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 87-4

Filed 11/16/2007

Page 1 of 60

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 GOOD FAITH OF RICHARD FAMA , ESQ. IN SUPPORT OF DEL MONTE'S EMERGENCY MOTION TO LIMIT THE RETENTION OF RECALLED PET TREATS AND 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: I for am a member of the law firm of Cozen O'Connor, attorneys Monte Foods, Co. ("Del Monte"), a defendant in the

Del

above-entitled 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.

This Affidavit is made pursuant to Local Civ. Rule 37.1 (b) (1) in support of Del Monte's Motion to Limit the Retention of

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

Document 87-4

Filed 11/16/2007

Page 2 of 60

Recalled Pet Treats and Food, Raw Wheat Gluten and Mixtures Containing Recalled Wheat Gluten.

Your affiant has participated in and is otherwise familiar with the negotiations and attorneys between for the this office, co-defendants' respect to

counsel

plaintiffs

with

developing a sampling plan for recalled pet treats and food, recalled raw wheat gluten purchased from ChemNutra, Inc. and

mixtures containing recalled wheat gluten (cumulatively referred to herein as "recalled product") and the destruction of

remaining recalled product.

As discussed, at a sampling

infra,

negotiations with plaintiffs to arrive

plan for recalled product have been largely

unsuccessful and, on that basis alone, judicial intervention is required. The need for this Honorable Court's intervention,

however, took on greater urgency on November 13, 2007 when the Food and Drug Administration ("FDA") directed Del Monte, in writing, to destroy all recalled product in its possession. See Exhibit "A". FDA and the Del Given the clear and unambiguous directives of the unlikelihood of reaching an agreement with

plaintiffs,

Monte now respectfully moves this Honorable

Court for relief.

Since defendants

August 2007, Del Monte along with several other involved in this litigation has attempted to

2

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

Document 87-4

Filed 11/16/2007

Page 3 of 60

negotiate 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 on a sampling plan related to the millions of units of recalled product stored by defendants. been multifaceted. participated in These negotiations have

For instance, Del Monte and other defendants numerous conference calls with plaintiffs'

designated representatives in order to attempt to reach an agreement on a sampling plan for the large quantities of

recalled product stored by several defendants. all of these calls, Del Monte advised

On virtually plaintiffs'

representatives that the recalled product it is storing is infested with insects and maggots and presents an imminent public health and safety risk. These conference calls have

continued on a sporadic, albeit decreasing basis to date.

Negotiations

with

plaintiffs'

representatives

have

also

involved the exchange of data, product inspection and even offers to transfer control of all recalled product to

plaintiffs.

3

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

Document 87-4

Filed 11/16/2007

Page 4 of 60

OFFERS TO GIVE PLAINTIFFS SAMPLES OF RECALLED PRODUCT, UP TO AND INCLUDING ALL OF IT

On

October

1,

2007,

your

affiant to

sent allow

a

letter

to to

plaintiffs'

representative

offering

plaintiffs

obtain samples of Del Monte's stored recalled product, up to including all of such product. This offer was reiterated to

plaintiffs' representatives by your affiant on October 30, 2007, November 2, 2007, November 8, 2007 and finally, on November 14, 2007. Monte, Rather than accepting a single unit of product from Del plaintiffs' representatives posed questions to it that

have no bearing on plaintiffs' ability to accept samples of Del Monte's recalled product. See Exhibit "B". irrelevance of the questions posed Notwithstanding the by plaintiffs'

representatives and solely in an effort to facility an agreement with plaintiffs, on November 14, 2007 your affiant provided answers to those questions and requested that plaintiffs advise your affiant of their position on accepting all or some of Del Monte's recalled product. Plaintiffs, however, have failed to

respond to Del Monte's offer in anyway.

PRODUCT INSPECTIONS

On

September 14, 2007, your affiant's office notified

plaintiffs' representatives in writing that Del Monte's recalled

4

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

Document 87-4

Filed 11/16/2007

Page 5 of 60

product

stored

in

Mira

Loma, Missouri

California, and Topeka,

Watsontown, Kansas was

Pennsylvania,

Independence,

immediately available for plaintiffs' inspection. NN Chl . 2006,

See Exhibit

Having received no response from plaintiffs, on October 1, your affiant once again offered to allow plaintiffs to

inspect all of its recalled product. See Exhibit "D".

On October 9-10, 2007, the plaintiffs inspected Del Monte recalled product stored in its warehouses in Independence,

Missouri and Topeka, Kansas. On October 16, 2007, your affiant again invited plaintiffs to inspect Del Monte's recalled product stored in its remaining warehouses, namely warehouses located in Mira Loma, California and Watsontown, Pennsylvania.
NNE"

See Exhibit

.

On

October 30, 2007, Bruce Newman of Newman Creed &

Associates inspected Del Monte's recalled product stored in Watsontown, Pennsylvania on behalf of the plaintiffs. To date,

however, plaintiffs have made no requests to inspect recalled product stored in Del Monte's Mira Loma, California warehouse and it does not appear that the inspections that were completed had any effect on the negotiations with plaintiffs.

EXCHANGE OF DATA

In an effort to expedite an agreement on a sampling plan of recalled raw wheat gluten held by Del Monte and pursuant to plaintiffs' request, on October 19, 2007, Del Monte, along with

5

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

Document 87-4

Filed 11/16/2007

Page 6 of 60

other defendants, provided plaintiffs' representatives with an inventory of all raw recalled wheat gluten. See Exhibit "F".

This inventory identified the quantity of wheat gluten held by Del Monte, the ChemNutra, Inc. batch numbers of that wheat

gluten and the locations where that wheat gluten is stored. Plaintiffs' information representatives did not respond to the foregoing provided to them until approximately two weeks

thereafter, on October 30, 2007, and only when prompted to do so by defendants. representative See Exhibit "G". stated that At that time, plaintiffs' wanted defendants'

plaintiffs

statistician to develop a sampling plan without ever explaining why plaintiffs' retained statistician could not develop a plan himself.

The parties had hoped to reach an agreement related to the retention of samples and destruction of the remaining wheat gluten independent of the sampling plan for the recalled pet treats and food by November 15, 2007. In light of recent See Exhibit "H", p. 2. with plaintiffs'

communications

representatives, however, it is clear that the parties will be unable to reach such an agreement.

The parties also agreed to destroy certain unorganized pet treats and food retained by various defendants called "banana box material", subject to the disclosure of certain information

6

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

Document 87-4

Filed 11/16/2007

Page 7 of 60

requested by plaintiffs' representatives.

See Exhibit "I".

On

November 2, 2007 and November 12, 2007, respectively, Del Monte, along with other defendants, provided plaintiffs'

representatives

with all of the information they requested,

including SKU day inventories and a stipulation governing the destruction of banana box material. See Exhibit "J". Since then, plaintiffs' representatives have wholly failed to agree to the destruction of banana box material or contact your affiant regarding the information provided to them. Also, as stated above, the FDA has directed Del Monte to destroy all recalled product in its possession. Because banana box material is

partially comprised of recalled product, the FDA's directives would apply equally to it as well.

With respect to so-called "organized pet treats and food" retained by Del Monte and expert, with others, Dr. a on George letter October McCabe, 4, 2007,

defendants' plaintiffs'

statistical

provided his

representatives

explaining

proposed sampling plan. thereafter, on

See Exhibit "K".

Nearly two weeks

October 17, 2007, plaintiffs' representatives

responded to Dr. McCabe's sampling plan with questions regarding certain assumptions he made to formulate On October 19, 2007, Dr. McCabe same . See Exhibit "L". to plaintiffs'

responded

representatives questions. See Exhibit "M".

Despite providing

7

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

Document 87-4

Filed 11/16/2007

Page 8 of 60

plaintiffs' requested, agree upon

representatives

with

all

the

information

they

to date, they have been incapable or unwilling to a plan regarding the retention of samples and

destruction of remaining organized pet treats and food.

