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Robert P. Doty (SBN 148069) 

rdoty@coxcastle. corn 

Ali P. Hamidi (SBN 191198) 

ahamidi@coxcastle.corn 

James M. Purvis (SBN 281596) 

jpurvis@coxcastle. corn 

COX, CASTLE & NICHOLSON LLP 

50 California Street, Suite 3200 

San Francisco, CA 94111 

Telephone: (415) 262-5100 

Facsimile: (415) 262-5199 

Attorneys for Plaintiffs 

The Successor Agency to the former Emeryville 

Redevelopment Agency and The City of Emeryville 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

THE SUCCESSOR AGENCY TO THE FORMER 

EMERYVILLE REDEVELOPMENT AGENCY 

AND THE CITY OF EMERYVILLE, 

Plaintiffs, 

vs. 

SWAGELOK COMPANY, an Ohio corporation; 

WHITNEY RESEARCH TOOL CO, 

a dissolved California corporation; HANSON 

BUILDING MATERIALS LIMITED, 

a British Corporation; CATHERINE LENNON 

LOZICK, an individual residing in Ohio, 

Defendants. 

AND RELATED COUNTERCLAIMS AND 

CROSSCLAIMS 

Case No. 17-cv-00308-WHO 

AMENDED JOINT DISCOVERY PLAN 

Judge: 

Action Filed: 

CMC Date: 

Time: 

Hon. William H. Orrick 

January 20, 2017 

August 6, 2019 

2:00 p.m. 

LAW OFFICES OF 

COX, CASTLE & 

NICHOLSON LLP 070431\ 10652889 

SAN FRANCISCO 

Case No. 17-cv-00308-WHO 

AMENDED JOINT DISCOVERY PLAN 

Case 3:17-cv-00308-WHO Document 157 Filed 07/30/19 Page 1 of 7
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Plaintiffs The Successor Agency to the Former Emeryville Redevelopment Agency 

("Successor Agency") and The City of Emeryville ("City") (collectively, "Plaintiffs"), and 

Defendants Swagelok Company ("Swagelok"), Catherine Lennon Lozick ("Lozick"), Whitney 

Research Tool Co. ("Whitney") and Specially Appearing Hanson Building Materials Limited 

("HBML")1 (collectively, the "Parties"), by and through their respective counsel of record, hereby 

submit this Amended Joint Discovery Plan pursuant to Rule 26(f) in advance of the Case 

Management Conference scheduled to take place on August 6, 2019, at 2 p.m. 

1. Initial Disclosures. Plaintiffs, Swagelok, Lozick, and Whitney timely complied with 

Rule 26 by providing their initial disclosures on December 4, 2017. HBML timely complied with 

Rule 26 by providing its initial disclosures on March 1, 2019, after its motion to dismiss was denied. 

2. Subject(s) of Discovery. For most of 2018, Plaintiffs, Swagelok, Lozick and 

Whitney pursued jurisdictional discovery from HBML in support of their oppositions to HBML's 

motion to dismiss for lack of personal jurisdiction. Pursuant to this Court's Order, such discovery 

was limited to those jurisdictional issues raised in HBML's motion. These efforts were substantial 

and are described more thoroughly in the Parties' Joint Case Management Statement, filed 

concurrently herewith. Now that HBML's motion to dismiss has been denied, the Parties have met 

and conferred to discuss all remaining discovery issues. 

Moving forward, Plaintiffs, Swagelok, Lozick and Whitney intend to request that HBML 

supplement and produce certain information which HBML had objected to and withheld but as to 

which Plaintiffs, Swagelok, Lozick, Whitney and HBML had agreed that HBML would not claim 

waiver thereto in later discovery in the event its motion to dismiss was denied by the Court. 

Furthermore, Plaintiffs would be requesting from all Defendants the source, nature, and extent of 

the contamination at 5679 Horton Street in the City of Emeryville, Alameda County, California (the 

"Property"); Defendants Swagelok, Lozick, Whitney and HBML's alleged role(s) in causing the 

contamination; and those same Defendants' alleged actions in response to Plaintiffs' and regulatory 

agencies' requests to address the contamination or otherwise mitigate Plaintiffs' damages. 

1 HBML timely asserted, and continues to assert, that this Court does not have personal jurisdiction 

over it. 

