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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`
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`In re Flint Water Cases.
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`________________________________/
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`This Order Relates To:
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`ALL CASES
`
`
`________________________________/
`
`
`Judith E. Levy
`United States District Judge
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`
`
`
`
`
`
`
`FIFTH AMENDED CASE MANAGEMENT ORDER
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`This Case Management Order (CMO) shall not apply to those
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`defendants who have not filed an answer, except as otherwise provided
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`by Court order. Any defendant to which this order does not apply shall
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`be treated as a non-party for the purposes of discovery, subject to the
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`defendant’s properly raised objection. Non-parties who have been
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`previously identified as defendants shall be entitled to participate in
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`discovery initiated by other parties. If and when any such defendants file
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`an answer, such defendants shall be entitled to initiate discovery, the
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`timing and manner of which shall then be established by this Court.
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`Contents
`I. Discovery Coordination Protocol ......................................................... 3
`A. Scope ............................................................................................... 3
`B. Definitions ...................................................................................... 5
`C. Depositions ..................................................................................... 7
`D. Other Coordination Obligations .................................................. 11
`II. Preliminary Discovery ....................................................................... 14
`A. Documents-Only Subpoenas to Non-Parties ............................... 14
`B. Exchange of Freedom of Information Act Materials ................... 21
`III. Written Discovery .............................................................................. 23
`A. Privilege Logs ............................................................................... 23
`B. Requests for Documents and Tangible Things ............................ 25
`C.
`Interrogatories ............................................................................. 27
`D. Requests for Admission ................................................................ 29
`E. Pending Criminal Charges .......................................................... 30
`IV. Requests for Entry on, Inspection, Sampling, and Testing of Land. 30
`V. Fact Witness Depositions .................................................................. 32
`A. Testimonial Depositions ............................................................... 32
`B. Depositions of Health Care Providers, and Education and
`Plumbing Professionals ....................................................................... 33
`C. Pending Criminal Charges .......................................................... 34
`D. Deposition Protocol Order ............................................................ 34
`VI. Plaintiff Examinations ...................................................................... 58
`VII. Expert Witnesses ......................................................................... 58
`VIII. Class Certification in Carthan ..................................................... 60
`IX. Notices of Non-Parties at Fault in the Individual Actions ............... 60
`X. Bellwether Trial Proceedings in the Individual Cases ..................... 61
`A. First Bellwether Group ................................................................ 61
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`1. First Bellwether Pool Selection ................................................. 61
`2. Second Bellwether Pool Selection and Written Discovery ....... 62
`3. Third Bellwether Pool Selection and Further Discovery ......... 65
`4. Expert Depositions .................................................................... 68
`B. Second Bellwether Group ............................................................ 71
`1. First Bellwether Pool Selection ................................................. 71
`2. Second Bellwether Pool Selection and Written Discovery ....... 72
`3. Third Bellwether Pool Selection and Further Discovery ......... 72
`4. Fourth Bellwether Selection Pool ............................................. 74
`5. Pretrial Motions ........................................................................ 74
`XI. Initial Discovery in Legionella Cases ................................................ 74
`A. Definitions .................................................................................... 75
`B. Disclosure of Prior Discovery ....................................................... 76
`C. Discovery in Federal Flint Legionella Cases ............................... 79
`XII. Notice of Death Procedure ........................................................... 85
`XIII. Discovery Dispute Protocol .......................................................... 88
`XIV. Pretrial Motions and Completion Date for Discovery ................. 90
`XV. Definitions .................................................................................... 90
`XVI. Appendices .................................................................................... 92
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`I. Discovery Coordination Protocol
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`A. Scope
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` (1) The purpose of this Order is to effectuate efficiency and limit
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`duplication in the discovery processes associated with litigation arising
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`out of claims made regarding the use of the Flint River as a water source.
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`Section I (Discovery Coordination Protocol) was adapted from the
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`Amended Discovery Coordination Protocol Order (ECF No. 675) and now
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`supersedes that order.
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` (2) This Order is not intended to serve as an instrument to
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`circumvent each Judge’s authority over his or her own docket, but rather
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`as an instrument that allows for notice, attendance, and participation,
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`if appropriate, in the discovery processes in the various venues wherein
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`litigation involving the same or similar parties are pending in actions
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`arising out of the same or similar events.