Your affiant submits that the foregoing illustrates some of the good faith efforts that Del Monte and the other defendants have made to resolve the issue before seeking relief from this Honorable Court. Unfortunately, given the parties'

inability to agree upon a sampling plan, the urgency created by the FDA's directive that Del Monte destroy the recalled product

to before me this Sw ^ ember, 20 yf9- day o

l

cam

GCS---

DENISE D. LAGRUA NOTARY PUBLIC, State of New York No.OILA5049505 Qualified in Kings County n^ Term Expires: September 18,

8

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

Document 87-4

Filed 11/16/2007

Page 9 of 60

EXHIBIT "A"

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

Document 87-4

Filed 11/16/2007

PagePagel of 2 10 of 60

Fama , Richard

REDACTED ATTORNEY CLIENT PRIVILEGE

From : Lauff, Megan [mailto:megan.lauff@fda..hhs.gov] Sent : Tuesday, November 13, 2007 8:44 AM To: Hayes, Michael Subject : RE: Destruction of Recalled Products Mike Yes everything in your email below is correct. Please start the process of scheduling the destruction; let me know the tentative date and location so that I can have an investigator witness the destruction. Please feel free to contact me with any additional questions. Thanks, Megan

Megan M. Lauff, Recall Coordinator FDA/Philadelphia District U.S. Customhouse, Room 900 2nd & Chestnut Streets Philadelphia, PA 19106 [phone] fax [phone] megan. lauff@fda. hhs.,gov

From : Hayes, Michael [mailto:Michael. [e-mail]] Sent : Friday, November 09, 2007 2:01 PM To: Lauff, Megan

Subject : Destruction of Recalled Products As you may recall, the FDA has advised Del Monte to destroy all recalled pet food products, all ingredients containing recalled wheat gluten distributed by Chem Nutra and all raw recalled Chem Nutra

11/15/2007

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

Document 87-4

Filed 11/16/2007

PagePageof of 2 11 2 60

wheat gluten in its possession. From our prior communications , I also understand that: 1. The FDA believes that the continued storage of recalled product represents a health and safety hazard to the general public. 2. This belief is based not upon the manner in which the product is being held by Del Monte but, rather, the FDA' s past experiences which have shown that the longer an allegedly defective product is held after the initiation of a recall , the greater the chance it will be accidentally introduced into the stream of commerce. 3. The FDA requires that we contact you, Recall and Emergency Coordinator, so arrangements can be made for FDA personnel to witness the destruction of the recalled product and ingredients. Before we proceed with the arranging destruction of recalled product and ingredients, I ask that you provide written confirmation to me of the accuracy of the above . Is this something you can provide? Thank you in advance for you assistance.
Mike Hayes Del Monte Foods Director - QA [phone] Work [phone] Cell [phone] Fax

11/15/2007

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

Document 87-4

Filed 11/16/2007

Page 12 of 60

EXHIBIT "B"

Pet Food Litigation Case 1:07-cv-02867-NLH-AMD

Document 87-4

Filed 11/16/2007

ag of 60 PageP13 el of 2

Fama , Richard
From : Sent : To: Cc: Jeniphr Breckenridge [[e-mail]] Monday, October 01, 2007 7:23 PM Fama, Richard Sikoscow, Alexander; Scott A. Kamber, Esq.

Subject : RE: Pet Food Litigation Richard. I do not know who advised Del Monte that plaintiffs would likely conduct an inspection of Del Monte's stored product on October 2, but it was not I. When you and I spoke to Mary Gately at the courthouse, I indicated that October 1 or 2 would be the earliest plaintiffs could mobilize to visit any sites. This fact was based, in part, on what we thought was defendants' collective insistence on the Confidentiality and Nondisclosure Agreement Regarding Sampling Plan, which was not provided to us by Menu Foods until the close of the mediation day on September 25. The prospect of a Confidentiality Agreement had not been raised by any defendant earlier. As with defendants, among plaintiffs there are multiple groups that must weigh in on the language of the proposed Agreement. We had not been able to confer until this afternoon. We do have concerns to raise about the Agreement and we are contacting Mary Gately to discuss them. Your email today is the first notice that we have received that Del Monte considers a site visit a "condition precedent" to continuing with the mediation. It is also the first notice we have had that we must visit the Missouri site first, which is not what you and I discussed last week. Nevertheless, we continue to be available to a conduct site visits on one day's notice. Perhaps Del Monte would be willing to consider a more simple agreement or to allow plaintiffs' counsel to view the site without a confidentiality agreement? This would certainly expedite the process. Del Monte's offer "to allow plaintiffs to take samples of recalled product and wheat gluten, up to and including all of it, from each of the locations where the product is being stored" raises numerous issues. As an initial matter, this seems like a peculiar offer in light of the close controls other defendants have said that the FDA is insisting upon for the contaminated wheat gluten. And does this mean that Del Monte does not intend to retain any of the product? Has Del Monte already taken samples? Has any other entity taken samples? Has Del Monte conducted tests that renders preservation of the product unnecessary? Do these tests cover all product organized and disorganized? If Del Monte will share the results of such tests, many open issues might be eliminated. Further, what type of stipulation is Del Monte willing to enter into with respect to the contamination of the product in the warehouses? When will we receive specific information regarding the product stored in each warehouse. Finally, the preservation of evidence is not an "merely an academic issue" for plaintiffs either. That is why we have spent the month since we first learned of the issue cooperating with Del Monte and other defendants to resolve the issue. We look forward to your reply. Jeniphr Jeniphr Breckenridge HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue Seattle, Washington 98101 206.224.9325 (direct) 206.623.0594 (facsimile)

11/15/2007

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

Document 87-4

Filed 11/16/2007

Page 14 of 60

EXHIBIT "C"

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

Document 87-4

Filed 11/16/2007

Page 15 of 60

COZEN O'CONNOR
ATTORNEYS
A PROFESSIONAL CORPORATION

16TH FLOOR

45 BROADWAY

NEW YORK, NY 10006-3792

212.509.9400

800.437.7040

212.509.9492 FAX

www.cozen.com

September 14, 2007
VIA E-MAIL

Alexander Sikoscow Direct Phone [phone] Direct Fax [phone] aiikoscow @ cozen.com

Jeniphr Beckinridge, Esq. Blim & Edelson, L.L.C. The Monadnock Building 53 W. Jackson Blvd., Suite 1642

Chicago, Illinois 60604
[e-mail] Jay Edelson, Esq. Hagens Berman Sobol Shapiro, L.L.P. 1301 Fifth Avenue, Suite 2900 Seattle, WAS 92801 [e-mail] Counselors: This office represents Del Monte Foods Company in the pet food litigation. Del Monte is currently storing recalled finished product in three locations, Mira Loma, California; Independence, Missouri; and Watsontown, Pennsylvania. In addition, raw wheat gluten related to the pet food recall is being stored in Topeka, Kansas. In an effort to arrive at an expeditious resolution to the preservation issue, we are making this product available for your inspection. Due to the perishable nature of the wheat gluten and the infestation problem that our client is experiencing with the wheat gluten and finished product, any inspections must be performed on an expedited basis. All of the product will made available to you immediately. Please contact Richard Fama or me upon your receipt of this letter to arrange your inspection of this product. Mr. Fama's cell phone number is 517.317.5737, and his email is [e-mail]. My cell phone number is 914.563.2068. Very truly yours, COZEN O'CONNOR /s/ By: AS Alexander Sikoscow

Case 1:07-cv-02867-NLH-AMD
Jenipher Beckinridge Jay Edelson September 14, 2007 Page 2

Document 87-4

Filed 11/16/2007

Page 16 of 60

NEWYORK DOWNTOWN\254705\1 205723.000

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

Document 87-4

Filed 11/16/2007

Page 17 of 60

EXHIBIT "D"

