Blaszkowski et al v. Mars Inc. et al

Filing 398

RESPONSE in Opposition re 382 MOTION to Sequence Document Production and to Limit Plaintiffs Document Requests, 388 MOTION to Adopt/Join 382 MOTION to Sequence Document Production and to Limit Plaintiffs Document Requests filed by All Plaintiffs. (MacIvor, Catherine)

Blaszkowski et al v. Mars Inc. et al

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221 CIV ALTONAGA/Turnoff RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs/Class Representatives, vs. MARS INC., et al. Defendants. ______________________________________________/ PLAINTIFFS RESPONSE TO DEFENDANT MANAUFACTURERS'1 MOTION TO SEQUENCE DOCUMENT PRODUCTION AND TO LIMIT DOCUMENT REQUESTS Plaintiffs, Renee Blaszkowski, et al., hereby respond to Defendants, The Iams Company ("Iams") Motion to Sequence Document Production and to Limit Document Requests ("Motion") to which the remaining Defendant Manufacturers have joined. I. The failure to confer is in and of itself a basis to deny the motion Iams has moved under Rule 26 for a protective Order relating to several broad categories of documents and filed four (4) Declarations from various Iams personnel allegedly detailing the "burden and costs necessary to respond" to the Plaintiffs' Requests for Production "and the confidential and proprietary nature of the requests." [DE 382-2]. Iams' explicates in the motion that "[t]hese Declarations explain in detail" Iams' objections to these requests, which this record demonstrates was never provided to the Plaintiffs' counsel. [DE 382-2 n.3]. The Plaintiffs adopt
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Defendants, Mars Inc., Mars Petcare US, Inc., Hill's Pet Nutrition, Inc., Del Monte Foods, Co., Nestlé Purina PetCare Co., Nutro Products, Inc. and Natura Pet Products, Inc. have joined in The Iams' Company's Motion. [DE 388].

MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

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and incorporate by reference herein their Motion to Strike Defendant Manufacturers' Motion to Sequence Document Production and To Limit Document Requests and Request For Attorneys Fees and the Declaration of Catherine J. MacIvor filed in support of that Motion. [DE 395; DE 396]. The Plaintiffs respectfully request this Court to strike and/or deny Iams' Motion for failure to meaningfully and reasonably complying with Rule 26 and Local Rule 7.1(A). The remaining Manufacturer Defendants have subsequently "adopted" or "joined" Iams' Motion, which is predicated on the Declarations of Iams' employees concerning only Iams' records and have offered to file similar Declarations if it would be "helpful" to the Court. These Defendants completely miss the point of Rule 26 and Local Rule 7.1(A) since the information provided in the Declarations that they offer to the Court should have first been discussed between counsel in order to avoid bringing a matter such as this before the Court; yet, no discussion took place with any Manufacturer defendant other than Iams. Every Manufacturer Defendant that adopted or joined Iams' Motion has accordingly failed to meet its burden of demonstrating any basis for objections. See Webber v. Finker, 2008 U.S. Dist LEXIS 31067, **14-15 (M.D. Fla. 2008) ("the parties resisting discovery, bear the burden of establishing that responding to a discovery request will be unduly burdensome" (citing Border Collie Rescue, Inc. v. Ryan, 2005 U.S. Dist. LEXIS 5983, 2005 WL 662724, *2 (M.D. Fla. 2005) (quoting Coker v. Duke & Co., 177 F.R.D. 682, 686 (M.D. Ala. 1998))). "That burden cannot be met by a party simply claiming a response would be oppressive or expensive. Instead, the party claiming undue burden `must substantiate that position with detailed affidavits or other evidence[.]'" Id. (quoting Coker, 177 F.R.D. at 686 and citing Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 672 (D. Kan. 2003) ("The objecting party must show specifically how, despite the broad and liberal construction afforded the federal discovery rules,

