Blaszkowski et al v. Mars Inc. et al

Filing 409

NOTICE by All Plaintiffs of Filing Transcript of Hearing Held May 23, 2008 (Attachments: # 1 Transcript)(MacIvor, Catherine)

Blaszkowski et al v. Mars Inc. et al

Doc. 409 Att. 1
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case 07-21221-CIV-ALTONAGA RENEE BLASZKOWSKI, AMY HOLLUB and PATRICIA DAVIS, individually and on behalf of others similarly situated, Plaintiffs,

8 MIAMI, FLORIDA 9 vs. 10 MAY 23, 2008 11 12 13 14 15 16 APPEARANCES, 17 FOR THE PLAINTIFFS: 18 19 20 21 22 23 24 25
TOTAL ACCESS COURTROOM REALTIME TRANSCRIPTION May 23, 2008

MARS, INC., et al., Defendants. _______________________________________________________________ TRANSCRIPT OF MOTION HEARING BEFORE THE CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

CATHERINE J. MacIVOR, ESQ. BJORG EIKELAND, ESQ. JEFFREY B. MALTZMAN, ESQ. Maltzman Foreman, P.A. One Biscayne Tower 2 South Biscayne Boulevard, Ste. 2300 Miami, FL 33131 - 305.358.6555 Email: [e-mail] [e-mail]

Dockets.Justia.com

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FOR DEFENDANT KROGER: LAURA SANOM, Lane Alton & Two Miranova Columbus, OH FOR DEFENDANT IAMS: ALAN G. GREER, ESQ. MANUEL GARCIA-LINARES, ESQ. Richman Greer, P.A. 201 S. Biscayne Boulevard, Ste. 1000 Miami, FL 33131 - 305.373.4000 Email: [e-mail] D. JEFFREY IRELAND, ESQ. Faruki Ireland & Cox, PLL 500 Courthouse Plaza, SW 10 North Ludlow Street Dayton, OH 45402 - 937.227.3700 FOR DEFENDANTS TARGET, PETCO, WAL-MART, PETSMART: BARBARA LITTEN, ESQ. (via phone) ROBIN HANGER, ESQ. Squires, Sanders & Dempsey, LLP 1900 Phillips Point West 777 S. Flagler Drive, Ste. 1900 West Palm Beach, FL 33401 561.650.7200 FOR NESTLE USA: CAROL ANN LICKO, ESQ. Hogan & Hartson 1111 Brickell Avenue, Ste. 1900 Miami, FL 33131 - 305.459.6500 Email: [e-mail] CRAIG A. HOOVER, ESQ. (via phone) Hogan & Hartson 555 13th Street, NW Washington, D.C. 20004 - 202.637.5600 Email: [e-mail] ESQ. (via phone) Horst, LLC Place, Ste. 500 43215 - 614.233.4719

TOTAL ACCESS COURTROOM REALTIME TRANSCRIPTION May 23, 2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 FOR DEFENDANT PET SUPERMARKET: 21 22 23 24 FOR DEFENDANT MENU FOODS: 25 KEVIN McCOY, ESQ.
TOTAL ACCESS COURTROOM REALTIME TRANSCRIPTION May 23, 2008

FOR DEFENDANTS COLGATE & HILL'S PET NUTRITION: JAMES D. ARDEN, ESQ. (via phone) Sidley Austin, LLP 787 Seventh Avenue New York, NY 10019 - 212.839.5300 [e-mail] ANA CRAIG, ESQ. Carlton Fields 100 SE 2nd Street, Ste. 4000 P.O. Box 019101 Miami, FL 33131 - 305.530.0050 FOR DEFENDANT DEL MONTE: RICHARD FAMA, ESQ. (via phone) Cozen O'Connor 45 Broadway New York, NY 10006 - 212.509.9400 Email: [e-mail] SHERRIL M. COLOMBO, ESQ. Cozen O'Connor Wachovia Financial Center, Ste. 4410 Miami, FL 33131 - 305.704.5945 Email: [e-mail] FOR DEFENDANTS MARS & MARS PETCARE U.S. NUTRO: PHIL SECHLER, ESQ. Williams & Connolly, LLP 725 Twelfth Street, NW Washington, D.C. 20005 - 202.434.5238 Email: [e-mail]

PETER BAUMBERGER, ESQ. Kubicki Draper 25 W. Flagler Street, Penthouse Miami, FL 33130 - 305.982.6708 Email: [e-mail]

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DLA Piper, LLP 1251 Avenue of the Americas New York, NY 10020 Emails: [e-mail] [e-mail] FOR DEFENDANT PET SUPPLIES: DOMINICK TAMARAZZO, ESQ. (via phone) Patino & Associates, PA 225 Alcazar Avenue Coral Gables, FL 33134 - 305.443.6163 FOR DEFENDANT NATURA PET PRODUCTS:

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTED BY: BARBARA MEDINA, RPR-CM Official United States Court Reporter Federal Courthouse Square, Ste. 404 301 North Miami Avenue Miami, FL 33128-7792 305.523.5518 (Fax) 305.523.5519 Email: [e-mail] KRISTEN E. CAVERLY, ESQ. (via phone) Henderson Caverly, LLP 16223 San Dieguito Road, Ste. 4-13 Rancho Santa Fe, CA 92067 858.756.6342 Email: [e-mail]

TOTAL ACCESS COURTROOM REALTIME TRANSCRIPTION May 23, 2008

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1 2 3 4 5 6 7 Description 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Descriptions Exhibits

TABLE OF CONTENTS Page Reporter's Certificate ..................................... 47

INDEX TO EXHIBITS Marked for Identification Page Line Received in Evidence Page Line

CITATION INDEX Page

SIDEBAR CONFERENCE INDEX Page ADMINISTRATIVE CONVENTIONS: When counsel does not identify themselves each time they address the Court during a telephone conference, the industry-standard speaker identification is indicated by chevrons, i.e., >>>:

May 23, 2008

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THE COURT:

Good morning.

Renee Blaszkowski versus

Could I have counsel state your names for the record

MR. GREER:

Good morning, Your Honor.