Pet Food Litigation

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

Document 87-4

Filed 11/16/2007

ag 2 60 PageP18eof of 2

From : Fama, Richard [mailto:[e-mail]] Sent : Monday, October 01, 2007 12:13 PM To: Jeniphr Breckenridge Cc: Sikoscow, Alexander Subject : Pet Food Litigation Jennifer, By e-mail dated September 14, 2007 , this office notified plaintiffs that Del Monte' s product was immediately available for plaintiffs' inspection . Last week, I was advised that plaintiffs would likely conduct an inspection of Del Monte's stored product on October 2. I've now been informed that plaintiffs are considering conducting inspections on October 4th or 5th or, alternatively , at some point after the scheduled mediation on October 8th. As you are aware, arriving at an agreement and/or obtaining a court order regarding the preservation of product/wheat gluten is not merely an academic issue for Del Monte. Despite precautions being taken by Del Monte, product infestation has become a critical health and safety concern. Indeed, resolution of the preservation issue is the primary focus of Del Monte. Thus, the inspection of the product is a condition precedent to Del Monte's further meaningful participation in the mediation process. Given the immediate concern of Del Monte, it has directed me to allow plaintiffs to take samples of recalled product and wheat gluten, up to and including all of it, from each of the locations where the product is being stored. Finally, I've been informed that Del Monte's distribution center in Independence Missouri houses the largest amount of recalled product. You're welcome to view all of the other distribution centers, including the center located in Topeka, Kansas, after you view the Missouri center. Please contact me forthwith to arrange for the inspection of Del Monte's product this week or the transfer of some or all of the product/wheat gluten to plaintiffs. I look forward to hearing from you soon.

Notice: To comply with certain U.S. Treasury regulations, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this e-mail, including attachments, is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service. Notice: This communication, including attachments, may contain information that is confidential and protected by the attorney/client or other privileges. It constitutes non-public information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is not the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended recipient, or you believe that you have received this communication in error, please notify the sender immediately by return e-mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this e-mail, including attachments, is prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) is not a waiver of any attorney/client or other privilege.

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

Document 87-4

Filed 11/16/2007

Page 19 of 60

EXHIBIT "E"

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

Document 87-4

Filed 11/16/2007

PagePagel of 2 20 of 60

Fama , Richard
From : Sent : To: Cc: Subject : Fama, Richard Tuesday, October 16, 2007 11:12 AM PFD[mary.gately@dlapiper. com]; [e-mail]; Scott A. Kamber, Esq. [e-mail]; PFD[rctroyer@hhlaw. com]; Shaknes, Alexander; PFD [[e-mail]] RE: Follow up on our expert's letter

Importance: High Jenipher, Scott, are we on for today to discuss the expert's letter. We'd also like to discuss what additional site inspections you may want? We already have the red carpet rolled out for you. Rich

From : Gately, Mary [mailto:[e-mail]] Sent : Monday, October 15, 2007 3:48 PM To: [e-mail]; Scott A. Kamber, Esq. Cc: Fama, Richard; [e-mail]; PFD[[e-mail]]; Shaknes, Alexander; PFD [[e-mail]] Subject : Follow up on our expert's letter Jeniphr and Scott, I believe that you indicated that you would be in a position to discuss any questions that you or your expert had regarding our expert's letter. Do you want to discuss this tomorrow? If so, what time and I will try and circulate a dial in for it. Thanks Mary

NOTE: My address and phone number changed as of October 1, 2007 Mary E. Gately DLA Piper U.S. LLP 500 8th Street, N.W. Washington , D.C. 20004 phone: [phone] fax: [phone] mary.gately @ dlapiper.com

Please consider the environment before printing this email.

The information contained in this email may be confidential and/or legally privileged. It has been sent fo the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you arf hereby notified that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communicatioi in error, please contact the sender by reply email and destroy all copies of the original message. To contact our email administrator directly, send to [e-mail]

11/15/2007

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

Document 87-4

Filed 11/16/2007

PagePageof of 2 21 2 60

Thank you.

11/15/2007

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

Document 87-4

Filed 11/16/2007

Page 22 of 60

EXHIBIT "F"

Case 1:07-cv-02867-NLH-AMD Fama , Richard
From : Sent : To: Cc: Subject : Attachments :

Document 87-4

Filed 11/16/2007

Page 23 of 60

Fama, Richard Friday, October 19, 2007 10:01 AM Jeniphr Breckenridge; 'Scott A. Kamber, Esq.' PFD[[e-mail]]; PFD[[e-mail]]; [e-mail]; [e-mail]]; PFM[[e-mail]]; [e-mail]; PFD[[e-mail]]; Sikoscow, Alexander; Fama, Richard total wheat gluten held in Pennsylvania #261066-v1-NEWYORK DOWNTOWN- total_wheat_gluten _held_in_Moran.XLS

Jeniphr/Scott, attached please find a spreadsheet detailing the quantity of raw recalled wheat gluten held by Del Monte in its Pennsylvania warehouse. I'm working on getting you numbers for quantities of wheat gluten held in our Topeka warehouse - the only other location where recalled wheat gluten is stored by Del Monte. Rich

#261066-v1-NE RK_DOWNTOWN

1

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

Document 87-4

Filed 11/16/2007

Page 24 of 60

ChemNutra Wheat Gluten in Pennsylvania
Lot 20061101 Full bags Partial bags wt/bag (lb) 21 55 5 Partial 1 50 Partial2 45 Partial3 45 Partial4 45 Partial5 50 Total wt of partials Total wt of lot # 20061101 wt/bag ( lb) 17 55 5 Partial 1 5 Partial2 35 Partial3 40 Partial4 50 Partial5 25 Total wt of partials Total wt of lot # 20061027 wt/bag ( lb) 7 55 5 Partial 1 45 Partial2 30 Partial 3 15 Partial4 25 Partial5 30 Total wt of partials Total wt of lot # 20061108 wt/bag (lb) 55 Total wt. totals 1155

235 1390 totals 935

Lot20061027 Full Bags Partial Bags

155 1090 totals 385

Lot20061108 Full Bags Partial Bags

145 530 totals 55 3065 1

1 full bag without lot # 1 Total bags 61

Case 1:07-cv-02867-NLH-AMD Fama , Richard
From : Sent : To: Cc: Subject : Scott/Jenipher,

Document 87-4

Filed 11/16/2007

Page 25 of 60

Fama, Richard Friday, October 19, 2007 10:21 AM Fama, Richard; 'Jeniphr Breckenridge'; 'Scott A. Kamber, Esq.' PFD[[e-mail]]; PFD[rctroyer@hhlaw. com]; '[e-mail]'; [e-mail]]; PFM[[e-mail]]; '[e-mail]'; PFD[[e-mail]]; Sikoscow, Alexander RE: total wheat gluten held by Del Monte in Topeka, KS

Following is an inventory of recalled Chem Nutra wheat gluten by lot number held by Del Monte at its Topeka, KS facility: ChemNutra Lot 20061203 20061202 20070116 Rich
From : Sent : To: Cc: Subject : Fama, Richard Friday, October 19, 200710:01 AM Jeniphr Breckenridge; 'Scott A. Kamber, Esq.' PFD[ mary.gately@d la piper. co m]; PFD[[e-mail]]; [e-mail]; PFM[[e-mail]]; PFM[[e-mail]]; [e-mail]; PFD[[e-mail]]; Sikoscow, Alexander; Fama, Richard total wheat gluten held in Pennsylvania

Number of bags 47 60 779

Jeniphr/Scott, attached please find a spreadsheet detailing the quantity of raw recalled wheat gluten held by Del Monte in its Pennsylvania warehouse. I'm working on getting you numbers for quantities of wheat gluten held in our Topeka warehouse - the only other location where recalled wheat gluten is stored by Del Monte. Rich

File: #261066 -v1-NEWYORK_DOWNTOWN- total wheat_gluten _held_in_Moran.XLS >>

1

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

Document 87-4

Filed 11/16/2007

Page 26 of 60

EXHIBIT "G"

Case 1:07-cv-02867-NLH-AMD Fama , Richard
From : Sent : To: Cc: Subject :

Document 87-4

Filed 11/16/2007

Page 27 of 60

Fama, Richard Tuesday, October 30, 2007 7:09 PM '[e-mail]'; PFD[[e-mail]]; '[e-mail]' PFD[[e-mail]]; Sikoscow, Alexander Re: Wheat Gluten

I have been very consistent on this issue. Product preservation/sampling is the single most important issue to my client. Because the retention of vast quantities of recalled product greatly affects my client's ability to function as a business entity, at this point product retention is of greater importance to it than mediation. I've expressed the foregoing on several calls. Del Monte gave plaintiffs its inventory of wheat gluten on October 19th, nearly two weeks ago. Yet until today we've heard nothing from the plaintiffs' side on this issue and your response today fails to offer practical solutions to the problems you raise. You also fail to disclose why your expert cannot propose a sampling plan. This would seem to be the most efficient solution rather than having our expert propose a plan and then have the plaintiffs question his assumptions, unless, of course, delay is the objective.

