Bethel v. James Hardie Building Products, Inc.

Filing 6

PRETRIAL ORDER NO. 1: Case Management Order.(Written Opinion). Signed by Chief Judge Michael J. Davis on 11/26/12. (KMW)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE: HARDIEPLANK FIBER CEMENT
SIDING LITIGATION

Case No. 12-md-2359
MDL No. 2359

THIS DOCUMENT RELATES TO
ALL ACTIONS

PRETRIAL ORDER NO. 1

CASE MANAGEMENT ORDER
Whereas, on June 11, 2012, the Judicial Panel on Multidistrict Litigation
issued an order pursuant to 28 U.S.C. § 1407 transferring four actions to the
District of Minnesota for coordinated or consolidated pretrial proceedings;
Whereas, the Judicial Panel’s Order provided that the transferred cases be
captioned In re: HardiePlank Fiber Cement Siding Litigation and be given the
designation MDL No. 2359;
Whereas, on September 6, 2012, Plaintiffs’ and Defendant’s counsel filed a
Joint Case Management Conference Statement [Docket No. 10];
Whereas on September 12, 2012, the Court held a status conference in this
matter;

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The Court adopts the Joint Case Management Conference Statement as
modified and issues the following Case Management Order No. 1 for the case,
and the parties are ordered to comply with this Order:

IT IS HEREBY ORDERED:
A.

Transfer and Consolidation
The parties disagree on the deadline after which tag-along actions are

stayed. The Special Master shall issue an order setting forth the deadline after
which tag-along actions are stayed, as part of the Special Master’s order
regarding pretrial deadlines.
B.

Parties, Case Caption, and Counsel
1.

No Effect on Claims or Defenses.

The terms of this Order shall not have the effect of making any person,
firm, or corporation a party to any action in which he, she or it has not been
properly named, served or joined, in accordance with the Federal Rules of Civil
Procedure. The terms of this Order and the consolidation ordered herein, and

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Defendant’s consent thereto, shall not constitute a waiver by any party of any
claims in or defenses to any of the Actions.
2.

Case Caption.

Every paper filed in these consolidated proceedings, or in any separate
action included therein, should bear the following caption:
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE: HARDIEPLANK FIBER CEMENT
SIDING LITIGATION

3.

Case No. 12-md-2359
MDL No. 2359

All Cases.

When a paper is intended to be applicable to all of the actions to which this
Order is applicable, the words “THIS DOCUMENT RELATES TO ALL
ACTIONS” should appear below the words “IN RE: HARDIEPLANK FIBER
CEMENT SIDING LITIGATION” in the caption.
4.

Specific Cases.

When a paper is intended to apply only to some, but not to all of such
actions, this Court’s docket number for each individual action to which the paper
is intended to be applicable and the last name of the named plaintiff in said
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action should appear immediately below the words “MDL No. 2359” in the
caption described above, e.g., “Case No. 11-cv-958, Picht.” The words “Case No.
12-md-2359” should be deleted.
All orders, pleadings, motions, and other documents that are normally
filed in a civil action as required by Federal Rule of Civil Procedure 5 and that
relate only to an individual case shall be filed in the MDL No. 2359 case as well
as in the individual case. A document that relates to all actions should be filed
only in the MDL No. 2359 case.
5.

Defendant’s Management Counsel

Defendant has designated Christopher M. Murphy of the law firm of
McDermott Will & Emery LLP as its lead counsel. There is no objection by
Plaintiffs to this designation.
6.

Plaintiffs’ Management Counsel.

The Court has designated Lead Counsel and an Executive Committee for
Plaintiffs as set forth in its Order Regarding Appointment of Lead Counsel and
Executive Committee [Docket No. 20] filed September 28, 2012.

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7.

Coordination.

Plaintiffs shall, to the extent practicable, seek to coordinate their efforts,
including discovery efforts and motion practice, among themselves for efficient
and prompt management of the Actions.
8.

Privilege of Coordination Efforts.

Cooperation among Plaintiffs to coordinate motion practice, discovery, or
to otherwise minimize burdens and expenses in this litigation is encouraged by
this Court and shall not constitute evidence of bad faith, conspiracy, concerted
action, or any other wrongful or unlawful conduct. The fact of such cooperation
and/or communication(s) as a result of such cooperation: (1) shall not be
communicated to the trier of fact in this litigation under any circumstances; and
(2) shall not be otherwise used in any other litigation. All information and
documents exchanged among Plaintiffs for purposes of prosecuting this
litigation are communicated for the limited purpose of assisting in a common
cause and shall not constitute a waiver of the attorney-client privilege, work
product doctrine, or any other applicable privilege or protection.
9.

