Opinion
00 Civ. 2843; (MDL No. 1348).
December 13, 2000.
This Document Relates to: All Cases AMENDED PRETRIAL ORDER NO. 2 (Pretrial Schedule)
1 Conduct of discovery on behalf of plaintiffs
All discovery directed against defendants and non-party witnesses on behalf of plaintiffs shall be undertaken by or under the direction of Plaintiffs' Executive Committee ("PEC") on behalf of all plaintiffs with cases in this MDL as well as on behalf of all plaintiffs in state court cases that are coordinated with this MDL or as to which there is an agreement or order to utilize discovery generated herein.
2 Discovery
2.1 Completion date
Unless otherwise ordered, all discovery in these consolidated cases shall be completed on or before January 31, 2002. Although the Court will consider any application for an extension, the parties should assume that no extension will be granted.
2.2 Defendants' document production
2.2.1 Warner-Lambert has represented to the Court that it has been collecting and placing relevant documents in a depository, which documents will be made available also in the form of electronic images on CD-ROM, that most of the roughly 3.5 million documents collected from originally targeted custodians will be in the depository by January 2, 2001, and that the detail force documents gathered in its Roanoke warehouse will be made available by February 1, 2001. To the extent, if any, that it has not done so previously, Warner-Lambert shall make these documents available to plaintiffs on a rolling basis.
2.2.2 The PEC may serve a Rule 34 request on defendants on or before November 17, 2000.
2.2.3 All documents requested by the PEC on or before November 17, 2000, and all documents that Warner-Lambert has represented it will produce (see ¶ 2.2.1) shall be placed in its depository no later than February 1, 2001.
2.2.4 Warner-Lambert shall provide logs of materials withheld from any document production on privilege, work product or other grounds no later than 45 days after the groups of documents from which the materials were withheld are placed in the depository.
2.2.5 Subject to compliance with the confidentiality order entered this date, the PEC, at its own expense, may establish and regulate access to its own depository containing copies or images of documents produced by Warner-Lambert.
2.3 Plaintiffs' depositions of defendants
2.3.1 Plaintiffs may commence Rule 30(b)(6) depositions relating to the organization of Warner-Lambert and the identification of potential deposition witnesses immediately.
2.3.2 Subject to paragraph 2.3.3 hereof, plaintiffs may commence non-party fact depositions of witnesses believed to have testimony relevant to Warner-Lambert's conduct immediately.
2.3.3 The PEC and defendants promptly shall confer and attempt to agree upon a comprehensive deposition schedule providing for the completion of fact depositions of defendants' present and former employees and agents, and any other persons under defendants' control, by September 30, 2001. Any such schedule shall comply with paragraph 2.1 hereof. If the parties fail to agree upon such a schedule, they shall so report to the Court no later than February 1, 2001, including in their report the reasons for their inability to agree and the extent of any partial agreement.
2.3.4 Plaintiffs' Liaison Counsel ("PLC") shall give at least two weeks' notice of each deposition scheduled in this case that is expected to deal with material common to other Rezulin cases to counsel of record in and judges presiding over Rezulin cases pending in state courts.
2.4 Interrogatories
2.4.1 Interrogatories shall be served by the PEC on defendants only if the information sought cannot practically be obtained by a review of documents or through depositions. The limitation on the number of interrogatories provided in the third sentence of Fed.R.Civ.P. 33(a) shall not apply.
2.4.2 The PEC immediately may serve initial interrogatories pursuant to S.D.N Y Civ.R. 33.3 relating to the identity of witnesses and the location of documents.
2.4.3 The PEC may serve additional interrogatories until August 2, 2001. Within fifteen days after service of such interrogatories, counsel shall meet and confer to resolve any objections defendants may have thereto. Insofar as objections are not interposed, or if revised interrogatories are agreed upon, the defendants shall answer the interrogatories within the time provided by Rule 33 or within twenty days after such conference, whichever is longer, unless the parties otherwise agree or the Court otherwise orders.
2.4.4 Contention interrogatories may not be served absent leave of Court.
2.5 Fact discovery against plaintiffs
2.5.1 Fact discovery against plaintiffs shall take place concurrently with the PEC's discovery against defendants.
2.5.2 Plaintiffs with claims of personal injury 2.5.2.1 Defendants have provided the PEC with a proposed plaintiff questionnaire, including requests for medical, employment and insurance authorizations and other pertinent documents, to be completed under oath by all plaintiffs. The parties shall agree upon the content of such a questionnaire and the form of authorizations by November 17, 2000, failing which they shall submit their respective positions to the Court by November 21, 2000 for determination. The sworn responses to the questionnaire shall be treated as interrogatory answers. To the extent that any documents or responses are withheld on the grounds of privilege, plaintiffs shall provide a privilege log.
2.5.2.2 By January 2, 2001 or forty days after a questionnaire is approved by the Court, whichever is later, completed sworn questionnaires with the required documents and duly executed authorizations shall be served on defendants' counsel by each plaintiff in each case included in this MDL that was docketed in this Court on or before the date of this order. Plaintiffs in MDL 1348 cases subsequently docketed in this Court shall be served such materials no later than forty days after the date of such docketing or the date required for cases docketed prior to the date of this order, whichever is later.
2.5.2.3 In the event a plaintiff fails to serve a timely and sufficient response to the questionnaire, including all necessary documents and authorizations, defendants may send a warning letter to the plaintiff's counsel of record (with a copy to the PLC) identifying the deficiencies in that plaintiff's response and warning that the failure to provide all of the required information within thirty days of the date of the letter may result in the dismissal of that plaintiff's action. Any such letter shall be sent by certified mail, return receipt requested.
2.5.2.4 Following receipt of a response to the questionnaire, defendants may seek additional discovery with respect to the claim of the responding plaintiff from that plaintiff and from non-party witnesses by means provided in the Federal Rules of Civil Procedure.
2.5.2.5 In exigent circumstances, the parties may agree and, absent agreement, any party may apply for leave to conduct an expedited deposition to preserve testimony. The service of any such motion by a plaintiff shall follow or be accompanied by a completed questionnaire and all required authorizations and copies of all medical, employment and/or insurance records in the possession of the moving plaintiff or that may be obtained by that plaintiff through reasonable efforts.
2.5.3 Class action and other plaintiffs
2.5.3.1 The PEC and defendants' counsel will propose to the Court procedures for discovery against plaintiffs who assert class action or other claims, in lieu of or in addition to claims of existing or potential personal injury, on or before December 15, 2000.
3 Class actions
3.1 The PEC shall file a consolidated amended class action complaint no later than December 15, 2000.
3.2 Defendants may commence discovery of class representatives on January 16, 2001. The PEC shall use its best efforts to expedite completion and service of questionnaires and authorizations by class representatives.
3.3 The PEC shall serve plaintiffs' motion for class certification and supporting papers on or before January 16, 2001.
3.4 The parties shall meet and confer about a schedule for class related discovery and briefing and report to the Court no later than January 31, 2001.
4 Experts
4.1 The PEC shall provide expert disclosures pursuant to Rule 26 no later than October 30, 2001, whereupon defendants may commence depositions of plaintiffs' experts. .
4.2 Defendants shall provide their expert disclosures within thirty days after receiving PEC's disclosures, whereupon the PEC may commence depositions of defendants' experts.
4.3 All expert discovery shall be completed on or before January 31, 2002.
4.4 The parties shall attempt to agree and shall confer with the Court concerning scheduling of motions relating to the admissibility of expert testimony, including the scheduling of motions in limine, Daubert submissions and evidentiary hearings, after the expert depositions are completed and on or before December 15, 2001.
5 Dispositive and Summary Judgment Motions
Because the parties may not be in a position to make all potential summary judgement motions until after the last decision by this Court with respect to the admissibility of any expert testimony, the last day for summary judgment motions, given the discovery that needs to be completed, shall be on January 31, 2002 or the thirtieth day after the last decision by this Court with respect to the admissibility of any expert testimony.
6 Final report regarding pretrial proceedings to be completed prior to remand.
On or before January 31, 2002, the parties shall meet, confer and report to the Court concerning any other pretrial proceedings, including dispositive motions and/or motions in limine, or any discovery, that remains to be completed in any of the then pending cases, so that this Court can determine whether each is ready for trial and remand to its respective transferor court.
This Document Relates to: All Cases AMENDED PRETRIAL ORDER NO. 3 (Confidentiality Order)
To expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality, adequately protect material entitled to be kept confidential, and ensure that protection is afforded only to material so entitled, pursuant to the Court's authority under Federal Rule of Civil Procedure 26(c), it is hereby:ORDERED, as follows with respect to documents and things produced or made available for inspection and designation for copying by defendant Warner-Lambert Company ("Warner-Lambert"), Parke-Davis, an unincorporated division of Warner-Lambert Company, and all others associated with them (collectively known as "Warner-Lambert Defendants"):
1. Nondisclosure of Confidential Documents. Except with the prior consent of the Warner-Lambert Defendants, no Confidential Document, as hereinafter defined, or the substance of such Confidential Document, may be disclosed to any person except as provided in paragraph 4.
2. Definitions
2.1 For purposes of this Order, the term "document" means all written, recorded, or graphic material, whether produced or created by a party or another person, and whether produced pursuant to Rule 34, subpoena, by agreement, or otherwise. Interrogatory answers, responses to requests for admission, responses to requests for production, deposition transcripts and exhibits, pleadings, motions, affidavits, and briefs that quote, summarize, or contain materials entitled to protection may be accorded status as a Confidential Document as provided herein, but, to the extent feasible, shall be prepared in such a manner that the confidential information is bound separately from that not entitled to protection.
2.2 In order to facilitate expedited production of documents, the term "Confidential Document," during the period from the date of this order to and including March 15, 2001, means any document produced by the Warner-Lambert Defendants which bears the legend (or which shall otherwise have had the legend recorded upon it in a way that brings it to the attention of a reasonable examiner) "Confidential — Subject to Protective Order" or "Confidential — Subject to Protective Order in Rezulin-Related Litigation" (hereinafter "Confidentiality Legend") and the date to signify that it contains information believed to be subject to protection under Fed.R.Civ.P. 26(c). Commencing promptly after the date of this order, the Warner-Lambert Defendants shall review all documents produced by it for the purpose of limiting the documents as to which confidential treatment is sought to those as to which the Warner-Lambert Defendants, after such review, contend in good faith that the document contains trade secrets or other information as to which there is good cause for confidential treatment. On or before March 15, 2001, the Warner-Lambert Defendants will furnish to the PEC one or more CD-ROMs containing images of all documents theretofore produced by it in which only images of documents for which confidential treatment is claimed after the review contemplated by the preceding sentence shall bear the Confidentiality Legend. From the date on which such CD-ROM or CD-ROMs are furnished to the PEC, the term "Confidential Document" shall be limited to documents designated therein which bear the Confidentiality Legend.
3. Redaction of Documents
3.1 Notwithstanding the provisions of paragraph 1 above, the Warner-Lambert Defendants may redact from any Confidential Document any trade secrets or other highly confidential research, development or commercial information, including but not limited to:
(1) specific dollar amounts;
(2) specific manufacturing dimensions or tolerances;
(3) chemical formulas or methods of synthesization;
(4) specific product specifications including, but not limited to, information relating to software object and source codes;
(5) specific customer or supplier identities;
(6) manufacturing methods and processes; and
(7) names and any information that would identify clinical trial subjects or patients (other than the parties) referred to in adverse reaction reports, product experience reports, consumer complaints and other similar data and any third party involved with such subjects or patients, including but not limited to a physician or hospital or other institution.
3.2 Upon request, the attorney members of the PEC may inspect, on an "attorneys' eyes only" basis, material redacted pursuant to this paragraph. If there is a dispute whether any redacted material qualifies for redaction under this paragraph, counsel may move for a ruling, which may require this Court's in camera inspection of a document on the issue of whether certain information is entitled to redaction.
3.3 Notwithstanding the provisions of paragraph 1 above, the parties recognize that when large volumes of documents are provided to counsel for inspection and designation for copying, the documents may not have yet been reviewed for confidentiality purposes, and the Warner-Lambert Defendants reserve the right to so designate and redact appropriate documents after they are designated by the parties for copying. During the inspection process, all documents reviewed by the parties' counsel shall be treated as Confidential Documents.