We've also heard nothing from plaintiffs' side since Dr. McCabe answered plaintiffs' expert's questions regarding assumptions that he made.
Finally, plaintiffs have failed to respond to Del Monte's offer to take custody of all recalled product in its possession. All of the foregoing leads my client to believe that plaintiffs are using the preservation issue to gain some sort of strategic advantage.

This belief is supported by the many questions the plaintiffs have asked of the defendants that are wholly unrelated to arriving at a sampling plan and destruction of banana boxes. I truly hope that we can work together to expeditiously arrive at a solution to this problem and once again focus on the mediation process - something my client cannot do while its unnecessarily storing thousands of cases of recalled product along with Fram automobile air filters and spark plugs.
Rich

Richard Fama Cozen O'Connor 800.437.7040

----- Original Message ----From: Jeniphr Breckenridge <[e-mail]> To: Fama, Richard; PFD[[e-mail]]; [e-mail] <[e-mail]> Cc: PFD[[e-mail]]; Sikoscow, Alexander
Sent: Tue Oct 30 15:14:52 2007 Subject: RE: Wheat Gluten Rich. I have just spoken to Mary about the status of the raw wheat gluten and the potential for She recommended that we limit our communications on this topic to writing destruction. and I agreed. Last week we received the final information on the retained inventories for raw wheat gluten which we then provided to our statistician. He requested assumptions similar to those provided by Dr. McCabe for the product. E.g., what do defendants propose is an appropriate amount for sampling and on what assumptions is that proposal based. Unfortunately, from a statistical standpoint it apparently not as easy as just reserving a modest number of bags for each batch.

I mentioned to Mary the possibility that this could be dealt with through stipulations concerning the product and the contamination of the product.
We never understood that Del Monte's - or any defendant's - participation in the mediation 1

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

Document 87-4

Filed 11/16/2007

Page 28 of 60

process to be dependent on factors related to evidence preservation. Please be more specific about your expectations. Jeniphr
Jeniphr Breckenridge HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue

Seattle, Washington 98101 206.224.9325 (direct) 206.623.7292 (firm) 888.381.2889 (toll free) 206.623.0594 (facsimile)

-----Original Message----From: Fama, Richard [mailto:RFama @cozen.com <mailto:[e-mail]> ] Sent: Tuesday, October 30, 2007 11:31 AM

To: [e-mail]; Jeniphr Breckenridge; [e-mail] Cc: [e-mail]; Sikoscow, Alexander
Subject: Re: Wheat Gluten

Can we please get a response to the below this week so that we can move the process along and my client can make the decision as to whether it will continue its participation in the mediation process. Thank you.
Richard Fama Cozen O'Connor 800.437.7040 ----- Original Message ----From: Anthony G. Brazil <[e-mail]> To: Jeniphr Breckenridge <[e-mail]> Cc: Fama, Richard; PFD[[e-mail]] Sent: Tue Oct 30 11:38:28 2007 Subject: Wheat Gluten Jeniphr Please give me a call so that we can move forward on getting rid of the excess wheat gluten.

Thanks Tony

Anthony G. Brazil Morris Polich & Purdy 1055 W. 7th St. Los Angeles, CA 90017 213-417-5120 Direct 213-891-9100 213-488-1178 Fax [e-mail] www.mpplaw.com <file://www.mpplaw.com> *******CONFIDENTIALITY NOTICE******* *****PRIVILEGED AND CONFIDENTIAL INFORMATION***** The information contained in this document is intended solely for use By the persons or entities identified above. This electronically transmitted document contains privileged and confidential information including information which may be protected by the attorneyclient and/or work product privileges. If you are not the intended recipient, be aware that any disclosure, copying, distribution or other use of the contents of this transmission is prohibited. If you received this transmission in error, please notify us by telephone [phone])and permanently delete this message without making a copy.

2

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

Document 87-4

Filed 11/16/2007

Page 29 of 60

Notice: To comply with certain U.S. Treasury regulations, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this e-mail, including attachments, is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

Notice: This communication, including attachments, may contain information that is confidential and protected by the attorney/client or other privileges. It constitutes nonpublic information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is not the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended recipient, or you believe that you have received this communication in error, please notify the sender immediately by return e-mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The unauthorized use, dissemination, distribution, or reproduction of this e-mail, including attachments, is prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) is not a waiver of any attorney/client or other privilege.

3

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

Document 87-4

Filed 11/16/2007

Page 30 of 60

EXHIBIT "H"

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

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

Document 87-4
Document 80

Filed 10/26/2007

Filed 11/16/2007

Page 1 of 4

Page 31 of 60

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Hon. Noel L. Hillman IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION Civil No. 07-2867 (NLH/AMD) MDL Docket No. 1850 ALL CASES

JOINT STATUS REPORT REGARDING EVIDENCE PRESERVATION Following the pet food recall at issue in this litigation, a number of Defendants, including Menu Foods, Del Monte Foods Co., Nestle Purina PetCare Company, lams Co., and Nutro Products, Inc., retained and are currently storing large quantities of recalled pet food. Menu Foods, Del Monte and ChemNutra also retained and are currently storing varying quantities of raw wheat gluten. Defendants claim that the preservation of the retained pet food may pose significant health and safety risks and may impose a significant expense on Defendants. At the same time, Defendants and Plaintiffs want to maintain samples of the recalled pet food and wheat gluten for use in this litigation. The recalled pet food inventories retained by Defendants exist both in a disorganized manner (referred to as "banana box material") and an organized manner. Pursuant to the Court's September 26, 2007 Order, Plaintiffs and Defendants submit this joint status report related to their good faith efforts to agree to a sampling plan for recalled pet food and raw wheat gluten retained by Defendants, to agree to the preservation of recalled pet food and raw wheat gluten required for any sampling plan and to agree to the destruction of such retained pet food and raw wheat gluten not needed for any sampling plan. Since September 26, 2007, the parties have continued to work diligently toward reaching a joint agreement related to

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

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

Document 87-4
Document 80

Filed 10/26/2007

Filed 11/16/2007

Page 2 of 4

Page 32 of 60

the sampling plan and product destruction. The parties have made significant progress, including completion of the following: · The parties negotiated a Confidentiality and Non-Disclosure Agreement Regarding Sampling Plan ("Confidentiality and Non-Disclosure Agreement"), which was executed on October 8, 2007. The Agreement, inter alia, permits the parties to exchange information regarding the retained recalled pet food and raw wheat gluten in order to facilitate an agreement to a sampling plan and to keep such information confidential. · Pursuant to the Confidentiality and Non-Disclosure Agreement, on October 9-10, 2007, representatives of the Plaintiffs visited the warehouses of Menu Foods in Emporia and Topeka, Kansas where recalled pet food is stored. Representatives of the Plaintiffs also visited warehouse facilities of Del Monte in Kansas and Missouri. Finally, Plaintiffs visited the warehouse facilities of ChemNutra, Menu Foods and Del Monte where ChemNutra raw wheat gluten is stored. On October 25, 2007, representatives of the Plaintiffs visited the warehouse facilities of Menu Foods in New Jersey. Representatives of the Plaintiffs took photographs of the retained recalled pet food and raw wheat gluten. Representatives of Plaintiffs expect to visit the facilities of Menu Foods, Del Monte and other Defendants in the Northeastern United States in the next ten (10) days. · Defendants have provided Plaintiffs with certain requested information on the ChemNutra raw wheat gluten retained by Defendants and the parties will attempt in good faith effort to reach an agreement related to retention of samples and destruction of the remaining raw wheat gluten independent of the sampling plan for the recalled pet food within twenty (20) days of this report. 2

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

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

Document 87-4
Document 80

Filed 10/26/2007

Filed 11/16/2007

Page 3 of 4

Page 33 of 60

·

As a condition precedent to agreeing to the destruction of banana box material, Plaintiffs have and will request certain information. The Defendants are assessing what information is available, as well as gathering certain information to confirm that they can retain sufficient product to satisfy the sampling plan. Plaintiffs must evaluate this information in order to determine if an agreement may be reached.

