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Rule 26 Discovery Motions in FHTM Kentucky Federal Class Action case

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Rule 26 Discovery Motions in FHTM Kentucky Federal Class Action case Powered By Docstoc
					 Case: 5:10-cv-00305-JBC Doc #: 78 Filed: 10/15/12 Page: 1 of 5 - Page ID#: 1074



                       UNITED STATES DISTRICT COURT
                   FOR THE EASTERN DISTRICT OF KENTUCKY
                               AT LEXINGTON
                               Electronically Filed

YVONNE DAY, et al.,                                )
                                                   )
             PLAINTIFFS                            )
                                                   )
V.                                                 )          Civil Action No. 5:10-CV-00305
                                                   )
                                                   )
FORTUNE HI-TECH MARKETING, INC.,                   )
 et al.,                                           )
                                                   )
             DEFENDANTS                            )

                                          ********
                RULE 26(f) CONFERENCE REPORT/DISCOVERY PLAN

1.    Initial Meeting. The plaintiffs sent two requests to counsel for the defendants requesting

      dates and times for a Rule 26(f) conference. The plaintiffs also sent the defendants a

      proposed Rule 26(f) conference report. Defense counsel did not respond to the plaintiffs’

      requests for a Rule 26(f) conference, so the plaintiffs submit this proposed discovery plan

      to the Court in accordance with the Court’s September 13, 2012 Order (DN 75).

      Defendants filed a motion to stay this litigation while they appeal the Court’s order

      denying their motion to compel arbitration. (DN 77.) Plaintiffs intend to object to that

      motion.

2.    Initial Disclosures. The parties will serve by November 2, 2012, the initial disclosures

      required by Rule 26(a)(1).

3.    Discovery Plan. The parties propose to the Court the following discovery plan:

      (a)    This is an action alleging violations of the Racketeer Influenced and Corrupt

             Organizations Act and the Kentucky Consumer Protection Act, as well as unjust


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           enrichment and conversion, all based on the core allegation that the defendants

           operated and conspired to operate an illegal pyramid scheme. The plaintiffs

           anticipate that discovery will be needed on the following topics: whether the

           defendants have operated a pyramid scheme in violation of state and federal law;

           the compensation of Fortune Hi-Tech Marketing (“FHTM”) Independent

           Representatives (“IRs”); FHTM’s and the Individual Defendants’ gross income

           and profit; FHTM’s business model; the development of FHTM’s business model;

           the number of FHTM IRs; the amount of enrollment and training fees paid by

           FHTM IRs; marketing and sales techniques employed by the defendants,

           including any written and electronic marketing and/or sales materials utilized by

           the defendants to promote FHTM; and each individual defendant’s role in the

           development and promotion of FHTM.

     (b)   Disclosure or discovery of electronically stored information should be handled in

           accordance with the enclosed proposed order concerning Electronic Discovery

           and Document Production.

     (c)   The plaintiffs believe that a reasonable discovery schedule is as follows:

           i.     The parties shall complete all fact discovery by April 2, 2013.

           ii.    The plaintiffs shall serve their Rule 26(a)(2) expert disclosures by May 2,

                  2013.

           iii.   The defendants shall serve their Rule 26(a)(2) expert disclosures by June

                  2, 2012.




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            iv.      The plaintiffs shall serve their Rule 26(a)(2) expert disclosure(s) for any

                     rebuttal expert(s) by the later of July 2, 2013, or 15 days after the

                     discovery deposition of the last defense expert witness.

            v.       The parties shall complete all expert discovery by August 2, 2013.

            vi.      The plaintiffs shall move for class certification no later than September 2,

                     2013.

      (d)   The plaintiffs agree to abide by any limitations on written discovery imposed by

            the Federal Rules of Civil Procedure. Written discovery will be supplemented as

            require by Rule 26(e).

      (e)   At this time, the plaintiffs see no reason to limit the number of, or time for taking,

            depositions.

4.    Other Items:

      (a)   The plaintiffs do not request a conference with the Court before entry of a

            scheduling order.

      (b)   After the completion of fact discovery, counsel for the parties will have a better

            idea of whether this case may be resolved by early settlement.

      (c)   The parties shall be allowed until August 15, 2013 to amend their pleadings or

            join additional parties.

      (d)   The parties shall file any dispositive motions by May 2, 2013.

      (e)   The parties request a final pretrial conference 30 days before trial.

      (f)   The parties shall file a list of witnesses and exhibits, as well as a designation of

            deposition testimony to be presented at trial, by 60 days before the final pretrial




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           conference, with all listed exhibits to be made available for inspection upon

           reasonable request.

     (g)   The parties propose that after the final pretrial conference, witnesses and exhibits

           may be added by agreement of the parties or by order of the Court for good cause

           shown.

     (h)   The parties shall file any Daubert motions and motions in limine by 45 days prior

           to the final pretrial conference.

     (i)   The plaintiffs anticipate that this case will be ready for trial by November 2013

           and that the trial will last 10-15 days.

     (j)   The plaintiffs do not consent to this action being referred to a United States

           Magistrate Judge for trial under 28 U.S.C. § 636(c).



                                           Respectfully submitted,


                                            /s/ R. Kenyon Meyer
                                           R. Kenyon Meyer
                                           Stephen J. Mattingly
                                           DINSMORE & SHOHL LLP
                                           101 S. Fifth Street, Suite 2500
                                           Louisville, Kentucky 40202
                                           (502) 540-2300
                                           (502) 585-2207 (fax)
                                           kenyon.meyer@dinslaw.com
                                           stephen.mattingly@dinslaw.com
                                           Counsel for Plaintiffs




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                               CERTIFICATE OF SERVICE

        I hereby certify that on October 15, 2012, a true and accurate copy of the foregoing was
filed through the CM/ECF system, which will send a notice of electronic filing to all CM/ECF
participants.


                                            /s/ R. Kenyon Meyer
                                            Counsel for Plaintiffs




955025v2




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                           UNITED STATES DISTRICT COURT
                       FOR THE EASTERN DISTRICT OF KENTUCKY
                                   AT LEXINGTON
                                   Electronically Filed

   YVONNE DAY, et al.,                                    )
                                                          )
                   PLAINTIFFS                             )
                                                          )
   V.                                                     ) Civil Action No. 5:10-CV-00305
                                                          )
                                                          )
   FORTUNE HI-TECH MARKETING, INC.,                       )
    et al.,                                               )
                                                          )
                   DEFENDANTS                             )

                                               ********


                 ELECTRONIC DISCOVERY AND DOCUMENT PRODUCTION

   It is hereby ORDERED:

        1. Exchange of E-Discovery Materials.

           Within thirty ___ days of the date of this Order, the parties shall exchange the

   following information:

            a.     a list of the most likely custodians of relevant electronic materials, including a

   brief description of each person’s title and responsibilities;

            b.     a list of each relevant electronic system that has been in place at all relevant

   times and a general description of each system, including the nature, scope, character,

   organization, and formats employed in each system;

            c.     any other pertinent information about their electronic documents and whether

   those electronic documents are of limited accessibility, that is, those created or used by
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   electronic media no longer in use, maintained in redundant electronic storage media, or for

   which retrieval involves substantial cost;

           d.      the name of the individual responsible for the party’s electronic document

   retention policies (“the retention coordinator”);

           e.      a general description of the party’s electronic document retention policies;

           f.      all documents evidencing those electronic document retention policies;

           g.      the name of the individual who shall serve as the party’s “e-discovery

   liaison;” and

           h.      a description of any problems reasonably anticipated to arise in connection

   with e-discovery.

      2. E-Discovery Conference.

          The parties shall discuss the parameters of their anticipated e-discovery prior to the

   next status conference on this matter, which is scheduled, by separate Order, to occur on

   _______________ at ______, and shall be prepared to address e-discovery at that

   conference.

      3. E-Discovery Liaison.

          No later than thirty ____ days from the date of this Order, to promote communication

   and cooperation between the parties, each party shall designate a person who must be:

           a.      familiar with the party’s electronic systems and capabilities in order to explain

   these systems and answer relevant questions;

           b.      knowledgeable about the technical aspects of e-discovery, including electronic

   document storage, organization, and format issues;

           c.      prepared to participate in e-discovery dispute resolutions; and,



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           d.     responsible for organizing the party’s e-discovery efforts to ensure

   consistency and thoroughness and, generally, to facilitate the e-discovery process.

      4. Search Methodology.

          If the parties intend to employ an electronic search to locate relevant electronic

   documents, the parties shall disclose, within ____ days, any restrictions as to the scope and

   the method which might affect their ability to conduct a complete electronic search of the

   electronic documents. The parties shall reach agreement as to the method of searching, and

   the words, terms, and phrases to be searched with the assistance of the respective e-discovery

   liaisons, who are charged with familiarity with the parties’ respective systems. The parties

   also shall reach agreement as to the timing and conditions of any additional searches which

   may become necessary in the normal course of discovery. To minimize the expense, the

   parties may consider limiting the scope of the electronic search (e.g., time frames, fields,

   document types, etc.).

