In re Agent Orange Product Liability Litigation, MDL No. 381.

Decision Date06 March 1980
Docket NumberMDL No. 381.
Citation506 F. Supp. 750
PartiesIn re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.
CourtU.S. District Court — Eastern District of New York

Leonard L. Rivkin, Rivkin, Leff & Sherman, Garden City, N. Y., Morton B. Silberman, Clark, Gagliardi & Miller, White Plains, N. Y., Wendell B. Alcorn, Jr., Cadwalader, Wickersham & Taft, Ronald S. Daniels, Townley & Updike, Bud Holman and William A. Krohley, Kelley, Drye & Warren, New York City, William H. Sanders, William A. Lynch and Paul G. Lane, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., Baker & McKenzie, Chicago, Ill., John M. Fitzpatrick, Dilworth, Paxson, Kalish, Levy & Kauffman, Philadelphia, Pa., Joan Bernott, Dept. of Justice, Washington, D. C., for defendants.

Victor J. Yannacone, Jr., Yannacone & Yannacone, Patchogue, N. Y., Schlegel & Trafelet, Ltd., Chicago, Ill., L. Steven Platt, Daniel C. Sullivan, Sullivan Associates, Ltd., Chicago, Ill., Hy Mayerson, Spring City, Pa., David Jaroslawicz, New York City, Newton B. Schwartz, P. C., Benton Musselwhite, Inc., Houston, Tex., Melvin Block, Brooklyn, N. Y., Marshall A. Bernstein, Bernstein, Bernstein & Harrison, Philadelphia, Pa., Louis B. Merhige, New Orleans, La., for plaintiffs.

The Counsel of Vietnam Veterans, amicus curiae, Washington, D. C.

GEORGE C. PRATT, District Judge:

For reasons given below and discussed at the February 1, 1980 pretrial conference, the court issues the following orders.

1. Each defendant is deemed to have denied the cross-claims asserted against it by other defendants.

2. Decision on plaintiffs' motion for class action certification is reserved until after decision by the United States Court of Appeals for the Second Circuit of the interlocutory appeal taken by defendants under 28 U.S.C. § 1292(b) from this court's memorandum and order dated November 20, 1979.

3. The stay of discovery established in paragraph seven of this court's Practice and Procedure Order, dated May 18, 1979, shall continue in effect until further order of the court, except that parties may conduct voluntary discovery by agreement among themselves.

4. At the conference, plaintiffs and defendants expressed concern about destruction of records under the government's document destruction program. Plaintiffs and defendants requested the court to order the government to preserve relevant records until further notice. The government objected that too broad a preservation order might unduly disrupt the document destruction programs of some 3500 governmental agencies and departments.

The court will consider any proposed document preservation order submitted by the parties. If the parties cannot agree on the form of such a proposal, parties may if they wish submit individual proposals. For the present, the government has promised to discuss preservation of records with officials of the Veterans Administration and other departments and agencies likely to have relevant records. The government has further promised to make a good faith effort to preserve all records relevant to the litigation.

The government is under an additional obligation imposed by the Federal Rules of Civil Procedure to preserve documents requested in Dow's notice to produce. As an exception to the general stay of discovery in this litigation, the court at the conference deemed Dow's motion to produce to have been served on the government as of February 1, 1980. As a further exception to the general stay of discovery, other parties may serve notices to produce on the government, which will impose on the government a similar obligation to preserve requested documents. The government shall make every effort to promptly respond to any notice to produce served upon it.

5. Parties to this litigation who obtain information through discovery in Lowell M. Coffey v. Dow, WDKy, CA No. C-79-495-L(B) or Lowell M. Coffey v. Department of Defense, WDKy, CA No. C-79-488-L(B),1 shall make such information available to all other parties in this litigation, as agreed at the February 1, 1980 conference.

6. The computerization committee discussed in paragraph nine of this court's January 14, 1980 Memorandum and Order shall be expanded by one member to include a representative of the government.

7. (a) At the conference, the government indicated that it plans to move to dismiss the third-party complaint, based on government defenses of sovereign immunity, absence of a legal duty under the Federal Tort Claims Act (FTCA), specific exemptions available to the government under the FTCA, and the defendants' failure to state a claim under the Defense Production Act of 1950, 50 U.S.C.App. § 2061 et seq. The government's papers in support of this motion to dismiss shall be served and filed no later than March 10, 1980.

(b) Defendants' responses to the government's motion to dismiss shall be served and filed no later than March 24, 1980. By that date, defendants shall also have served and filed motion papers seeking summary judgment as to the affirmative defenses...

To continue reading

Request your trial
9 cases
  • Hirsch v. General Motors Corp.
    • United States
    • New Jersey Superior Court
    • May 4, 1993
    ...preserve all documents specifically requested that were relevant to this litigation...." Id., at 194. In In re Agent Orange Product Liability Litigation, 506 F.Supp. 750 (E.D.N.Y.1980), the court found that independent from a court order to preserve documents, "[t]he government is under an ......
  • In re Agent Orange Product Liability Litigation
    • United States
    • U.S. District Court — Eastern District of New York
    • September 25, 1984
    ...under federal common law), rev'd, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981); 506 F.Supp. 750 (E.D.N.Y.1980) (order requiring government to preserve documents relevant to the litigation); 506 F.Supp. 750 (E.D.N.Y.1980) (continuing stay of a......
  • Ryan v. Dow Chemical Co.
    • United States
    • U.S. District Court — Eastern District of New York
    • November 15, 1991
    ... ... In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION ... 747, 89 Civ. 3361 and 90 Civ. 3928, MDL No. 381 ... United States District Court, E.D. New ... ...
  • In re "Agent Orange" Product Liability Lit., s. MDL 381, CV 98-6383(JBW), CV 99-3056(JBW).
    • United States
    • U.S. District Court — Eastern District of New York
    • February 9, 2004
    ... Page 404 ... 304 F.Supp.2d 404 ... In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION ... Joe Isaacson and Phillis Lisa Isaacson, Plaintiffs, ... Dow Chemical Company, et al., Defendants, ... Daniel Raymond Stephenson, et al., Plaintiffs, ... Dow Chemical Company, et al., Defendants ... Nos. MDL 381, CV 98-6383(JBW), CV 99-3056(JBW) ... United States District Court, E.D ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT