Opinion
Case No. 6:03-MD-1512, Lead Cases 6:03-CV-110 and 6:03-CV-126.
November 8, 2004
PRACTICE AND PROCEDURE ORDER NO. 16 AMENDING PRACTICE AND PROCEDURE ORDER NO. 15 (SECURITIES AND ERISA)
Before the Court is the Unopposed Motion of Defendants to Amend Practice and Procedure Order No. 15 (Docket No. 204 in 6:03-md-1512), which the Court GRANTS IN PART and DENIES IN PART. The Securities class certification hearing and the January status conference for Securities and ERISA will take place at 10 a.m. Wednesday, January 12, 2005. The Court will consider any parties' scheduling conflict at the November status conference. The Court takes seriously Defendants' assurance that granting this motion "will not affect any other deadlines, including the dispositive motion and discovery deadlines or the trial date." The Court has also not forgotten Defendants' August assurances that its substitution of counsel would not slow down progress toward trial. As the parties know, the Court is very committed to the September 26, 2005 trial date. The parties would be wise to do the same and consider this modification to the Docket Control Order a rare exception to the Court's general policy of holding firm to the deadlines it has set. This Order replaces Practice and Procedure Order No. 15 as follows:
Discovery Order
The Court ORDERS the parties to provide discovery as follows:
1. Disclosures. On April 1, 2004, and without awaiting a discovery request, each party shall disclose to every other party in their respective part of this MDL action (Securities or ERISA) the following information:
Despite discussion of three distinct types of claims in this MDL action (ERISA, Securities, and Rescission) the Court continues to view this action as having only two "respective parts" (ERISA and Securities). Thus, in this Order, references to the Securities "part" of this action refer to all claims brought under 6:03-cv-110, and references to the ERISA "part" of this action refer to all claims brought under 6:03-cv-126.
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the disclosing party's claims or defenses (the disclosing party need not marshal all evidence that may be offered at trial);
(d) the name, address, and telephone number of persons having knowledge of relevant facts; a brief statement of each identified person's connection with the case, and a brief, fair summary of the substance of the information known by such person;
(e) any indemnity and insuring agreements under which any person or entity may be liable to satisfy part or all of a judgment entered in this action or to indemnify or reimburse for payments made to satisfy the judgment;
(f) any settlement agreements relevant to the subject matter of this action; and
(g) any statement of any party to the litigation.
Provided that, to the extent the information and documents referred to above have already been provided in EDS' production of core ERISA documents pursuant to this Court's May 5, 2003 Practice Procedure Order No. 3 (ERISA), EDS may refer to and rely on that earlier production to satisfy these disclosure obligations.
2. Additional Disclosures. At the times stated below, and without awaiting a discovery request, each party shall provide to every other party in their respective part of this MDL action the following information:
(a) beginning on April 1, 2004, and continuing on an aggressive rolling basis through July 1, 2004, the parties shall gather all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to the pleaded claims or defenses involved in this action.
Plaintiffs shall make a production that includes significant materials on or shortly after April 1, 2004, with successive production on an aggressive rolling basis. Plaintiffs shall complete their production of all relevant materials on or before July 1, 2004.
In the Securities part of this action, EDS shall produce on or shortly after April 1, 2004, all relevant documents that (i) were produced to the SEC, the House Committee on Appropriations, or the Institute for Defense Analysis, (ii) that constitute communications with or between EDS and KPMG, and (iii) are the accounting models used for reported financial results. On April 1, 2004, EDS shall provide a list of the categories of relevant documents that EDS believes may exist at Plano, Herndon, and San Diego and its best estimate of the number of pages of each category. EDS shall update this information on a rolling basis through July 1, 2004. Plaintiffs shall advise EDS of the documents they wish EDS to produce for inspection and possible copying by category and EDS will use its best efforts to produce such documents for inspection within thirty days of such request, but not later than July 1, 2004, or as soon thereafter as practicable to the extent the request is made after June 1, 2004. To the extent copies are requested as specified herein, the party receiving document production from another party will pay the cost of production.
In the ERISA part of this action, EDS shall produce the items referred to in the previous paragraph only to the extent said items are relevant to the ERISA part. Otherwise, EDS shall make a production that includes significant materials on or shortly after April 1, 2004, with successive production on an aggressive rolling basis. EDS shall complete their production of all relevant materials on or before July 1, 2004.
The parties shall gather and produce their discovery materials in an expeditious, cost-effective manner. Although the Court gives the parties until July 1, 2004 to complete production, the parties shall make best efforts to complete production as soon as possible without incurring undue additional costs.
(b) On January 3, 2005, a complete computation of any category of damages claimed by any party to the action, making a production of the documents or other evidentiary material on which such computation is based, including materials bearing on the nature and extent of injuries suffered.
3. Testifying Experts. By the date set in the Docket Control Order, each party shall disclose to the other party or parties in their part of this MDL action with respect to any expert which the party has retained to testify on its behalf in this Action:
1. the expert's name, address, telephone number; and current resume or CV;
2. the subject matter on which the expert will testify;
3. the final report prepared by the testifying expert and disclosed to the other parties pursuant to Fed.R.Civ.P. 26(a)(2); and
4. any materials that the testifying expert relies upon in preparing the report described in paragraph 3, above, or otherwise relies upon in offering expert testimony in this litigation.
Notwithstanding the foregoing, there will be no discovery of any of the following unless the expert chooses to rely upon such materials in his testimony or final report: (i) communications concerning this matter with or by the expert and a party or counsel or within the expert's organization; (ii) drafts of the final report referred to in paragraph 3, above; or (iii) the expert's or the expert's firm's work product on this matter.
4. Discovery Limitations. Discovery is limited in the Securities and ERISA parts to the disclosures described in Paragraphs 1-3 together with 25 interrogatories, 25 requests for admissions, depositions on written questions of custodians of business records for third parties, and oral depositions of fact witnesses and expert witnesses as hereinafter noted for each side. "Side" for the Securities part means (i) Lead Plaintiff or any certified Class representative for the above-captioned Securities Action, collectively, as one "side"; and (ii) named defendants in the above-captioned Securities Action, collectively, as one "side". Side for the ERISA part means (i) Lead Plaintiff or any certified Class representative for the above-captioned ERISA Action, collectively, as one "side"; and (ii) named defendants in the above-captioned ERISA Action, collectively, as one "side". Each side may take oral depositions by electronic, video or stenographic recording of up to 300 hours, including fact, expert, and Rule 30(b)(6) depositions. Each side may take the oral deposition of any person for up to 14 hours on the record on consecutive days. If a deposition of a person commences, that deposition shall be counted to consume 4 hours unless the deposition consumes time beyond 4 hours in which event it shall be counted according to the actual time used on the record. Each expert deposition may last up to 14 hours. A party may make application to the Court for a modification of these hour limitations for good cause shown. Oral depositions in the Securities Action may commence on or after August 1, 2004. Oral depositions in the ERISA Action may go forward at any time. Documents may be produced electronically in a bates numbered format and in native file format. The bates numbered version shall be used in depositions and in Court. If a document produced electronically in native file format is used as evidence or marked as an exhibit, the party using it as evidence or marking it as an exhibit shall mark it with the same production number, plus the letter A at the end of the production number, as the corresponding hard copy or electronic image.
5. Privileged Information. There is no duty to disclose privileged documents or information. By the date provided in the Docket Control Order, the parties shall exchange privilege logs identifying the documents or information and the basis for any disputed claim of privilege in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the applicability of the privilege or protection. A party may move the Court for an order compelling the production of any privileged documents or information identified on any other party's privilege log. If such a motion is made, the party asserting privilege shall file with the Court within 15 days of the filing of the motion to compel any proof in the form of declarations or affidavits to support their assertions of privilege, along with the documents over which privilege is asserted for in camera inspection.
