Carlin et al v. DairyAmerica, Inc. et al

Filing 123

STIPULATION and ORDER Regarding Merits Discovery re 122 signed by Magistrate Judge Gary S. Austin on 4/3/2013. (Martinez, A)

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Joseph J. Tabacco, Jr. (SBN 75484)
Christopher T. Heffelfinger (SBN 118058)
Anthony D. Phillips (SBN 259688)
BERMAN DeVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

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[Additional Counsel Listed on Signature Page]

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Counsel for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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GERALD CARLIN, JOHN RAHM, PAUL
ROZWADOWSKI and BRYAN WOLFE,
individually and on behalf of themselves
and all others similarly situated,
Plaintiffs,

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STIPULATION AND ORDER
REGARDING MERITS DISCOVERY

v.

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Case No. 1:09 CV 00430-AWI (GSA)

DAIRYAMERICA, INC. and
CALIFORNIA DAIRIES, INC.,

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CLASS ACTION

Defendants.

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1:09 CV 00430-AWI (GSA) STIP. & ORDER RE DISCOVERY

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Plaintiffs and defendant DairyAmerica, Inc. (“DairyAmerica” and, collectively with

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plaintiffs, the “parties”), by and through their respective counsel of record and subject to Court

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approval, recite and stipulate as follows with respect to the conduct of limited merits discovery

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prior to adjudication of DairyAmerica’s pending motion to dismiss.

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RECITALS

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WHEREAS the Court conducted a Scheduling Conference on March 18, 2013;

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WHEREAS the Court ordered limited discovery to proceed between plaintiffs and

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DairyAmerica as to the merits of the factual allegations in the case prior to adjudication of

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DairyAmerica’s pending motion to dismiss;

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WHEREAS the Court ordered that defendant California Dairies, Inc. has no obligation

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to provide Initial Disclosures or otherwise respond to, or participate in, discovery pending

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adjudication of defendants’ motions to dismiss;

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WHEREAS at the Scheduling Conference, the parties met and conferred respecting the
extent of discovery to be undertaken;
WHEREAS since the Scheduling Conference, the parties have met and conferred further
respecting the extent of discovery to be undertaken;

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STIPULATION
Therefore, IT IS HEREBY STIPULATED AND AGREED, by the parties through their
respective counsel of record, as follows:

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1.

The parties shall file a joint Protective Order by no later than April 26, 2013;

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2.

The parties shall file a joint Protocol governing the treatment of electronically-

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stored information (“ESI”) by no later than May 17, 2013;
3.

DairyAmerica shall disclose to plaintiffs, in writing, the following information

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by no later than April 26, 2013:

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a.

The names, addresses, and telephone numbers of each individual likely to

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have discoverable information relevant to the subject matter of this

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litigation;

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1:09 CV 00430 –AWI (GSA) STIP. & ORDER RE DISCOVERY

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b.

The categories and locations of documents, including both paper and

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electronically-stored documents, in DairyAmerica’s possession, custody,

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or control likely to contain discoverable information relevant to the

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subject matter of this litigation including, but not limited to, categories of

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electronically-stored information previously compiled by DairyAmerica

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in anticipation of document discovery in this case;

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c.

The existence of any insurance agreement under which an insurance

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business may be liable to satisfy all or part of a possible judgment in this

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action or to indemnify or reimburse for payments made to satisfy such

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judgment.

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4.

Plaintiffs may serve discovery requests pursuant to Federal Rules of Civil

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Procedure, rules 26 and 33 through 36, inclusive, on DairyAmerica at any time. DairyAmerica

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shall have no obligation to provide responses or objections until 30 days after entry of an order

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denying DairyAmerica’s motion to dismiss, including any subsequent motions to dismiss any

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amended complaint.

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5.

Plaintiffs may proceed with discovery of third parties pursuant to the Federal

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Rules of Civil Procedure, rule 45, except that no third party depositions shall be noticed before

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entry of an order denying DairyAmerica’s motion to dismiss, including any subsequent motions

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to dismiss any amended complaint.

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6.

DairyAmerica shall conduct further investigation into the existence of

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discoverable information pertaining to inspections, investigations and/or audits conducted by

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the United States Department of Agriculture, Office of the Inspector General, at defendant

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DairyAmerica’s offices in 2007 and 2008. The parties shall meet and confer further with

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respect to the production of any such discoverable material, which shall not be delayed pending

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resolution of DairyAmerica’s motion to dismiss.

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///

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///

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1:09 CV 00430 –AWI (GSA) STIP. & ORDER RE DISCOVERY

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DATED: March 29, 2013

Respectfully submitted,
BERMAN DeVALERIO

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By:

/s/ Anthony D. Phillips
Anthony D. Phillips

Joseph J. Tabacco, Jr.
Christopher T. Heffelfinger
One California Street, Suite 900
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Benjamin D. Brown (SBN 202545)
Daniel A. Small
Victoria S. Nugent
COHEN MILSTEIN SELLERS
& TOLL, PLLC
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
George F. Farah
COHEN MILSTEIN SELLERS
& TOLL, PLLC
88 Pine Street
14th Floor
New York, NY 10005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Lynn L. Sarko
Mark A. Griffin
Juli E. Farris
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: [phone]
Facsimile: (206)-623-3384
Email: [e-mail]
[e-mail]
[e-mail]
1:09 CV 00430 –AWI (GSA) STIP. & ORDER RE DISCOVERY

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Ron Kilgard
KELLER ROHRBACK P.L.C.
3101 North Central Avenue, Suite 1400
Phoenix, AZ 85012
Telephone: [phone]
Facsimile: (602)-248-2822
Email: [e-mail]

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Counsel for Plaintiffs and the Proposed Class

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Dated: March 29, 2013

DAVIS WRIGHT TREMAINE LLP

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By:

/s/ Charles M. English (as authorized on 3/29/13)
Charles M. English

Allison A. Davis
505 Montgomery Street,
Suite 800
San Francisco, CA 94111-6533
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Christopher D. Bell
BAKER MANOCK & JENSEN, PC
5260 North Palm Avenue,
Fourth Floor
Fresno, CA 93704
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Defendant DairyAmerica, Inc.

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1:09 CV 00430 –AWI (GSA) STIP. & ORDER RE DISCOVERY

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1

ORDER

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IT IS HEREBY ORDERED that:

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Limited discovery into the merits of the allegations in the above-captioned litigation

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shall proceed in accordance with the stipulation of the parties, as set forth above.
Other than the discovery described above, no other merits discovery shall take place

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between DairyAmerica and plaintiffs until such time as the Court enters an order denying

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DairyAmerica’s motion to dismiss, including any subsequent motion to dismiss any amended

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complaint.

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No discovery shall take place between defendant California Dairies, Inc. and plaintiffs

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until such time as the Court enters an order denying California Dairies, Inc.’s motions to

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dismiss, including any subsequent motion to dismiss any amended complaint.

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Any further merits discovery shall commence following the Court ordered status
conference with a schedule agreed to by the parties or by order of the Court.
No discovery shall take place with respect to class certification until further order of the
Court expressly permitting such discovery to proceed.

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IT IS SO ORDERED.
Dated:

April 3, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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1:09 CV 00430 –AWI (GSA) STIP. & ORDER RE DISCOVERY

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