·

With respect to the organized recalled pet food retained by Defendants, Defendants' statistical expert, Dr. George McCabe, provided Plaintiffs with a letter explaining the assumptions on which his proposed sampling plan is based. Plaintiffs submitted the assumptions to Plaintiffs' statistical expert, Nicholas Jewell, PhD, who raised several questions regarding Dr. McCabe's assumptions as stated. Dr. McCabe responded and Plaintiffs are evaluating the responses with Dr. Jewell. The parties will attempt in good faith to reach an agreement on such a sampling plan in the next thirty (30) days.

In summary, the parties have made progress toward: (1) agreeing to a sampling plan for the organized recalled pet food that will permit the destruction of any excess pet food; (2) agreeing to a sampling plan for the ChemNutra raw wheat gluten retained by Defendants that will permit the destruction of any excess raw ChemNutra wheat gluten; and (3) agreeing to the destruction of disorganized recalled pet food retained by Defendants. The parties intend to continue to work together diligently and in good faith to reach the agreements described in this report. If such agreements are reached, they will be submitted to this Court for approval.

3

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

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

Document 87-4
Document 80

Filed 10/26/2007

Filed 11/16/2007

Page 4 of 4

Page 34 of 60

By: Is authorized for ECF filing Lisa J. Rodriguez TRUJILLO RODRIGUEZ & RICHARDS LLC 8 Kings Highway West Palm Beach Haddonfield, NJ 08033 Telephone: [phone] Facsimile: [phone]

By: A authorized for ECF filing Amy W. Schulman, Esq. Mary E. Gately, Esq. Matthew Lepore, Esq. DLA Piper US LLP 1251 Avenue of the Americas New York, New York 10020 Telephone: [phone] Facsimile: [phone] Amy. [e-mail] By: A authorized for ECF filing Craig A. Hoover, Esq. Robert C. Troyer, Esq. HOGAN & HARTSON LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C. 20004-1109 Telephone: [phone] Facsimile: [phone] [e-mail]

By: /s authorized for ECF filing Mark C. Goodman, Esq. SQUIRE, SANDERS & DEMPSEY L.L.P. One Maritime Plaza, Suite 300 San Francisco, CA 94111-3492 Telephone: [phone] Facsimile: [phone] [e-mail]

By: Is authorized for ECF filing D. Jeffrey Ireland, Esq. FARUKI, IRELAND & COX, P.L.L. 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, OH 45402 Telephone: [phone] Facsimile: [phone] [e-mail]

4

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

Document 87-4

Filed 11/16/2007

Page 35 of 60

EXHIBIT "I"

RE: InCase 1:07-cv-02867-NLH-AMDsummary from Friday call re Pet Food Litigation - plaintiffs' Document 87-4 Filed 11/16/2007

ag 1 60 PageP36eof of 1

Fama , Richard
From : Sent : To: Scott A. Kamber, Esq. [[e-mail]] Tuesday, October 16, 2007 3:11 PM Fama, Richard; Jeniphr Breckenridge; PFD[[e-mail]]; PFD [[e-mail]]; PFD[[e-mail]]; PFM[[e-mail]]; Sikoscow, Alexander

Subject : RE: In re Pet Food Litigation - plaintiffs' summary from Friday call
Plaintiffs continue to work in good faith in order to come to an agreement that allows defendants to deal with the issue of retention of contaminated product without prejudicing plaintiffs' right to evidence. While we are working on parallel tracks to reach agreement with defendants regarding the so-called banana boxes, the contaminated "organized food", as well as the remaining wheat gluten, plaintiffs understand the great urgency defendants place on the banana box issue. As plaintiffs set forth in the call held with defendants on Friday, October 12, 2007 regarding evidence preservation and destruction, plaintiffs believe they may be in a position to stipulate to a destruction plan for the banana boxes upon the accomplishment of the following action-items: 1. Defendants shall provide the following types of additional information to plaintiffs as soon as practicable: (i) the identification of every sku date retained and the identification of SKU dates for which no product was retained; (ii) each defendant should individually provide by sworn statement any inventory, identifying information or other documentation regarding the disorganized inventory - or a sworn statement that no such information or detail or documentation exists; and (iii) all other documentary information that relates to the content of the banana boxes. Ultimately, Defendants are in a much better position than plaintiffs to specifically identify and then deliver to plaintiffs records sufficient for plaintiffs to have a sense of what contaminated product is contained in banana boxes so as to enable plaintiffs to be comfortable that they will not be prejudiced by the destruction of the banana boxes. As we specifically discussed, plaintiffs cannot stipulate to a destruction plan that does not assure the survival of adequate quantities of every contaminated SKU for every contaminated production date. We also discussed the type of stipulations that may be able to substitute for such assurance. ?2. The parties will agree to a stipulation that will be submitted to the Court. As we discussed last Friday, defendants shall provide a draft of stipulations they believe they require for proceeding with the destruction of the banana boxes. Plaintiffs will respond with revisions as may be necessary. Finally, the parties will submit stipulation to Court for approval.??We also agreed that our ongoing discussion of an ?3. evidence discussion protocol for the banana boxes would not impact future site visits and would not impede progress on developing a plan for the wheat gluten and would not impact the ongoing discussions regarding a sampling plan for the organized canned and pouched product. Plaintifs believe that once you provide us what is set forth above in items 1 and 2 we can move expeditiously toward the Court approval contemplated in point three and, ultimately, the destruction of the banana boxes. Regards, Scott A. Kamber Kamber & Associates, LLC?

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

Document 87-4

Filed 11/16/2007

Page 37 of 60

EXHIBIT "J"

Case 1:07-cv-02867-NLH-AMD Fama , Richard
From : Sent : To: Cc: Subject : Attachments :

Document 87-4

Filed 11/16/2007

Page 38 of 60

Fama, Richard Friday, November 02, 2007 4:11 PM 'Scott A. Kamber, Esq.'; Jeniphr Breckenridge Sikoscow, Alexander Inventory of Del Monte Stored Inventory by SKU date #264470-v1-NEWYORK DOWNTOWN-DELMONTE PET PRODUCTS RECALL.PDF

Per your request, attached please find an inventory of units of so-called "organized" product by SKU date. Please contact me immediately so that we can discuss the destruction of banana boxes.