6. Pre-trial Disclosures. By the date provided in the Docket Control Order, each party shall provide to every other party in their respective part of this MDL action the following disclosures regarding the evidence that the disclosing party intends to present at trial:
(a) The name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to present at trial and those whom the party may call if the need arises.
(b) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and a marked transcript or page and line numbers of the pertinent portions of the deposition testimony.
(c) An appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.
By the date provided in the Docket Control Order, a party may serve and file a list disclosing (1) any objections to the use under Rule 32(a) of a deposition designated by another party under subparagraph (b) above; and (2) any objections, together with the grounds therefor, that may be made to the admissibility of materials identified under subparagraph(c) above. Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the Court for good cause shown.
7. Signature. The disclosures required by this order shall be made in writing and signed by the party or counsel and shall constitute a certification that, to the best of the signer's knowledge, information and belief, such disclosure is complete and correct as of the time it is made.
8. Exchange of Disclosures. Disclosures shall be served as provided by Fed.R.Civ.P. 5.
9. Notification of the Court. The parties shall promptly file a notice with the Court that the disclosures required under this order have taken place.
10. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information on the basis of which it knows that the information disclosed was either incomplete or incorrect when made, or is no longer complete or true.
11. Protective Orders. The parties have stipulated to the attached protective order.
12. Discovery Disputes. Counsel are directed to contact the chambers of the undersigned for any "hotline" disputes before contacting the Discovery Hotline provided by Local Rule CV-26(f). If the undersigned is not available, the parties shall proceed in accordance with Local Rule CV-26(f).
13. No Excuses. A party is not excused from the requirements of this Discovery Order because it has not fully completed its investigation of the case, or because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures. Absent Court order to the contrary, a party is not excused from disclosure because there are pending motions to dismiss, to remand or to change venue.
14. Two actions. Although the Court may divide this action into three parts for trial purposes (Securities, ERISA, and Rescission), this Discovery Order treats this MDL case (6:03-md-1512) as only two actions (6:03-cv-110 and 6:03-cv-126). Therefore, references to ERISA in this Order cover all causes of action brought in 6:03-cv-126, and references to Securities cover all causes of action brought in 6:03-cv-110.
15. Full Discovery. To the extent parties are involved in both the Securities and ERISA actions, said parties shall receive the full amount of discovery set forth in this Order for each action in which they are involved.
16. Status Conferences. All parties shall appear for monthly status conferences. Said conferences are to update the Court on this MDL action's progress and to provide a forum for resolution of issues which have arisen in this action. The parties shall confer and provide the Court with a joint proposed agenda seven days before each status conference. The status conferences shall be live, however the status conference may be telephonic if the parties' proposed agenda has no issues for Court resolution. Counsel for EDS is responsible for initiating all status conference calls. The first status conference is scheduled for June 18, 2004 as noted in the Docket Control Order. Each subsequent status conference shall be held at 10:00 a.m. on the second Friday of the month.
17. Coordination of Both Cases. It is the Court's intention that all discovery in the two halves of this MDL action (Securities and ERISA) shall be coordinated to the extent practicable where there is factual overlap so as to lessen the burden to the parties. There shall be coordination of the protective orders, production of common documents and the deposition for any common witnesses.
Recognizing that coordination of discovery in this case (e.g., communication between parties, sharing of documents between parties, and production of documents relevant to opposite halves of this MDL action) may raise legal issues, the parties shall submit any motions and proposed orders regarding any appropriate limitations on communications between the parties and coordination of discovery between the Securities and ERISA halves of this action in accordance with the dates set forth in the docket control order. The Court shall hear any oral argument on said motions at the first monthly status conference. Although the Court will entertain argument on unforeseeable coordination issues that may arise later in this litigation, to facilitate ongoing discovery in this case, the Court directs the parties to make the best efforts at presenting all foreseeable coordination issues in this initial briefing.