Opinion
MDL 1546, 2:03MD1546 DAK
December 23, 2003
PRETRIAL ORDER NO. 1
WHEREAS, numerous actions have been filed against Stericycle, Inc., BFI Waste Systems of North America, Inc., and Allied Waste Industries, Inc. (collectively, "Defendants") in various federal courts ("Medical Waste Antitrust Litigation"), alleging violation of federal antitrust law and seeking to recover monetary damages allegedly sustained by competitors and customers of Defendants in connection with the collection, transport and lawful disposal of medical waste products ("Medical Waste Services");
WHEREAS, the Judicial Panel on Multidistrict Litigation has issued a Transfer Order, dated August 13, 2003, pursuant to 28 U.S.C. § 1407, that all cases in the Medical Waste Antitrust Litigation be transferred to the United States District Court for the District of Utah for coordinated or consolidated pretrial proceedings;
WHEREAS, in order to promote judicial economy and avoid duplication, the Court finds that it would be appropriate to provide for coordination of the actions identified in paragraphs I 1, 2 and 3 below, and any related actions subsequently filed or transferred to this Court ("Coordinated Action") and for an organization of Plaintiffs' counsel to coordinate the efforts of counsel in the Coordinated Action. ACCORDINGLY, and for Good Cause Shown,
IT IS HEREBY ORDERED as follows:
I. CONSOLIDATION OF CLASS ACTION CASES AND COORDINATION OF RELATED INDIVIDUAL ACTIONS
1. All actions in the Coordinated Action will be coordinated or consolidated, as the case may be, for all pretrial proceedings. The following class actions and all related putative class actions subsequently filed in or transferred to and approved for consolidation by this Court, brought by one or more purchasers of Medical Waste Services, shall be consolidated and collectively referred to as the "Tri-State Class Action Cases."
Inter-Care Medical Associates, Ltd. v. Stericycle, Inc., BFI Waste Systems of North America, Inc., and John Does I-X, Civil Action CIV 03 0161 PHX MHM (D. Ariz., Phoenix Division)
Thomas W. Sorensen v. Stericycle, Inc. and BFI Waste Systems of North America, Inc., Civil Action No. 2:03 CV 0179ST (D. Utah, Central Division)
Arizona Eye Center v. Stericycle, Inc., BFI Waste Systems of North America, Inc., and Allied Waste Industrial Inc., Civil Action No. CIV 03 0611 PHX SRB (D. Ariz., Phoenix Division)
Comprehensive Addiction Treatment Services, Inc. and Michael B. Pious, D.D.S., P.C. v. Stericycle, Inc., BFI Waste System of North America, Inc., and Allied Waste Industrial, Inc., Civil Action No. 03-K-0493 (CBS) (D. Colo.)
Mark Haas, D.P.M. of Albuquerque Associated Podiatrists v. Stericycle, Inc., BFI Waste Systems of North America, Inc., and Allied Waste Industrial, Inc., Civil Action No. CIV-03-0440 MCA MDS (D.N.M., Albuquerque Division)
2. On November 13, 2003, David Stoll, M.D. filed David Stoll, M.D. v. Stericycle, Inc., Civil Action No. UT2:03cv00968 (the "California Class Action Case") in this District. The California Class Action Case will be coordinated for pretrial proceedings with the Tri-State Class Action Cases. The Tri-State Class Action Cases and the California Class Action Case are referred to collectively hereinafter as the "Class Action Cases."
3. The Class Action Cases will be coordinated for pretrial proceedings with the following individual related actions:
Russ W. Johnson, an individual d/b/a Medical Disposal Services v. Stericycle, Inc., BFI Waste Systems of North America, Inc., and John Does 1 through 50, Civil Action No. 1:03 CV-0028 (D. Utah, Central Division) NAFTA Environmental, Inc., Health-Care Medical Disposal Services v. `Stericycle, Inc., BFI Waste Systems of North America, Inc., CIV 03 0928 PHX JAT (D. Ariz.)
These actions and all other related actions subsequently filed in or transferred to and approved for coordination by this Court brought by one or more competitors of Defendants, shall be referred to collectively as the "Related Individual Cases." The Class Action Cases and the Related Individual Cases will be coordinated for pretrial purposes.
4. The terms of this Order shall not have the effect of making any person, firm or corporation a party to any action in which he, she or it has not been named, served or added as such in accordance with the Federal Rules of Civil Procedure.
