City of Winter Haven v. Cleveland Indians Baseball Company Limited Partnership

Filing 294

US District Court Middle District of Florida PLAINTIFFS' EXHIBIT Exhibit Number: 9 6:06md01769ACCDAB In Re: Seroquel Products Liability Litigation Date Identified: Date Admitted:

Exhibit 9

PROCEEDINGS - May 22, 2007

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TRANSCRIPT OF PRETRIAL CONFERENCE

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION Docket No.6:06-MD-1769-Orl-22DAB . . . . . . . . . . . . . . .. IN RE: : SEROQUEL PRODUCTS LIABILITY : LITIGATION : Orlando, Florida MDL DOCKET No. 1769 : May 22, 2007 : 4:00 p.m. ALL CASES : : . . . . . . . . . . . . . . .:

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BEFORE THE HONORABLE DAVID A. BAKER AND ANNE C. CONWAY UNITED STATES MAGISTRATE JUDGE UNITED STATES DISTRICT JUDGE

APPEARANCES:
For the Plaintiffs: Paul Pennock Larry M. Roth

Scott Allen Richard Laminack F. Kenneth Bailey For the Defendant AstraZeneca: Fred Magaziner Stephen J. McConnell James Freebery
Court Reporter: Sandra K. Tremel

Proceedings recorded by mechanical stenography, transcript
produced by computer-aided transcription.

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can proceed without it. THE COURT: Right. Let me tell you, we have

only got about an hour for this hearing. MR. PENNOCK: THE COURT: Yes.

And it is a status conference

hearing, so, go ahead. MR. PENNOCK: I would like to address with the

Court, if that's acceptable, the issues regarding the defendant discovery that we have been attempting to take to date. You know, as I'm sure Magistrate Judge Baker -THE COURT: I've read all of the transcripts of

all of the status conferences. MR. PENNOCK: Okay. Essentially at this

juncture, we have very serious concerns as to whether this discovery can proceed in the manner that -THE COURT: Why don't you tell us what you have

to date and what you expected to date and what you need. MR. PENNOCK: We have received to date 32 files

for witnesses who were identified by the defendants as being important and relevant witnesses in this case. What we have -- we have also taken a number of 30(b)(6) depositions which were permitted by the Court. What we learned last week was that there are a large number of witnesses in two foreign -- at least two foreign entities, AstraZeneca UK and AstraZeneca AB in Sweden, who

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 those entities possess not only personnel but large volumes of documents that bear directly on all the issues in this case. And to our understanding, the defendants

have not produced any of this. Moreover, to our understanding, not one of these witnesses that we now identified through the 30(b)(6)'s were on this list of 80 witnesses that they themselves created last fall. And if I may give two examples. One is -- I'm sorry. We learned

One example is SET, the senior executive team.

from a 30(b)(6) of their senior counsel here in the States that the SET, the senior executive team, as she put it in her words, controls everything. anything. That they can do

And they have been running the various drug

franchises for this company. And yet these individuals had not previously been identified to us, had not been on this list of 80. why is that so important? And

Because these -- this list of

80 has already comprised six and a half million documents -- sorry, six and a half million pages, and we're supposed to be plowing through all this discovery on these 80 people, whereas there may be 20 or 30 people who we really want that have been withheld from us. Now, in my presentation, which unfortunately I don't have up, you know, I put the word "deliberately" in there

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sorry, e-mails with respect to any individuals in those foreign entities, and we need to be able to start taking 30(b)(6)'s of individuals from those foreign entities. The witness I took specifically said, you will have to talk to somebody from those companies. So I don't think from the testimony we got last week there is any doubt that these foreign entities are wholly insinuated into this process. controlling it. In fact, they're

And we have been unwittingly thwarted in

getting this discovery over the last several months. The other category of issues -- we have the foreign discovery issue. The other category that we have been

dealing with again and again and again, with some significant measure of frustration, is the nature of the document production that has occurred. And I'm sorry to say there really has not been tremendous improvement. There has been some improvement

through the actions of the Court in terms of making and forcing things along. Forcing things along.

