UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE, DIVISION 

 

MARIA PARSONS and MICHAEL PARSONS, 

MARY ANN JONES and JAMES ARTHUR 

JONES, SR., SHANTELL SHAMEA JONES, 

Individually, and as the Parent and Natural 

Guardian of CARLOS UDAE STEPHENSON, 

AARON JONES STEPHENSON, and OZIAH 

CARSON JONES, Minor Children, SANDRA 

WATTS KENNEDY and KEVIN KENNEDY, 

Individually, and as the Parents and Natural 

Guardians of MURIELLE KEELY KENNEDY, a 

Minor Child, and FARINDA OSTEEN, 

Individually and on Behalf of a Class of Persons 

who are Similarly Situated, 

 Plaintiffs, 

v. CASE NO. 1:10-cv-00071-MP-GRJ 

KOPPERS INC., f/k/a KOPPERS INDUSTRIES, 

INC., CABOT CORPORATION, and BEAZER 

EAST, INC. 

 Defendants. 

 

JOINT RULE 26 CONFERENCE REPORT

Preliminary Statement

This Case Management Report sets out a specific and detailed structure for the 

progress of this case. Under the proposed approach, the case will proceed in an orderly 

sequence. If the case survives Defendants’ motion to dismiss but the Court grants 

Defendants’ motion to strike Plaintiffs’ class allegations, and class issues are removed 

from the case, discovery and other pretrial activities directed toward the named Plaintiffs’ 

individual claims may commence immediately. If, on the other hand, any class 

allegations survive Defendants’ motion to strike, the parties believe that discovery 

should, in the initial stages, be focused on preparing the evidentiary record for briefing 

and argument on class certification. Once the issue of class certification is decided, the 

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parties and the Court will know the size and scope of this case and be in a far better 

position to assess the remaining discovery and pretrial activities in the case on the merits. 

The purpose of this approach is to promote judicial economy and the orderly and 

timely resolution of this case. This approach appropriately balances the need for 

sufficient time for factual development and briefing in a case of this size and complexity, 

with the parties’ and the Court’s interest in prompt resolution of this dispute. 

1. Meeting of the Parties: Pursuant to the Court’s September 23, 2010 Initial 

Scheduling Order, the following persons participated in a Rule 26(f) conference 

on October 21, 2010 by telephone conference: 

Name Counsel for

Ervin A. Gonzalez Plaintiffs 

Dennis P. Waggoner Koppers Inc. and Beazer East, Inc. 

David A. Kanter Koppers Inc. and Beazer East, Inc.

Brent R. Austin Koppers Inc. and Beazer East, Inc. 

2. Initial Disclosures: The parties will complete the initial disclosures required by 

Rule 26(a)(1) by November 30, 2010. 

3. Discovery Plan: The parties propose the following discovery plan:

a. Discovery Issues and Timing – Rule 26(f)(3)(B): 

i. Subjects on Which Class-Certification Discovery Will Be Needed: 

Class certification discovery will focus on whether or not alleged 

common issues among putative class members or property-specific 

issues would be the focus of a class trial on the merits, and whether 

the named Plaintiffs would be adequate class representatives. At a 

minimum, such issues are relevant to Rule 23’s commonality, 

typicality, adequacy, predominance, and superiority requirements. 

Thus, discovery would be focused on issues such as the following: 

(1) whether and to what extent any plaintiff’s property has elevated 

levels of chemicals of concern; (2) if so, whether the alleged “Site” 

or some other source is the cause of the elevation; (3) whether the 

concentrations of any chemicals of concern are at levels that pose a 

potential risk to human health; and (4) whether the value of any 

plaintiff’s property has been impacted by any elevated levels of 

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chemicals of concern in light of the use of the property (i.e. 

residential versus commercial).1

ii. Sequencing of Class Certification Issues Before Merits Issues: 

The parties propose sequencing discovery to focus on class 

certification issues before merits issues, consistent with the Manual 

for Complex Litigation, Fourth, §21.14 and the Eleventh Circuit’s 

decision in Washington v. Brown & Williamson Tobacco Corp., 

959 F.2d 1566, 1570-71 (11th Cir. 1992), using the schedule set 

forth below in Section 3(a)(iii). 

