The opinion of the court was delivered by: PRATT
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, W.D.Ky., CA No. C-79-495-L(B) or Lowell M. Coffey v. Department of Defense, W.D.Ky., CA No. C-79-488-L(B),
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 specified below:
(i) affirmative defenses 12, 13, 20, 21, 22, 24 and 27 in Dow's answer, filed December 10, 1979, to the TAVC, and incorporated by reference into Dow's amended answer filed January 14, 1980.
(ii) affirmative defenses 4, 5, 6, 7, 8, 9, 12 and 15 in Thompson-Hayward's second amended answer filed January 14, 1980.
(iii) affirmative defenses 11, 14, 16, 17, 18 and 24 in Monsanto's amended answer ...