4. Permissible Disclosures. Notwithstanding paragraph 1, Confidential Documents may be disclosed to counsel for the parties in this action who are actively engaged in the conduct of this lawsuit; to the partners, associates, secretaries, paralegal assistants, and employees of such counsel to the extent reasonably necessary to render professional services in the lawsuit; to persons with prior knowledge of the documents or the confidential information contained therein, and their agents; and to court officials involved in this lawsuit (including court reporters, persons operating video recording equipment at depositions, and any special master appointed by the Court). Subject to the provisions of subparagraph (c), such documents may also be disclosed:
a. to any person designated by the Court in the interest of justice, upon such terms as the Court may deem proper;
b. to persons noticed for depositions or designated as trial witnesses to the extent reasonably necessary in preparing to testify; to outside consultants, co-counsel or experts retained for the purpose of assisting counsel in the lawsuit; to third parties engaged solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving data or designing programs for handling data connected with this lawsuit, including the performance of such duties in relation to a computerized litigation support system; provided, however, that in all such cases the individual to whom disclosure is to be made under this subparagraph (b) has signed the Agreement to Maintain Confidentiality in the form attached hereto, which shall be maintained by the PEC and, if requested, submitted to the Court for in camera review;
c. to representatives of the United States Food and Drug Administration ("FDA"), or, if pursuant to subpoena, to any other government agency. Prior to any such disclosure, the PEC or other disclosing person must advise the government agency or representatives thereof receiving the disclosure of the provisions of this Order.
d. Before disclosing a Confidential Document to any person listed in subparagraph (a)-(b) who is a competitor (or an employee of or consultant to a competitor) of the Warner-Lambert Defendants and/or Pfizer Inc., or any governmental representative pursuant to subparagraph (c), the parties shall give at least ten days' advance notice in writing to the Warner-Lambert Defendants, stating the names and addresses of the person(s) to whom the disclosure will be made, and stating the purposes of such disclosure. If, within the ten-day period, a motion is filed objecting to the proposed disclosure, disclosure is not permissible until and unless the Court denies such motion.
e. Documents designated as CONFIDENTIAL and produced in this matter may also be disclosed to counsel representing plaintiffs in other Rezulin-related litigations against Warner-Lambert, if all of the following conditions are met:
(1) counsel receiving CONFIDENTIAL documents pursuant to this paragraph must in writing
(i) agree to be bound by the terms of this Protective Order, and
(ii) submit to the jurisdiction of this Court for purposes of enforcement of this Protective Order against them; and
(2) a protective order of confidentiality on substantially identical terms to this one, or on such other terms as Warner-Lambert may agree to, shall have been entered in each pending case in which such counsel wishes to use documents disclosed under this paragraph; and
(3) counsel receiving CONFIDENTIAL documents pursuant to this paragraph agree to stipulate promptly to entry of a protective order of confidentiality on substantially identical terms as this one, or on such other terms as Warner-Lambert may agree to, in any new cases that they may bring relating to Rezulin in which they seek to use any such documents.
5. Challenges to Confidentiality Designations. The parties may apply to the Court for a ruling that a document (or category of documents) designated as a Confidential Document(s) is not entitled to such status and protection. Before any such application is filed, counsel for the parties shall attempt to resolve the issue through discussions. If such discussions are unsuccessful and the parties file an application, the Warner-Lambert Defendants shall be given notice of the application and an opportunity to respond. To maintain confidential status, the proponent of confidentiality must show by a preponderance of the evidence that there is good cause for the document to have such protection.
6 Confidential Information in Depositions.
6.1 A deponent may during the deposition be shown and examined about Confidential Documents pursuant to the provisions of paragraph 4(b). Deponents shall not be entitled to retain permanently or copy portions of the transcripts of their depositions that contain confidential information not provided by them or the entities they represent, but shall instead be required to return that information to counsel at the conclusion of the litigation, unless they sign the form described in paragraph 4(b). A deponent who is not a party or a representative of a party shall be furnished a copy of this Order before being examined about, or asked to produce, potentially Confidential Documents.
6.2 Parties (and deponents) may, within thirty days after receiving a deposition, designate pages of a transcript (and exhibits thereto) as confidential. Confidential information within the deposition transcript may be designated by underlining the portions of the pages that are confidential and marking such pages with the following or similar legend: "Confidential — Subject to Protective Order." Until expiration of the thirty day period, the entire deposition will be treated as subject to protection against disclosure under this Order. If no party or deponent timely designates confidential information in a deposition, then none of the transcript or its exhibits will be treated as confidential; if a timely designation is made, the confidential portions and exhibits shall be filed under seal separate from the portions and exhibits not so marked.
6.3 The provisions of paragraph 5 above shall apply in the event a party opposes the post-deposition designation of materials or testimony as confidential.
7. Confidential Information at Trial or Hearing. Subject to the Federal Rules of Evidence, Confidential Documents and other confidential information may be offered in evidence at trial or any court hearing, provided that the proponent of the evidence gives ten days' advance notice to the Warner-Lambert Defendants. Any party may move the court for an Order that the evidence be received in camera or under other conditions to prevent unnecessary disclosure. The court will then determine whether the proffered evidence should continue to be treated as confidential information and, if so, what protection, if any, may be afforded to such information at trial.