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[the] question is overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.")). In New World Network, Ltd. v. M/V Norwegian Sea, 2007 U.S. Dist LEXIS 25731, **12 (S.D. Fla. 2007), the Court denied Rule 26 motions that were similarly based upon overly broad objections and explained that, "[i]ndeed, the motion attaches no affidavits or sworn record evidence, and relies instead primarily on the lawyer's arguments for why a topic as drafted is too broad. That is a procedure that Rules 33 and 34 contemplate after all responsive answers are provided with appropriate objections." Id. The Plaintiffs therefore respectfully request that the relief that they seek be denied and attorney's fees awarded for having to respond to an unsupported and unsubstantiated Motion that fails to comply with the very rules that these Defendants invoke by adopting or joining in Iams' Motion. II. The Rule 26 and Local Rule 7.1(A) "meet and confer" was meaningless In order to avoid repetition, the Plaintiffs adopt and incorporate by reference the Declaration of Catherine J. MacIvor and all accompanying documents attached thereto to demonstrate each of the Defendant Manufacturers' failure or refusal to discuss objections to the Plaintiffs' Requests for Production. The Plaintiffs' counsel has maintained, and continues to maintain, that it is not the goal or intention of the Plaintiffs to obtain thousands of irrelevant or unnecessary documents; however, the Plaintiffs' counsel is neither familiar with the scope of the documents maintained by any defendant nor the manner in which they are maintained. If the parties actually have a dialogue with the Plaintiffs' counsel, rather than engaging in unnecessary motion practice, any concerns about scope can and will be addressed and most likely resolved with little to no court intervention. Unfortunately, the Defendant Manufacturers have made it so that such a practice did not occur here. II. Bifurcation of Merits and Class Discovery will only result in further delay and prejudice to the Plaintiffs
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The Defendants' Motion is unquestionably not only an attempt to bifurcate class and merits discovery, but to control and determine what documents the Plaintiffs obtain through discovery. The Manual for Complex Litigation ("Manual") notes that the distinction between merits-based discovery and class-related discovery is often blurry, if not spurious. See id. § 21.14, at 255 ("generally, application of the Rule 23 criteria requires the judge to examine the elements of the parties' substantive claims and defenses in order to analyze commonality, typicality, and adequacy of representation under Rule 23(a)"). The Manual further notes that "some merits discovery during the precertification period is generally more appropriate for cases that are large and likely to continue even if not certified." Id.; see also In re: Plastics Additives Antitrust Litig., 2004 U.S. Dist. LEXIS 23980 (E.D. Pa. 2004); Gray v. First Winthrop, 133 F.R.D. 39, 41 (N.D. Cal. 1990) (denying order to stay merits-based discovery until resolution of class certification motion would be "unworkable," "impracticable," and "inefficient" and would deny plaintiffs ability to develop facts in support of motion). Accordingly, the Manual suggests that the prime considerations in whether bifurcation is efficient and fair include whether meritsbased discovery is sufficiently intermingled with class-based discovery and whether the litigation is likely to continue absent class certification. In this case, after having discovery stayed for almost a year while the Defendants repeatedly challenge the Plaintiffs' substantive claims, "[b]ifurcation would be inefficient, unfair, and duplicative" for several reasons. See In re: Plastics Additives Antitrust Litig., at *8. First, as the Court noted in In re: Plastics Additives Antitrust Litig., "bifurcation would further delay the resolution of the litigation in derogation of Rule 1 of the Federal Rules of Civil Procedure." Id., citing Fed. R. Civ. P. 1 (procedural rules must be administered to secure "the just, speedy, and inexpensive determination of every action"). This case has already been on the
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docket for over 12 months with little to no discovery exchanged to date, except for jurisdictional discovery with defendant Kroger. "Failure to permit simultaneous discovery of merits-related and class-related issues will further delay the length of the overall discovery period, thereby inhibiting the Plaintiffs from receiving an expeditious resolution of their claims." Id., citing In re Sulfuric Acid Antitrust Litigation, MDL No. 1561, No. 03 C 4576 (N.D. Ill. 2003) (refusing to bifurcate discovery in antitrust litigation in part because of delays created by bifurcation). The Defendants suggest a two-part discovery period in which they choose which documents to produce for class certification prior to November and then produce other documents at some point between November and February, when fact discovery will close. [DE 382-2 pp. 5-6]. This is patently prejudicial to the Plaintiffs because the Motion for Class Certification is due in mid-November, all fact discovery must be complete by February 9, 2009, and mediation and expert reports follow in short order thereafter. [DE 355]. The Defendants' proposal would hamstring the Plaintiffs' preparation for trial and their retention of experts since they would be denied access to two of the most critical aspects of this case: the Defendants' marketing and the true ingredients in the pet food and treats. Moreover, the Plaintiffs would not even have two months to obtain fact discovery because the Motion for Class Certification is due on November 15. Even assuming all of the Defendants filed a timely response with no extension, a reply would still be filed. Further, the Court would presumably hear oral arguments and a decision may not be made through the time of the close of fact discovery. Hence, the Defendants' suggestion is not feasible and is designed to prejudice the Plaintiffs' trial preparation, which includes the retention of experts and the preparation of their reports. Bifurcation would also belie principles of judicial economy because, as this Court noted at the conclusion of the hearing on the Motion to Dismiss, the Court will inevitably be forced to

