IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Filing 87

Emergency MOTION for Discovery Pursuant to Fed. R. Civ. P. 26 by DEL MONTE FOODS COMPANY. (Attachments: #1 Affidavit Affidavit in Support#2 Text of Proposed Order Proposed Order#3 Affidavit Affidavit of Good Faith#4 Declaration Declaration of Dr. George P. McCabe)(FAMA, RICHARD)

Case 1:07-cv-02867-NLH-AMD

Document 87-2

Filed 11/16/2007

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BEFORE THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

IN RE PET FOOD PRODUCTS LIABILITY LITIGATION

Civil Action No. 07-2867 MDL Docket No. 1850 (ALL CASES)
AFFIDAVIT OF RICHARD FAMA IN SUPPORT OF DEL MONTE'S EMERGENCY MOTION TO LIMIT ITS RETENTION OF RECALLED PET TREATS , FOOD , RAW WHEAT GLUTEN AND MIXTURES CONTAINING RECALLED WHEAT GLUTEN

State of New York ) )ss.. County of New York )

Richard Fama, being duly sworn deposes and states the following under the penalty of perjury: 1. I am a member of the law firm of Cozen O'Connor,

attorneys for Del Monte Foods Company (Del Monte), a Defendant in the above-captioned litigation, and as such, I am fully

familiar with the facts and circumstances of this case and the Motion in support of which this Affidavit is made. 2. I make this Affidavit in further support of Del

Monte' s Memorandum of Law in Support of its Motion to Limit its Retention of Recalled Pet Treats, Food, Raw Wheat Gluten and Mixtures Containing Recalled Wheat Gluten.

Case 1:07-cv-02867-NLH-AMD

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3.

Since April 1, 2007 and April 6, 2007, when Del Monte

issued recalls of pet treats and food it manufactured, Del Monte has been preserving pet food, treats, raw wheat gluten and It continues to

mixtures containing recalled wheat gluten.

store these materials because of their potential evidentiary value in this pending litigation. 4. Beginning approximately three months ago, these

perishable products started exhibiting signs of infestation. Specifically, prevalent. 5. Accordingly, over two months ago, Del Monte, in flying insects and their larvae were becoming

conjunction with other Defendants, entered into negotiations with Plaintiffs' designated representatives, Jenipher

Breckenridge of Hagens Berman Sobol Shaprio, LLP and Scott Kamber of Kamber & Associates, LLC, to arrive at a joint

agreement related to a sampling plan of the millions of units of recalled product stored by the Defendants. agreement has been reached. However, to date, no

The efforts that Del Monte and

other Defendants have made to arrive at a sampling plan are more fully set forth in your affiants Affidavit of Good Faith, the content of which is incorporated by reference herein. 6. On November 13, 2007, the Food and Drug Administration

confirmed earlier communications with Del Monte by stating in an e-mail that Del Monte should commence destruction of all of the

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Case 1:07-cv-02867-NLH-AMD

Document 87-2

Filed 11/16/2007

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recalled

pet

food,

treats,

raw

wheat

gluten

and

mixtures

containing recalled wheat gluten it is storing in the interest of public health and safety. 7. Therefore, Del Monte now moves this Court for an Order

Limiting its Retention of Recalled Pet Treats, Food, Raw Wheat Gluten and Mixtures Containing Recalled Whea lu en.

Dated: November 16, 2007

Sworn to before me this ,_._.__..16tth day of No^ve4er, 2007

DENISE D. LACRUA NOTARY PUBLIC, State of New York No. Ol LA5049505 Qualified in Kings County Term Expires: September 18,

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