Alan Greer, of

Richman Greer, for the defendant, Iams.

With me is my

co-counsel, Jeff Ireland, of the Faruki Ireland firm in Dayton Ohio. THE COURT: Good morning. Catherine MacIvor, for Renee

MS. MacIVOR:

Blaszkowski, et al., Bjorg Eikeland and Jeffrey Maltzman. THE COURT: Did you get the names, Barbara? I'm sorry. Yes, you

I didn't get her name. MS. MacIVOR: THE COURT: MS. LICKO:

Bjorg Eikeland.

Thank you. Good morning, Your Honor. Carol Licko,

here on behalf of Nestle Purina PetCare Company. THE COURT: MS. CRAIG: THE COURT: microphone. Good morning. Ana Craig -I can't hear. You need to approach a

I'm sorry. Good morning, Your Honor. Ana Craig, from

MS. CRAIG:

Carlton Fields, on behalf of Hill's Pet Nutrition. THE COURT: MR. McCOY: Good morning. Good morning, Your Honor. Kevin McCoy, of

DLA Piper, on behalf of Menu Foods, Inc.

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MS. COLOMBO:

Good morning, Your Honor.

Sherril

Colombo, from Cozen O'Connor, on behalf of Del Monte. THE COURT: Good morning. Good morning, Your Honor. Phil Sechler,

MR. SECHLER:

on behalf of Mars, Incorporated, Mars Pet Care and Nutro Products. MR. GARCIA-LINARES: Good morning, Your Honor. Manny

Garcia-Linares, of Richman Greer, on behalf of Iams. THE COURT: MR. HANGER: Good morning. Good morning, Your Honor. Robin Hanger,

of Squires Sanders, on behalf of Petco. MR. BAUMBERGER: Good morning, Your Honor. Peter

Baumberger, on behalf of Pet Supermarket. THE COURT: Good morning.

Do I have counsel on the phone? MR. HOOVER: MR. FAMA: Craig Hoover, for Nestle Purina.

Richard Fama, Cozen O'Connor, for Del

MS. LITTEN:

Barbara Litten, Squire Sanders, Petco,

Walmart, Target Corp. and Petsmart. MR. TAMARAZZO: Supplies. MS. WALLER: behalf of Kroger. MR. ARDEN: James Arden, Sidley Austin, on behalf of Monica Waller, Lane Alton & Horst, on Dominick Tamarazzo, on behalf of Pet

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Hill's Pet Nutrition. MS. SANOM: THE COURT: Laura Sanom, for Iams. Let me just say for the benefit of those

who are appearing by phone, I don't think I or my court reporter got any of your names, and if you would like to appear on any transcript of today's proceeding, you had best contact my court reporter and let her know your name and who you are representing because the communication is not all together clear. I have Mr. Greer at the podium. MR. GREER: This is his motion.

Thank you, Your Honor.

Your Honor, defendants are asking this Court for phased discovery in this case, not bifurcation of discovery, because based on the plaintiffs' representations at the last hearing of April 4, that the plaintiffs did not wish to review millions of documents, but would tailor their discovery requests, the defendants agreed to a very tight case management and trial schedule. However, instead of that tailored discovery, the defendants, manufacturers, received three sets of requests for production constituting 376 individual requests and when we got these, the defendants all reviewed their own individual companies' processes and procedures to see what it would take to respond to all 376 and quickly came to the conclusion that it would take four or more months of massive work just to get

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the documents together and begin to review them.

This would

make it all but impossible to adhere to the currently set case management schedule and trial schedule. So, in order to avoid that problem, we have proposed phased discovery, not bifurcated discovery, but phased discovery that will provide the necessary class cert. discovery and tailored merits discovery of the core issues of this case to allow us to move forward on an expeditious basis and adhere to the current schedule. For example, Your Honor, 128 of the plaintiffs' requests to Iams implicate all 163 of Iams products. over 500 products. Mars has

Del Monte has between 325 and 350 products.

Natura has only 74 products, but just using Iams as an example to understand what would have to occur, I have a graphic here and I'd like to hand up to the Court, if I may -THE COURT: MR. GREER: Yes. -- a miniature so you won't have to try to

read it across the courtroom. THE COURT: Thank you. MR. GREER: And what this graphic demonstrates is the Thank you. I actually can't see that far.

process each Iams product has to go through from inception to being marketed to the consumers. It goes through research and

development, pre-manufacturing processes and communications with various agencies and governmental entities, getting the

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supplies that will be needed.

Then the manufacturing process,

which is two different sets of processes, one for dry pet food, one from co-packers that is not dry -- what is known as the wet food -- and everything that has to be done to coordinate between those entities. Then it goes from there into manufacturing, and once it's manufactured, it goes to the direct customers who are the people who sell the products to the consumers, and there's all sorts of communications involved in that process, all sorts of documentation, invoices. That's the point where the

advertising begins and then it's sold to the consumers. At the consumer level, there's all sorts of research, marketing efforts, and then there's consumer follow-up at the end of the day. So, each product goes through this process and each product is like an individual silo and you have to track down all those silos of documents, and if you multiply 163 ingredients by 128 requests, that constitutes 20,864 document tracks that Iams will have to go down to respond to just those 128 requests for production. That means 2,086,400 individual document reviews, if you assume that each of these silos would only find 100 documents that relate to that product and that request. If it is, as is more likely, we'll find closer to 1,000 documents, that's 20,864,000 individual document reviews

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to make sure we're getting the documents that have been asked for, and limiting ourselves to only the 100 document scenario, even though that's the least likely, and if we attribute only one dollar of cost to each review, direct labor cost and out-of-pocket cost to get the paper, produce it and read it, we're talking about an expense of over $2 million for Iams. For Mars, with over 500 products, it could be five or six or seven million dollars. So, when you add all the defendants together to respond to this 128 requests for all the products, we are talking about well over $20 million of out-of-pocket expense, and when you add in the remaining 248 requests, which include things such as every document all of these companies ever filed with any governmental agency, State or Federal, we are talking about tens of millions of documents and tens of millions of dollars in cost. In order to avoid this problem and avoid breaking the current case management schedule, the only reasonable way to go is through phased discovery. The defendants have proposed 13 categories of documents to be produced in phase 1 -- and we're going to begin a rolling production of phase 1 the 30th of this month -- and these categories will provide both tailored merits discovery and the class cert. discovery that is needed by all the parties, and the 13 categories are set forth at pages 11 and 12