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spend time and resources resolving discovery disputes over what is "merit" discovery as compared to "class" discovery. Id,, citing In re Hamilton Bancorp. Inc. Securities Litigation, 2002 WL 463314, *1 (S.D. Fla. 2002) (noting that "bifurcation of discovery may well-increase litigation expenses by protracting the completion of discovery, coupled with endless disputes over what is `merit' versus `class' discovery"). Second, class certification discovery in this litigation is not "easily" differentiated from "merits" discovery. Id., citing Gray, 133 F.R.D. at 41 (noting that "discovery relating to class certification is closely enmeshed with merits discovery" and "cannot be meaningfully developed without inquiry into basic issues of the litigation"). There will be a substantial overlap between what is needed to prove the Plaintiffs' false advertising and property damage claims, as well as the information needed to establish class-wide defenses, and what is needed to determine whether the elements of class certification are met. For example, a determination of whether the elements of class certification are met would require discovery into the Defendants' business plans and strategies for marketing and selling pet food and treats, the impact of the Defendants' conduct on the Plaintiffs, and the true ingredients and contents of the pet food and treats marketed and sold to the Plaintiffs. Discovery on these issues will also be necessary to prove the merits of the Plaintiffs' false advertising claims, chiefly whether the Defendants engaged in a nation-wide false advertising scheme to induce the Plaintiffs to buy pet food and treats that were marketed as something they are not and which, ultimately, caused the needless illness and deaths of their companion cats and dogs. "Due to the intermingling of the facts necessary to evaluate class certification and the merits of the Plaintiffs' claims, separating the two would duplicate discovery efforts, which, in turn, would force both parties to incur unnecessary expenses and would further protract the litigation." Id. at *10.

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Third, contrary to the Defendants' assumptions, they have provided no basis to support that any potential denial of class certification will terminate this litigation. See Manual § 21.14 at 256 (bifurcation not appropriate if litigation likely to proceed without certification). There are currently twenty-nine Plaintiffs. There are thousands more who will join this case in the event class certification is denied. Thus, should class certification be denied, it is reasonable to assume that the individual Plaintiffs will pursue their claims and putative class members will join this litigation. Accordingly, "the likelihood of the continuation of individual claims, regardless of class certification, belies whatever time and expense may be saved in the future through the narrowing of discovery pursuant to the resolution of class certification motions." Id. at *12. The Plaintiffs have provided an extensive product list that involves the advertising of each and every defendant Manufacturer in this lawsuit. [DE 390]. This case will not simply go away, because the Plaintiffs are pursuing this out of principle. III. Remaining issues raised in Motion As the Plaintiffs' Emergency Motion for Continuance noted, based on other deadlines and a trial currently pending before this Court, the undersigned has not had the opportunity to complete this Response or to even analyze the law cited by the Defendants in their Motion. Accordingly, the Plaintiffs respectfully request this Court to allow the Plaintiffs to supplement this response as to the remaining issues should this Court deny the Defendants' Motion to strike or otherwise be inclined in any way to allow the Defendants' attempts to thwart discovery. WHEREFORE, the Plaintiffs', Renee Blaszkowski, et al., respectfully request this Court to deny all relief requested by each Defendant Manufacturer as set forth above and should the Court determine to entertain granting relief to the Defendant Manufacturers, allow the Plaintiffs