LAW OFFICES OF 

COX, CASTLE & 

NICHOLSON LLP 070431\ 10652889 

SAN FRANCISCO 

- 1 - Case No. 17-cv-00308-WHO 

AMENDED JOINT DISCOVERY PLAN 

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Defendants Swagelok, Lozick and Whitney's initial discovery will focus on the 

environmental investigation of and acquisition by Plaintiff Successor Agency of the Property and its 

subsequent activities at the Property; the activities of Marchant and Smith Corona-Marchant 

("SCM") associated with the Property; Plaintiffs' investigations of the Property post acquisition 

(including activities of their environmental consultant that Swagelok, Lozick, and Whitney contend 

has caused and exacerbated the migration of contaminants in the subsurface), and agency oversight 

of such investigations; the source, nature, and extent of the contamination at Property; response 

costs and damages allegedly incurred by Plaintiffs relating to the contamination at the Property; 

proposed remediation plans by the City and its consultants; Plaintiffs' liability under Defendants' 

counterclaims; and HBML's liability under Defendants' crossclaims. 

After the Court denied HMBL's Motion to Dismiss (and after discussing its discovery plan 

with the other parties), HBML served Requests for Production of Documents on the other parties 

related to their allegations regarding activity by HBML 26 years after the contamination at issue 

allegedly occurred. HBML also served subpoenas on the parent company of Millennium regarding 

the Property and third party environmental consultants related to their public analyses of alleged 

contamination at the Property. HBML also noticed the deposition of an elderly witness previously 

affiliated with HBML or its affiliate. HBML plans to serve discovery on all parties related to the 

following (as applicable): their allegations regarding activity by parent company HBML from 1985 

through 1996; the environmental investigations and proposed remediation of the Property; the 

acquisition by the parties of the Property and their subsequent activities at the Property which 

contributed to contamination at the Property; agency oversight of investigations of the Property; the 

source, nature, and extent of the contamination at or allegedly emanating from the Property; 

response costs and damages allegedly incurred by Plaintiffs relating to the contamination at the 

Property; Plaintiffs' liability under HBML's counterclaims; and Swagelok's, Lozick's and 

Whitney's liability under HBML's crossclaims. 

LAW OFFICES OF 

COX, CASTLE & 070431 10652889 - 2 - Case No. 17-cv-00308-WHO NICHOLSON LLP \ 

SAN FRANCISCO AMENDED JOINT DISCOVERY PLAN 

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All parties reserve the right to propound additional discovery on further topics relevant to 

their claims, counterclaims and crossclaims and defenses, and the counterclaims, crossclaims and 

defenses of other parties. 

3. Timing of Discovery. 

At this time, the Parties propose the following general timeline for conducting discovery: 

Event Proposed Deadline 

Date By Which Parties May Complete Any 

Testing of the Project Site Later of July 30, 2020 (or 30 days prior to site 

demolition)2

Complete Depositions of Non-Expert Witnesses 

and Fact Discovery Cut-off 

August 30, 2020 

Expert Witness Disclosures and Reports October 30, 2020 

Rebuttal Expert Disclosures and Reports February 28, 2021 

Expert Discovery Cutoff May 30, 2021 

Last Day to File Dispositive Motions August 16, 2021 

Pretrial Conference TBD 

Trial TBD 

All of the above dates also may, in addition, be subject to change by mutual agreement of the 

Parties and/or Court order in the event of unforeseen circumstances. 

4. Phasing of Discovery. Except as otherwise stated above, the Parties do not believe 

that discovery should be phased, limited, or focused on particular issues. Discovery of fact 

witnesses will be completed before the exchange of expert reports and commencement of expert 

discovery. 

5. Electronically Stored Information. The Parties do not anticipate any issues relating to 

the disclosure or discovery of electronically stored information, including the form or forms in which 

it should be produced. 

6. Privilege and Protection. The Parties have agreed to provide a privilege log relating to 

any document or category(ies) of documents withheld pursuant to Rule 26(b)(5)(A). Subsequent 

claims of inadvertent production of protected materials may be made in accordance with Rule 

2 Plaintiffs will give the other Parties 90 (ninety) days written notice of any site demolition. 

LAW OFFICES OF 

COX, CASTLE & 

- 3 - Case No. 17-cv-00308-WHO NICHOLSON LLP 070431 \ 10652889 

SAN FRANCISCO AMENDED JOINT DISCOVERY PLAN 

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26(b)(5)(B). Upon service of a privilege log and assertion of a privilege, any dispute regarding any 

claim or privilege will be resolved through a motion to compel, following appropriate efforts to meet 

and confer. 