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of our motion. In the plaintiffs' responsive pleadings, they complain that they must have defendants' marketing and true ingredient information. The defendants are going to provide all of the marketing material for the products that are complained of in the Complaint in the first phase. We're also going to provide

all of the ingredient lists for all of the products, and we, although we haven't said it in our papers, we will also give the plaintiffs samples of all the products and the plaintiffs can then take those products and have them tested. to know what's truly there. to test it. They want

The best way for them to do it is

We're going to give them the material to do that. We meet what they've

So, that is completely covered.

indicated in their moving papers, responsive papers, that they have to have. Next, the plaintiff complains there has not been a meaningful meet-and-confer. That is not correct, Your Honor.

There was a long interchange of letters sent to Ms. MacIvor that clearly laid out -- my letter of May 2nd, Mr. Ireland's three subsequent letters -- that the defendants wanted to have a meet-and-confer on phased discovery. So, finally, there was a meet-and-confer on May 7th. All of the manufacturing defendants who received requests for productions participated in that by telephonic conference and

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we were face-to-face with Ms. MacIvor personally, in person. was.

I

It was made clear by the plaintiffs that they were not prepared to discuss phased discovery. Therefore, there was a

complete meet-and-confer through all the parties as to this motion. The plaintiffs misapprehend what should have been done there. They think we should have talked about all 376 requests

one at a time, which would have constituted 3,384 separate discussions, and that is not even ripe. On the 30th, all of the defendants will file their responses, request by request, and if the plaintiffs are unhappy with those responses, then -- and want to move forward with some sort of a motion to compel -- we will then have meet-and-confers between each manufacturing defendant and the plaintiffs and discuss all 376 to 400 requests that they have propounded. So, on this basis, we think the only way to go in order to keep the schedule, make meaningful production and not create an incredibly impossible burden on the massive number of defendants involved here, is to phase discovery, and that's what we are requesting from this Court. THE COURT: Thank you very much.

Ms. MacIvor. MS. MacIVOR: I'd like to start out with the

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meet-and-confer portion of this.

Yes, letters were exchanged

and the plain reading of those letters show that 99 percent of what Mr. Greer argued today were never communicated to the plaintiffs. Nothing in this exhibit that was provided to the

Court was ever discussed with the plaintiffs at that time. Nothing in the specific document requests that were filed in declarations before this Court were ever discussed with the plaintiffs at that time. These declarations were filed -- clearly don't comply with the rules for what is really clearly here a protective order. The plaintiffs oppose this phased discovery because, essentially, what it gives is the defendants have the option of controlling the discovery. We are happy and willing to work with them, as I've said before. I do not want to look at millions of documents.

I have provided -- during that discussion, I said I would provide the brands -- that has been filed in docket entry 390 -- of all the plaintiffs who purchased the specific products. I'm happy to look at that. But for the defendants

to stand here and say "This is what we're going to provide and this is all we think they're entitled to. In the first

phase, you'll get the advertising and marketing that is specifically mentioned in the Complaint" is somewhat disingenuous, Your Honor, because it was clearly always

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referenced in there as examples of certain manufacturers. Indeed, under each plaintiff, it says that they reviewed the advertising and marketing for the products they purchased. So, that's disingenuous on the defendants' side and

they know it. They have always wanted the specific product brands. I have said many times -- in December and other times I came -if I included all those products, it would make the Complaint unwieldy because there's a number of them, and docket entry 390 shows that. It would create a Chinese menu of sorts that would

have made the Complaint, you know, hundreds of pages longer. I have provided that now. advertising and marketing. possession. They should provide the

Clearly, they have that in their

We have no other way of getting it, and we need to

go forward with that. I don't think there's a need for phased discovery. they had sat down and talked to me and say "These are our concerns. We have these millions of documents," I would If you want to talk about phases, let's talk If

have said "Okay. about it."

But I can't talk about that because they have

never been forthcoming about the exact amount of documents. If you even look at their affidavits, you have people like -- and I'm not sure I can pronounce his name. I think it's Radchak (ph.), Mr. Dan Radchak. Forgive me.

If you look at

the affidavits that have been filed, I'm not sure how Mr. Greer

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came up with these specific estimates because you've got somebody who says he's a manager for Iams and he's saying many, many times that -- let's see. on page 6. I'll find an example. This is

It would be docket entry 383-11, page 6.

"Plaintiffs seek an enormous number of documents and amount of data. Iams has hundreds of thousand of documents I'll stop there. It doesn't

that relate to co-packers." get any more specific than that.

These documents include

contracts, purchase orders, bills of lading and shipping documents, formulations, specifications, and then it goes on and on. Well, if someone had sat down and talked to me, which I do believe would have been a real meet-and-confer, I would have said "Well, the plaintiffs are definitely not interested in this. We'll go forward without prejudice," which I have

done with Kroger and I've done with others in this case and I have done in other cases. As a defendant in class actions, I have produced within a month hundreds of thousands of documents because, clearly, you can go to certain departments if you sit down with a plaintiff and say "What is it you're looking for?" because a plaintiff doesn't know how documents are kept or what documents are maintained. So, clearly, if there was a discussion, you could say, for example, you know, without prejudice, until they take a

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30(b)(6) deposition, we're definitely interested in the contracts between co-packers. That was specifically mentioned

in the Complaint and that's something the plaintiffs are definitely interested in. What the defendants are proposing right now is "We want to control the litigation. So we're going to say we

will give you this," and what was proposed to me at the meet-and-confer is "This is what we think you need for class certification." The plaintiffs would like to obtain the documents that the plaintiff believes are necessary, not only for class certification, but to prepare this case for trial. The type

of -- quote/unquote -- phased discovery the defendants are proposing, based upon the current trial order, would actually tie the hands of the plaintiffs because briefing would occur in November. Assuming a response is filed within 30 days, because it's anticipated we'll ask to exceed the page limitation, and I'm assuming the defendants would like additional time, realistically, and then there will be a reply, you know, by the time fact discovery is concluded in February, we may never get to that because I'm presuming that even after class certification, they will ask the Court to wait for a ruling before we're entitled to get the information. The fact that they in their moving papers have asked

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that we never get the true ingredients, that is one of the principal focuses of this lawsuit, is that what they claim is in this pet food, and beautiful pictures and the marketing, that lured and enticed the plaintiffs to buy this food is not really what it is. They're saying "Well, it's trade secrets." I don't

know if it is or not, but I have already told them I'm willing to enter into a confidential order. Kroger. I have done that with We

As a matter of fact, we have exchanged emails.

haven't even entered into a written one. that to anybody.

I haven't disclosed We just

I have no intention of doing that.

need the information that we need to go forward. is, obviously, the marketing and advertising.

Part of that

If they do not have it in-house, they can simply pick up the phone and call their advertising companies. especially looking to the packaging, for example. We're I know for a

fact they've got marketing studies that say what is on the packaging is what entices consumers, and the more packages they have in a store, that makes the consumers want to buy it more because they're enticed by that and it makes them sell more. would like those marketing studies. There was no dialogue about any of this. to come to the offices of Mr. Greer. I was told I

The other defendants sat

mute, who have now joined in this, and, basically, they told me what they were going to do, and I said "I would like to get the

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product brands. have done.

I will give you a list of them," which I

They said "We're only going to give you what's in the Complaint," which I said before is disingenuous. don't want to do that. They

Now they have asked me, which I

mentioned in my motion to strike, they've asked me to provide extensive discovery as to each and every plaintiff, which I'm happy to do. But then I feel, and can anticipate because I have seen it done in other cases, that I'm going to have to give extensive merits discovery, extensive class discovery, and then they're going to file a motion for summary judgment while this -- quote/unquote -- phased discovery is going on that will put me at a serious disadvantage. Now, I am going to come in I don't have

to the court and say "You know what, Your Honor? the discovery."

Meanwhile, they have been able to

completely prepare their case. They asked me for every deposition of the plaintiff. I spent quite a bit of time working on a schedule where that could happen. I would like a significant amount of discovery

at the same time they're getting discovery so the case can proceed fairly and equitably, and that can't be done when defendants chime in and say "This is what we're going to give you. It's my way or the highway. I'm going to control the

litigation and I don't need to meet and confer," and that's

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essentially what happened today. None of this information that is filed in any of these declarations was ever communicated to me. responded at that time. If so, I could have

But to get it in moving papers after It doesn't comply with

the fact does not comply with rule 26.

the local rule, and it will increase the plaintiffs' litigation costs, the defendants are well aware, and it burdens the Court because here we are standing here talking about things that most likely could have been resolved if two people are reasonable. I have done it with many plaintiffs in the past as a defense attorney. I have done it with Kroger. I worked out

discovery disputes with Albertson's. Quite frankly, there's no reason for us to be here right now except for the fact that they insist on phased discovery, that if they had that in their head because they want to control it -- if they had any intent on trying to work out some of the discovery disputes or scope, it wouldn't, most likely, be necessary. THE COURT: Ms. MacIvor. Outstanding are how many discovery requests for documents? MS. MacIVOR: THE COURT: There are 376 right now. Let me address a couple of concerns,

As to one defendant.

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MS. MacIVOR: THE COURT:

To manufacturer defendants.

Right.

So, how many discovery requests are outstanding in

MS. MacIVOR: manufacturer. THE COURT:

It would be the same amount as to each

Let's multiply.

How many are outstanding?

MS. MacIVOR: THE COURT:

Math is not a strong point, Your Honor.

How many manufacturer defendants? There's approximately five or six.

MS. MacIVOR: MR. GREER:

Nine, Your Honor, and there's outstanding

3,384 individual requests to those nine defendants. THE COURT: Thank you.

Your emergency motion yesterday, which I denied, was to continue today's hearing, and this is the gist of what you indicated to the Court and to the defendants: That the motion

was filed and I set it down for hearing a couple of days ago and you didn't have the assistance of your associates because they were in court before me on another trial involving Mr. Maltzman, who is here, so you didn't have the necessary assistance and you had other commitments as well. MS. MacIVOR: THE COURT: Right.

And, therefore, it was not sufficient time

for you to respond because you didn't have the woman and manpower available to help you.

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MS. MacIVOR: THE COURT:

Right.

I don't think you have the woman or

manpower available to look at thousands upon thousands of documents if they were all delivered at your doorstep tomorrow. They would sit there for weeks because you don't have the necessary manpower to start looking through them, deciphering them, coding them, categorizing them, putting them into any semblance of anything other than reams and reams of paper. So, we start with that understanding, that as far as I know, you don't have able, willing bodies there, ready to receive documents and start going at it and complete that the minute you get them. In other words, phased production of documents is actually to your benefit, and I dare say if you received a phased batch of documents tomorrow and I said to you "Let the defendants know when you're ready to receive the next batch," we would all be waiting several weeks. So, what the defendants suggest, phased discovery, is not to your detriment. It doesn't tie your hands in any way

because you don't have the capability of looking through every piece of paper the moment each paper is delivered to your doorstep, if we did not have phased discovery. So, I start with that observation, and correct me if I'm wrong with that. The next observation I'm making is that the production

