UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

Southern Division

Joe Solo, et al,

Plaintiffs,

vs.

UNITED PARCEL SERVICE CO.,

Defendant.

Case No.: 2:14-cv-12719

Hon. Gerald E. Rosen

Mag. Judge S. Steven Whalen

Andrew J. McGuinness (P42074)

ANDREW J. MCGUINNESS, ESQ.

122 S Main St, Suite 118

P O Box 7711

Ann Arbor, Michigan 48107

Phone: (734) 274-9374

drewmcg@topclasslaw.com

Paul F. Novak (P39524)

Diana Gjonaj (P74637)

MILBERG LLP

Chrysler House 

719 Griswold St, Ste 620

Detroit, Michigan 48226

Phone: (313) 309-1760

pnovak@milberg.com

dgjonaj@gmail.com 

Daniel R. Karon

Beau D. Hollowell

KARON LLC

700 W. St. Clair Ave. Ste. 200

Cleveland, Ohio 44113

(216) 622-1851

dkaron@karonllc.com

bhollowell@karonllc.com

Counsel for Plaintiffs and the Proposed Class

Gregory B. Koltun

MORRISON & FOERSTER LLP

707 Wilshire Blvd

Los Angeles, California 90017-3543

Phone: (213) 892-5200

gkoltun@mofo.com

Paul T. Friedman

Caitlin Sinclaire Blythe

MORRISON & FOERSTER LLP

425 Market St

San Francisco, California 94105-2482

Phone: (415) 268-7000

pfriedman@mofo.com

cblythe@mofo.com

Bonnie Mayfield (P40275)

DYKEMA GOSSETT PLLC

39577 Woodward Avenue, Suite 300

Bloomfield Hills, Michigan 48304

Phone: (248) 203-0851

bmayfield@dykema.com

Counsel for Defendant

JOINT RULE 26(F) REPORT AND INITIAL DISCOVERY PLAN

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Pursuant to Federal Rule of Civil Procedure 26(f), Plaintiffs Joe Solo and 

BleachTech LLC, and Defendant United Parcel Service Co. (“UPS”), by and

through their respective counsel, based upon their May 5, 2016, Rule 26(f) 

conference, submit this Joint Rule 26(f) Report and propose the following Initial

Discovery Plan.

1. Initial Disclosures

The parties generally agree that they shall exchange the information required 

by the initial disclosure requirements of Rule 26(a) within 30 days of May 17, 

2016 (that is, June 16, 2016), except that UPS requests that these disclosures be 

limited to information relevant to the question of whether Plaintiffs’ claims are 

subject to binding arbitration under the UPS Tariff/Terms and Conditions of 

Service (“UPS Terms”). The parties hereby stipulate and agree that they may serve 

discovery requests and responses via email, and that such requests and responses 

shall be deemed “served” under the rules on the date that they are emailed (Eastern

Time) as if they had been mailed by United States Mail on such date.

2. The Subjects on Which Discovery May Be Needed, When

Discovery Should Be Completed and Whether Discovery Should

Be Conducted In Phases.

a. Subjects on Which Discovery May Be Needed:

Plaintiffs’ Position

Pursuant to this Court’s scheduling order instruction, Plaintiffs have already 

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served their Interrogatory No. 1, seeking detailed information generally relevant to 

ascertaining the scope of the claims presented, in order to assist the parties and the 

Court in understanding and applying the proportionality principles in the recently 

amended civil rules.

Plaintiffs presently contemplate taking discovery from Defendant; any 

persons identified by Defendant as having information within the scope of Rule 26; 

any witnesses identified by Defendant; present and former employees of Defendant;

experts; agent and representatives of the Defendant; and from third parties—

including shipping consultants who may have experience or other factual 

knowledge regarding UPS policies or practices relating to declared value 

coverage—believed to have potentially relevant information.

Plaintiffs presently contemplate taking discovery concerning liability, class

certification, defenses, and damages relating to the claims presented in the 

Complaint and any amended complaint. Such discovery will include, but will not

necessarily be limited to:

1. The history, chronology, development, and changes to UPS

declared value coverage pricing, charges, and the presentation of 

those charges;

2. Organizational charts of UPS and related entities;

3. Past and present UPS personnel with responsibilities regarding 

declared value coverage;

4. Policies, practices, communications, contractual relationship(s) 

between UPS and Third Party Retailers as defined in the Complaint 

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(including UPS Stores);

5. UPS contracts, communications, policies and practices relating to 

shippers who have negotiated special or custom agreements with 

UPS that may not incorporate or apply the pricing tables for 

described in the Complaint, or substantially identical tables;

6. The enforceability of UPS’s asserted 180-day notice requirement;

7. Defendants’ allegations, admissions, other discovery responses, 

and defenses.