But the fact of the matter is that the documents we have been getting, for example, include, as I put on the agenda, there are thousands and thousands and thousands of blank pages, and yet there seems to be underlying metadata or files that would suggest there is supposed to be data on those pages, but there's nothing there when we go to

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problem. In addition to that, Your Honor, we have learned that these documents were all TIF'ed since December, so we're kind of at a loss as to why, if they've had these documents in the electronic TIF format since December, why do we not have them all now? As the Court, as look at it. That's number one.

Number two, there are instances where for each rolling aspect of this production, they change the way they're identifying documents. So every time we go to

upload it and try to match things up, and I do have my director of IT on the phone if you have any questions specifically, or if Magistrate Baker does on these IT issues, but essentially when we try to match this data up, it's not matching up because they change the way they're phrasing the Bates number, literally putting a slash instead of a dash, putting a comma or a semicolon instead of something else. There are different things they're doing with these Bates number, we don't know why they're doing it, but they're being done, and it's creating a lot of difficulty that is completely unnecessary and avoidable in the first instance. MR. ALLEN: Your Honor, could I just -May I just finish outlining the

MR. PENNOCK:

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Magistrate Baker said at one of the earlier conferences, this stuff, this is not terrible rocket science. have it and it's electronic, deliver it. Well, we learned only recently in a communication from them that they have actually had it in TIF since December. So where is it? Why don't we have it? If you

And a fourth category of problem is the continuing problem of page breaks. As Your Honor may have gleaned

from an earlier conference, we have this issue where, let's say 500 e-mails for a given individual are produced, but it's essentially one rolling page without a break. And if you had page breaks in that, in that big electronic document, it would be 1,000 pages. instance 22,000 pages. So it's this big long rolling document, and when you electronically try to search for terms within that, it's essentially impossible. I mean the smaller it is, the But the larger it is, it In one

easier it is to sort through it. becomes effectively impossible.

Now, one other thing we learned that has made this even more of a problem, that we just learned, is that the program that AZ has been using -- and by the way, I say we learned, we have been told, I don't know this for a fact. But we have been told that the program AZ used to maintain these documents is called Intracept, I believe.

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 these are the things that we must take care of. We must

get our arms around all this and get this discovery done in order for this MDL to be concluded within the timeframes that we're all trying to get it concluded within. And certainly this discovery needs to be done before we can even think about moving on to the next phase of a litigation like this, which is the discovery that the defendants are insisting upon foisting upon this litigation. As was -- you know, I'll conclude with this, Your Honor, with respect to the defendant's proposals regarding discovery. We would suggest to you that it really is,

when you look at it, simply a plan that will result in this Court and all of us being thrown into a quicksand of litigation. It will draw us all into dealing with

thousands and thousands of individualized issues to no purpose. Because the defendants have not agreed to try

cases in this courtroom. The defendants understand that they're just -- that they're just taking 300 cases that they suggested doing this massive amount of discovery, much of which may have to be redone when we get to trial to the remand court several years from now. So all it is doing is creating this quicksand, this

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seen or heard about until now. MR. MCCONNELL: that are overseas. documents. I think there are some witnesses

I think there are probably some

But I think that the vast -- not just the

majority, the overwhelming majority of materials is in the United States. And we have said all along, and Your Honor's provided in the order, if they want to add witnesses, they want to ask for more documents, they can do that. to respond to that. But right now there's nothing to respond to except a vague complaint. But we have more than met our And we're ready

obligations, Your Honors. And with respect to the technical issue, Mr. Pennock is right. I mean that shouldn't be the case. You

shouldn't have blank pages. without page breaks.