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requests, as presented to these nine defendants, will require them to spend hundreds of thousands, if not millions, of dollars in response, and besides the photocopying expense, which I'm sure will be passed on to you -- plaintiffs will have to pay for all of the photocopying -- I am inclined to make plaintiffs pay for that manpower on the defense side if we don't phase discovery, and I don't know if you are ready, willing and able to start paying for their time and their efforts at responding to such a massive document request that pretty much ties up the hands of several employees of several defendant manufacturers. I don't know the numbers of them, but

it's quite a large number. So, if I were to go with your suggestion, which is don't phase discovery, you all need to start doing some math because you're going to be paying their manpower and womanpower on top of paying the actual photocopy expenses for all of these millions of documents that you want to receive on day one. So, the phased discovery is consistent with my observations earlier that I don't want to bifurcate discovery and have class discovery before we have merits discovery because we're all aware of the overlap involving merits issues and class issues here. It makes sense for all parties concerned, including the plaintiffs, to have a phased production. In fact, I would

venture to say let's have it phased so that you can say "Ready

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for the next batch" when you're ready to get the next batch, as opposed to having some sort of definite schedule because you may be getting the second and the third and the fourth batch of documents and you may still be hiding in a room with the first batch unable to get through that one. The next question becomes do you all want me to appoint a Special Master who you all pay for and who can sit with you and go over every issue that arises, and this sort of ties into your complaint, which was "We didn't have a meaningful meet-and-confer," but I looked at the correspondence and the correspondence was you're not interested in phased discovery. What more is there to discuss?

So, we need to open up lines of communication if we want to keep costs down and we all need to be reasonable about it. So, let me hear your responses to my observations. MS. MacIVOR: My response would be, as Your Honor has

put it, if we are entitled to determine what we want as phased discovery, as opposed to the defendants telling us, which was not what was proposed to me and I didn't get any sense that the defendants were amenable to it -meeting that they weren't -it was quite clear in the

if we can determine in phases

what we would like produced, I'm absolutely okay with that, but I don't want a defendant controlling and telling me what I need or what the plaintiffs need to prepare because that's

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inappropriate. But if we can determine, for instance, marketing and advertising relative to the brands on docket entry 390, for example, as being in the first phase of discovery, I'm not opposed to that, Your Honor. Of course not.

And I've already mentioned to the defendants, I'm happy. They don't need to copy things. I'll go to their

offices and take a look and copy what I need to keep costs down I have already said that I'll work with them on that. I don't want to cause them a lot of trouble. before in this case. I have said that I don't

I don't want to incur costs.

want them to incur costs. litigation. THE COURT:

That's not my point in this

So, then I think we're all in agreement The issue now is who controls

the discovery will be in phases. that.

Plaintiffs are saying "Let us tell you what we want delivered in phases." Mr. Greer, I'll hear from you on that suggestion. MR. GREER: Your Honor, we proposed a series of what

we thought of categories of documents that would meet the plaintiffs' needs. We had no response that they would like We're certainly willing to talk to them

some other categories.

about those other categories in a phased basis. Ms. MacIvor talks about needing all of the marketing

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materials on the most recent list of products that she filed. That really probably won't work in the sense that many of the products that she listed for Iams, for example, she carved out of the Complaint as not being at issue, those which are the specific veterinary prescription products. Many of the other

products, there's no allegation that there has been any false or misleading advertising related to those products. So, we think the products should be limited to those that are identified in the Complaint as to which there have been allegations that defendants engaged in false or misleading advertising. THE COURT: Her position, however, is that those that

are identified in the Complaint are not an exhaustive list because had she done that, the Complaint would have been unwieldy, and since then she has supplied you with all the names of the products. MR. IRELAND: THE COURT: May I address that, Your Honor?

Sure. Jeff Ireland.

MR. IRELAND:

What we received yesterday or two days ago is a list of products that are, a list of products that were purportedly fed by the plaintiffs to either their dog or their cat, and the difficulty that I have with the list is that when you look at the list, there are in paragraph -- I think it's 119. It's on

page 62 of the Fourth Amended Complaint in the defendants'

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class allegations -- they carve out several products and say these products aren't at issue, the defendants' products are, but Lick Your Chops and Solid Gold and some other dog and cat food products that I presume are products they believe are okay from an ingredient standpoint -- I don't know I don't that -but these products are also listed on this multi-page list of products that were fed by the plaintiffs. So, we have plaintiffs that are feeding, say, an Iams product and then they feed Paul Newman's product, which is on the list of products that are exempt, and then they feed a Mars product. There's nothing that ties, other than "This is a list of products," there's nothing in the Fourth Amended Complaint or anywhere else that says the plaintiffs relied on something for the purposes of feeding this list of products, and it's compounded by the fact that there are products that are supposedly outside of this litigation that are included on the list, and then there are other products that are no where mentioned in the Fourth Amended Complaint that show up on the list, at least as to my client. So, I've heard Ms. MacIvor say before and I've heard you say that what's in the Complaint is, you know, this is an example of what's at issue, and I certainly appreciate the Complaint is already quite long and we don't need it to be 10 times longer, but at the same time, strictly from the

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standpoint of a document production, it's difficult to know what are the products that are really at issue or, more particularly, what are the advertising claims that are really at issue in the Complaint. Because, for example, for the Iams company, one of the advertising claim is a claim that made on the Iams's brand, "Four out of five vets recommend Iams over the leading grocery product." That is a claim that has never been made

with respect to the Eukanuba product line, which is a different product line, but Eukanuba are on this list. I point this out

as much as anything to illustrate there are more practical problems than what is being represented as being filed with the Court and how we're trying to deal with it. MS. MacIVOR: THE COURT: May I respond?

Yes. I have exempted veterinary foods. I

MS. MacIVOR:

include it on that list because part of the discovery requests the defendants have asked, they want to know every food that has been fed. Those are every food that has been fed during

the relative time period. Part of the other problem is because this industry is so incestuous, I don't really know, except for in certain instances, who manufactured what. It's my understanding that,

for example, Mars canned, produced and manufacture, because they acquired Doane, I'm assuming I might be able to get more

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specifics in discovery and they might manufacture dry food for, let's say, Kroger. So it's very difficult for me, so I

included all of that, because if I didn't, I would presume at some point, I would be criticized for that. Second, I did exempt veterinary food. Newman's has

nothing to do with Iams, so I'm not really clear why Mr. Greer is arguing that. I'm interested in, for example, from Iams,

marketing, advertising for Iams products listed on that list, and that's the concern. He wants to know -- and it is alleged specifically in the Complaint under each paragraph which purchases were made based upon the above-referenced defendants' marketing. It is alleged in the Complaint. I have mentioned to

the defendants, I didn't go into a Chinese menu for reasons the Court expressed and I expressed earlier. somewhat disingenuous. When Mr. Ireland says he doesn't know what the advertising claims are, we've discussed this exhaustively for the motion to dismiss hearing. In paragraph 66, page 28 of the I think that's

Complaint, there's a long list, as there are elsewhere, of the advertising issues with this. There's examples.