Paragraph 1 of the UPS Tariff/Terms and Conditions of Service (“UPS 

Terms”), Complaint Exhibit A (ECF #1, pg. ID 25), provide: “In tendering a 

shipment for service, the shipper agrees that the version of the Terms and the 

applicable Service Guide in effect at the time of shipping will apply to the 

shipment and its transportation.” There is no dispute that UPS Terms contained no 

arbitration agreement at the time of the shipments alleged in the Complaint. 

Moreover, UPS has averred that it has no contractual privity with “indirect 

shippers,” i.e., those like Plaintiff Solo who ship through a UPS Store or other 

Third Party Shipper. Plaintiffs take the position that UPS knew that direct 

shippers, such as Plaintiff BleachTech LLC, shipped packages with a declared 

value of more than $300 prior to the time it filed its motions to dismiss in this 

Court in both the companion Sivak, et al., vs. UPS action and in the instant action. 

Accordingly, Plaintiffs take the position that no limitation or delay of discovery 

regaring issus of arbitration are appropriate at this time.

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UPS’s Position

As of December 30, 2013, the UPS Terms have included a binding 

arbitration clause applicable to “any controversy or claim, whether at law or 

equity, arising out of or related to the provision of services by UPS, regardless of 

the date of accrual of such dispute.” As this Court previously has recognized, the 

UPS Terms set forth the basic terms and conditions between UPS and shippers in 

the United States. 

UPS believes one or both Plaintiffs’ claims may be subject to the 

arbitration provision. In order to confirm the applicability of the arbitration 

clause, UPS has issued written discovery requests limited to the arbitration issue, 

including identification of shipments made by each plaintiff. Depending on 

Plaintiffs’ responses, UPS anticipates that it will move to compel arbitration of 

one or both Plaintiffs’ claims.

UPS respectfully requests that this Court phase discovery as set forth 

below, with the initial discovery phase limited to the question of whether 

Plaintiffs agreed to arbitrate their claims. 

Subject to the foregoing, UPS anticipates taking discovery on topics that

will include the following:

1. Arbitrability of Plaintiffs’ claims;

Following resolution of the arbitration issue, UPS anticipates taking 

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discovery on topics including the following:

2. Plaintiffs’ compliance with contractual and statutory notice 

provisions, including whether Plaintiffs notified UPS (or caused 

UPS to be notified) of disputed charges within required time 

limitations.

3. Shipping charges actually assessed for packages Plaintiffs claim 

were overcharged.

4. Facts pertaining to Plaintiffs’ allegations regarding the manner in 

which UPS charges for declared value or issues refunds to shippers 

that purchased declared value.

5. Facts pertaining to class certification.

b. Discovery Deadline

The Parties agree that any discovery-related motions must be filed prior to

the discovery completion date.

Plaintiffs’ Position

Plaintiffs propose preliminarily that that fact discovery extend through 

January 31, 2017. Plaintiffs oppose any phasing of fact discovery. If discovery is 

stayed in whole or in any respect on account of any motion to stay, or there are 

other case developments that affect the scope or timing of discovery, the Plaintiffs

anticipate that this cutoff may need to extended.

UPS’s Position

UPS proposes phased discovery as follows:

(i) Phase One Discovery: The initial phase of discovery shall be limited to 

discovery relating to whether one or both Plaintiffs agreed to arbitrate this dispute 

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under the UPS Terms. This phase of discovery could close on August 1, 2016. 

UPS would file a motion to compel arbitration on or before August 15, 2016. 

(ii) Phase Two Discovery: In the event that this Court denies UPS’s 

motion to compel arbitration in whole or in part, fact discovery relating to the 

merits of Plaintiffs’ claims and UPS’s defenses would commence. UPS proposes 

that this second phase of discovery would extend through June 30, 2017.

c. Additional Phasing of Discovery

With regard to discovery relating to the merits of this action, the parties agree

that discovery need not be bifurcated among liability, damages, and class 

certification matters, and that a schedule for expert discovery be established at a 

future scheduling conference. The parties recognize and agree that any expert report 

or opinion offered in support of or in opposition to class certification will require 

that the expert(s) be deposed before a hearing on class certification, and that each 

party will require an opportunity to present argument to the Court based on such 

discovery prior to a ruling on class certification.

3. Depositions

Plaintiffs’ Position

Given the scope of the claims in this class action, Plaintiffs seek initially to 

be permitted to depose up to 25 total party and third-party witnesses (not including 

experts), with all Rule 30(b)(6) depositions (regardless of scope of topics covered 

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or the number of witnesses designated by UPS) treated as one deposition. Plaintiffs 

would seek leave of Court before seeking to depose more witnesses, if needed.

UPS’s Position

UPS does not believe that it is appropriate to alter the default limit of 10 total 

depositions per side set forth in the Federal Rules of Civil Procedure at this time. 

