IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Filing 96

Letter from Del Monte Foods Company. (FAMA, RICHARD)

IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Doc. 96

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

Document 96

Filed 11/27/2007

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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

November 27, 2007 VIA FACSIMILE and ELECTRONIC FILING Hon. Noel L. Hillman, U.S. United States District Judge U.S. District Court for the District of New Jersey Mitchell H. Cohen Building & U.S. Courthouse 4th & Cooper Streets Camden, NJ 08101 Hon. Ann Marie Donio United States Magistrate Judge U.S. District Court for the District of New Jersey Mitchell H. Cohen Building & U.S. Courthouse 4th & Cooper Streets Camden, NJ 08101 Re:

Richard Fama Direct Phone [phone] Direct Fax [phone] [e-mail]

In re: Pet Food Products Liability Litigation, MDL Docket No. 1850 (All Cases); Civil Action number: 07-2867

Judge Hillman and Magistrate Judge Donio: Pursuant to the parties telephone conference with Magistrate Judge Donio on Wednesday November 21, 2007, the undersigned conferred with Mark J. Tamblyn and Jeniphr Breckenridge, counsel for plaintiffs, in a effort to resolve the issue concerning the subpoena plaintiffs served on Dr. George P. McCabe, the statistician who offered a declaration in support of Del Monte Food Company's Emergency Motion presently before Judge Hillman. It was and continues to be Del Monte's position that plaintiffs are not entitled to this discovery. Yesterday, Magistrate Judge Donio memorialized our telephonic conference in an Order, which requires Del Monte to serve a motion for a protective order by noon today. This Order

Dockets.Justia.com

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

Document 96

Filed 11/27/2007

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essentially replaced the original expedited briefing schedule designed by Judge Hillman with respect to Del Monte's Emergency Motion. I am pleased to report that the parties have reached an amicable resolution to the issue of Dr. McCabe's deposition. In an effort to resolve the underlying Emergency Motion as quickly as possible, Del Monte has agreed to produce Dr. McCabe for deposition on Friday November 29, 2007. The documentary materials also subpoenaed from Dr. McCabe will also be produced subject to slight modifications also agreed upon by the parties. A copy of the email correspondence outlining the parties' agreement is attached to this letter for the Court's reference. As part of this agreement, the plaintiffs have agreed to not oppose Del Monte's request for another expedited briefing schedule regarding the underlying Emergency Motion pending before Judge Hillman. The parties have conferred and agreed to the following briefing schedule subject to Judge Hillman's approval. The plaintiffs' opposition to Del Monte's Emergency Motion must be served by 12:00 p.m. EST on December 10, 2007. Del Monte's reply papers must be served by 12:00 p.m. EST on December 19, 2007. The parties are amenable to scheduling a hearing on this motion on December 20, 2007 or December 21, 2007. If this schedule is unacceptable to this Court, the parties respectfully request a conference call to discuss another mutually agreeable expedited briefing schedule. Thank you for you time and attention to this matter.

Sincerely, COZEN O'CONNOR Attorneys for Defendant Del Monte Foods, Inc, /s/ By: AS Richard Fama

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RE: PET FOOD LITIGATION Case 1:07-cv-02867-NLH-AMD

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Sikoscow, Alexander
From : Sent : To: Cc: Mark J. Tamblyn [[e-mail]] Monday, November 26, 2007 7:38 PM Fama, Richard Sikoscow, Alexander; Jeniphr Breckenridge

Subject : RE: PET FOOD LITIGATION Agreed. Mark

Mark J . Tamblyn
WEXLER TORISEVA A Limited Liability Partnership WALLACE

1610 Arden Way, Suite 290 Sacramento, California 95815 Phone: [phone]
Fax: [phone] www.wtwiaw.com

CONFIDENTIALITY NOTICE: This e-mail message contains information belonging to the law firm of Wexler Toriseva Wallace LLP , which may be privileged , confidential and/or protected from disclosure . The information is intended only for the use of the individual or entity named above . If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited . If you have received this communication in error, please contact us immediately at 916-568-1100.

