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United States v. Philip Morris

March 27, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PHILIP MORRIS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

Next Scheduled Appearance: July 20, 2001 at 9:30 a.m.

ORDER # 51

NINTH CASE MANAGEMENT ORDER

On December 22, 2000, this Court entered Order #41, appointing a Special Master (the Honorable Richard A. Levie (Ret.)), and assigning him the following responsibilities: development of a comprehensive detailed case management plan, and development of a procedure for resolving discovery and privilege disputes.

Acting with commendable dispatch, the Special Master submitted his Report and Recommendations on February 26, 2001. That Report, with its introductory section of 18 pages, totaled 170 pages; the order proposed by the Special Master, to implement his Recommendations, was 60 pages long.

The Special Master's Report makes clear that he had innumerable in-person and telephonic conferences with the parties; moreover, it is also clear that he waded through hundreds and hundreds of pages of written and electronic submissions from the parties.

This Court has now spent many, many hours digesting the Special Master's Report, weighing the positions of the parties regarding the manner in which the case will be litigated in the next two and a quarter years, and making some significant revisions to the order proposed by the Special Master.

Those revisions are designed to remedy, at least to some degree, the unproductive manner in which the parties chose to address many issues presented to the Special Master. It is clear from his comprehensive Report that the parties have complicated and over-lawyered the case management issues to such a degree that they have lost all sight of the over-arching goal--namely the need to be prepared for trial on July 15, 2003. Many of the positions they have advocated have been either impractical, unwieldy, or in one or two instances, just plain foolish. The Court cannot emphasize too strongly that resolution of this litigation will not be derailed because counsel are focusing their energies on minor side issues or needlessly wasting the Court's time and energies.

There is an enormous amount of work to be completed to get this case trial-ready. To achieve that goal, the Court has made many changes to the proposed case management order, all of which are designed to streamline procedures, to reduce time frames and page limits so as to force counsel to focus on the real issues rather than generate reams of briefs, and to ensure a steady and inter-related flow of work from counsel to the Special Master to the Court.

Among the most significant changes are the following:

ù the Court will hold regular quarterly status conferences;

ù all motions requesting immediate decision by the Court rather than by the Special Master on "controlling issues of law" will go to the Special Master first; he will issue a brief recommendation to the Court on an expedited basis, and there will be no stay of matters before the Special Master pending the Court's ruling;

ù the authenticity procedure has been simplified in that no challenge may be raised to documents deemed authentic and challenges to documents presumed authentic can be made only under certain circumstances;

ù the parties' ability to assert privilege as to Bliley documents has been narrowed;

ù written discovery is to be substantially completed by December 1, 2001;

ù time and page limits have been reduced in numerous instances;

ù the government is required to make space and outlets available at Federal Records Centers and allow copying by personnel or agents of the Defendants;

ù provision for destruction of Bliley documents has been removed;

ù all days referred to in the Order are calendar days;

ù parties seeking to prevent deposition testimony must certify that they have turned over all previous testimony in related cases of that deponent; and

ù the Special Master is given authority to recommend sanctions for dilatory tactics, frivolous motions/arguments, or for otherwise violating the terms and/or spirit of this Order.

Wherefore, it is this day of March 2001, hereby ORDERED, that the following comprehensive case management order shall govern this case:

I. Preliminary Matters

A. Prior Case Management Orders.

The primary orders that have governed case management to date in this matter are Order #1 (First Case Management Order for Initial Scheduling Conference), entered October 19, 1999; Order #2 (Second Case Management Order), entered November 22, 1999; Order #6 (Sixth Case Management Order), entered February 22, 2000; Order #7 (Protective Order Governing Confidential Information), entered March 3, 2000; Order #14 (Seventh Case Management Order), entered August 14, 2000; Order # 16, entered October 12, 2000; Order #36 (Addendum to Protective Order for Highly Confidential Information), entered November 15, 2000; Order #37 (Eighth Case Management Order Setting Pre-Trial Schedule), entered November 17, 2000; Order #41 (Order Appointing the Special Master), entered December 22, 2000; and Order #45 (Preservation of Privileges), entered February 5, 2001.

B. Powers Conferred Upon the Special Master

To the extent that this Order grants the Special Master duties, responsibilities or powers not delineated in Order #41, such duties, responsibilities or powers are hereby granted.