The parties will endeavor to agree on what constitutes “class 

discovery” and what constitutes “merits discovery.” Recognizing 

that there may be reasonable differences in opinion on the scope of 

“class discovery,” the parties will seek the Court’s assistance on 

this issue only after attempting to resolve their differences.

iii. Proposed Schedule: The parties propose the following schedule: 

1. Pleadings: On September 20, 2010, Defendants filed a 

Motion to Dismiss Class Action Complaint or, in the

Alternative, to Strike Class Allegations and Prayers for 

Relief [DE-17]. Plaintiffs filed an Amended Class Action 

Complaint on October 6, 2010 [DE-22]. Plaintiffs also 

filed on October 6, 2010 their Nunc Pro Tunc Motion for 

Extension of Time to File a Motion for Class Certification. 

[DE-23] (“Motion for Extension”) Defendants have until 

November 19, 2010 to file their responses to the Amended 

Complaint and to Plaintiffs’ Motion for Extension. 

Discovery shall not commence until after Plaintiffs have 

filed a complaint that survives a motion to dismiss, if any 

(hereinafter, “Complaint”), and Defendants have answered 

the Complaint. 

2. Class Certification Discovery and Briefing Schedule:

a. If the Court grants Plaintiffs’ Motion for Extension, 

Plaintiffs shall file their Motion for Class 

Certification (along with all supporting evidence 

and any supporting expert affidavits or reports), 

designate experts for class certification hearing and 

disclose fact witnesses not already disclosed as part 

 

1

 Neither Plaintiffs nor Defendants are waiving any arguments in connection with the class certification 

issue in this brief summary of the case. 

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of the Initial Disclosures on class certification 

issues within 90 days after Defendants’ Answer to 

the Complaint is filed. The parties may begin to 

serve requests for entry onto land related to class

issues, if any, at this time. 

b. The final date for filing motions for leave to join

parties shall be thirty days after Defendants’ 

Answer to the Complaint is filed. 

c. Fact Discovery. The parties shall complete written

discovery and depositions of Plaintiffs’ fact 

witnesses on class certification issues (which could 

involve as many as 5 property inspections, 12 

depositions of plaintiffs, and examination of 

potential medical issues) within 150 days after 

Defendants’ Answer to the Complaint is filed. 

d. Expert Discovery. The parties shall complete 

depositions of Plaintiffs’ expert witnesses within 90 

days after the close of Fact Discovery as set forth

above. Defendants shall serve expert reports related 

to class certification issues within 90 days after the 

close of Fact Discovery as set forth above. The 

parties shall complete depositions of Defendants’ 

expert witnesses on class certification issues within 

90 days after the close of Fact Discovery as set forth 

above. 

e. Defendants’ Opposition to Class Certification, all 

motions to exclude any expert designated by any 

party under Daubert and its progeny and any other 

potentially dispositive motions (including motions 

for summary judgment) shall be filed 45 days after 

the close of Expert Discovery as set forth above. 

f. Plaintiffs’ Reply in Support of Their Motion for 

Class Certification shall be filed within 20 days 

after Defendants file their Opposition to Class 

Certification. 

g. Any response in opposition to a motion to exclude 

under Daubert and its progeny and any other 

potentially dispositive motions shall be filed within 

Case 1:10-cv-00071-MP -GRJ Document 42 Filed 11/08/10 Page 4 of 9
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20 days after the motion to which it responds is 

served. 

h. Hearing on motions to exclude under Daubert and 

its progeny and any other potentially dispositive 

motions to be set by the Court. 

i. Hearing on Plaintiffs’ Motion for Class 

Certification, if necessary, to be set by the Court

after resolution of all motions to exclude under 

Daubert and its progeny and any other potentially 

dispositive motions. 

3. Merits Discovery: All discovery other than that related to 

class certification issues shall be stayed pending a final 

decision on Plaintiffs’ Motion for Class Certification. The 

Court shall schedule a status conference to schedule further 

pre-trial proceedings in this matter following: (1) its final 

ruling on Plaintiffs’ Motion for Class Certification and (2) 

the exhaustion of all Rule 23(f) appellate rights and 

proceedings. 