From : Fama, Richard [mailto:[e-mail]] Sent : Monday, November 26, 2007 4:37 PM To: Mark J. Tamblyn Cc: Sikoscow, Alexander; Jeniphr Breckenridge Subject : RE: PET FOOD LITIGATION We'll provide this information for the past four years, agreed? Rich From : Mark J. Tamblyn [mailto:[e-mail]] Sent : Monday, November 26, 2007 7:28 PM To: Fama, Richard Cc: Sikoscow, Alexander; Jeniphr Breckenridge Subject : RE: PET FOOD LITIGATION Rich, We agree, subject only to your agreement that you will provide us with a complete case list of prior testimony by Dr. McCabe, to be included with the Wednesday document production. Mark

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Mark J . Tamblyn
WEXLER TO.RISEVA A Limited Liability Partnership WALLACE

1610 Arden Way, Suite 290 Sacramento, California 95815 Phone: [phone]
Fax: [phone] www.wtwiaw.com

CONFIDENTIALITY NOTICE: This e-mail message contains information belonging to the law firm of Wexler Toriseva Wallace LLP, which may be privileged , confidential and/or protected from disclosure . The information is intended only for the use of the individual or entity named above . If you are not the intended recipient , you are hereby notified that any use , dissemination , distribution or copying of this communication is strictly prohibited . If you have received this communication in error, please contact us immediately at 916-568-1100.

From : Fama, Richard [mailto:[e-mail]] Sent : Monday, November 26, 2007 4:23 PM To: Fama, Richard; Mark J. Tamblyn Cc: Sikoscow, Alexander Subject : RE: PET FOOD LITIGATION Mark, Jeniphr, please respond by return e-mail that plaintiffs agree to resolve the dispute over the subpoena served upon Dr. McCabe as indicated below. Rich Agreement The parties (plaintiffs and defendants) hereby resolve their dispute over the subpoena served upon Dr. McCabe as follows: 1. Dr. McCabe shall be made available for oral examination during the afternoon of Friday, November 30th from 10 A.M. to 3:00 PM only; 2. Plaintiffs shall pay all fees and expenses associated with the deposition of Dr. McCabe, as provided by FRCP 26(b)(4)(c), at the time of Dr. McCabe's deposition; 3. Unless otherwise agreed upon at the time of the deposition, a maximum of two attorneys shall have the right to depose Dr. McCabe on behalf of all plaintiffs during the time period specified above; 4. Plaintiffs' questioning of Dr. McCabe shall pertain solely to the subject matter of his declaration (and exhibits) in support of Del Monte's motion; 5. Del Monte shall have the right but not the obligation to depose plaintiffs ' expert ( s) upon receipt of plaintiffs' opposition to Del Monte ' s motion to limit the amount of recalled product it is preserving . Del Monte shall notify plaintiffs counsel ( Jeniphr Breckenridge ) whether it wishes to depose plaintiffs ' expert ( s) within 24 hours of its receipt of plaintiffs ' opposition . Plaintiffs shall not object to a short adjournment of any briefing schedule ordered by the Court to enable Del Monte to depose plaintiffs' expert(s);

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6. Del Monte shall pay all fees and expenses associated with the deposition of plaintiffs' expert(s), as provided by FRCP 26(b)(4)(c), at the time of plaintiffs' expert(s) deposition, if taken; 7. Plaintiffs agree to strike the words "and information" from items "'1", "2" and "Y of the "Documents Requested" section of the subpoena served upon Dr. McCabe; 8. Plaintiffs agree to strike items "4" and "8" of the "Documents Requested" section of the subpoena served upon Dr. McCabe; 9. Plaintiffs agree not to oppose Del Monte's request for an expedited briefing schedule on its motion to limit the amount of recalled product it is preserving. 10. Documents responsive to the subpoena served upon Dr. McCabe , as modified above , shall be provided to plaintiffs counsel ( Jeniphr Breckenridge) by Wednesday, November 28, 2007, 5:00 PST. 11. The parties agree to notify the Court of this agreement prior to 12:00 (EST) P.M. on November 27, 2007 and to discuss with it an expedited briefing schedule of Del Monte's pending motion. The parties agree that subject to the Court's approval, plaintiffs' opposition to Del Monte's motion will be due on December 10, 2007 at 12:00 PM (EST) and Del Monte's reply will be due on December 19, 2007 at 12:00 PM (EST).

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..

From :

Fama, Richard

Sent : To: Cc:

Monday, November 26, 2007 7:03 PM Mark J. Tamblyn Sikoscow, Alexander PET FOOD LITIGATION High

Subject : Importance:

Mark, I need your sign off on this within 15 minutes.

Acireement The parties (plaintiffs and defendants) hereby resolve their dispute over the subpoena served upon Dr. McCabe as follows:

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