# 264470-v 1-N E ZK DOWNTOWN-

1

Case 1:07-cv-02867-NLH-AMD Document 87-4 Filed 11/16/2007 Page 39 of 60 DEL MONTE PET PRODUCTS - RECALL REGARDING MDL LITIGATION

Held Inventories ( Excluding Banana Boxes ) - Del Monte Distribution Centers

M1' Y'

W

Tdta( HIS'

SKU

Product Description

Size

Lot Code

fy

103500
103500 103500 103500 103590 103590 103590 103590

Dollar General Beef Flavored Jerky Strips Dog Treats
Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats

12x3oz
12x3oz 12x3oz 12x3oz 12x4.5oz 12x4.5oz 12x4.5oz 12x4.5oz

TP7C05 TP7C06
TP7C07

1,392
40,440 47,424 22,260 23,496 29,988 6,492 29,676

TP7C08
TP7B20 TP7B21 TP7C08 TP7C09

103590
` 106850:

Dollar General Beef Flavored Beef Sticks Dog Treats
OI' R*Beef.Flavor:Snack Sticks:: Dog Treats

12x4.5oz .
=6x26oz 6x26 oz 6x26oz . ''` 6x26oz 6x26oz 12x3.75oz f 1'2x7 5oz 92x7, 5oz '12x7:562 1 ` 1'2x7.5ozr y ' ;1'2x7:5oz 12x7."5oz 1`2x75ozk 8x11.25oz 8x11.25oz

TP7C10
TP7B19 TP7B20 TP7B21 TP7B06 , TP7B07/08 TP7C05/06 TP7B0'8 TP7B09 °"TP7B10 TP7 B1'STP_7B16 TP7C05 Tf?7C06 TP7B06 TP7B07

12,480
9,450:

106850

01"Roy Beef Flavor Snack Sticks.'Dog Treats

40;308
22,152: 2,976: 7,824: 20,784: 44 ^45^888 ;'>r^7,932y

:-:01'R oy Beef Flavor..Snack^Sticks=Dog Treats 106850 Roy Beef;.FI ` vor Jerky_Stnps-Dog,-Treats <'106860 OI',RoyBeef F-lavor Jerky:St^ips Dog Treats 1.06860 Jerky Treats Bee#;Flavor>Dog.;Snacks 107610 qk, -I "y;1,erkyTreats BeefFlauor^Dog'Snacks 10763 0_ i" Treats Beef FfavorsDojrySriacks'; ^ ^q ;107630 NO "fiJerky Treats Beef'FlavorxDog;Snacks 107630 sit a Treats. Beef. Fla* vordg^Snacks r 107630 J,eikyCeats Beef;Flavar;;Dog``Sn 07630 =^ierkyTreats BeefFlavor Dog:'Snacks s4 F:107630 '. L= y ;; ' 107630 ^" ^; s er ;Treats Beef:.;.Fla_ ..-,..:. g . ;Snacks.,, , ,. vor Do , .. ....: . Jerky Treats Beef Flavor Dog Snacks 107650 Jerky Treats Beef Flavor Dog Snacks 107650

10,044

`26;892
^5440 6;984' _ 1 ^33;f1 Z? 4,480 30,968

z

Case 1:07-cv-02867-NLH-AMD 107650
130040. 314410 314410 344330

DocumentTreats Beef Flavor Dog Snacks Page 40 of 60 8x11.25oz Filed 11/16/2007 Jerky 87-4
Jerky Treats Beef Flavor Dog Snacks Jerky Treats Beef Flavor Dog Snacks (BOGO) Jerky Treats Beef Flavor Dog Snacks (BOGO) - Gravy Train Beef Sticks .Dog Snacks 8x20oz 12x15oz 12x15oz 12x4 5oz

TP7B08 ..TP7B15 TP71308 TP71309 TP7B19/20 BC6M21 BC7A19 TF7C08 ` TP7C09 TP 7C10 TP7CQ6 ' TP7C07

6,832 27,560 7,660 31,162 1,68 3,072 6,768` 29;82

:^^^

^^ ^^^ F

'^

a ::Cufs^withrBeefin^Gr^ r Do F,ood^'

396050 396060 ;, 401:870 l 401870 401870 >' 401880 _=':401880 , 424070 424110 4872$0

OI' Roy with Beef Hearty Cuts in Gravy Dog Food OI' Roy with Beef HeartyStripsin Gravy Dog Food . ;O{! . Roy>Beef_ `FlavorSnack Sticks D:og Treats. , . , ,.. OI`RoyBeef Flavor Snack Sticks Dog Treats ;QI'.Roy;Beef, FlavorrS.nack.,S,ticks Dog Treats -< <`; . OI' Roy.Beef.Fiavor Jerky:St^ips Qog Treats ^Y ;,.. a 0,1! RoyBeef,Flavor.Jerky'Stnps'Dog Treats

^ ^ 1^2x22oz 24x13.2oz

^- . BC<7^29^ ^ , ,_ ^, ,^76,37^2;

4O1880µ ` ..

OI' Rod `t3eef Flavor Je^ky`Stnpspog Treats Happy Tails.Beef Flavor'' Beef .Sticks
Happy Tails Beef Flavor Jerky Strips x rk'T reats Beef:FlavornDog Snacks Jerky;Treats Beef ,Flavor'Dog,Snacksn T z .F:, ;.,.

487280 487^$O, L
487280 566400 566400

SL

24x13.26z 6x30oz X42,61$' 6x30oz 1 ? fi;294 , 6x30oz , .. = $;890 °s 6x30oz , . ^5T438 x30oz 20^ 06 08M^j ;6z30oz .. , . Y , 14,73.6: TP7C08/ 09 12x6oz. 169368 TP7B08/09 12x6oz $,16 x,TP7,308 6X7:5oz. 6x7 5,oz ^f^^09 011 ^^ 24`

., e

Jerky,-Treats Beef;Flayor DogSnacks;w^^4 , :_: :, J e rk y. Tre ats =Bee# Flavor?Dog S;nack5 k

^?. 9. . r> 6x7 5oz ^
12x6oz 12x6oz k r TP7C06 TP7C05 ^ '3 .6x0'8f: 5 ^=. ::: 36,396 24,240

'-6 583880 817080

OI' Roy Beef Flavor Jerky Strips Dog Treats OI' Roy Beef Flavor Jerky Strips Dog Treats YGOI'Raji Coun#ryStevV,Hearty Cuts in Gravy,Dog Foad;k°= a'

Pounce° Meaty : Morsels Moist Chicken Flavor Cat Treats

12x2oz 12x2 3oz ,

TP7C06 B^G^6M15 TP7C !2

m ,. ^0 13;99.2
1,028,306

DISTRIBUTION CENTER TOTALS:

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

Document 87-4

Filed 11/16/2007

Page 41 of 60

DEL MONTE PET PRODUCTS - RECALL REGARDING MDL LITIGATION Held Inventories ( Excluding Banana Boxes ) - Del Monte Distribution Centers

O, n
r r

Total^nats^

- SKU 103500 103500 103500 103500 103590 103590 103590 103590 103590 106850..; -106850 . 106850 ; 106860., `. 106860 . 107610 107630, {107630:
^T51;07630 107630

Product Description Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats :OP R6y,Beef . Flavor Snack Sticks . Dog Treats. 01"R oyy Beef.Flavor Snack-Sticks' Dog Treats Roy Beef. Flavor,Snack Stick8 .0og Treats 01'j;' Beef. Flavor `Jerky Steps Dog Treats ;OI'iRoy,° SeefFlavor Jerky Sfn.ps Dog Treats Jerky:Treats . Beef-Flavor. Dog :Snacks eery, reats.Beef; Flavor`Dog;Spacks ,^lerEcy Treats Beef<Flavo,,r0' g,Snacks ; , .-. " :.
.^ekyreats,Beef Flavorpog :Snacks ; k 4 `EJer _ yTfeats^Beef;Flavor.0og'Snaoks YjrkyT.Treats BeeFFlavorpog'-Snacks <? ;:: {

Size 12x3oz 12x3oz 12x3oz 12x3oz 12x4.5oz 12x4. 5oz 12x4 . 5oz 12x4. 5oz 12x4 . 5oz . 6x260z ' 6x26oz
6x260 z = 6x26oz : , .