      5. Timing of E-Discovery

          Discovery of electronic documents shall proceed in the following sequenced fashion:

           a.     after receiving requests for document production, the parties shall search their

   documents, other than those identified as limited accessibility electronic documents, and

   produce responsive electronic documents in accordance with Fed. R. Civ. P. 26(b)(2);

           b.     electronic searches of documents identified as of limited accessibility shall not

   be conducted until the initial electronic document search has been completed;

           c.     requests for information expected to be found in limited accessibility

   documents must be narrowly focused with a factual basis supporting the request; and
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             d.    on-site inspections of electronic media under Fed. R. Civ. P. 34(b) shall not be

   permitted, absent exceptional circumstances where good cause and specific need have been

   demonstrated.

      6. Format

   Documents must be produced in the following format:

           a.      ESI:

      1) Single-page tiffs with Opticon load file
      2) Extracted text/OCR, one file per document
      3) Metadata in a Concordance load file with these fields:

                           Which
    Field name             records           Description
                           native files
    Native                                   Path and filename to native file.
                           only
                                             Populated only for attachments, this
    Parent ID              all attachments   field will display the BegDoc# field
                                             value of the attachment record's parent.
    BegDoc#                all               Page ID of first page in a document.
    EndDoc#                all               Page ID of last page in a document.
    BegAttach              all               BegDoc# of parent record.
                                             EndDoc# of last attached document in
    EndAttach              all
                                             family.
                                             BegDoc# of parent record, dash ('-'),
    AttRange               all
                                             EndDoc# of last attached doc in family
                                             Custodian of the information, assigned
    Custodian              all
                                             during collection
                                             Author field value pulled from metadata
    Author                 edoc
                                             of the native file.
    From                   email             Author of the email message.
    To                     email             Main recipient(s) of the email message.
                                             Recipient(s) of "Carbon Copies) of the
    CC                     email
                                             email message.
                                             Recipient(s) of "Blind Carbon Copies"
    BCC                    email
                                             of the email message.
                                             Subject field value extracted from
    Subject                edoc
                                             metadata of native file.
                                                  4
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    EmailSubject       email             Subject of the email message.
                                         Title field value extracted from the
    Title              edoc
                                         metadata of the native file.
    SentDate           email             Sent date of an email message.
    ReceiveDate        email             Received date of an email message.
    CreateDate         edoc              Creation date of the native file.
    LastModifiedDate   edoc              Date the native file was last modified.
                                         Last Saved By field value pulled from
    LastEditBy         edoc
                                         metadata of the native file.
                                         Populates parent records with BegDoc#
    Attachments        all attachments   of each attached record, separated by
                                         semi-colons.
                                         Application Name field value pulled
    SourceApp          edoc
                                         from metadata of the native file.
    FileName           edoc              Original filename of native file.
    FileExt            edoc              File extension of native file.

                       native files
    FileSize                             Size of native file, in bytes.
                       only
                                         Number of pages in a document (for
    PgCount            tiffs
                                         tiffs).
                                         Category field value pulled from
    Categories         edoc
                                         metadata of the native file.
                                         Comments field value pulled from the
    Comments           edoc
                                         metadata of the native file.
                                         Populate "Email" for email messages,
                                         "Attachment" for attachments to email
    RecordType         all
                                         messages and for embedded files, "File"
                                         for loose application files
                                         Unique identifier, similar to a
    MD5Hash            all
                                         "fingerprint", extracted from all files
                                         Unique identifier, similar to a
    Sha1Hash           all
                                         "fingerprint", extracted from all files
    Vol                all               Volume name of deliverable media


                                         Unique ID value assigned to all records,
    ID                 all
                                         starting with 1.
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            b.     Paper

                   i.   Single page TIFF images

                  ii.   DAT file including the following fields:

                             i   DOCID

                             i   EndDoc#

                             i   PGCount

                 iii.   Concordance OPT file

                 iv.    If OCR is available- Multipage Text Files & Control List (DOCID,

                        PATH TO MULTIPAGE TXT FILE)

      7. Costs.

            The costs of discovery shall be borne by each party.




   Dated:
                                                  UNITED STATES DISTRICT JUDGE




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                         UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF KENTUCKY
                        CENTRAL DIVISION AT LEXINGTON

 YVONNE DAY; LEONARD HASLAG;
 JAMES MCCORMICK; AND JOHN                     Civil Action No. 5:10-CV-00305-JBC
 TURNER, on behalf of themselves and others
 similarly situated
                                    Plaintiffs
 v.

 FORTUNE HI-TECH MARKETING, INC., et
 al.
                          Defendants


                   INTERIM ORDER REGARDING PRESERVATION OF RECORDS


       This order governs the preservation of evidence in the above-captioned cases, and shall

remain in effect for each party while a party to these proceedings or until another order of this

Court supersedes this order.