You shouldn't have pages

And what we have said, and Mr. Freebery can address this, time and time again, we have asked to meet and confer, put the lawyers and the techie people together and let's fix these problems. These are susceptible to a

technological fix, and it shouldn't have taken this long, but we need to be able to get together and do it. In terms of the TIF'ing, as Mr. Freebery can complain, TIF'ing of documents is the first step, it's not

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the last step. The fact that documents were TIF'ed in

December just is the beginning of the process, and there are a lot of things that have to be done that can be explained by Mr. Freebery in terms of review, privileges, Bates stamping, putting them in the format that the plaintiffs themselves said that they wanted in January. And then finally, I would just say the thing that the plaintiffs talked about in their motion, that they complained about, is that we added extra documents for the first date. Your Honors, as I read Federal Rule of Civil Procedure 26(e), that's what we're supposed to do. You

make the best effort you can to find the documents and to produce them. supplement. what you do. doing. And the last point, and I'll leave this to Mr. Magaziner to address if Your Honors get to it, Mr. Pennock said we need to get all this discovery done, including all the discovery in Sweden and England, before we can even think about plaintiffs' specific discovery. And I'll just remind Your Honor, Judge Baker, you yourself said discovery is supposed to be a two-way street. That's what Rule 26(d) says, too. If you find more, you're supposed to

If you need to complete the record, that's I think that's what we're supposed to be

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have here because there's no page breaks. So it would say

page 1 -- and I'm not making this up -- through page 150,000. And then I have to go to the box to try to find

out those documents. So when we say these are technical issues, they're not technical. documents. And then we say we have blank pages. minor thing. It's not a They're substantive. I can't get to the

It says, okay, assume we have page breaks,

and this is the only word that the computer people told me. It's a hook file. Well, if you had page breaks,

which we don't, and we did have Scott Allen's box and we find Scott Allen's box, and you punch on the button, it's blank. And I don't know the technical reasons why. not our responsibility. Mr. Pyrtle talked to me. Philadelphia. It's their job to give us usable production. what else can I do? I mean And it's

We did meet and confer on this. He talked to them in

Please give me the hook files. Please do it. I could meet

Please give me page breaks. and confer on that all day. is.

They know what the problem

They're supposed to produce it. And so these are substantive issue. They're not

technical.

They're not imperfections.

I can't get to

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, you know, there is no doubt that the defendants are producing large volumes of material, much of which, as we have said, is fairly unusable. But the question is, is

it what we need and what we think we want to prosecute these claims, because we're not just engaging in a document production and review. We are litigators,

lawyers, trial lawyers trying to investigate and discover a case that we could take to trial. MAGISTRATE JUDGE BAKER: you want from me? MR. MAGAZINER: Your Honor, I would like the Mr. Pennock, what do

opportunity to serve discovery demands on them. MAGISTRATE JUDGE BAKER: MR. PENNOCK: Go ahead.

I'd like the opportunity to serve

discovery notices for these foreign witnesses. MAGISTRATE JUDGE BAKER: MR. PENNOCK: Go ahead.

And I'd like the opportunity to

not be saddled with the 80 witnesses they've picked just yet. MAGISTRATE JUDGE BAKER: MR. ALLEN: Go ahead. And we

By the way -- thank you.

will do that, and we don't -- we're also prepared, and I think we've got -- I'm prepared to do away with all this custodial production. They can stop it right now. I don't need

Because I don't need any more blank pages.

PROCEEDINGS - May 22, 2007

PROCEEDINGS - May 22, 2007

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any more -MAGISTRATE JUDGE BAKER: Do I need to have an

evidentiary hearing with your technical people to find out what the problem is with the slashes and the hyphens and the blank pages and the difficulties which you call technical and what Mr. Allen has called making it impossible to read? MR. FREEBERY: From my perspective, no. I'm

willing to sit down tomorrow. MAGISTRATE JUDGE BAKER: being solved? Why aren't the problems

I mean I read your papers that you've got

the best outfit in the country working on this, and I'm not getting any results, so that says to me, okay, it's impossible. So what's the solution? What our people are telling us,

MR. FREEBERY:

Your Honor, we're putting this all in this TIF format as laid out in the CMO. We're giving it to them. It's their

system that's not reading it right or doing something incorrectly. We need their people there as well because

they have a different system than we use. We're all playing on the same level field, or we're playing on the same field, a level field, when it comes to page breaks. have. But the system, when it comes to the way it converts, Whatever we have is the same thing they

PROCEEDINGS - May 22, 2007