Instead, UPS proposes that the parties meet and confer regarding any adjustment to 

the limit after completion of document production, once both sides have had the 

opportunity to evaluate the number of depositions that may be needed in light of the 

witnesses who may actually have knowledge relevant to the claims. If the parties 

are unable to agree, the parties would reserve the right to seek leave of Court before 

seeking to expand these limitations.

4. Electronically Stored Information (ESI).

Plaintiffs have supplied Defendant with detailed information regarding the 

format in which they have requested that ESI should be produced in response to 

their discovery requests. Defendant has informed Plaintiffs that it anticipates having 

similar requirements. However, the parties have not yet had a substantive meet and 

confer regarding ESI, pursuant to Fed. R. Civ. P. 26(f)(3)(C). At this time, the

parties do not contemplate any issues related to the disclosure or discovery of ESI.

As contemplated by the Rules, the parties agree to meet and confer to discuss what

categories of ESI might be relevant in this litigation and anticipated for production

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throughout the course of discovery, and to determine the appropriate format of

document production, with the intent that standard Microsoft Office-type 

documents are produced in a manner that can be used with commercially available 

document management or litigation support software. Because ESI is broad, and

the parties cannot predict all possible forms of production for all categories of

documents or ESI that Plaintiffs may seek, the parties will continue to meet and 

confer throughout the course of discovery to discuss appropriate production scope 

and formats as the action progresses. Absent a stipulation to the contrary, meetings

or conferences concerning discovery requests shall not extend the time required

under the rules for response(s) and/or objection(s).

5. The case presents the following issues relating to claims of

privilege or of protection of trial preparation materials:

The parties have agreed to log any asserted privileges regarding written 

discovery as required under the Rules, with the following exceptions:

Plaintiffs’ position: that no party shall be required to log communications 

with trial counsel in either this litigation or the Sivak, et al., v. UPS case to 

which this case was deemed a “companion case” and therefore transferred to 

the judicial officers assigned to this case.

UPS’s position: that no party shall be required to log communications with 

trial counsel in this litigation taking place after the filing of this litigation.

To the extent that other issues arise relating to claims of privilege or the

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protection of trial preparation materials, the parties will meet and confer with

respect to establishing any protocols relating to these situations.

The parties agreed that UPS will draft and circulate to Plaintiffs a proposed 

protective order covering confidential information by May 16, 2016; that the 

parties shall endeavor to negotiate a stipulated confidentiality order thereafter; and 

that if they are unsuccessful they will jointly submit to the Court by May 26, 2016, 

a form of confidentiality order in Microsoft Word format highlighting their 

respective proposed language, for resolution and entry in final form by the Court.

6. Changes to limitations on discovery imposed by Federal Rules of

Civil Procedure or the local rules.

Plaintiffs’ Position

As indicated above, Plaintiffs initially seek permission to take 25 party and 

non-party depositions, which number may need to be expanded. UPS believes the 

default limit of 10 should not be altered at this time.

At this time, Plaintiffs seek to promulgate 60 interrogatories, treating their 

Interrogatory No. 1 as a single interrogatory, and not counting inquiries regarding 

ESI policies, custodians, repositories, formats, etc. Plaintiffs will seek leave of 

Court if they have a need to promulgate more than 60 interrogatories.

UPS’s Position

As explained above, UPS does not believe that the default limits under the 

Federal Rules of Civil Procedure should be altered at this time. UPS agrees to meet 

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and confer in good faith to determine whether adjustments to the limits are needed 

if and when the need arises.

7. Motion for Summary Judgment.

The parties propose that any motions for summary judgment be filed no later 

than 21 days after the close of all discovery, and at least 60 days before the pretrial 

conference.

8. Trial

The parties ask that the Court set a trial date based upon the schedule 

implemented by the Court at the May 17, 2016, scheduling conference.

The parties preliminarily anticipate the need for 6-10 full trial days (not 

counting jury selection).

9. Early Settlement/Alternative Dispute Resolution

The parties do not anticipate a realistic probability of early settlement at this 

time. The parties will continue to evaluate the prospect for some form of

alternative dispute resolution and will advise the Court accordingly.

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Dated: May 16, 2016

Respectfully submitted,

_____________________________

Andrew J. McGuinness (P42074)

ANDREW J. MCGUINNESS, ESQ.

122 S Main St, Suite 118

P O Box 7711

Ann Arbor, Michigan 48104

Phone: (734) 274-9374

drewmcg@topclasslaw.com

Counsel for Plaintiffs

/s/ Gregory B. Koltun (by AJM w/permission)

Gregory B. Koltun

MORRISON & FOERSTER LLP

707 Wilshire Blvd

Los Angeles, California 90017-3543

Phone: (213 892-5200

gkoltun@mofo.com

Counsel for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on May 16, 2016, I electronically filed the foregoing

with the Clerk of the Court using the ECF system, which will send notification of

such filing to all counsel of record.

/s/

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