C. Scope of Order

This Order, in conjunction with others previously entered, shall govern discovery and all other pre-trial activity until further order of the Court. This Order does not affect or modify the parties' respective rights and obligations under the Court's Seventh Case Management Order (Order # 14) regarding the schedule for objecting and responding to Preliminary Requests and Comprehensive Requests for production of documents, or under the Court's Eighth Case Management Order (Order #37) setting a pre-trial schedule. Documents filed with the Special Master pursuant to this Order shall be filed with the Court in compliance with LCvR 5.1 and the provisions of this Order relating to the handling of documents and transcripts (or portions thereof) filed under seal.

D. Modification of Dates

Consistent with Order #37, the scope and timing of discovery reflected in this Order is predicated on the current status of the (original) complaint, that is, as modified by (1) the Court's Memorandum Opinion and Order of September 28, 2000, dismissing Counts I and II of Plaintiff's complaint, and (2) the Court's Memorandum Opinion and Order of January 31, 2001, denying Plaintiff's Motion to Modify. Should any party obtain interlocutory or other relief from that ruling, the dates and restrictions on discovery set forth in this Order shall be subject to modification to reflect the impact of such relief. In the event that any portion of Counts I and II are reinstated, the parties shall meet and confer with the Special Master within thirty (30) days after entry of the Order reinstating such claims to discuss the modifications proposed by the parties regarding the scope and timing of discovery set forth in this Order and Order #37, and shall submit their joint or separate provisions and memoranda to the Special Master no later than forty-five (45) days after entry of the Order reinstating such claims. The Special Master shall then make recommendations to the Court regarding modification of this Order and Order # 37.

E. Quarterly Status Conferences with the Court

The Court will hold a status conference every three months, the first of which shall be held on July 20, 2001 at 9:30 a.m. No later than five (5 days prior to the status conference, the Plaintiff and Defendants shall exchange proposed agendas for the conference and serve the agendas on the Special Master. No later than two (2) days prior to the status conference, designated counsel for plaintiff and defendants shall confer, by telephone or in person, regarding the agenda items in an effort to resolve or narrow disputes. Immediately thereafter, the parties shall inform the Court and the Special Master of any modifications to their respective agendas. Should the Special Master have any issues for the agenda, he shall forward them to the parties and the Court at least two (2) days prior to the status conference.

F. Meetings with the Special Master Regarding Specific Matters

1. Expert Discovery

No later than May 15, 2001, the parties shall exchange proposals regarding the timing and manner of expert discovery, including expert reports and a provision for rebuttal experts. The parties shall meet and confer with the Special Master regarding expert discovery proposals no later than May 31, 2001. No later than June 8, 2001, the parties shall submit to the Special Master a proposed Order governing expert discovery in this matter, consistent with Order #41. To the extent there are any disputes, the Special Master may establish a briefing schedule consistent with this Order.

2. Exhibit Lists, List of Witnesses, Deposition Testimony to be Used at Trial, Motions in Limine, and Other Pre-Trial Matters

No later than August 1, 2002, the parties shall meet and confer to discuss protocols for the designation of Exhibit Lists, Lists of Witnesses, Deposition Testimony to be used at trial, Motions in Limine and other pre-trial matters. No later than September 4, 2002, the parties shall submit to the Special Master a proposed Order setting forth protocols for the designation of Exhibit Lists, Lists of Witnesses, Deposition Testimony to be used at trial, Motions in Limine, and other pretrial matters.

G. Communications With the Court or the Special Master

There shall be no ex parte communications with the Court or the Special Master, except for purposes of contacting administrative personnel for scheduling matters, or as otherwise set forth in this Order, or for purposes of asserting a privilege dispute pursuant to ¶ II.C.3 herein.

H. Service

All papers required to be served under this Order shall be served in accordance with the Federal Rules of Civil Procedure, the Local Civil Rules of the United States District Court for the District of Columbia and prior orders of the Court in this case, unless otherwise provided herein. Papers required to be served on counsel and the Special Master may be served by electronic transmission in addition to other required manners of service.

I. Computation of Time

With respect to the computation of time for acts required under this Order, Fed. R. Civ. P. 6(a) shall apply, except that when the period of time prescribed or allowed is less than 11 days, intermediate Saturday, Sundays, and legal holidays shall be included in the computation; Fed. R. Civ. P. 6(e) shall not apply.

II. Procedures for Resolution of Discovery and Privilege Disputes

A. Substantive Issues of Law

Nothing set forth in this Case Management Order shall be deemed to affect any substantive right, claim or defense of any party to this case, or constitute any ruling or order on any question of law.

