Opinion
2:22-cv-01433-RFB-vcF
10-31-2023
SCOTT FREEMAN, M.D., as trustee for the SCOTT MITCHELL FREEMAN REVOCABLE LIVING TRUST, dated March 10, 2012, for itself and as assignee of FERDINAND BELGA, Plaintiff, v. STEPHEN HURST; NICO FORTE; CERUVIA LIFESCIENCES f/k/a CH TAC, LLC f/k/a SAVANT TAC, LLC; CAREY TURNBULL; RUSSELL BURBANK; BPM LLP; SAVANT HWP, INC.; SAVANT HWP HOLDINGS, LLC; and SAVANT ADDICTION MEDICINE, LLC, Defendants, and SAVANT ADDICTION MEDICINE, LLC; SAVANT HWP HOLDINGS, LLC; and SAVANT HWP, INC., Nominal Defendants.
DANIEL F. POLSENBERG (SBN 2376) ABRAHAM G. SMITH (SBN 13,250) J CHRISTOPHER JORGENSEN (SBN 5382) LEWIS ROCA ROTHGERBER CHRISTIE LLP Attorneys for Plaintiff
DANIEL F. POLSENBERG (SBN 2376)
ABRAHAM G. SMITH (SBN 13,250)
J CHRISTOPHER JORGENSEN (SBN 5382)
LEWIS ROCA ROTHGERBER CHRISTIE LLP
Attorneys for Plaintiff
SECOND AMENDED JOINT PROPOSED DISCOVERY PLAN AND SCHEDULING ORDER (Special Scheduling Review Requested)
Plaintiff Scott Freeman, M.D., as trustee for the Scott Mitchell Freeman Revocable Living trust, dated March 10, 2012, for itself and as assignee of Ferdinand Belga (“Freeman”); and Defendants Nico Forte (“Forte”); Ceruvia Lifesciences f/k/a CH TAC, LLC f/k/a Savant TAC, LLC (“Ceruvia”); Carey Turnbull (“Turnbull”); Russell Burbank (“Burbank”); BPM LLP; Savant HWP, Inc.; Savant HWP Holdings, LLC; Savant Addiction Medicine, LLC; and Defend-ant/Counter-Claimant Stephen Hurst (“Hurst”), (collectively “Defendants”) submit this Second Amended Joint Proposed Discovery Plan and Scheduling Order under Federal Rule of Civil Procedure (“Rule”) 26(f), Local Rule (“LR”) 26-1(a)-(b), and pursuant to this Court's Order dated October 2, 2023. [ECF No. 127]
1. Rule 26(f) Conference. Freeman and Defendants conducted a Rule 26(f) conference on December 2, 2022. In attendance on behalf of Freeman was J. Christopher Jorgensen of Lewis Roca Rothgerber Christie LLP. In attendance on behalf of Defendants were Rew R. Goodenow of Parsons Behle & Latimer for Hurst, Forte, and Savant HWP, Inc.; Jason D. Smith of Santoro Whitmire and Gary D. Sesser and Meredith B. Spelman of Carter Ledyard & Milburn LLP for Ceruvia and Turnbull; Robert McCoy and Brittney Lehtinen of Kaempfer Crowell and David G. Keyko, Bruce A. Ericson, and Lee Brand of Pillsbury Winthrop Shaw Pittman LLP for Burbank and BPM LLP; and Brody R. Wight and James H. S. Levine of Troutman Pepper Hamilton Sanders LLP for Savant HWP Holdings, LLC and Savant Addiction Medicine, LLC.
Pursuant to this Court's order at the September 22, 2023, hearing the parties held a meet and confer on September 29, 2023. The parties held another meet and confer on October 5, 2023. In attendance on behalf of Dr. Freeman were J Christopher Jorgensen and Abraham Smith of Lewis Roca Rothgerber Christie LLP and Megan M. Reilly of Glen Agre Berman & Fuentes, LLP. In attendance on behalf of Defendants were Rew R. Goodenow of Parsons Behle & Latimer for Hurst, Forte and Savant HWP, Inc.; Bruce A. Ericson of Pillsbury Winthrop Shaw Pittman LLP and Robert McCoy of Kaempfer Crowell for Russell Burbank and BPM LLP; Gary D. Sesser and Meredith B. Spelman of Carter Ledyard & Milburn LLP for Ceruvia and Turnbull; and James H.S. Levine of Troutman Pepper Hamilton Sanders LLP for Savant HWP Holdings LLC and Savant Addiction Medicine.
2. Initial Disclosures.
This Court's October 2, 2023, Order required Plaintiff Freeman to file a Second Amended Complaint by November 6, 2023. Id. The parties stipulated to extend that deadline thirty (30) days, until December 6, 2023. The parties further stipulate that Defendants will have until February 2, 2024 to respond to the Second Amended Complaint. The parties agreed to make their Rule 26(a) initial disclosures by no later than February 5, 2024, sixty-one (61) days after Plaintiff files his second amended complaint.