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` (3) This Order shall apply to all cases, currently or in the future,
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`consolidated or coordinated into the Flint Water Cases before the
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`Honorable Judith E. Levy. In that regard, it applies to all discovery
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`permitted under the Federal Rules of Civil Procedure, including,
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`without limitation: (i) depositions noticed under Rule 30; (ii) document
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`requests and requests to inspect and/or permit entry onto property
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`issued under Rule 34; (iii) subpoenas duces tecum issued under Rule
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`45 (iv) interrogatories under Rule 33; (v) motions for physical and
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`mental examination under Rule 35; and (vi) requests for admission
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`under Rule 36.
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` (4) The Court recognizes that effective coordination will require the
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`approval and cooperation of the judges in the various state and federal
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`cases that are not consolidated in the current case (5:16-cv-10444),
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`including the entry of a complementary order(s) sufficient to accomplish
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`that coordination in those other cases.1
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`B. Definitions
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` (1) “Federal Flint Water Cases” means all cases that are, currently
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`or in the future, consolidated or coordinated into the above captioned
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`case; and, subject to the entry of necessary complementary order(s): (i)
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`In re FTCA Flint Water Cases, Case No. 17-11218, currently pending
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`before the Hon. Linda V. Parker2 and (ii) any other federal court cases
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`for which the Court determines that discovery coordination would be in
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`the interest of justice.
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` (2) “State Flint Water Cases” means, subject to the entry of any
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`necessary complementary order(s), all cases that are, currently or in the
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`1 McLaren Regional Medical Center (“MRMC”) reserves the right to object to
`the entry of a complementary order in any state court case against MRMC in which
`it is alleged that individuals contracted Legionnaires’ Disease at McLaren Flint
`Hospital after April 2014. All parties to cases in other venues, including state
`courts, the Michigan Court of Claims, and In re FTCA Flint Water Cases, Case No.
`17-11218 shall have the right to object to the entry of a complementary order in
`those cases.
`2 The Hon. Linda V. Parker entered a complementary Discovery Coordination
`Protocol Order on March 3, 2020. (17-11218, ECF 112.)
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`future, consolidated or coordinated into: (i) the In re Flint Water
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`Litigation, Case No. 17-108646-NO, in the Circuit Court of Genesee
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`County, Michigan, (ii) the several legionella related cases before the
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`Hon. Joseph J. Farah in Genesee County; (iii) Tamara Nappier et al. v.
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`Snyder et. al., Case No. 16-71 in the Michigan Court of Claims; and (iv)
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`any other state court cases for which the Court determines that
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`discovery coordination would be in the interest of justice.3
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` (3) “Flint Water Cases” means the Federal Flint Water Cases and
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`the State Flint Water Cases, collectively. “CACC” means the
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`Consolidated Amended Class Action Complaint pending in Carthan v.
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`Snyder, 16-cv-10444.
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` (4) “Putative Class Action Plaintiffs” means: (i) the named plaintiffs
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`identified in the pending CACC and any subsequent Federal Flint Water
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`case brought as a putative class action; and (ii) the named plaintiffs
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`identified in any currently pending class actions or later filed class actions
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`in the State Flint Water Cases brought as a putative class action.
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` (5) “Individual Plaintiffs” means each plaintiff who: (i) has filed or
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`3 The Hon. Richard B. Yuille entered a complementary discovery
`coordination order on October 1, 2018, in In re Flint Water Litigation, Case No. 17-
`108646-NO. This case was recently transferred to the Hon. Joseph J. Farah.
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`in the future files a “Short-Form Complaint” adopting the Master Long
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`Form Complaint in either the Federal or State Court Flint Water Cases;
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`or (ii) otherwise files a non-class complaint in either the Federal or State
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`Court Flint Water Cases.
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`C. Depositions
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` (1) Subject to Section I(C)(2) below, a witness may be deposed only
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`once in the Flint Water Cases after the date of this order, except by order
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`of the Court based on a showing of good cause or by agreement of all
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`interested parties. For purposes of this order, good cause includes,
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`without limitation, a party's not having had a meaningful opportunity
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`to depose a witness because that witness's deposition was taken before
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`resolution of that party's dispositive motion(s) in a Flint Water Case, or
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`any other circumstance in which a party has not had a meaningful
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`opportunity to depose a witness. Notwithstanding the foregoing, a party
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`may depose as a fact witness under Rule 30(b)(1) or Rule 45, or the
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`comparable state court procedural rule if the deposition is noticed in a
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`state court proceeding, an individual who has been previously deposed
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`or will be deposed solely as an entity's designee under Rule 30(b)(6) or
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`the comparable state court procedural rule; but in such case the
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`individual may be deposed only once in his or her capacity as a designee
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`and only once in his or her individual capacity. Nothing in this order
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`shall be to the prejudice of any party's or witness's right to seek the
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`protection of any court of competent jurisdiction from a deposition which
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`the party or witness considers to be objectionable under the applicable
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`law.
