Skaggs II et al v. AstraZeneca Pharmaceuticals LP et al

Filing 53

Scheduling and Discovery ORDER. Signed by Judge David R. Herndon on 4/25/2017. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM NEHRT,
Plaintiff,
-vs-

Case No. 17-cv-129-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
______________________________________________________________________________
IRMA COLEMAN, et al.,
Plaintiffs,
-vs-

Case No. 17-cv-130-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
______________________________________________________________________________
JOHN ROSENSTEEL, et al.,
Plaintiffs,
-vs-

Case No. 17-cv-131-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
______________________________________________________________________________
NICHOLAS SKAGGS, II, et al.,
Plaintiffs,
-vs-

Case No. 17-cv-132-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
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______________________________________________________________________________
KENNETH LLOYD DRAVLAND, JR.
Plaintiff,
-vs-

Case No. 17-cv-133-DRH

ASTRAZENECA PHARMACEUTICALS, LP, et al.,
Defendants.
SCHEDULING AND DISCOVERY ORDER
The Court held a scheduling conference with the parties on April 24, 2017
regarding cases Nehrt v. AstraZeneca Pharmaceuticals, LP, et al., 17-cv-129;

Coleman, et al., v. AstraZeneca Pharmaceuticals, LP, et al., 17-cv-130; Rosensteel,
et al., v. AstraZeneca Pharmaceuticals, LP, et al., 17-cv-131; Skaggs II, et al., v.
AstraZeneca Pharmaceuticals, LP, et al., 17-cv-132; and Dravland v. AstraZeneca
Pharmaceuticals, LP, et al., 17-cv-133. At the conference, it was apparent the
parties did not agree on many deadlines. To progress the litigation, the Court
informed the litigants that it would prepare a Scheduling and Discovery Order by
the following day, unless the parties could work together and create a mutually
agreed upon order. On April 25, 2017, as the Court was preparing to docket its
order, the parties e-mailed certain agreed upon discovery dates.

The dates

submitted by the parties have been incorporated here, displacing the Court’s
chosen dates.
Having considered the information presented at the conference and
submissions from all plaintiffs and defendants regarding the non-agreed upon
discovery dates and protocols, the Court now enters the following order.
Litigation Hold
At the scheduling conference, counsel for each defendant indicated that his
or her client has responded promptly to Rule 26 by voluntarily placing a

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company-wide litigation hold on relevant documents and data. The plaintiffs state
they have a custom and practice of doing so.
In addition to the defendants’ voluntary undertakings, the defendants are
formally ordered by the Court to hold and preserve any of the following items as
they can be interpreted relevant to the products which are the subject of this
litigation from the time those products first entered the research and development
phase throughout this litigation:
Any documents, data, files, computers, materials, emails, text
messages, custodial files, letters, governmental reports, expert
reports, testing data, testing results, complaints, adverse event
reports, NDAs and supporting documentation, and any and all
documentation of any description as broadly interpreted as that.
In addition to the plaintiffs’ voluntary undertakings, the plaintiffs are
formally ordered by the Court to hold and preserve:
All medical records, notes, journals and diaries of relevant
information, all medical billing and pharmacy records, all receipts
showing purchases of subject matter products, all computers and
hard drives which contain any medical information or data
containing any information about doctors’ visits or information
relevant to the claims made in the complaints on file in this court.
Presumptive Trial Date
Despite many inconsistencies between the parties’ proposed scheduling and
discovery orders, counsel did manage to agree, pursuant to SDIL-LR 16.1, to
assign a “Track D” to these five cases. However, Rule16.1(a) makes it clear that
the judge assigned to a case will track the case and assign a presumptive trial
month based on the range of dates established by that track. It further states that
“only proposed class actions will be assigned to Track ‘D.’” Logically then, these
five cases cannot be set on Track D.

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Given the complexity of this litigation, the Court assigns Track C to each of
these cases and will utilize the upper end of the Track C range of 15 – 18 months
for setting a presumptive trial month.

Thus, the presumptive trial month is set

for August of 2018. The specific trial date shall be set on or before the final
pretrial conference and incorporated into the final pretrial order (when required
by the presiding judge) per Rule 16.1.
Meet and Confer Requirement
All parties are required to meet and confer prior to filing any motion
pertaining to any discovery disputes or any motions not otherwise scheduled on
this order. The concept of meet and confer requires a good faith effort by all
parties.