B. General Procedures for Resolution of Discovery and Privilege Disputes

1. Monthly Conferences

(a) The Special Master shall hold monthly formal status conferences on the second Tuesday of each month, unless otherwise ordered by the Special Master. The general purpose of these status conferences is to provide a forum for the parties to discuss discovery activity since the last meeting, to discuss planned discovery activities for the coming month, to discuss anticipated discovery problems likely to arise in the coming month, to review the overall status of discovery in the context of Order #37 and this Order, to discuss specific or systemic matters that may enhance or limit the parties' ability to complete discovery within the limits of Order #37 and this Order, and to discuss such other matters as scheduled by the Special Master.

(b) Status conferences may be conducted in-person or via telephone. No later than five (5) days prior to the monthly status conference, the Plaintiff and Defendants shall exchange proposed agendas for the conference and serve the agendas on the Special Master. Each proposed agenda item must include: (a) a brief description of the issue, (b) the efforts to resolve the issue, and (c) the potential relief (if any) that may be sought in the future by a party listing the agenda item. No later than two (2) days prior to the monthly status conference, designated counsel for plaintiff and defendants shall confer, by telephone or in person, regarding the agenda items in an effort to resolve or narrow disputes. Should the Special Master have any issues for the agenda, he shall forward them to the parties at least two days prior to the conference between counsel. Absent a showing of good cause, the Special Master shall not permit discussion of matters not placed on the proposed agenda pursuant to these procedures.

(c) The status conferences shall be transcribed. The costs of transcribing the status conference shall be borne by the parties in the same manner as compensation for the Special Master pursuant to paragraph 4 of the Court's December 22, 2000 Order (Order #41).

2. Meet and Confer Requirements

Prior to filing any motion seeking relief in connection with a discovery or privilege dispute, the party intending to seek relief shall initiate a "meet and confer" session in accordance with LCvR 7.1(m). In the event that the meet and confer session does not solve the outstanding issues, the party seeking relief may file a motion in accordance with the procedures set forth in ¶ II.B.4 below.

3. Controlling Issues of Law

(a) At the meet and confer, the parties shall discuss whether the matter involves an important controlling issue of law that should be resolved in the first instance by the Court, pursuant to the Court's December 22, 2000 Order Appointing the Special Master (Order #41).

(b) A party seeking initial judicial consideration with respect to a "controlling issue of law" relating to a discovery or privilege dispute (hereinafter "dispute motion") shall file with the Special Master and the Court, and serve upon opposing counsel, a motion (hereinafter "issues motion"), not to exceed five (5) pages, setting forth the asserted controlling issue(s) of law and the reason(s) why the Court, rather than the Special Master, should determine such issue(s) in the first instance. Any party opposing the issues motion shall file a response, not to exceed five (5) pages, to the issues motion within five (5) days of service of the issues motion. In an issues motion and any opposition thereto, neither the moving party nor the opposing party shall argue the substance of the asserted dispute motion.

(c) If the party filing the dispute motion seeks initial judicial consideration, the issues motion shall be filed and served simultaneously with the dispute motion. If the party opposing the dispute motion seeks initial judicial consideration, that party's issues motion shall be filed no later than the filing of the response to the dispute motion; the party filing the dispute motion shall then have five (5) days to file a response, not to exceed five (5) pages, to the issues motion.

(d) As soon as an issues motion is ripe for review by the Special Master (for a contested motion, upon receipt of the opposition, and for a consent motion, upon receipt of the motion), the Special Master shall begin considering it. The Special Master shall submit, preferably within 48 hours, a recommendation to the Court, generally not to exceed one page, on disposition of the issues motion. Upon receipt of the recommendation, any party may file, within one (1) day, an objection to the recommendation, not to exceed five (5) pages; the party shall attach to its objection a copy of the issues motion and all responses thereto. Upon receipt of the Special Master's recommendation and any objections thereto, the Court shall rule on the issues motion as expeditiously as possible. The service and filing of an issues motion shall not stay the Special Master's consideration of the underlying dispute motion. In the event that the Court grants the issues motion, the Special Master shall immediately cease consideration of the underlying dispute motion, pending further Order of the Court.

4. Motions Practice

(a) The party seeking relief may file a motion for relief (e.g., a motion to compel or a motion for protective order) and supporting papers with the Special Master and serve counsel of record.

(b) The party against whom relief is sought may file a written response within ten (10) days from the date the discovery motion was served. Where the motion concerns a challenge to a privilege dispute, the party asserting the privilege shall file a response within twenty (20) days.

(c) The moving party may file and serve a reply no later than five (5) days from the date the response was served. Where the motion at issue is a challenge to the assertion of a privilege, the moving party may file a reply ...


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