b. Electronically Stored Information and Claims of Privilege or Protection –

Rule 26(f)(3)(C) and (D): 

i. The parties will negotiate the terms of a protective order governing 

the handling of information sought during discovery that may be 

competitively sensitive, financially sensitive, or a trade secret, or 

that is otherwise appropriate for submission under seal. The 

parties agree that the protective order will contain a “claw-back” 

provision that allows a producing party to obtain the automatic 

return of inadvertently produced documents for which it asserts the 

attorney-client privilege, work product protection, or any other 

privilege recognized under applicable law, such that, upon request, 

the receiving party must immediately return such documents 

without reviewing or using the information contained in them, and 

no waiver of the privilege will result. The parties will submit a 

proposed order within 15 days after the entry of a Case 

Management Order. 

ii. The parties will likely request and produce information from 

electronic or computer-based media. Disclosure and production 

will be limited to data reasonably available to the parties in the 

ordinary course of business as provided by the Federal Rules of 

Civil Procedure. Electronically stored information shall be 

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produced in either TIFF or native format, at the producing party’s 

option. After receiving a production of electronically stored 

information, if the requesting party seeks production of metadata 

associated with the electronically stored information, it will 

demonstrate to the producing party a reasonable basis for 

requesting the metadata. If the parties cannot agree on the 

production of metadata, the production of metadata will be decided 

upon motion of the requesting party by the magistrate judge or 

District Court Judge. 

The parties have taken reasonable measures to preserve potentially 

discoverable data from alteration or destruction in the ordinary 

course of business or otherwise. In particular, Defendants have 

had litigation holds in place since the inception of this litigation. 

The “claw-back” provision described in Section 3(b)(i) shall apply 

to any electronic production. A request for Defendants to preserve 

legacy documents has been made, and Defendants will take all 

reasonably necessary actions to preserve the legacy information in 

electronic storage. 

c. Limits on Discovery – Rule 26(f)(3)(E):

i. Number of Written Interrogatories: The parties shall abide by the 

25 interrogatory limit imposed by Rule 33(a)(1) of the Federal 

Rules of Civil Procedure. Each side is free to allocate its 25 

interrogatories as it wishes between the class-related fact discovery 

period and the subsequent merits-related discovery period.2

ii. Requests for Admission: Pursuant to the Federal Rules of Civil 

Procedure, there shall be no limit on the number of requests for 

admission. 

iii. Requests for Production: Pursuant to the Federal Rules of Civil 

Procedure, there shall be no limit on the number of requests for 

production. 

iv. Oral Depositions: 

 

2

 The parties propose that limits on the number of interrogatories (or other types of discovery requests) 

shall be computed per side, rather than per party, such that – using interrogatories as an example – (1) 

Plaintiffs may serve one set of 25 interrogatories (rather than multiplying 25 interrogatories times the 

number of class representatives), and (2) Defendant may serve one set of 25 interrogatories (to be answered 

by each class representative, without requiring Defendant to expend multiple interrogatories to pose the 

exact same question to each of them). 

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1. Total Number Permitted: There shall be no limit on the 

number of depositions permitted. 

2. Time Limit: The parties shall follow the seven-hour time 

limit set forth in Rule 30(d)(2) of the Federal Rules of Civil 

Procedure unless a different time limit is stipulated or 

ordered by the Court. 

d. Any Other Orders - Rule 26(f)(3)(F): At this time, the parties do not 

anticipate any orders that the Court should issue under Rule 26(c) or under 

Rule 16(b) and (c), other than those discussed herein. 

4. Consent to Magistrate Judge Jurisdiction: In accordance with Rule 73.1(A) of the 

Local Rules, the parties have conferred regarding their willingness to consent to 

magistrate judge jurisdiction. 

5. Nature and Basis of Claims and Defenses: Plaintiffs assert claims for medical 

monitoring and equitable and injunctive relief, statutory violations, nuisance, 

trespass, negligence, negligence per se, and strict liability based on the alleged 

emission of chemicals and dust during and after commercial wood treatment and 

charcoal/wood oil production operations conducted at a Superfund site (“the 

Site”) in Gainesville, Florida. Defendants owned the Site at different times and 

conducted different operations at various times. Plaintiffs seek damages for one 

or more of the following: Diminished property value, medical monitoring, loss of 

use and enjoyment of property, annoyance and inconvenience, and stigma. The 

exact nature of the relevant defenses are presently unknown as Defendants have 

moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). It is 

anticipated that, should the Court deny Defendants’ motion to dismiss, 

Defendants will deny the material allegations of Plaintiffs’ complaint and raise 

various affirmative defenses including statute of limitations. Defendants will also 

oppose any Motion for Class Certification. 