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` (2) Depositions that are noticed in the Federal Flint Water Cases
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`shall be noticed pursuant to the Federal Rules of Civil Procedure for a
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`proposed date, time, and location, subject to the provisions of this Order.
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`See also Section V(D) (Deposition Protocol). Depositions that are noticed
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`in the State Flint Water Cases shall be noticed pursuant to the Michigan
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`Court Rules for a proposed date, time, and location, subject to the
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`provisions of this Order.
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` (3) Prior Depositions.
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`(a) To the extent counsel for parties to Flint Water Cases have
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`participated before the date of this order in depositions taken in any case
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`included within the definition of Federal Flint Water Cases, see Section
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`I(B)(1), or in any case included within the definition of State Flint Water
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`Cases, see Section I(B)(2), or in any other case arising out of
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`contamination of the City of Flint municipal water supply, such counsel
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`shall, within 14 days after the date of this order, file with this Court a list
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`that sets forth: (i) the full caption of each case in which he or she has
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`participated in such depositions, (ii) the name of each person or entity
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`deposed in each such action, (iii) the name of the party and attorney who
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`noticed each such deposition, (iv) the date(s) on which the deposition was
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`taken, (v) all means by which the deposition was recorded, whether
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`stenographically, audiovisually, or otherwise, and (vi) whether any
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`testimony taken or exhibits marked at the deposition are subject to the
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`terms of any confidentiality or other protective order entered in the case
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`in which the deposition was taken.
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` (b) To the extent counsel for parties to Flint Water Cases have
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`participated before the date of this order in depositions taken in any case
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`included within the definition of Federal Flint Water Cases, see Section
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`I(B)(1), or in any case included within the definition of State Flint Water
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`Cases, see Section I(B)(2), or in any other case arising out of contamination
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`of the City of Flint municipal water supply, such counsel shall supply
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`complete and accurate copies of the transcripts, videotapes, and other
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`recordings of, and the exhibits to, all such depositions to all counsel of
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`record in Flint Water Cases to the extent such counsel of record request
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`the transcripts, videotapes, other recordings, and exhibits in writing and
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`agree to reimburse counsel providing them for the reasonable actual cost
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`of providing the copies. Such transcripts, videotapes, other recordings,
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`and exhibits shall be delivered to the attorney requesting them within 7
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`calendar days after the request for them and agreement to reimburse is
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`made. Provided, however, that this subsection shall not require delivery
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`of transcripts, videotapes, or exhibits to the extent delivery in
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`accordance with this subsection would contravene a confidentiality
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`order or other protective order entered by the court with jurisdiction
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`over the case in which the deposition was taken.
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` (c) To the extent counsel for parties to Flint Water Cases have
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`noticed, or have received notice of, depositions to be taken but not yet
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`taken in any case included within the definition of Federal Flint Water
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`Cases, see Section I(B)(1), or in any case included within the definition of
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`State Flint Water Cases, see Section I(B)(2), or in any other case arising
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`out of contamination of the City of Flint municipal water supply, such
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`counsel shall forthwith file with this Court a list that sets forth: (i) the full
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`caption of each case in which such deposition has been noticed, (ii) the
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`name of each deponent named in each such notice, (iii) the name,
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`telephone number, and e-mail address of the attorneys who have noticed
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`each such deposition, (iv) and the date(s) for which the deposition has been
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`noticed or will be taken.
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`D. Other Coordination Obligations
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` (1) All parties to the Federal Flint Water Cases shall endeavor to
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`avoid service of discovery in any Flint Water Case that is duplicative of
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`discovery already served after the date of this order in another Flint
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`Water Case.