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to supplement this Response as to all such issues and for all other relief that the Court deems just and proper. Dated: May 22, 2008 Miami, FL /s Catherine J. MacIvor CATHERINE J. MACIVOR (FBN 932711) [e-mail] One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE WE HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the Court via CM/ECF on May 22, 2008. We also certify that the foregoing was served on all counsel or parties of record on the attached Service List either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Filing. /s Catherine J. MacIvor Catherine J. MacIvor

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SERVICE LIST CASE NO. 07-21221 ALTONAGA/Brown CATHERINE J. MACIVOR [e-mail] JEFFREY B. MALTZMAN [e-mail] JEFFREY E. FOREMAN [e-mail] DARREN W. FRIEDMAN [e-mail] MALTZMAN FOREMAN, PA One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] Attorneys for Plaintiffs ROLANDO ANDRES DIAZ E-Mail: [e-mail] MARIA KAYANAN E-Mail: [e-mail] KUBICKI DRAPER 25 W. Flagler Street, Penthouse Miami, Florida 33130-1712 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Pet Supermarket, Inc. LONNIE L. SIMPSON E-Mail: [e-mail] S. DOUGLAS KNOX E-Mail: [e-mail] DLA PIPER US LLP 100 N. Tampa Street, Suite 2200 Tampa, Florida Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund ALEXANDER SHAKNES E-Mail: [e-mail] AMY W. SCHULMAN E-Mail: [e-mail] DLA PIPER US LLP 1251 Avenue of the Americas New York, New York 10020 Telephone: [phone] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund WILLIAM C. MARTIN E-Mail: [e-mail] DLA PIPER RUDNICK GRAY CARY US LLP 203 North LaSalle Street Suite 1900 Chicago, Illinois 60601-1293 Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund JOHN B.T. MURRAY, JR. E-Mail: [e-mail] ROBIN L. HANGER E-Mail: [e-mail] SQUIRE, SANDERS & DEMPSEY LLP 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401-6198 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants PETCO Animal Supplies Stores Inc., PetSmart, Inc., Wal-Mart Stores, Inc. and Target Corporation

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C. RICHARD FULMER, JR. E-Mail: [e-mail] FULMER, LEROY, ALBEE, BAUMANN, & GLASS 2866 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant The Kroger Co. of Ohio JEFFREY S. YORK E-Mail: [e-mail] MICHAEL GIEL E-Mail: [e-mail] McGUIRE WOODS LLP 50 N. Laura Street, Suite 3300 Jacksonville, FL 32202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Natura Pet Products, Inc. OMAR ORTEGA Email: [e-mail] DORTA & ORTEGA, P.A. Douglas Entrance 800 S. Douglas Road, Suite 149 Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Mars, Inc. and Mars Petcare U.S. and Nutro Products, Inc.

HUGH J. TURNER, JR. E-Mail: [e-mail] AKERMAN SENTERFITT & EDISON 350 E. Las Olas Boulevard Suite 1600 Fort Lauderdale, Florida 33301-2229 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Publix Super Markets, Inc. KRISTEN E. CAVERLY E-Mail: [e-mail] TONY F. FARMANI [e-mail] HENDERSON & CAVERLY LLP 16236 San Dieguito Road, Suite 4-13 P.O. Box 9144 (all US Mail) Rancho Santa Fe, CA 92067-9144 Telephone: [phone] x)101 Facsimile: 858-756-4732 Attorneys for Natura Pet Products, Inc. ALAN G. GREER [e-mail] RICHMAN GREER WEIL BRUMBAUGH MIRABITO & CHRISTENSEN 201 South Biscayne Boulevard Suite 1000 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants The Iams Co.