6. Settlement and Alternative Dispute Resolution: The parties are working together 

to schedule court-ordered mediation. 

7. Supplementation of Disclosures and Responses: Supplementation under Fed. R. 

Civ. P. 26(e) shall be provided within thirty days of the event giving rise to the 

need to supplement. 

8. Joinder of Parties, Amendments to the Pleadings, and the Filing of Motions and 

Responses: In order for the Court to make a meaningful analysis of class 

certification issues, joinder of parties shall be completed before the hearing on 

Plaintiffs’ Motion for Class Certification, pursuant to the schedule set forth in 

Section 3(a)(iii)(2) above. The final date for filing motions for leave to amend 

pleadings or join third parties, motions for summary judgment, and all other 

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potentially dispositive motions shall be determined at the status conference 

referenced in Section 3(a)(iii)(3) above. 

9. Trial: The length of time required to position the case for trial and the length of 

the trial are dependent upon the Court’s ruling on Plaintiffs’ Motion for Class 

Certification, and can best be estimated following that decision. 

10. Other Items:

a. Redaction of Documents:

i. Each side may redact documents that contain information that is 

non-responsive, or that is subject to a claim of privilege (whether 

based on attorney-client privilege, the work product doctrine, or 

other similar law or rule). 

ii. Each side retains the right to move to compel production of 

information redacted for privilege, and the other side retains the 

right to object. 

b. Privilege Log: The parties agree that they will produce privilege logs in 

Excel format or a similar electronic format that allows text searching and 

organization of data. A party will produce a privilege log within sixty 

days after its first production of documents for which privilege is asserted 

to apply, and within the same time period following any subsequent or 

rolling productions. 

c. Costs of Production: While each party expressly reserves its rights to seek 

costs relating to this litigation, including the costs of producing documents 

and reasonably accessible electronic documents, initially each party will 

bear the costs to process, review and produce its own documents and 

reasonably accessible electronically stored information. 

Date: November 8, 2010 Respectfully submitted, 

s/ Dennis P. Waggoner 

OF COUNSEL: 

Robert L. Shuftan (ILBN 3124475) 

Northern District Bar application to be 

submitted

shuftan@wildman.com 

David A. Kanter (ILBN 6187653) 

Benjamin H. Hill, III (FBN 094585) 

bhill@hwhlaw.com 

Dennis P. Waggoner (FBN 509426) 

dwaggoner@hwhlaw.com 

HILL, WARD & HENDERSON P.A. 

101 East Kennedy Blvd., Suite 3700 

Case 1:10-cv-00071-MP -GRJ Document 42 Filed 11/08/10 Page 8 of 9
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Admitted to Northern District Bar 9/30/10

kanter@wildman.com 

Brent R. Austin (ILBN 6220501) 

Admitted to Northern District Bar 9/29/10

austin@wildman.com 

Paul K. Freeborn (ILBN 6277489) 

Admitted to Northern District Bar 10/28/10

freeborn@wildman.com 

Megan C. Millirons (ILBN 6290249) 

Admitted to Northern District Bar 9/29/10

millirons@wildman.com 

Wildman, Harrold, Allen & Dixon LLP 

225 W. Wacker Drive, Suite 2800 

Chicago, IL 60606 

Phone: 312-201-2000 

Fax: 312-201-2555 

P.O. Box 2231 

Tampa, FL 33602 

Phone: (813) 221-3900 

Fax: (813) 221-2900 

ATTORNEYS FOR DEFENDANTS 

KOPPERS INC. and BEAZER EAST, 

INC. 

s/ Ervin A. Gonzalez 

Ervin A. Gonzalez (FBN 500720) 

Ervin@colson.com 

Patrick S. Montoya (FBN 0524441) 

Patrick@colson.com 

COLSON HICKS EIDSON 

255 Alhambra Circle, Penthouse 

Coral Gables, FL 33134 

Phone: (305) 476-7400 

Fax: (305) 476-7444 

s/ Jordan L. Chaikin 

Jordan L. Chaikin (FBN 0878421) 

PARKER WAICHMAN ALONSO LLP 

3301 Bonita Beach Road, Suite 101 

Bonita Springs, FL 34134 

Phone: (239) 390-1000 

Fax: (239) 390-0055 

ATTORNEYS FOR PLAINTIFFS 

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