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` (2) Each party to the Federal Flint Water Cases shall use best efforts
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`to be familiar with the documents and tangible things that have been
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`produced and the written responses that have been made in response to
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`earlier discovery requests in the Flint Water Cases so as to avoid
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`unnecessary service of requests for documents and things that have
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`already been produced in response to discovery requests in a Flint Water
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`Case or to propound interrogatories to which complete and responsive
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`answers have already been served in a Flint Water Case. Provided,
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`however, that nothing in this Order impairs the right of any party to a
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`Flint Water Case to serve requests for supplementation of prior discovery
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`responses if the procedural rules of the court in which the requests for
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`supplementation are served provide for such requests.
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` (3) Registration of Counsel. All counsel in the Flint Water Cases who
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`have not already filed an appearance in E.D. Mich. Case No. 16-10444
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`are required to file an appearance as an interested party in that case. Any
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`obligation for service and/or notice for matters covered by this Order shall
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`be satisfied if filed in and served on all counsel listed in 16-10444. See
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`ECF No. 312, PageID.11658–11659 for instructions on how to file an
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`appearance as an interested party.
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` (4) Service by Email. All parties shall be deemed to consent to service
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`of any discovery document by email.
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` (5) Prior Interrogatories and Document Requests
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` (a) To the extent counsel for parties to Flint Water Cases have
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`issued, before the date of this Order, interrogatories or document
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`discovery (whether of parties or non-parties) (hereinafter “written
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`discovery”) in any case included within the definition of Federal Flint
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`Water Cases, see Section I(B)(1), or in any case included within the
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`definition of State Flint Water Cases, see Section I(B)(2), or in any other
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`case arising out of contamination of the City of Flint municipal water
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`supply, such counsel shall, within 14 days after the date of this order, file
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`with this Court a list that sets forth: (a) the full caption of each case in
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`which the written discovery was issued, (b) the person or party to whom
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`the written discovery was issued; (c) the title(s) and date of the written
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`discovery; (c) whether responses to the written discovery were produced or
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`served; (d) the responses are subject to the terms of any confidentiality or
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`other protective order.
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` (b) With reference to the written discovery disclosed, counsel for the
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`issuing party shall supply complete and accurate copies of the written
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`discovery responses, including any documents, to the extent that counsel
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`for any other party request them in writing and agree to reimburse counsel
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`providing them for the reasonable actual cost of providing the copies. Such
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`written discovery responses shall be delivered to the attorney requesting
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`them within 7 calendar days after the request for them and agreement to
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`reimburse is made. Provided, however, that this subsection shall not
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`require delivery of written discovery responses to the extent delivery in
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`accordance with this subsection would contravene a confidentiality order
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`or other protective order entered by the court with jurisdiction over the
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`case in which the written discovery was issued.
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`II. Preliminary Discovery
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`A. Documents-Only Subpoenas to Non-Parties
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`(1) This CMO applies to subpoenas issued in the Flint Water Cases
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`to non-parties who are commanded by the subpoena to produce
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`documents, electronically stored information, and tangible things but
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`who are not commanded by the subpoena to provide testimony. This CMO
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`supplements, but does not replace, the provisions addressing the same
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`subject matter set forth in the Court’s Order Regarding Matters
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`Discussed at the April 16, 2018 Status Conference. (ECF No. 452.) This
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`order shall remain effective except as modified by further Court order or
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`by stipulations entered on the docket in Case No. 16-cv-10444.
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`(2) Interim Lead Counsel for the Putative Class, Co-Liaison
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`Counsel, and/or any defendant may cause a subpoena to be properly
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`served on a non-party in accordance with Federal Rule of Civil Procedure
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`45 or with the non-party’s agreement to accept service by other means.
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`Once an attorney drafts a non-party documents-only subpoena, he or she
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`shall share the draft with counsel for the parties to the litigation as
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`defined by the Case Management Order, or its then current iteration,
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`who shall then have five business days to provide constructive comments,
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`as well as to propose additional categories of documents, which proposals
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`shall be shared with all counsel upon whom the draft was served. With
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`regard to subpoenas proposed and not served prior to entry of this order,
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`the foregoing five business day period shall commence upon issuance of
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`this order. The subpoena’s originator may incorporate the proposed
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`changes to the draft subpoena. After five business days have passed, the
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`subpoena’s originator may serve the subpoena in accordance with the
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`Federal Rules of Civil Procedure or pursuant to an agreement with the
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`non-party to accept service (the “Initial Subpoena”), and shall deliver a
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`copy of such issued subpoena to all parties of record. Within 5 business
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`days of the service of the Initial Subpoena, counsel for the remaining
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`parties to the litigation may serve a supplemental subpoena on the same
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`non-party requesting additional categories of documents not included in
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`the original subpoena (“Supplemental Subpoena”) and shall deliver a
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`copy of such issued subpoena to all parties of record. The lawyer serving
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`the Initial Subpoena shall at the time of such service advise the non-party
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`that Supplemental Subpoenas may be served by the other parties to the
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`litigation within 5 business days and that the non-party should produce
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`the documents requested by all subpoenas in a contemporaneous
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`production, provided that the production required by the Initial
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`Subpoena and each Supplemental Subpoena shall be made upon counsel
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`for each such requesting party, or that counsel’s document or copy service
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`provider.
