C. Brooks Cutter v. Food and Drug Administration et al

Filing 20

STIPULATION and ORDER to continue Scheduling Conference from 5/19/2010 to 8/11/2010 at 09:30 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. Plaintiff's deadline for challenging defendant's withholdings is extended until 7/14/2010. Order signed by Magistrate Judge Dennis L. Beck on 4/13/2010. (Hernandez, M)

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BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant U. S. Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

C. BROOKS CUTTER, Plaintiff, v. FOOD AND DRUG ADMINISTRATION and DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.

No. 1:09-cv-00107-LJO-DLB PARTIES' STIPULATION TO EXTEND PROTEST DATE AND RESET STATUS CONFERENCE

Defendants, the United States Food and Drug Administration ("FDA") and Department of Health and Human Services, by and through their attorneys, Benjamin B. Wagner, United States Attorney, and Yoshinori H. T. Himel, Assistant United States Attorney; and Plaintiff, C. Brooks Cutter, respectfully request that this Court modify the schedule set forth in the Court's Order dated February 19, 2010. In the "Parties' Stipulation to Extend Protest Date, and Reset Status Conference" approved February 19, 2010, the Court extended the time in which the Plaintiff may challenge FDA's withholdings until April 13, 2010. In the time since the Court's February 19th Order, the parties have made significant progress in narrowing the remaining issues and moving toward a resolution of this case. On March 25, 2010, Plaintiff sent FDA a list of about one thousand specific withholdings from FDA's November 2009
PARTIES' STIPULATION TO EXTEND PROTEST DATE AND RESET STATUS CONFERENCE

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document production about which he had concerns. A list this specific gives the parties a useful tool to find out what is and is not at issue. FDA is reviewing the list and intends to restore some of the information that Plaintiff requested. FDA estimates that it will take approximately two months to restore the information and to produce the revised versions of those documents to Plaintiff. FDA has agreed to produce the revised versions of the documents to Plaintiff on or before June 14, 2010. The parties have agreed that Plaintiff will have thirty days, until July 14, 2010, to review the revised documents and to determine whether to formally challenge FDA's withholdings. Should Plaintiff decide not to challenge the withholdings, there would be nothing left to litigate, and the parties should be able to stipulate dismissal. If Plaintiff decides to challenge FDA's withholdings, the issues remaining for the Court to resolve would likely be narrowed. The parties will not know the case status until July 14, 2010, which is after the status conference set for May 19, 2010, at 9:30 a.m., before Judge Beck. To serve judicial efficiency, the parties request that the status conference be continued until August 11, 2010, at 9:30 a.m. before Judge Beck. The parties previously agreed that FDA will not prepare a Vaughn index of redacted information at this time. If Plaintiff decides to challenge FDA's withholdings, FDA agrees to produce a Vaughn index within thirty (30) calendar days after Plaintiff gives defense counsel of record and FDA counsel a notice of his intent to challenge the withholdings. The time period for Plaintiff's deadline to challenge Defendants' withholdings has already been extended a total of two hundred and thirty-one (231) days, from August 25, 2009, to allow the parties to continue their ongoing efforts to reach a mutually agreeable resolution to this matter. Based upon the foregoing, the parties move this Court to enter an order granting Plaintiff until July 14, 2010, to challenge Defendants' withholdings, consistent with the terms set forth in this stipulation, and to reset the status conference currently scheduled for May 19, 2010 at 9:30 am to August 11, 2010, at 9:30 a.m. before Judge Beck.

PARTIES' STIPULATION TO EXTEND PROTEST DATE AND RESET STATUS CONFERENCE

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PARTIES' STIPULATION TO EXTEND PROTEST DATE AND RESET STATUS CONFERENCE

Dated: April 12, 2010

/s/ C. Brooks Cutter C. BROOKS CUTTER BENJAMIN B. WAGNER United States Attorney /s/ Y H T Himel YOSHINORI H. T. HIMEL Assistant U.S. Attorney

Dated: April 13, 2010

DAVID S. CADE Acting General Counsel RALPH S. TYLER Associate General Counsel Food and Drug Division ERIC M. BLUMBERG Deputy Chief Counsel, Litigation MICHAEL HELBING Assistant Chief Counsel, Litigation U.S. Dept. of Health & Human Services Office of the General Counsel 5600 Fishers Lane Rockville, MD 20857

ORDER Good cause appearing, Plaintiff's deadline for challenging Defendant's withholdings is extended until July 14, 2010. The status conference presently set for 9:30 a.m. on May 19, 2010, is CONTINUED until 9:30 a.m. on August 11, 2010, before Judge Beck. IT IS SO ORDERED. Dated:

April 13, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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