Lot Code TP7C05 TP7C06 TP7C07 TP7C08 TP7B20 TP7B21 TP7C08 TP7C09 TP7C10 TP7B19
TPM20 TP7B21 TPM06 ,'; '-

1,392 40,440 47,424 22,260 23,496 29,988 6,492 29,676 12,480 91450 40,308
22,152 2;976:

6x26oz 12x3.75oz=12x7 5ozv
1'2x7 5oz;^_ 12x7 5oz i 12x7 5ozryy

TP7B07/08 :-TP7C05/ 06 ..TP7B08 = TP7B09
TP7B10 " TP7B15 `' TP7B16

7;824 20,M.4. 10;04;. 451888,
X7;932 X26,892;

''" `107630 X1'07630 . ? 107630 , >` 107650 107650

aerkgq'reais Beef ;Flavor'Dog.Snacks `1^erky"^ teats BeefFlavor DogrSnacks `^ Jerky Treats Beef Flavor Dog Snacks Jerky Treats Beef Flavor Dog Snacks

`4;°

-12X7 5oz;, 12x7 5oz`' 12x7Ł5oz ^ ' 8x11.25oz 8x11.25oz

TP7C05 TP7C06 TP7B06
TP7B07

M

f 5$ X36 984; ^3f^ 3 4,480 30,968 ,

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

Document 87-4

Filed 11/16/2007

Page 42 of 60
8x11.25oz 8x20oz 12x15oz 12x15oz 12z4.5oz; ^ t 2x22oz ' 24x13.2oz
24)d 3.20Z 6x30oz ?

Jerky Treats Beef Flavor Dog Snacks 107650 Jerky Treats Beef Flavor Dog Snacks 130040. Jerky Treats Beef Flavor Dog Snacks (BOGO) 314410 Jerky Treats Beef Flavor Dog Snacks (BOGO) 314410 Gravy:Train Beef Sticks-Dog Snacks 344330 ` tlt3633 .Q ` MIN 90pY ^T iIsY M aty Cuts with Beefi^^n Gravy DogŁt=oorl OI' Roy with Beef Hearty Cuts in Gravy Dog Food 396050 `OI' Roywith ,Beef Hearty Strips n .Gravy Dog Food ,396060 "70..<' 401$ , OI Roy`Beef,FlavorShack Sticks.'D-og Treats

TP7B08
TP7B15 TP7B08

5,832
27,560

TP71309 TP7.131,9/20 BG 29^^ _ BC6M21
BC7A19 TP7C08

7,560 31,152 168 75;372 3,072
6,768' 29;826:

42;518` TPZC09 ,. 6x30oz,,= ;Roy Beet,Flavor-Snack Sticks''Dog Treats 6;294' TP7_C1Q == 4 r6x30oz s _ 01' RoyBeefFLavor:Snack,Sticks Dog.Treats 2$ 890 s TP7C064 6x30 oz. p8, Do Treats , F.... ° . ;t01'. Roy` Beef:Flavor Jerk Stri g Y °57y438,: ' P-7-Q07 = 16x30oz,`; Treats .. ' " 01' Roy=Beef Flavor:Jerky Stnps D . _`,v 28706 Q08 M .=6x30oz OI' Roy,Beef Flavor<Jerky, Sfr^ps,,Dog,T.reats , _ j ,, TP7C0W09 12x6oz -; Happy;Tails`Beef: Flavo.r_Beef Sticks 16,368 TP7B081 09 12x6oz Happy Tails Beef Flavor Jerky Strips <<r 5 487280 : 'TP708 6X7 5oz : ^,8'136; Jerky Trea#s Beef<FlavorwDog Snacks 6x7350 z^^ ^TP7B09^ ^k^2624 Jerky Treats;Beef-Flavorpog 487280 x990,: P7C05 f,. 16x7 5oz t Jerky Treats3$`eefiFlavor:`Dog Snacks<^, 487280 ' u` _ 4 ^ Iy6 086 TP7G06. ;627 5oz ^ ogj^Snacks b* Jerky Treats, 4 f 4"8 280 ` ^ x 4 ^ + :.: 36,396 TP7C05 12x6oz OI' Roy Beef Flavor Jerky Strips Dog Treats 566400 24,240 TP7C06 12x6oz OI' Roy Beef Flavor Jerky Strips Dog Treats 566400 7 7-79 7. 7 -7 ,12:x22oz' a s$FG6M1` ` ;xwzY`MOI' Roy,Cbuntry Stew,Hearty Cu.t"s ira4Grayy Dog FoodYr r.,.'S83880k' 13;992 TP7.C12 .. ` 1222 3oz Pounce Meaty Morsels Moist Chicken. Flavor Cat Treats 817080 1,028,306 , DISTRIBUTION CENTER TOTALS -] . 401870. 4p1870, 401880,: 4Q1880 ;2401880 rt. 424070 424110

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

Document 87-4

Filed 11/16/2007

Page 43 of 60

EXHIBIT "J"

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

Document 87-4

Filed 11/16/2007

Page 1 60 Page 44 of of 1

Fama , Richard
From : Sent : To: Cc: Sikoscow, Alexander Monday, November 12, 2007 7:35 PM [e-mail]; [e-mail] PFM[[e-mail]]; PFD[[e-mail]]; Fama, Richard; PFD [[e-mail]]; Sanom, Laura A.; PFD[[e-mail]]; PFD [rctroyer@hhlaw. com]; PFM[[e-mail]] Preservation of Product

Subject :

Attachments : #265472-v1 -N EWYORK_DOWNTOWN-Destruction_of Unorganized_Inventory.DOC Jeniphr and Scott: Attached is a proposed stipulation regarding the destruction of the unorganized inventory being stored by several of the defendants. We look forward to discussing it during our conference call tomorrow. Regards, Alex Sikoscow
Alexander Sikoscow Cozen O'Connor Phone: [phone] Fax: [phone]

11/15/2007

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

Document 87-4

Filed 11/16/2007

Page 45 of 60

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Hon. Noel L. Hillman IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION Civil No . 07-2867 (NLH/AMD) MDL Docket No. 1850 ALL CASES

AGREEMENT REGARDING THE DESTRUCTION OF UNORGANIZED INVENTORY The Parties hereby enter into the following agreement with respect to the destruction of unorganized inventory: 1. DEFINITIONS A. Party or Parties : "Party" or "Parties" means Menu Foods, Inc.; Menu Foods

Income Fund; Menu Food General Parternship Ltd; Menu Foods Holding, Inc.; Menu Foods Ltd.; Menu Foods Ltd. Partnership; Menu Foods Midwest Corp.; Menu Foods Operating Partnership; Menu Foods South Dakota, Inc.; Menu Foods Operating Trust; Menu Foods Acquisition Inc.; The Iams Company; Del Monte Foods Company; Nestle Purina PetCare Company; Nutro Products, Inc.; PETCO Animal Supplies, Inc.; PETCO Southwest, Inc.; PETCO Animal Supplies Stores, Inc.; PetSmart, Inc.; Target Corp.; Wal-Mart Stores, Inc.; Wa1Mart, Inc.; ChemNutra, Inc.; ChemNutra LLC, (collectively, the "Defendants"),1 as well as all named plaintiffs in This Litigation (collectively the "Plaintiffs").

This Agreement does not apply to those named defendants in This Litigation that do not do business in the pet food industry , including Procter and Gamble Company, Colgate-Palmolive Company, Nestle Holdings Inc., and Nestle USA, Inc. This Agreement also does not apply to those named defendants that have not been served in This Litigation.

i

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

Document 87-4

Filed 11/16/2007

Page 46 of 60

B.

The Storing Defendants :

"The Storing Defendants" means Menu Foods, Inc.;

Menu Foods Income Fund; Menu Food General Parternship Ltd; Menu Foods Holding, Inc.; Menu Foods Ltd.; Menu Foods Ltd. Partnership; Menu Foods Midwest Corp.; Menu Foods Operating Partnership; Menu Foods South Dakota, Inc.; Menu Foods Operating Trust; Menu Foods Acquisition Inc.; The lams Company; Del Monte Foods Company; Nestle Purina PetCare Company; and, Nutro Products, Inc. These parties currently posess Unorganized Inventory. C. This Litigation : "This Litigation" means the civil actions included in MDL

Docket No. 1850, pending in the United States District Court for the District of New Jersey and collectively captioned In re: Pet Food Products Liability Litigation, Civil No. 07-2867 (NLH/AMD) as of the date of this Agreement. D. Recalled Pet Food Product: "Recalled Pet Food Product" means units of pet

food, whether in cans, bags or pouches (collectively "units"), that were subject to the voluntary recalls initiated by the Defendants in March, April and May 2007 due to allegedly contaminated wheat gluten. E. Customers: "Customer" or "Customers" means business entities that purchased

Recalled Pet Food Product from the Storing Defendants.