7. Millennium Custodial Trust Privilege Log from Pillsbury Law Firm. During the course 

of jurisdictional discovery, Plaintiffs, Swagelok and Lozick incurred substantial costs related to a 

subpoena of documents from the Millennium Custodial Trust. Collectively, Plaintiffs, Swagelok and 

Lozick assert that they have incurred over $100,000 for 115,822 pages of documents produced by 

Pillsbury, counsel for the Millennium Custodial Trust. Such costs consisted of Pillsbury's hourly 

attorney review time, scanning, privilege review and quality control review. Despite HBML's 

position that precedent requires otherwise, HBML does not object to duplicate documents not being 

produced and has confirmed that third party Millennium Custodial Trust has now produced to HBML 

all documents produced to the other parties in connection with their subpoenas on Millennium 

Custodial Trust. 

As part of Plaintiffs,' Swagelok's and Lozick's meet and confer conferences with Pillsbury, 

Pillsbury has informed them that it refuses to produce a privilege log without reimbursement of no less 

than an additional $182,000 for their attorney preparation of such privilege log. Plaintiffs, Swagelok 

and Lozick believe that they have incurred more than the reasonable amount of the costs to obtain 

such documents and intend to bring a motion for an order compelling Pillsbury to provide a privilege 

log without further cost to the parties. 

8. Discovery Changes/Limitations. The Parties believe that the limitation in Rule 30(a) 

regarding the number of depositions that may be taken without leave may not be adequate in this case, 

as the Parties' Initial Disclosures collectively identify over 40 individuals potentially with knowledge 

regarding various items at issue in this dispute. 

Plaintiffs, Swagelok, Lozick and Whitney also believe that, due to the complexity of the 

transactions related to HBML's and its affiliates' acquisition of Marchant and/or SCM and creation of 

numerous other entities through the merger and demerger process, the 7-hour time limitation per 

deposition will likely be inadequate to complete the deposition of HBML witnesses. 

LAW OFFICES OF 

COX, CASTLE & 

NICHOLSON LLP 070431\ 10652889 - 4 - Case No. 17-cv-00308-WHO 

SAN FRANCISCO AMENDED JOINT DISCOVERY PLAN 

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HBML believes that the parties should complete the depositions of witnesses for any party, 

including HBML, within the 7-hour time limit set by and in compliance with the Federal Rules of 

Civil Procedure. 

The Parties agree that, the limitations in Rule 33(a)(1) regarding the total number of 

interrogatories that may be served on any party without leave of court (25) is not adequate in this case 

and should be increased to the following (regardless of when served): 50 interrogatories. 

The Parties reserve their rights to seek leave to extend the 7-hour deposition time limitation or 

to serve additional interrogatories should the need arise. 

9. Other Orders and Issues for Consideration. The Parties reserve the right to raise any 

other issues for consideration and orders by the Court as may arise during the course of discovery. 

Dated: July 30, 2019 COX, CASTLE & NICHOLSON LLP 

By: /s/ Robert P. Doty 

Robert P. Doty3

Ali P. Hamidi 

Attorneys for Plaintiffs 

THE SUCCESSOR AGENCY TO THE FORMER 

EMERYVILLE REDEVELOPMENT AGENCY AND 

THE CITY OF EMERYVILLE 

Dated: July 30, 2019 BAKER & HOSTETLER LLP 

By: /s/ Joelle A. Berle 

John D. Parker 

Joelle A. Berle 

Attorneys for Defendants 

SWAGELOK COMPANY and 

WHITNEY RESEARCH TOOL CO. 

Dated: July 30, 2019 MANSOUR GAVIN, LPA 

By: /s/ Jeffrey M. Embleton 

Jeffrey M. Embleton 

Samuel R. Martillotta 

Attorneys for Defendant 

CATHERINE LENNON LOZICK 

3 Concurrence in the filing of this document has been obtained from each of the other signatories. 

LAW OFFICES OF 

COX, CASTLE & 

- 5 - Case No. 17-cv-00308-WHO NICHOLSON LLP 070431 \ 10652889 

SAN FRANCISCO AMENDED JOINT DISCOVERY PLAN 

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Dated: July 30, 2019 WENDEL ROSEN BLACK & DEAN LLP 

By: /s/ Christine K Noma 

Christine K. Noma 

Attorneys for Defendant 

CATHERINE LENNON LOZICK 

Dated: July 30, 2019 K&L GATES LLP 

By: /s/ Belynda S. Reck 

Belynda S. Reck 

Kevin Asfour 

Attorneys for Defendant 

HANSON BUILDING MATERIALS LIMITED 

LAW OFFICES OF 

COX, CASTLE & 070431 10652889 - 6 - Case No. 17-cv-00308-WHO NICHOLSON LLP \ 

SAN FRANCISCO AMENDED JOINT DISCOVERY PLAN 

Case 3:17-cv-00308-WHO Document 157 Filed 07/30/19 Page 7 of 7