Clearly, the Court cannot order a party to abandon a principle or a

position that it believes in or pursues because it feels to do otherwise will
prejudice it or place it at a strategic disadvantage. However, refusing to negotiate
or give up ground on a position that is not to a party’s true disadvantage is bad
faith. The Court certainly reserves the right to sanction bad faith.
Likewise, parties negotiating in good faith for a reasonable period of time
for the matter at hand with some activity taking place on each day - four or five
business days on a minor discovery matter and ten to fifteen days on more major
issues such as a deposition protocol - must then understand that unless an
agreement is imminent, they need to take the issue to the Court to decide.
Protective Order and Electronically Stored Information Order
The parties reported at the scheduling conference that they have been
negotiating for some period of time on orders that would govern the issues of how
to handle documents and other data that require confidentiality and the protocols
for electronically stored information (“ESI”).

They are close, but the parties

mentioned delays due to attempts to construct orders that will be used across all
judicial forums. It makes sense to create uniform orders, but by the same token,
even though these are foundational orders they are common place and used in
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litigation of any size. When the Court tried to draw defendants out to make an
argument that an ESI order in this litigation was more unique than standard
practice, counsel let stand the Court’s suggestion that this order, like most, would
be habitually boilerplate and a small percentage, say ten to twenty percent, unique
to this litigation. Regarding deadlines for these orders, the plaintiffs wanted the
deadlines for the orders to be this Friday, April 28, 2017, and the defendant’s by
next Friday, May 5, 2017.
The Court will split the difference and the deadline for an agreed upon
Protective Order and ESI Order is Wednesday, May 3, 2017.

These orders are

in fact foundational and the parties need to begin prompt work on the discovery
in this matter.
Discovery, General
a) Production of ESI by the AstraZeneca defendants shall begin June 2,
2017. Production by the remaining defendants shall begin by June 16,
2017. Completion of ESI production shall be done by December 1,
2017, with supplementation thereafter as required for discoverable
matters. Defendants to supply a certification of completeness on
December 1, 2017 and every 60 days thereafter in each case until the
case is called for trial and then one week prior to trial.
b) Plaintiff to serve interrogatories and requests to produce on defendant
on or before June 1, 2017.
c) Defendant to serve interrogatories and requests to produce on plaintiffs
on June 1, 2017.
d) Discovery deadline: April 30, 2018.
30(b)(6) Depositions
a) Plaintiff to have topics to defendants by May 1, 2017.
b) Initial depositions to be completed by June 7, 2017.
Other Depositions

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a) Plaintiffs’ deposition to be taken no later than November 17, 2017.
b) Defendants’ deposition to be taken no later than December 15, 2017.
c) Depositions of non-expert witnesses shall be completed on or by:
February 8, 2018.
d) Plaintiffs’ Rule 26 expert reports shall be due on March 7, 2018.
e) Defendants’ Rule 26 expert reports shall be due on March 21, 2018.
f) Depositions of expert witnesses shall commence on March 26, 2018.
g) Depositions of expert witnesses shall be completed no later than April
16, 2018.
Pleadings
a) Deadline to amend pleadings, including to add third party defendants,
July 21, 2017.
b) Dispositive motions are due no later than April 20, 2018, with
responses due no later than May 15, 2018. Replies, if allowed due to
exceptional circumstances, due by May 21, 2018.
Rule 702/Daubert, If Applicable
Should Daubert motions be appropriate, they should be filed no later than
April 20, 2018. Responses to Daubert motions are due no later than May 15,
2018. Replies, if any and can state exceptional circumstances, due by May 21,
2018.
Final Pretrial Conferences
Final pretrial conferences will be held in all five of these cases on July 9,
2018. At that time, the Court will determine the trial dates for these cases if it
hasn’t already done so.
Trial
The trial of the first case will be no earlier than August 28, 2018.

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General matters
The Court will meet from time to time for in person status conferences with
counsel for the parties. Each side may designate a lead or representative counsel
but must authorize that counsel to act for that party in the event some dispute is
argued for the purpose of attaining a ruling.
The Court does not have available time immediately prior to the deadlines
in early June and so will set the next conference at a time to be determined in the
afternoon of June 15, 2017, so that if there are any problems with the early
milestone issues, the Court can deal with them. However, either in early June or
any other time in this litigation, the parties may always request a telephone
conference, or an in person conference should the need arise, and the Court will
arrange one at its earliest availability. At the June conference, the Court will set
the next conference with consultation with the parties.
Amendment of this scheduling order, while not encouraged, is not
precluded should any party have appropriate reason upon filing a written motion
after conferring with all other counsel and advising the Court of the positions of
each. The motion shall also state how many times the movant has requested an
amendment of the schedule.
It is so ORDERED this 25th day of April, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.04.25
16:58:45 -05'00'
UNITED STATES DISTRICT JUDGE

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