F.

Unorganized Inventory : "Unorganized Inventory" means containers of varying

types, such as banana boxes, drums, garbage bins, etc., all dissimilar to the manner in which the Recalled Pet Food Product was packaged and shipped by The Storing Defendants, that were returned by Customers and received by The Storing Defendants in response to the voluntary recalls initiated by the Defendants in March, April and May 2007 due to allegedly contaminated wheat gluten. The contents of these containers are haphazardly organized and may contain

Recalled Pet Food Product, but often also contain pet food products that were not subject to the

2

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

Document 87-4

Filed 11/16/2007

Page 47 of 60

Defendants' recalls. Many of these containers also contain such items as car parts, household cleaners, and other non pet food products.

G.

Organized Recalled Pet Food Product : "Organized Recalled Pet Food Product"

means cases of Recalled Pet Food Product that were received by The Storing Defendants (returned by Customers or held by the Storing Defendants) in a manner similar or identical to that in which they were packaged by The Storing Defendants. Typically, the Organized Recalled Pet Food Product is packaged by The Storing Defendants with individual units contained within cardboard cases, The cases are then stacked and shrink-wrapped together on top of a wooden pallet. Because Organized Recalled Pet Food Product exists in a manner similar or identical to that in which it was packaged by The Storing Defendants, it can be easily inventoried and accounted for. 2. AGREED UPON FACTS A. Whereas all Parties to This Litigation agree that The Storing Defendants have in

their possession Unorganized Inventory in addition to Organized Recalled Pet Food Product.

B.

Whereas all Parties to This Litigation agree that the continued storage of

Unorganized Inventory poses a serious health and safety risk and imposes a significant expense upon The Storing Defendants. Some or all of the Unorganized Inventory is infested with insects and vermin.

C.

Whereas all Parties to This Litigation agree that while The Storing Defendants

have certain records regarding the return of Unorganized Inventory, such records do not contain information such as the date or manufacturer of the Unorganized Inventory, product code of the Unorganized Inventory or location of the Unorganized Inventory within The Storing Defendants

3

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

Document 87-4

Filed 11/16/2007

Page 48 of 60

storage facilities , which would allow The Storing Defendants to determine the content of any particular container of Unorganized Inventory.

D.

Whereas all Parties to this Litigation agree that inventorying the Unorganized

Inventory is not practical given the costs and labor involved.

E.

Whereas all Parties to This Litigation agree that the Plaintiffs have been

provided information by The Storing Defendants sufficient for the Plaintiffs to intelligently enter into this agreement.

3.

AGREEMENT A. In light of the above, all Parties to This Litigation agree that The Storing

Defendants currently possess Organized Recalled Pet Food Product in sufficient quantities to develop a statistically reliable sampling plan based on the Organized Recalled Pet Food Product alone, and therefore there is no need to utilize the Recalled Pet Food Product within the Unorganized Inventory for purposes of developing a sampling plan.

B.

All Parties to This Litigation also agree that The Storing Defendants may destroy

each and every container of Unorganized Inventory.

C.

The Parties to This Litigation agree that no Party to This Litigation may use the

Unorganized Inventory subject to this agreement , the absence of it and/or the destruction of it, in any way as against any other Party. Nothing in this agreement , however, shall preclude a Party from creating assumptions regarding the characteristics of the Recalled Pet Food Products contained within the Unorganized Inventory based upon the characteristics of the Recalled Pet Food Product contained within the Organized Recalled Pet Food Product. Similarly, all Parties

4

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

Document 87-4

Filed 11/16/2007

Page 49 of 60

reserve the right to object to another Parties' attempt to introduce such assumptions at the trial of This Litigation or otherwise.

5

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

Document 87-4

Filed 11/16/2007

Page 50 of 60

By: /s authorized for ECF filing Lisa J. Rodriguez TRUJILLO RODRIGUEZ & RICHARDS LLC 8 Kings Highway West Palm Beach Haddonfield, NJ 08033 Telephone: [phone] Facsimile: [phone]

By: /s authorized for ECF filing Amy W. Schulman, Esq. Mary E. Gately, Esq. Matthew Lepore, Esq. DLA Piper US LLP 1251 Avenue of the Americas New York, New York 10020 Telephone: [phone] Facsimile: [phone] [e-mail] By: A authorized for ECF filing Craig A. Hoover, Esq. Robert C. Troyer, Esq. HOGAN & HARTSON LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C. 20004-1109 Telephone: [phone] Facsimile: [phone] [e-mail]

By: /s authorized for ECF filing Mark C. Goodman, Esq. SQUIRE, SANDERS & DEMPSEY L.L.P. One Maritime Plaza, Suite 300 San Francisco, CA 94111-3492 Telephone: [phone] Facsimile: [phone] [e-mail]

By: /s authorized for ECF filing D. Jeffrey Ireland, Esq. FARUKI, IRELAND & COX, P.L.L. 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, OH 45402 Telephone: [phone] Facsimile: [phone] dj ireland@ficlaw. com

NE WYORK_DO WNTO WN\265189\1 205723.000

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

Document 87-4

Filed 11/16/2007

Page 51 of 60

EXHIBIT "K"

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

Document 87-4

Filed 11/16/2007

ag 1 60 PageP52eof of 1

Fama , Richard
From : Sent : To: Cc: Sanom, Laura A. [[e-mail]] Saturday, October 06, 2007 11:47 AM [e-mail] PFM[[e-mail]]; PFD[[e-mail]]; Fama, Richard; PFM [[e-mail]]; PFD[[e-mail]]; PFD[[e-mail]]; PFM [e-mail]] Preservation of Product

Subject :

Attachments : Letter2007 10 05.DOC Jeniphr, Attached is a copy of the letter our statistician mailed to you yesterday on behalf of the defendants who have product. I am forwarding this copy to expedite your statistician's opportunity to review the information. If you have questions, please call at your convenience. Laura Sanom Laura A. Sanom Faruki Ireland & Cox, PLL office: 313-882-7477 blackberry: 937-469-1723 Isanom ficlaw.com

The information contained in this e-mail is intended only for the use of the individual or entity to which it is addreE message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of & from your system. Although this e-mail and any attachments are believed to be free of any virus or other defect t accepted by Faruki Ireland & Cox P.L.L. for any loss or damage arising in any way from its use.

11/15/2007

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

Document 87-4

Filed 11/16/2007

Page 53 of 60

George P. McCabe, Ph.D. Statistical Consultant

753 Essex Street West Lafayette, IN 47906-1532
October 4, 2007

Jeniphr A.E. Breckenridge, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue

Seattle, Washington 98101
Re: Preservation of Sample Product

Dear Ms. Breckenridge: I have been asked to identify the assumptions, conclusions and recommendations I have made to create a sampling plan for several companies that have large quantities of pet food and raw wheat gluten. The companies that I have consulted with include ChemNutra, Inc., Menu Foods, Del Monte Foods Company, The lams Company, Nestld Purina PetCare Company, Nutro Products, Inc. and Hill's Pet Nutrition (collectively, "the Companies").

To recommend a sampling plan for the Companies, I made the following statistical assumptions:

1.

the sample can be viewed as a simple random sample from a large population; to determine the population standard deviation, I assume that the range of contamination is 0-10% and includes four standard deviations of 2.5%; and the margin of error (±) for the sample mean propagates to the margin of error for the range.

2.

3.

With these assumptions, I conclude that a sample size of 500 cans, pouches or bags, whichever is the container for the product unit sampled, per sku day (an sku day includes

Case 1:07-cv