of said motions. Reply briefs in further support of any dispositive motions, if necessary, shall be filed within twenty-one (21) days after the service of the responses; provided, however, that if and only if such replies are being submitted in response to at least two separate opposition briefs that have been filed on behalf of different opposing parties, they shall be filed within thirty (30) days after the service of the responses. All dispositive motions shall be scheduled, filed and served in compliance with local court rules, including Judge Kaplan's individual practices. The filing of a dispositive motion does not relieve the parties of the obligation to file the pretrial order as required in Section IV, below.
IV. PRE-TRIAL ORDER
The parties to each captioned action shall submit a joint pre-trial order in conformity with the Court's Individual Practices on or before June 1, 2006.
V. MODIFICATION OF THE SCHEDULE
This scheduling order may be altered or amended only on a showing of good cause not foreseeable at the date hereof. Counsel should not assume that extensions will be granted as a matter of routine.
SO ORDERED.