1.     Order to Meet and Confer

       To further the just, speedy, and economical management of discovery, the parties are

ordered to meet and confer as soon as practicable, no later than 30 days after the date of this

order, to develop a plan for the preservation of documents, data, and tangible things reasonably

anticipated to be subject to discovery in this action. The parties may conduct this conference as

part of the Rule 26(f) conference if it is scheduled to take place within 30 days of the date of this

order. The resulting preservation plan may be submitted to this Court as a proposed order under

Rule 16(e).

2.     Subjects for Consideration

       The parties should attempt to reach agreement on all issues regarding the preservation of

documents, data, and tangible things. These issues include, but are not necessarily limited to:

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       a) the extent of the preservation obligation, identifying the types of material to be

preserved, the subject matter, time frame, the authors and addressees, and key words to be used

in identifying responsive materials;

       b) the identification of persons responsible for carrying out preservation obligations on

behalf of each party;

       c) the form and method of providing notice of the duty to preserve to persons identified

as custodians of documents, data, and tangible things;

       d) mechanisms for monitoring, certifying, or auditing custodian compliance with

preservation obligations;

       e) whether preservation will require suspending or modifying any routine business

processes or procedures, with special attention to document management programs and the

recycling of computer data storage media;

       f) the methods to preserve any volatile but potentially discoverable material, such as

voicemail, active data in databases, or electronic messages;

       g) the anticipated costs of preservation and ways to reduce or share these costs; and

       h) a mechanism to review and modify the preservation obligation as discovery proceeds,

eliminating or adding particular categories of documents, data, and tangible things.

3.     Duty to Preserve

       a) Until the parties reach agreement on a preservation plan, all parties and their counsel

are reminded of their duty to preserve evidence that may be relevant to this action. The duty

extends to documents, data, and tangible things in the possession, custody and control of the

parties to this action, and any employees, agents, contractors, carriers, bailees, or other

nonparties who possess materials reasonably anticipated to be subject to discovery in this action.



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Counsel is under an obligation to exercise reasonable efforts to identify and notify such

nonparties, including employees of corporate or institutional parties.

        b) “Documents, data, and tangible things” is to be interpreted broadly to include writings;

records; files; correspondence; reports; memoranda; calendars; diaries; minutes; electronic

messages; voicemail; E-mail; telephone message records or logs; computer and network activity

logs; hard drives; backup data; removable computer storage media such as tapes, disks, and

cards; printouts; document image files; Web pages; databases; spreadsheets; software; books;

ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries;

compilations; computations; charts; diagrams; graphic presentations; drawings; films; charts;

digital or chemical process photographs; video, phonographic, tape, or digital recordings or

transcripts thereof; drafts; jottings; and notes. Information that serves to identify, locate, or link

such material, such as file inventories, file folders, indices, and metadata, is also included in this

definition.

        c) “Preservation” is to be interpreted broadly to accomplish the goal of maintaining the

integrity of all documents, data, and tangible things reasonably anticipated to be subject to

discovery under Fed. R. Civ. P. 26, 45, and 56(e) in this action. Preservation includes taking

reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding,

incineration, wiping, relocation, migration, theft, or mutation of such material, as well as

negligent or intentional handling that would make material incomplete or inaccessible.

        d) If the business practices of any party involve the routine destruction, recycling,

relocation, or mutation of such materials, the party must, to the extent practicable for the

pendency of this order, either: (1) halt such business processes; (2) sequester or remove such




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material from the business process; or (3) arrange for the preservation of complete and accurate

duplicates or copies of such material, suitable for later discovery if requested.

       e) Before the conference to develop a preservation plan, a party may apply to the court

for further instructions regarding the duty to preserve specific categories of documents, data, or

tangible things. A party may seek permission to resume routine business processes relating to the

storage or destruction of specific categories of documents, data, or tangible things, upon a

showing of undue cost, burden, or overbreadth.

4.     Procedure in the Event No Agreement Is Reached

       If, after conferring to develop a preservation plan, counsel do not reach agreement on the

subjects listed under paragraph 2 of this order or on other material aspects of preservation, the

parties are to submit to the court within three days of the conference a statement of the

unresolved issues together with each party’s proposal for their resolution of the issues. In

framing an order regarding the preservation of documents, data, and tangible things, the court

will consider those statements as well as any statements made in any applications under

paragraph 3(e) of this order.



Entered this _______day of October , 2012



                                                      _________________________________
                                                      United States District Court Judge




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Description: Copy of latest Discovery Motions filed in the Kentucky class action case against Fortune Hi-Tec h Marketing (FHTM).