Attorneys’ Time and Expense Records

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All counsel who may seek to recover court-awarded attorneys’ fees shall
keep a daily record of their time and expenses incurred in connection with the
Actions, indicating with specificity the hours, locations and particular activity
and shall, by the twentieth day of each month, submit to Plaintiffs’ Lead Counsel
a report of their time and expense records for the preceding month.
C.

Pretrial Discovery and Expert Schedule and Class Certification Motion
Practice
The parties disagree on the specifics of a discovery plan. The Special

Master shall issue an order setting forth the dates for the discovery plan and
pretrial deadlines.
D.

Discovery Limitations and Other Discovery Agreements
1.

Discovery Limitations.

By agreement of the parties, the parties shall be limited to the following
numbers of discovery procedures:
•

50 interrogatories (including subparts) by Plaintiffs collectively to

Defendant, and 50 interrogatories (including subparts) by Defendant to each
Plaintiff;

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•

40 document requests (including subparts) by Plaintiffs collectively

to Defendant, and 40 document requests (including subparts) by Defendant to
Plaintiffs collectively;
•

15 depositions (not including expert depositions) by Plaintiffs

collectively. Defendant may take the depositions of all named Plaintiffs as well
as 10 other depositions (not including expert depositions);
•

25 requests for admission (including subparts) by Plaintiffs

collectively to Defendant, and 25 requests for admission (including subparts) by
Defendant to each Plaintiff.
2.

Discovery Agreements
(a)

Dispute Resolution.

To avoid unnecessary litigation concerning discovery disputes, counsel
will meet and confer pursuant to Local Rule 7.1(a) before contacting the Court on
discovery matters or filing a motion concerning discovery. In the event the
parties are unable to resolve their differences after meeting and conferring, then
a party may bring the dispute to the Court’s attention by motion before the
Special Master. Discovery motions must be accompanied by a notice of

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presentment specifying the date and time on which the motion will be presented
to the Special Master.
(b)

Document Production.

Documents produced by Defendant shall be produced in an electronic
format on a CD or DVD to Plaintiffs’ lead counsel (or his designee) who shall
copy or reproduce each CD or DVD for the benefit of all of the Plaintiffs.
Documents produced by each Plaintiff shall be produced in an electronic format
on a CD or DVD to Defendant’s lead counsel (or his designee). In addition,
Defendant shall be permitted to serve requests upon each Plaintiff pursuant to
Fed. R. Civ. P. 34(a)(2) for the purpose of entering onto the Plaintiffs’ land for
inspection and other purposes.
(c)

Suspension of Fed. R. Civ. P. 26(a)(1).

By agreement of the parties, the requirements of Federal Rule of Civil
Procedure 26(a)(1) are suspended in this case.
(d)

Depositions - Generally.

The procedures governing and limiting depositions, including resolution
of any disputes arising during depositions, shall be in accordance with the

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Federal Rules of Civil Procedure. Counsel are required to cooperate with, and be
courteous to, each other and each deponent.
(e)

Scheduling of Depositions.

Absent extraordinary circumstances, counsel shall consult in advance in an
effort to schedule depositions at mutually convenient times and places.
Plaintiffs’ lead counsel (or his designee) and Defendant’s lead counsel (or his
designee) shall attempt to establish by mutual agreement a schedule for
depositions in this proceeding that reflects sequencing consistent with (a) the
availability of documents from among those produced by the parties and third
parties; and (b) the objective of avoiding the need to subject any person to
repeated depositions. The parties shall work cooperatively to ensure a fair and
orderly process for the scheduling of depositions, and shall comply with all of
the other directives set forth in this Order. Depositions shall not be allowed,
without leave of Court or by agreement of the parties, on less than fourteen days’
notice. Unless otherwise agreed by the parties or ordered by the Court, the
depositions of the named Plaintiffs shall take place within the judicial districts of
their respective residences.
(f)

Service and Filing of Discovery Documents.
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Pursuant to Rule 5(d) of the Federal Rules of Civil Procedure, discovery
requests and responses will not be filed with the Court, except when specifically
ordered by the Court or to the extent they are presented in connection with a
motion. Discovery requests and responses shall be served by electronic mail on
Plaintiffs’ lead counsel or his designee (who shall circulate the requests and
responses to all of the other counsel representing the Plaintiffs) and Defendant’s
lead counsel or his designee (who shall circulate the requests and responses to all
other counsel for the Defendant).
(g)

Application of Rules of the Court.

