Picht v. James Hardie Building Products, Inc.
PRETRIAL ORDER NO. 2. Appointing Retired Chief United States Magistrate Judge Jonathan Lebedoff as Special Master. (Written Opinion). Signed by Chief Judge Michael J. Davis on 10/1/12. (Attachments: # 1 Appendix)Associated Cases: 0:12-md-02359-MJD-LIB et al.(GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
IN RE: HARDIEPLANK FIBER CEMENT
Case No. 12-md-2359
MDL No. 2359
THIS DOCUMENT RELATES TO
PRETRIAL ORDER NO. 2
Based upon the files, records, and proceedings herein, IT IS HEREBY
Retired Chief United States Magistrate Judge Jonathan Lebedoff is hereby
appointed under Rule 53 of the Federal Rules of Civil Procedure as Special
Master for discovery and pretrial purposes in the HardiePlank Fiber Cement
Siding Litigation, MDL No. 2359. The parties had notice and the opportunity to
be heard and have agreed to this appointment. The affidavit required by Federal
Rule of Civil Procedure 53(b)(3) is attached to this Order. The Court has
“consider[ed] the fairness of imposing the likely expenses on the parties and [has
taken steps to] protect against unreasonable expense or delay.” Rule 53(a)(3).
Retired Chief United States Magistrate Judge Lebedoff is highly experienced in
presiding over federal discovery matters in this District, including discovery in
MDL cases. His expertise and availability will contribute to more efficient and
fair discovery in this matter.
The Special Master shall have the rights, powers, and duties provided in
Rule 53 and may adopt such procedures as are not inconsistent with the Rule or
with this or other orders of the Court. These powers include the right to
establish discovery and pretrial schedules; review and attempt to resolve any
discovery conflicts; supervise discovery; schedule, convene, preside over, and
otherwise conduct any meetings, hearings, conferences, or proceedings necessary
to resolve discovery disputes; and prepare and file decisions and
recommendations, and other necessary reports regarding discovery issues. The
Special Master is directed to proceed with all reasonable diligence.
Ex Parte Communications
The Special Master may communicate ex parte with the Court at the
Special Master’s discretion, without providing notice to the parties, regarding
logistics, the nature of his activities, management of the litigation, and other
appropriate procedural matters. The Court may later limit the Special Master’s
ex parte communications with the Court with respect to certain functions, if the
role of the Special Master changes, such as if the Special Master is used as a
mediator for settlement negotiations.
The Special Master may communicate ex parte with counsel to address any
procedural or scheduling issues, without providing notice to the parties.
The Special Master shall maintain normal billing records of his time spent
on this matter, with reasonably detailed descriptions of his activities and matters
worked upon. The Special Master need not preserve for the record any
documents created by the Special Master that are docketed in this or any other
court, nor any documents received by the Special Master from counsel or parties
in this case. The Court may later amend the requirements for the Special
Master’s record keeping if the role of the Special Master changes.
Review of the Special Master’s Order’s
The Special Master shall reduce any formal order, finding, report, or
recommendation to writing and file it electronically on the case docket via
CM/ECF. Any party may file an objection to a formal order, finding, report, or
recommendation by the Special Master within 14 calendar days of the date it was
electronically filed; failure to meet this deadline results in waiver of any objection
to the Special Master’s orders, findings, reports, or recommendations. Absent a
timely objection, the orders, findings, reports, and recommendations of the
Special Master shall be deemed approved, accepted, and ordered by the Court,
unless the Court explicitly provides otherwise.
The Court shall review the Special Master’s orders, findings, reports, and
recommendations under the standards set forth in Federal Rule of Civil
The fee for the Special Master shall be $400 per hour. This fee shall be paid
to the Special Master upon receipt of the Special Master’s invoice. The fee shall
be borne by the mutual agreement of the parties. In the event the parties are not
able to agree, after due notice and hearing, the Court shall allocate responsibility
for the payment of the Special Master’s fee amongst the parties. The Special
Master shall incur only such fees and expenses as are reasonably necessary to
fulfill his duties under this Order, or such other Orders as the Court may issue.
The Special Master shall have the full cooperation of the parties and their
counsel. As an agent and officer of the Court, the Special Master is entitled to
absolute quasi-judicial immunity. Failure to comply with any part of this Order
shall subject the parties to appropriate sanctions to include assessment of costs
against the delinquent party, dismissal, or other relief the Court may deem
Dated: October 1, 2012
s/ Michael J. Davis
Michael J. Davis
United States District Court
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