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`(3) Prior to service of the Initial Subpoena, any party to the
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`litigation may choose to be a co-signatory of the Initial Subpoena by
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`advising the originator of that intent, and once so advised, the originator
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`shall include any such party as a co-signatory of the Initial Subpoena.
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`After service of the Initial Subpoena, and after service of each
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`Supplemental Subpoena, each party to the litigation shall advise the
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`originator(s) if that party would like to receive copies of the documents
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`produced by the non-party. Counsel that has proposed changes to an
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`Initial or Supplemental Subpoena is not deemed to be a signatory, or to
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`have requested copies, regardless of whether the proposed changes were
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`adopted by the originator.
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`(4) Fifty percent of the costs associated with third-party discovery
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`shall be borne by plaintiffs and fifty percent of the costs associated with
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`third-party discovery shall be borne by defendants. As to how the
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`defendants’ costs shall be allocated, the following provisions shall apply
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`to the costs associated with the initial and any supplemental subpoena:
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`(a) All defendants seeking discovery from a non-party shall
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`contribute in equal shares to the costs associated with that discovery.
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`(b) If a defendant that did not initially request or seek the discovery
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`later wants access to the information, that party shall then become
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`responsible for an equal share of the cost. The party or parties that
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`initially requested the discovery shall maintain records of the costs
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`incurred and the initial division of costs among defendants. If an
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`additional defendant joins in the request or seeks access to the discovery
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`after the costs have been allocated among the initial defendants, the
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`initial defendants shall reallocate the costs by including the new
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`defendant and the new defendant shall reimburse the initial defendants.
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`For example, if four defendants initially requested the discovery, each
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`defendant shall pay 25% of the costs. If a fifth defendant later joins in the
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`request, each defendant shall pay 20% of the costs and the new defendant
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`shall reimburse each of the initial four defendants 5% of the costs. For
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`the purposes of this process, a defendant shall mean an individual named
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`person or entity.
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`(c) The initial parties shall not provide access to the discovery
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`materials to a new party unless and until the new party pays the required
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`amount. This allocation
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`formula shall apply retroactively and
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`prospectively to all such discovery costs incurred in the Flint Water
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`Cases. Accordingly, parties that now seek to utilize discovery materials
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`previously obtained by and at the expense of other parties must
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`reimburse the “paying parties” in accordance with the formula above.
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`(d) Any disputes about these provisions may be brought to the
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`Special Master or to the Court for resolution.
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` (5) The signatories may, but need not, agree (unanimously) to
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`identify in the subpoena itself one or more of themselves as persons who
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`the non-party recipient should contact with questions about the
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`subpoena. Agreements to modify the non-party documents-only
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`subpoena, including without limitation to enlarge the time for responding
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`to it, to change the specified place or manner of production of materials
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`requested by it, or to modify the scope or description of the requested
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`materials, must be unanimous by the signatories of the subpoena. If
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`unanimity cannot be achieved with reasonable promptness, any
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`signatory may contact the Special Master to schedule a telephone hearing
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`to resolve the dispute.
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` (6) If a non-party serves objections to a non-party documents-only
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`subpoena or moves for a protective order with respect to the subpoena or
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`to quash it, Interim Co-Lead Class Counsel may bring a motion on behalf
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`of the plaintiffs named in the Consolidated Amended Class Action
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`Complaint to compel compliance with all or part of the subpoena or may
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`oppose in whole or in part the motion for a protective order or to quash;
`
`plaintiffs’ Co-Liaison Counsel may do likewise on behalf of the plaintiffs
`
`for whom they are counsel of record or at the request of any other
`
`individual plaintiff’s counsel of record; and counsel of record for any
`
`answering parties may do likewise on their clients’ behalf. If and only if
`
`plaintiffs’ Co-Liaison Counsel refuse to bring a motion to compel
`
`compliance at the request of an individual plaintiff’s counsel of record, or
`
`to oppose at the request of such other counsel of record a non-party’s
`
`motion for a protective order or to quash, may such other individual
`
`plaintiff’s counsel of record bring such a motion or file such opposition.