Except as otherwise provided herein or by further order of the Court, the
Federal Rules of Civil Procedure and the Local Rules of the United States District
Court for the District of Minnesota shall govern all further discovery matters in
these consolidated actions.
(h)

Management of Discovery Issues.

The parties will work together to develop a uniform numbering system to
allow for the ease of identification of discovery documents. The parties will both
create separate document storage systems but work together to eliminate
discovery issues as outlined herein.
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(i)

Privilege Log – Timing.

A privilege log which complies with the requirements of the Federal Rules
of Civil Procedure shall be served by any party withholding documents on the
basis of privilege or work product protection within 60 days after production of
the responsive documents from which the allegedly privileged or protected
documents are being withheld. Notwithstanding the foregoing sentence, a final
privilege log shall be served no later than 30 days after a party certifies that it has
substantially completed its document production.
(j)

Privilege Log - Categories of documents that do not need to
be logged.

The parties do not need to log any of the following categories of withheld
documents:
•

Attorney-client privileged communications or work product

protected documents regarding this or similar litigation written by, to, between,
or on behalf of any of the parties or their representatives or counsel after March
30, 2011;

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•

Communications among counsel for Defendant or among counsel

for Plaintiff relating to joint litigation efforts following the commencement of any
of the actions that are a part of MDL No. 2359; and
•

Communications, which are by, to, or between any party to this

litigation or its counsel, and/or a consultant retained for the party in respect to
this litigation or related litigation or in anticipation thereof, which have been
withheld from production, in whole or part, based upon a claim of work product
protection and which pertain exclusively to the issues in the Actions, except to
the extent production or logging is required by the terms of other Court orders or
by agreement of the parties.
(k)

Draft Expert Reports.

Consistent with Federal Rule of Civil Procedure 26(b)(4), the parties
further agree that an expert’s draft reports are work product and shall not be
discoverable and that communications between an expert and the attorney who
retained the expert, including notes reflecting their communications, are not
discoverable. However, counsel may obtain through discovery any facts or data
the expert relied upon in forming his or her opinions, including those facts or
data that were provided by counsel. Counsel may also fully inquire of an expert
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what facts or data the expert considered in reaching his or her opinion, whether
the expert considered alternative approaches, or into the validity of the expert’s
opinions.
(l)

Inadvertent Production of Privileged or Other Protected
Information.

The Court has entered a Protective Order [Docket No. 19] that provides the
procedure for handling inadvertent production of privileged or other protected
information.
(m)

Duty to Preserve.

The parties shall meet and work together to submit an agreed Preservation
Order that will detail both the obligations of each to preserve certain evidence
and the plan for the production and sharing of same.
(n)

Inspection/Removal of Siding.

Plaintiffs shall afford Defendant the right to inspect and/or test siding from
their properties during any period of fact discovery in this consolidated action
(the “Inspection Time Period”), provided Defendant provides prior notice to
Plaintiffs’ counsel. If a Plaintiff must or chooses to replace his/her James Hardie
siding during the pendency of this MDL, then the Plaintiff must provide

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Defendant with 60-day’s prior notice and, if requested, will grant Defendant and
its designees the right to be present for any testing and inspection undertaken by
the Plaintiff’s designee(s). In addition, the Defendant’s designee(s) may conduct
their own testing and inspection. Either side may take as many siding samples it
deems sufficient for purposes of the lawsuit and shall share such samples as
agreed to or ordered by the Court. After the inspections and the removal of
siding, the Plaintiff has no duty to preserve all removed siding, but may do so at
his/her choosing. Defendant agrees that it will not argue that the Plaintiff
“spoliated” such evidence if he/she chooses not to preserve the siding, but
nothing shall prevent Defendant from arguing that the Plaintiff has failed to
meet his/her burden of proof as to all or any part of his/her claim as a result of
the siding not being preserved. If both sides demand possession of the removed
siding, then the parties will meet and confer to establish a storage facility and
cost sharing arrangements. Defendant shall similarly allow Plaintiffs the right to
test representative samples of Defendant’s siding from its plants during the
Inspection Time Period, provided Plaintiffs provide prior notice to Defendant’s
counsel.

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F.

Trial-Ready Date
Following the Courts’ ruling on Plaintiffs’ motion for class certification, the

parties, if necessary, will submit a proposed scheduling order setting forth the
time for the close of any further discovery, the time for filing of dispositive
motions and related briefing, and pre-trial and trial deadlines.
G.

Insurance Carriers/Indemnitors
Defendant will produce for inspection and copying any insurance

agreement under which an insurance business may be liable to satisfy all or part
of a possible judgment in the action or to indemnify or reimburse for payments
made to satisfy the judgment.

Dated: October 1, 2012

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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