3. Discovery Plan.
The parties submit this Discovery Plan with the understanding that on October 20, 2023, Plaintiff Freeman filed a Motion to Consolidate Mind Medicine (MindMed) Inc. v. Freeman, et al., Case No. 2:23-cv-01354-MMD-EJY, into this matter. [ECF No. 131]. The parties inform the Court that Freeman's motion will likely be opposed by one or more Defendants, necessitating briefing and a court hearing. The Parties stipulate that the Defendants will have until fourteen (14) days after Plaintiff files the Second Amended Complaint to respond to the motion to consolidate. The incoming consolidated parties (Mind Medicine (MindMed) Inc. and FCM MM Holdings, LLC) may object to the below Discovery Plan. The currently existing parties may also seek additional time for discovery based upon the addition of parties and claims through consolidation. The parties reserve their right to seek such discovery extensions.
a. Special Scheduling Review (Joint Proposal): The parties propose a special scheduling review under LR 26-1(b). The parties believe that extra time
will be necessary because of the number of parties involved, the many factual and state and federal legal issues raised in the 80-page complaint with 19 causes of action, the anticipated amendment to the complaint, which is due on December 6, 2023, potential motions to dismiss, and counterclaims to be filed thereafter, the anticipated need to conduct discovery across multiple states and countries, and the need to subpoena and depose multiple third parties.
b. Discovery Cut-Off Dates: Discovery shall end on January 21, 2025, four hundred eighty (480) days from September 29, 2023, the day the parties conducted their meet and confer in accordance with this Court's ruling at the September 22, 2023, hearing. This exceeds the one hundred eighty (180) day presumptive outside limit provided by LR 26-1(b)(1) for completing discovery for the reasons explained above.
c. Amending Pleadings and Adding Parties: All motions to amend the pleadings or to add parties shall be filed no later than August 26, 2024, which is one hundred forty-eight (148) days prior to the close of discovery.
d. Fed.R.Civ.P. 26(a)(2) Disclosures (Experts): Disclosure of the identity and subject matter of expert witnesses shall be made no later than September 23, 2024, which is one hundred twenty (120) days before the close of discovery. Disclosure of initial expert witnesses' required reports shall be made no later than October 23, 2024, which is thirty (30) days after the disclosures of the identity and subject matter of expert witnesses. Disclosure of rebuttal experts and required reports shall be made no later than November 22, 2024, thirty (30) days after the disclosure of the initial experts' reports.
e. Dispositive Motions: All dispositive motions shall be filed no later than February 20, 2025, thirty (30) days after the close of the discovery period.
f. Pretrial Order: The parties shall file a joint pretrial order no later than March 24, 2025, thirty-two (32) days after the date set for filing dispositive motions. In the event dispositive motions are filed, the date for filing the joint
pretrial order shall be suspended until thirty (30) days after decision on any dispositive motion or upon further order by the Court extending the time period in which to file the joint pretrial order.
g. Fed.R.Civ.P. 26(a)(3) Disclosures: The disclosure required by Rule 26(a)(3) shall be made in the joint pretrial order, which is to be filed no later than thirty (30) days before the trial date set by this Court.
4. Alternative Dispute Resolution. The parties discussed and are exploring the possibility of using alternative dispute resolution processes.
5. Alternative Forms of Case Disposition. The parties considered consent to trial by a magistrate judge under 28 U.S.C. § 636(c) and Rule 73 as well as the use of the Short Trial Program. The parties decline to use such alternative forms of case disposition at this time.
6. Subjects on Which Discovery May Be Needed. Discovery may be conducted to the full extent allowed by the Federal Rules of Civil Procedure. In particular, discovery will be needed on all issues and allegations raised by a second amended complaint, anticipated to be filed and served on or before December 6, 2023, and any of the Defendants' defenses or counterclaims that have yet to be alleged.
7. Electronic Evidence. The parties certify that they discussed the possibility of presenting evidence in electronic format to jurors for the purposes of jury deliberations. No stipulations were reached regarding providing discovery in an electronic format compatible with the Court's electronic jury evidence display system. In the event that any electronic evidence is submitted by either party, the parties understand that such evidence must be submitted in a format that is compatible with the Court's electronic jury evidence display system. The parties will readdress this topic before submitting a proposed joint pretrial order. The parties will consult the Court's website or contact the assigned judge's courtroom administrator for instructions about how to prepare evidence in an electronic format that meets these requirements.
8. Any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced. No issues at this time.
The parties agree to serve discovery requests, discovery responses, and disclosures via electronic mail. The parties reserve the right to amend this plan either through stipulation or motion.
As mentioned above, the parties anticipate submitting a Stipulated Proposed ESI Protocol to govern the exchange and disclosure of ESI in this case.
9. Any issues about claims of privilege or of protection as trialpreparation materials. As mentioned above, the parties will sign and submit to the Court a stipulated protective order for the handling of confidential material in this matter, which will include an agreement to an order under Federal Rule of Evidence 502. Nothing filed with the Court shall be filed under seal absent a motion seeking leave and with good cause shown under LR 10-5.
10. What Changes Should Be Made In The Limitations On Discovery Imposed Under These Rules Or By Local Rules, And What Other Limitations Should Be Imposed. The parties will cooperate to adopt a protective order concerning confidential information, prior to commencing disclosures. The parties will endeavor to prioritize discovery concerning the statute of limitations, contractual exculpations from liability, and releases.
11. Any Other Orders That Should Be Issued Under Rule 26(C) Or Under Rule 16(B) And (C). Defendants Nico Forte and Savant HWP, Inc. will have until February 2, 2024 to file an answer or otherwise respond to the Second Amended Complaint, notwithstanding the current deadline of October 14, 2023 pursuant to Fed.R.Civ.P. 15(a)(3) based upon the first amended complaint.
It Is So Ordered.