They used in their motion that there's, you know, "What are they talking about with Ethoxyquin?" I went

in and I said that part of the box is that Ethoxyquin is included in other things and they don't let the consumers know

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Ethoxyquin is in the food. I wanted documents relating to that. saying is a little bit disingenuous. So, what they're

There are two, three

pages, paragraph 66 and elsewhere in the Complaint, that put them on notice of what's in the advertising, including pictures on their packaging. THE COURT: How would it work for the plaintiffs if,

for example, as to each of these nine defendants you sent a letter next week to each one indicating what documents you wanted to see the following week at their offices and to have them set aside for you and select out a discrete group of documents that one of you can review at their offices on a given day? MR. GREER: Your Honor, if I may respond to that?

The problem with that is this is not like a bank, or something like that, where you have a discrete set of documents. When you look at this chart, defendants have to go to all the different departments, co-packers, different plants. There is no one place where everything is. The effort to pull

all the documents for each request into one location is a massive multi-million dollar effort. THE COURT: Right. But let's assume for a moment if

Ms. MacIvor sent you a letter on Tuesday and said "The first week of June, I'd like to see these 10 categories of

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documents on my visit to your facility," and you respond to her and you say "Well, you can go to this facility for category 1, to that facility for category" -- and you let her know where to go on that given day and to divide herself up in to 10 different pieces to go and retrieve and look at those categories of documents. MR. GREER: Why would that not work?

Because, Your Honor, if you multiply this

by nine defendants and, say, there are 10 locations, Ms. MacIvor, for one request, would have to go to 90 different places. THE COURT: MR. GREER: THE COURT: That's her problem, though, isn't it? It is. I'm just --

She's the one that's making the demand for

all of these records and who wants them now. So, you say to her, "Very well. facilities. Here are my various

At this facility you will find the records At that one" -- and you'll

pertaining to this request.

have someone at each facility gather those together and wait for her to arrive and look through them and tag what she wants because she says she doesn't want copies delivered. to identify them. MR. GREER: decision. THE COURT: MR. GREER: Right. My concern is all of that, 90 times 128, Your Honor, obviously, that's her She wants

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we can never meet the case management schedule. THE COURT: Well, but we start, and then you all

report back to me in a month's time and say "Look, as to every letter where she has identified what she wants to see in phases, she has only been able to accomplish 20 percent of that and we have our people waiting at our various facilities for her to come and inspect and review." We don't know until you start the process, and she won't know until she starts the process just how daunting and how realistic or unrealistic her discovery requests are, and she can start tailoring them herself because she's going to see she doesn't have the people power, nor the ability to go to all of these various defendant manufacturers' various sites to start looking at records. MR. IRELAND: I don't want to reject the idea, but A

lot of this is electronic. THE COURT: But you're not going to produce it to her You can sit her down in front of a

in electronic format.

computer and say "There they are." MS. MacIVOR: If it's in electronic form, there should

be no copying costs, in which case we would be happier reviewing them in my office, if they're electronic. THE COURT: Yes, but that requires people power on

their end to figure out and pull and cull every document. MR. IRELAND: As we stand here today, that's what my

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people are doing right now simultaneously.

We're trying to

meet a document production, so we have people doing that literally as I speak. THE COURT: Right.

Why doesn't that work for the plaintiffs? MS. MacIVOR: If it's electronic, I -- I'm not quite

understanding why it would be so time-consuming and expensive if it's electronic not to just send it to my office. THE COURT: Because you're not in agreement as to what

you want to see and when you want to see it. You are all not in agreement what comes in phases so they don't know what they're going to send you electronically. MS. MacIVOR: MR. IRELAND: MS. MacIVOR: If I can? Go ahead. For example, the first thing I would

like, and I'll tell Your Honor, I'd like to see the marketing and advertising for the brands listed in docket entry 390 that are Iams. If that is in electronic form, I can't imagine there's a privilege since it was publicly disclosed, and if it's in electronic form, that I would prefer to look at in my office. That would be my first letter. We've agreed that we would do phases. look at that next week. I would like to Whatever

I will exclude veterinary.

is excluded in the class definition, I don't want to see.

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THE COURT:

Well, it looks like here's what's going to

I'm granting the motion for phased discovery and

you're going to start communicating to the defendant manufacturers what you want to see in that phased discovery, and they're going to either produce it to you in electronic form, if that's how it's stored and --kept. it doesn't require

any additional manpower for them -- and/or they're going to say to you "Come to our offices and look through the materials and pick out what you want and send it to your copier at your expense and have it copied." Does that work for everyone? MR. GREER: At their expense. Yes, Your Honor.

MR. IRELAND: THE COURT:

All right.

Is there anything else we need to address? MR. GREER: THE COURT: I don't think so, Your Honor. This is a daunting prospect on your side,

very daunting for the defendant manufacturers. MR. IRELAND: THE COURT: losing sight. Your Honor, just one thing --

I think we all need to sort of -- you're

We're going far beyond -- this is a litigation

that will last forever at this rate because you don't have the folks that can do that review. If they send you everything electronically tomorrow, we'll be here next year and you still won't have been able to

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have go through it.