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BENJAMIN REID E-Mail: [e-mail] ANA CRAIG E-Mail: [e-mail] CARLTON FIELDS, P.A. 100 S.E. Second Street, Suite 4000 Miami, Florida 33131-0050 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. KARA L. McCALL [e-mail] SIDLEY AUSTIN LLP One S. Dearborn Street Chicago, ILL 60633 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc.

JOHN J. KUSTER [e-mail] JAMES D. ARDEN [e-mail] SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019-6018 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. RICHARD FAMA E-Mail: [e-mail] JOHN J. McDONOUGH E-Mail: [e-mail] COZEN O'CONNOR 45 Broadway New York, New York 10006 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods

SHERRIL M. COLOMBO E-Mail: [e-mail] COZEN O'CONNOR 200 South Biscayne Boulevard Suite 4410 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods Co.

DANE H. BUTSWINKAS E-Mail: [e-mail] PHILIP A. SECHLER E-Mail: [e-mail] THOMAS G. HENTOFF E-Mail: [e-mail] PATRICK J. HOULIHAN E-Mail: [e-mail] AMY R. DAVIS [e-mail] JULI ANN LUND [e-mail] WILLIAMS & CONNOLLY LLP 725 12th Street, N.W. Washington, DC 20005 Telephone: [phone] Attorneys for Defendants Nutro Products, Inc. Mars, Incorporated and Mars Petcare U.S.

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JOHN F. MULLEN E-Mail: [e-mail] COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods, Co.

CAROL A. LICKO E-Mail: [e-mail] HOGAN & HARTSON Mellon Financial Center 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 Telephone [phone] Facsimile [phone] Attorneys for Defendants Nestle Purina Petcare Co.

ROBERT C. TROYER E-Mail: [e-mail] HOGAN & HARTSON 1200 17th Street One Tabor Center, Suite 1500 Denver, Colorado 80202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. JAMES K. REUSS E-Mail: [e-mail] LANE ALTON & HORST Two Miranova Place Suite 500 Columbus, Ohio 43215 Telephone: [phone] Attorneys for Defendant The Kroger Co. of Ohio

CRAIG A. HOOVER E-Mail: [e-mail] MIRANDA L. BERGE E-Mail: [e-mail] HOGAN & HARTSON L.L.P. 555 13th Street, N.W. Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. D. JEFFREY IRELAND E-Mail: [e-mail] BRIAN D. WRIGHT E-Mail: [e-mail] LAURA A. SANOM E-Mail: [e-mail] FARUKI IRELAND & COX 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, Ohio 45402 Attorneys for Defendant The Iams Co.

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W. RANDOLPH TESLIK CRAIG P. KALIL E-Mail: [e-mail] E-Mail: [e-mail] ANDREW J. DOBER JOSHUA D. POYER E-Mail: [e-mail] E-Mail: [e-mail] AKIN GUMP STRAUSS HAUER & FELD ABALLI MILNE KALIL & ESCAGEDO 2250 Sun Trust International Center LLP 1333 New Hampshire Avenue, NW One S.E. Third Avenue Washington, D.C. 20036 Miami, Florida 33131 Telephone: [phone] Telephone: [phone] Facsimile: [phone] Facsimile: [phone] Attorneys for Defendants New Albertson's Inc. Attorneys for New Albertson's Inc. and and Albertson's LLC Albertson's LLC RALPH G. PATINO E-Mail: [e-mail] DOMINICK V. TAMARAZZO E-Mail: [e-mail] CARLOS B. SALUP E-Mail: [e-mail] PATINO & ASSOCIATES, P.A. 225 Alcazar Avenue Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Pet Supplies "Plus" and Pet Supplies Plus/USA, Inc.

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