8. Subpoenae by Other Courts or Agencies. If another court or an administrative agency subpoenas or orders production of Confidential Documents that the parties have obtained under the terms of this Order, the parties shall promptly notify the Warner-Lambert Defendants of the pendency of such subpoena or order.
9. Filing. Confidential Documents need not be filed with the clerk except when required in connection with motions under Fed.R.Civ.P. 12 or 56 or other matters pending before the court. If filed, they shall be filed under seal and shall remain sealed while in the office of the clerk so long as they retain their status as Confidential Documents.
9. Client Consultations. Nothing in this Order shall prevent or otherwise restrict counsel from rendering advice to their clients and, in the course thereof, relying generally on examination of Confidential Documents; provided, however, that in rendering such advice and otherwise communicating with such clients, counsel shall not make specific disclosure of any item so designated except pursuant to the procedures of paragraph 4(b) and (c).
10. Use. Persons obtaining access to Confidential Documents under this Order shall use the information only for preparation and trial of cases docketed in MDL 1348 (including trials, appeals and retrials of such cases after remand to a transferor court), and shall not use such information for any other purpose, including business, governmental, commercial, administrative, or judicial proceedings.
11. Non-Termination. The provisions of this Order shall not terminate at the conclusion of this action. This Order shall remain in full force and effect and each person subject to this Order shall continue to be subject to the jurisdiction of this Court for the purposes of enforcement of the confidentiality terms of this Order. Within 120 days after final conclusion of all aspects of this lawsuit, Confidential Documents and all copies of same (other than exhibits of record) shall be returned to the Warner-Lambert Defendants, at its cost or, at the option of the Warner-Lambert Defendants, destroyed. All counsel of record shall make certification of compliance herewith and shall deliver the same to counsel for the Warner-Lambert Defendants not more than 150 days after final conclusion of this litigation.
12. Modification Permitted. Nothing in this Order shall prevent a party from seeking modification of this Order, or from objecting to discovery that it believes otherwise to be improper.
13. Responsibility of Attorneys. The attorneys of record are responsible for employing reasonable measures, consistent with this Order, to control duplication of, access to, and distribution of copies of Confidential Documents. Parties shall not duplicate any Confidential Document except working copies and for filing in court under seal. All copies made of Confidential Documents shall bear the confidential designation.
14. No Waiver.
14.1 Review of the Confidential Documents and information by counsel, experts, or consultants for the litigants in the lawsuit shall not waive the confidentiality of the documents or objections to production.
14.2 The inadvertent, unintentional, or in camera disclosure of Confidential Documents and information shall not, under any circumstances, be deemed a waiver, in whole or in part, of any party's claims of confidentiality.
15. Nothing contained in this Protective Order and no action taken pursuant to it shall prejudice the right of any party to contest the alleged confidentiality, relevancy, admissibility, or discoverability of the Confidential Documents and information sought.
16. No document shall be deemed Confidential under this order if it has been produced as non-confidential, by agreement or court order, in any other case.
17. This Protective Order will bind parties and their counsel in all cases docketed in MDL 1348 and will remain in effect in all such cases after remand to transferor courts SO ORDERED.
AGREEMENT TO MAINTAIN CONFIDENTIALITY
I, ________________________________[Name — Print or Type], have been given and read a copy of Pretrial Order No. 3 (Confidentiality Order), dated November 9, 2000, in this case. I understand and will strictly adhere to the contents of said order. I understand that produced material disclosed to me is subject to the order of this Court and that I am prohibited from copying, disclosing or otherwise using such material except as provided by said court order. I understand that unauthorized disclosure of the stamped confidential documents may constitute contempt of court and agree to be subject to personal jurisdiction of this Court for the purpose of enforcing my obligations under this Agreement, the order, and any contempt proceeding that may be instituted for alleged violation thereof. I understand also that my execution of this Agreement to Maintain Confidentiality, indicating my agreement to be bound by said order, is a prerequisite to my review of any produced documents and materials.
Dated this ______ day of _________, 2000.
___________________________________________
STATE OF ____________)) SS.
COUNTY OF __________)
Subscribed in my presence and sworn to before me on
this ______ day of ______________, 2000.
________________________________ Notary Public