II. CAPTION OF CASES
5. Every pleading filed in the Coordinated Action shall bear the following caption:
NAME OF PLEADING
6. When a pleading or other court paper is intended to apply to all actions, the words "ALL ACTIONS" shall appear after and below the words "THIS DOCUMENT RELATES TO:" on the left side of the caption. When the pleading or other court paper pertains to fewer than all of the actions, the caption shall indicate the actions to which the pleading or paper applies. When listing the applicable actions, the case name and District of Utah case number (e.g., 1:03CV28 DAK) shall be provided.III. MASTER DOCKET, MASTER FILE AND SEPARATE ACTION DOCKETS
7. A Master Docket and a Master File are hereby established for these and all other related cases subsequently filed in or transferred to and approved for coordination by this Court, Entries in said Master Docket shall be applicable to this Coordinated Action as more fully set forth below.
8. Separate dockets shall also be maintained for each of the Class Action Cases and Related Individual Cases and entries shall be made therein in accordance with the regular procedures of the Clerk of this Court, except as modified by this Order or a future order of this Court.
9. When a paper is filed and the caption shows that it is to be applicable to "ALL ACTIONS" the Clerk shall file such pleading in the Master File and note such filing in the Master Docket. No further copies need to be filed, nor docket entries made.
10. When a paper is filed and the caption shows that it is to be applicable to fewer than all of the actions governed by this Order, the Clerk shall file the original of such paper in the Master File and in the file of each specific action to which the paper is intended to be applicable and note such filings in the Master Docket and all applicable case specific dockets.
IV. SUBSEQUENTLY FILED AND TRANSFERRED ACTIONS
11. When a related case is hereinafter filed in this Court or transferred to this Court from another court, the Clerk shall:
a. File a copy of this Order in the separate file for such case;
b. Mail a copy of this Order to counsel for the Plaintiffs in such case and to any new Defendants in such case;
c. Mail a copy of this order to counsel for Plaintiffs and to counsel for Defendants in the Coordinated Action; and
d. Make an appropriate entry in the Master Docket.
12. This Order shall apply to each case subsequently transferred to or originally filed in this Court, unless a party serves and files an application for relief from this Order or from any of its provisions within ten (10) days after the date on which the Clerk mails a copy of this Order to counsel for that party and this Court deems it appropriate to grant such application.
13. The Court requests the assistance of counsel in calling to the attention of the Clerk the filing or transfer of any case which might properly be coordinated or consolidated as part of the Coordinated action. V. ORGANIZATION OF COUNSEL
14. The Court designates the following Co-Lead Counsel to act on behalf of all Plaintiffs in the Class Action Cases: Milberg Weiss Bershad Hynes Lerach LLP; Goodkind Labaton Rudoff Sucharow LLP; and Bonnett Fairbourn Friedman Balint (collectively "Co-Lead Counsel").
15. Co-Lead Counsel shall have sole authority over the following matters on behalf of all Plaintiffs in the Class Action Cases:
a. the initiation, response, scheduling, briefing, and arguing of all motions;
b. the coordination of Plaintiffs' pretrial activities and plan for trial;
c. the scope, order, and conduct of all discovery proceedings;
d. the designation of which attorneys may appear at hearings and conferences with the Court;
e. the timing and substance of any settlement negotiations with Defendants;
f. the calling of meetings of Plaintiffs' counsel when appropriate;
g. the conduct of all pretrial, trial, and post-trial proceedings;
h. the retention of experts;
i. such work assignments to other Plaintiffs' counsel as they may deem appropriate; and
j. other matters concerning the prosecution or resolution of these coordinated cases.
16. No motion shall be initiated or filed on behalf of any Plaintiff in the Class Action Cases, except through Co-Lead Counsel in those cases.
17. Co-Lead Counsel or Liaison Counsel (as hereinafter designated), at the request of Co-Lead Counsel, shall have sole authority to communicate with Defendants' counsel and the Court on behalf of all Plaintiffs in the Class Action Cases. Defendants' counsel may rely upon all agreements made with the Co-Lead Counsel with respect to the Class Action Cases.
18. The Court appoints Packard, Packard Johnson to act as Liaison Counsel for Plaintiffs in the Class Action Cases. Local counsel for the plaintiffs in each of the Related Individual Cases shall act as Liaison Counsel Liaison Counsel shall be responsible for ensuring that orders of the Court are served on all counsel in each case for which they are acting as Liaison Counsel; communicating with the Court on behalf of all counsel in each case as to scheduling matters; and for maintaining a master service list of all parties and their respective counsel. Because of the limited number of defendants and counsel representing them, no Liaison Counsel is appointed for any Defendant. Counsel for each respective defendant may allocate among themselves responsibility for service of papers and communicating with the Court regarding scheduling matters and for maintaining appropriate service lists.
19. Defendants shall effect service of papers on Plaintiffs by serving a copy of the paper (1) by facsimile or hand-delivery, and (2) by regular mail service on each Co-Lead Counsel and Liaison Counsel in the Class Action Cases, and counsel in the Related Individual Cases. Co-Lead Counsel shall effect service on all other Plaintiffs' counsel in the Class Action Cases by first class United States mail Plaintiffs shall effect service of papers on each Defendant by serving a copy of the paper (1) by facsimile (exclusive of exhibits) or hand-delivery, and (2) regular mail service on all counsel for each respective Defendants.