`
`(7) The attorney who receives a non-party’s production in response
`
`to a documents-only subpoena shall without delay notify in writing
`
`interim Co-Lead Class Counsel, plaintiffs’ Co-Liaison Counsel, and the
`
`lawyers representing the parties of his or her receipt of the production
`
`
`
`19
`
`

`

`Case 5:16-cv-10444-JEL-MKM ECF No. 1255 filed 09/08/20 PageID.39283 Page 20 of
`92
`
`and shall thereafter provide copies of all or any parts of the production to
`
`the attorneys for parties to the Flint Water Cases who make written
`
`request and pay for them. Production to such other attorneys shall be in
`
`the same form and order as the materials were produced by the non-party
`
`unless otherwise agreed in writing and shall occur as soon as is
`
`reasonably feasible in light of the form and volume of the production.
`
`Transmission of the produced materials should be by the most economical
`
`means that is reasonably feasible, such as, for example, e-mail, FTP, or
`
`other electronic means. In addition to payment to the non-party for the
`
`cost of responding to the subpoena, each party that receives a copy of the
`
`production must promptly reimburse the attorney who provided it for the
`
`reasonable actual copying and transmission cost incurred by that
`
`attorney in supplying the copy of the production.
`
`(8) Consistent with this Court’s Order Preserving Certain
`
`Immunities and Defenses for Purposes of Limited Pre-Answer Discovery
`
`(ECF No. 467), joinder in or assent to the motion for entry of this order,
`
`and participation in the activities described in this order, does not
`
`constitute a waiver of any Fifth Amendment privilege or immunity,
`
`
`
`20
`
`

`

`Case 5:16-cv-10444-JEL-MKM ECF No. 1255 filed 09/08/20 PageID.39284 Page 21 of
`92
`
`Eleventh Amendment privilege or immunity, qualified immunity, or
`
`other governmental immunity defenses.
`
`B. Exchange of Freedom of Information Act Materials
`
`(1) Within seven (7) days from entry of the original CMO (May 7,
`
`2019), Co-Lead Class Counsel and Co-Liaison Counsel will give written
`
`notice to counsel for defendants of documents and other information that
`
`they have obtained by means of Freedom of Information Act (FOIA)
`
`requests submitted pursuant to 5 U.S.C. § 552, Mich. Comp. Laws §§
`
`15.231–246, or any statute or regulation of similar purpose in any other
`
`state. This paragraph applies only to information obtained relating to the
`
`alleged contamination of the City of Flint water supply on or after April
`
`25, 2014.
`
`(2) The notice described above shall concisely identify the public
`
`person, agency, or entity
`
`that provided
`
`the FOIA response,
`
`approximately when the response was provided, the form in which it was
`
`provided, approximately how large the response was, and the general
`
`types of materials included in the response. Counsel who wish to obtain
`
`copies of the materials identified in the notice may do so from the counsel
`
`who provided the notice, but must reimburse for the reasonable actual
`
`
`
`21
`
`

`

`Case 5:16-cv-10444-JEL-MKM ECF No. 1255 filed 09/08/20 PageID.39285 Page 22 of
`92
`
`expense of providing them. Copies should be produced in the same form
`
`in which they were produced in response to the FOIA request unless they
`
`are no longer available in that form. Counsel have an obligation to
`
`ascertain the FOIA materials over which they have control.
`
`(3) Within seven (7) days from entry of the original CMO (May 7,
`
`2019), counsel for defendants will give written notice to Co-Lead Class
`
`Counsel and Co-Liaison Counsel of documents and other information
`
`that they have obtained by means of Freedom of Information Act (FOIA)
`
`requests submitted pursuant to 5 U.S.C. § 552, Mich. Comp. Laws §§
`
`15.231–246, or any statute or regulation of similar purpose in any other
`
`state. This paragraph applies only to information obtained relating to the
`
`alleged contamination of the City of Flint water supply on or after April
`
`25, 2014. The same procedures and requirements described in paragraph
`
`I.B(2) shall regulate the production of documents in this paragraph.
`
`(4) All requests for FOIA information authorized under this Section
`
`shall be made no

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