I think you need to be realistic in your

expectations and what it is you hope discover and what for. So, the motion is granted. reasonable request. I think it's a very

It's not bifurcating discovery, and I You are

think the ball goes back into your court, Ms. MacIvor. all going to get your responses to those requests for

production with your objections, and the plaintiff will need to, as to each defendant manufacturer, start sending communication saying "We're ready to see this and that and please have it for us and go about it that way." MS. MacIVOR: To clarify, the Court is granting the

motion, not what the defendant is going to tell the plaintiffs -THE COURT: No, you are going to tell the defendant

manufacturers what it is you would like to see and when as to each one, and they're going to let you know either "You can see it electronically and we're going to send it to you electronically and/or you can come to our offices and look at it" because they're entitled to do that under the rules, and whatever keeps costs down for the defendant manufacturers, I think, is a reasonable method of production, unless you want me to shift the cost over to the plaintiffs, and I don't think you do. MR. IRELAND: THE COURT: May I just make one --

Sure.

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MR. IRELAND:

I apologize.

I appreciate the Court's

time, as well your consideration of the motions. On the list of products that we keep hearing about and "Give us everything with respect to the list of products," there is a disconnect here, and I think Ms. Licko wants to speak to it as well. As a simple example, Iams

the Complaint doesn't refer to any Eukanuba advertising. has three brands. the case. They

have the Vet brand, which is out of

They have the Iams brand, which is the big green

bag, and then they have Eukanuba, which is more of a maroon colored bag, and Eukanuba isn't referred to in the Complaint and yet there are 16 dog food products on the list of products that have been provided to us that are at least, according to the filings that have been made and the argument here this morning, are at issue. The disconnect is producing a bunch of information for products where I don't know what -- did a consumer rely on something said about a Eukanuba product that supposedly was the basis for purchase that caused an injury? from the face of the Complaint. I understand what has been said before, which is these are just examples, but, again, I'm trying to anticipate a problem that may come up with next week's correspondence, Your Honor, and, Carol, if you -THE COURT: Ms. Licko. You can't tell that

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MS. LICKO:

That's correct, Your Honor.

The list that was provided and filed with the Court is over 25 pages long single-spaced identifying dozens and dozens of specific products. If she sends us a request for all marketing and advertising for those products, we're going to be back with the same burden and difficulty because at the heart of her case is a false advertising claim. We would like to know what is the false advertising that the plaintiffs are complaining about. a specific product. Then it links up to

But simply to have a 25-page list of

product, I'm afraid we would have to be back here again next week, Your Honor, because we would have the same problems with the silos. The silos Alan Greer referenced to you applies to So, we're going to be back in the same boat, I'm

each product.

afraid, if we have to go back and produce all the advertising and marketing for every single product she has identified on a 25-page list. MS. MacIVOR: Your Honor, Eukanuba, as far as I

know -- and, like I said, part of the problem in this case is it's difficult to identify who manufactures what, but it's my understanding Eukanuba will falls under the Iams company which is mentioned in the Complaint under the list of manufacturers. Eukanuba, unless I'm wrong, Iams manufactures Eukanuba. We have excluded Veterinary Diets. We would like to

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look at the advertising --

I understand the defendants would

like all of that connected, but we have provided an exhaustive list in paragraph 66 and throughout this Complaint about how we believe all of this is false advertising. It's all there.

I understand -- we went through the connect-the-dots at the motion to dismiss and all of that, but we're entitled to our discovery of the marketing and advertising. As Ms. Licko conceded right now, this is the centerpiece of the plaintiffs' entire case. We would like it.

They have for almost a year "We would like the specific products." Now, they've got that. Now they want us to

provide a connection between that, which they will get when they take the plaintiffs' depositions. We're entitled also to

try to prepare our case at the same time. THE COURT: Doesn't it make sense then for the

plaintiffs to be deposed and identify what was the misleading advertising that caused them harm before they're now required to produce documents about other products that didn't cause them harm? MS. MacIVOR: Absolutely not. Then what Your Honor is

saying is a plaintiff can never get discovery of something that is material in a case in order to help prepare a plaintiff for deposition? THE COURT: No, no. But in the nature of this case

where the nature of the claim is "You all deceived me with your

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false an misleading advertising."

Let the defendants know

what was the false and misleading advertising that is at the heart of this case and then they can go back and say "Here is all that false and/or not false and misleading advertising," not "Here is all of our advertising" because then now we have a Fourth Amended Complaint that adds additional advertising claims or additional categories of plaintiffs. That's not the purpose of discovery. For example, this is how disingenuous it

MS. MacIVOR:

Let's take Iams kitten food which Renee Blaszkowski used. Each Iams package contains wonderful pictures Let's take that as an example,

You look at it.

of carrots and beautiful meet. and they know it.

The same thing with Nestle Beneful and The Good Life. That's a lie. None of that stuff is in the food. They also

know, based upon other cases, that people buy packages over a period of time and they can generally remember. What they want to do is they want to withhold advertising so that they can quiz people on their memory from having purchased from four years. People generally remember.

There's nothing wrong with me getting that advertising because they know that that's true. There's also a number of other claims that are made and FDUPTA doesn't have a reliance element, as this Court has already ruled.

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If they make a claim that will help, as some of my plaintiffs know, which will help their dental, which their own materials that I have in my possession show they're absolutely false, they have no support for it. The plaintiffs should be

entitled to prepare their case so the defendants who have all this information and will probably use it an rely upon it in the plaintiffs' deposition so that they can pull it out and the plaintiffs have to scramble during the time they're taking their deposition? All of this information is exclusively The plaintiffs

within the power and control of the defendants.

would like to see it so both parties can prepare their case at the same time. Yes, the plaintiffs generally know. Yes, we have

submitted that in a very extensive Complaint and talked about in there all of these issues. It's quite clear that we have said over and over that the packaging -- and they know it. They've got market studies

saying what's on the packaging attracts people to the products. We would like the packaging materials. prepare our clients for that. contract case. We should be able to

It's no different than in a

Why, if this were a contract case, wouldn't we

be entitled to the contract? THE COURT: You would have it. You would be a

signatory to the agreement. MS. MacIVOR: If there was a real estate agreement

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that wasn't produced to a client before, we would be entitled to that as well. If there's a side deal or other things -- normally, plaintiffs don't keep packaging materials. anyone who does that. I don't know of

Fortunately, some of my plaintiffs did, They could remember generally. I'm not

but not everybody keeps it.