20. All Plaintiffs' counsel in the Class Action Cases shall keep contemporaneous time records and shall periodically submit summaries or other records of time and expenses to Co-Lead Counsel in such manner as Co-Lead Counsel shall require. Failure to provide such documents and/or data on a timely basis may result in the Court's failure to consider non-compliant counsel's application for fees and expenses should this litigation be resolved successfully for Plaintiffs.
21. Co-Lead Counsel or Liaison Counsel, at the request of Co-Lead Counsel, shall be the contact between Plaintiffs' counsel in the Class Action Cases and Defendants' counsel as well as the spokespersons for Plaintiffs' counsel in the Class Action Cases. Co-Lead Counsel or Liaison Counsel, at the request of Co-Lead Counsel, shall have the authority to speak for all Plaintiffs in the Class Action Cases in the matters regarding pretrial procedure and settlement negotiations. No motion, request for discovery or pretrial proceeding shall be initiated or responded to on behalf of any Plaintiff except by the Co-Lead counsel or Liaison Counsel, at the request of Co-Lead Counsel.
VI. OTHER MATTERS
A. CONSOLIDATED CLASS ACTION COMPLAINT
22. In accordance with further order of this Court, Class Plaintiffs shall file a [Proposed] Consolidated Class Action Complaint ("Consolidated Complaint") on behalf of all Plaintiffs in the Tri-State Class Action Cases, Defendants shall answer, move, plead or otherwise object (e.g., by motion to strike) to the Consolidated Complaint within 30 days of the filing of the Consolidated Complaint.
Defendants shall have no obligation to answer, move or otherwise plead with respect to any of the previously filed complaints in any of the Tri-State Class Action Cases or to the complaints subsequently filed in cases that are coordinated in this Court. All other scheduling matters relating to, inter alia, discovery and motions, including class certification, will be addressed by the Court in a separate order,
B. DISCOVERY
23. All discovery taken in the Coordinated Action will apply to subsequently filed cases and the parties will not be required to repeat discovery already undertaken in the Coordinated Action. Counsel in the Class Action Cases will make all reasonable efforts to coordinate the procedural conduct of their cases with the conduct of the Related Individual Cases, including the formulation of discovery requests, notices and the taking of depositions, pleadings, briefs and motion papers. The Court expects all counsel in these coordinated actions to make every effort to avoid duplication, inefficiency and inconvenience to the Court, the parties, counsel and witnesses. Thus, the parties shall use their best effort to avoid duplication of discovery already taken in prior actions and counsel for all Plaintiffs shall confer before serving any requests or responses, and they shall use their best efforts to eliminate duplicative or overlapping requests or responses. However, nothing stated herein shall be construed to diminish the right of any counsel to be heard on matters that are not susceptible to joint or common action or as to which there is a genuine and substantial disagreement among counsel.
C. PRESERVATION OF EVIDENCE
24. During the pendency of this litigation, or until further order of this Court, the parties shall take reasonable steps to preserve all documents within their possession, custody or control, including computer and electronically generated and stored information and materials such as computerized data and electronic mail, containing information that is relevant to or may lead to the discovery of information relevant to the subject matter of the pending litigation. Nothing in this paragraph is intended to change or otherwise modify the parties' obligations under the Federal Rules of Civil Procedure.
D. ADMISSION OF ATTORNEYS
25. Each attorney not a member of the Bar of this Court, who is acting as counsel for a Plaintiff or Defendant herein, and who is in good standing in any district court of the United States shall be deemed admitted pro hac vice to practice before this Court in connection with the Consolidated Action.
E. COMMUNICATION AMONG COUNSEL
26. The Court recognizes that cooperation by and among counsel is essential for the orderly and expeditious resolution of this litigation. Accordingly, the communication of information among and between Plaintiffs' counsel shall not be deemed a waiver of attorney-client privilege or the attorney work product privilege. Similarly, the communication of information among and between counsel for Defendants shall not be deemed a waiver of any applicable privileges.
F. ELECTRONIC SERVICE
27. Notwithstanding any other provision of this Order, the Rules of Civil Procedure, or the Local Rules of this Court, any one or more parties may agree with one or more other parties that any papers required to be served may be served electronically, using one or more methods of electronic service as may be agreed upon by counsel. Upon reaching each such agreement, the parties to the agreement shall file with the Court a stipulation describing the electronic service and methods of verification to be used by the parties. When the District of Utah implements its own Case Management Electronic Case Filing system, now contemplated for mid-2004, the Court will then reconsider the issue of electronic service and filing to ensure uniformity of filing and service procedures.