I would like the materials to go over it.

planning on using this material to do another Amended Complaint because I don't want to go down that road. Complaint. I have a very good

I have a lot of confidence in it. That's not why I'm These are

I understand the Court's concerns. asking for it.

I've given them the specific brands.

brands these people have purchased. advertising and it was false.

They have relied on the

I would like to be able to prepare my clients, just as they're going to prepare their clients, for their depositions. In this way, only the defendants will be able to prepare their clients. The plaintiffs will not. There's no reliance element

under FDUPTA.

They keep saying that, but it's not there. I will point out, Your Honor, that after

MR. IRELAND:

the last hearing, one of the first things we did was discuss a deposition schedule with Ms. MacIvor and suggested we should start taking plaintiffs' depositions in June in order to try to have a better understanding of the allegations in the Complaint.

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That was rejected due to her unavailability.

We have

now -- I think we're about to agree on a deposition schedule, but the plaintiffs' depositions don't start until August 4th or August 3rd, or something like that. They're going to be taken

in groups of five or six at a time, and they will continue on into October where we're going to be finding out -- having the opportunity to depose the plaintiffs. So, I mean, that's the reality that we have been handed which is one of the reasons why we're in front of you on this effort to get some management of discovery. I mean, the problem that I have is, okay, I produce all my Eukanuba packaging, marketing materials, advertising that we have ever done associated with the Fourth Amended Complaint so that they can sort through it and try to figure out what somebody relied on. this against -THE COURT: Ms. MacIvor is saying reliance is not an They have filed a Complaint like

issue, so they don't need to show who relied on anything. MR. IRELAND: For some of the claims in the Complaint, But if they're going to

they absolutely have to show reliance.

show they have been damaged in some way or injured, or their cat or dog has been injured in some way, it still has to be tied to some kind of a product, and we don't know that from the Complaint. MS. MacIVOR: I have supplied them with the products

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they have asked for in discovery, which is what Your Honor ruled at the motion to dismiss that that would be discoverable. They have asked for receipts going back four years. plaintiffs are doing that now, as we speak. My

They have asked

for every food they have ever purchased, where they purchased it. That will be produced in June. They'll have it well They're

before.

I have already with this deposition schedule.

not being hoodwinked in any way. defendants are doing right now.

I'm not trying to do what the

I'm saying "I will provide you every food they purchased during that time period, during the relevant time period, where they purchased it, to the best of their memory," and the receipts, I'm giving them the vet records. This is not -- which, by the way, on our part it is not -- they have also asked for every website they have ever looked at. They want to know far more. This is not just a

one-sided thing here. other side as well.

The defense has gone way over on the

We're willing to give them that. prepared for the plaintiffs' depositions.

We want them to be All I'm saying is we My plaintiffs

would like to be able to be prepared as well. know what they relied on.

In the tenor and spirit of the Federal Rules I am entitled to discovery of what their advertising and marketing materials say because I know for a fact that their marketing

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materials will reveal that they know that they lured these people to buy this food by saying it's something that it's not, and they know it. What is on their packaging material is deceptive. Under FDUPTA, I don't need to prove reliance. be able to prepare my clients. information. I would like to

They will have my plaintiffs'

They will have more than enough information to go

forward and cross examine the plaintiffs on what they like for their depositions. They will have that. They will have it by I provided it.

They've asked me by mid-June. mid-June.

They asked me for a product list.

THE COURT: Special Master.

I think what I will do is appoint a You object. You meet

You send your letter.

with a Special Master and go over each and every request for each and every advertising material for each and every product, Eukanuba and otherwise, and you can all sort it out request by request, manufacturer by manufacturer, over the period of phased discovery, because, quite frankly, there's not much more I can do for you other than sitting down with you and I can't do that, nor will I have the Magistrate Judge do that because this is a massive undertaking as proposed and as sought by, quite frankly, the plaintiffs. I don't think there's anything wrong in saying "In this phased discovery, start with what's in your Complaint. Start with what your plaintiffs are complaining about and

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move on." If you are not willing to start with what your own clients are complaining about, then you will have a Special Master work with you on that and you all split the costs involved. I will appoint him or her in an order next week. MR. GREER: names for a master? THE COURT: That would certainly be advisable. Your Honor, one thing I would like you Do you wish the parties to submit proposed

MS. MacIVOR: to consider.

Not once from the other side have I heard the

advertising for the specific brands provided are so massive and voluminous. They have produced nothing -The problem is, Ms. MacIvor, you're not

THE COURT:

willing to start with something less massive than what you propose, less daunting. You are not willing to say "Let's

start with what my 29 or 30 clients have recollections of having been misled by or having purchased or having had any sort of connection with. that. I'm not willing to start with

I want to start with the universe."

They're saying "We don't want to start with the universe because, quite frankly, we need to see a connection first." This is sort of like a very expensive fishing expedition, and where you all can't reach that sort of

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agreement, that's why the Special Master will help you all be able to sort this out phase by phase as we go through the months of discovery. MS. MacIVOR: I misapprehended what the Court was

getting at and I apologize for that. What I was trying to get at is the packaging materials, and maybe I'm not using the terms of art appropriately. When I say "advertising materials," I know for

a fact because I've spoken to them, packaging materials are something that they relied upon when they bought the food. They also relied on other things as well. But the packaging

materials, we would absolutely want for these foods. THE COURT: You all give me a list of names by Tuesday

of next week of someone you propose as a Special Master and I will enter an order appointing one. In the meantime, I will grant the order for phased discovery. MR. GREER: THE COURT: Thank you, Your Honor. You all have a good day.

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CERTIFICATE I hereby certify that the foregoing is an accurate transcription of proceedings in the above-entitled matter.

______________________________________ BARBARA MEDINA Official United States Court Reporter 301 North Miami Avenue, Suite 404 Miami, FL 33128-7792 305.523.5518 (Fax) 305.523.5519 Email: [e-mail]

Quality Assurance by Proximity Linguibase Technologies May 23, 2008

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