IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

AXIS INSURANCE COMPANY, 

An Illinois Corporation, 

 Plaintiff, Bernard A.Friedman, 

v. District Court Judge 

 Case No. 2:08-cv-15298-BAF-MJH 

INNOVATION VENTURES, LLC d/b/a 

LIVING ESSENTIALS, a Michigan Limited 

Liability Company, BODY DYNAMICS, INC. 

d/b/a BDI MARKETING, an Indiana Corporation, 

N.V.E., INC., a New Jersey Corporation, and 

HANSEN BEVERAGE COMPANY, 

a Delaware Corporation, 

 Defendants. 

______________________________________________________________________________

MORLEY WITUS (P30895) MARK CANTOR (P32661) 

BARRIS, COTT, DENN & DRIKER, P.L.L.C. PHYLLIS GOLDEN MOREY (P40765) 

211 W Fort Street, 15th Floor MARC LORELLI (P63156) 

Detroit, MI 48226-3202 BROOKS KUSHMAN P.C. 

Tel: (313) 965-9725—Fax:(313) 983-3329 1000 Town Center, 22nd Floor 

 Southfield, Michigan 48075 

RONALD L. OHREN Tel: (248) 358-4400—Fax: (248) 358-3351 

LINDSAY A. PHILBEN 

BAKER & McKENZIE, LLP ERIC R. LITTLE (169021) 

One Prudential Plaza LITTLE REID & KARZAI, LLP 

130 E. Randolph Dr., Ste. 3500 3333 Michelson Drive, Suite 310 

Chicago, Illinois 60601 Irvine, California 92612 

Tel: (312) 861-8000—Fax: (312) 861-2899 Tel: (949) 333-1699—Fax: (494) 333-1697 

Attorneys for Plaintiff Attorneys for Defendant Innovation 

Ventures, LLC d/b/a Living Essentials 

______________________________________________________________________________

JOINT DISCOVERY PLAN IN ACCORDANCE WITH FED. R. CIV. P. 26(f)

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Pursuant to Fed. R. Civ. P. 26(f) and the Court’s March 13, 2009 Notice, the parties 

communicated about a Joint Discovery Plan via e-mail, and then a telephonic conference was 

held on April 15, 2009. The participants in the conference call were: 

Ronald Ohren for Plaintiff AXIS Insurance Company. 

Phyllis Golden Morey for Defendant Innovation Ventures, LLC d/b/a Living Essentials. 

I. FACTUAL AND LEGAL BACKGROUND 

This case arises out of a claim for insurance policy benefits made by Defendant. Plaintiff 

issued a “media special perils” insurance policy to Defendant. 

Defendant is involved in litigation in this District and in the Southern District of 

California regarding Defendant’s 5-Hour Energy® product and related matters. 

Plaintiff initiated this action by filing its complaint on December 29, 2008. Defendant 

filed an Answer and Counterclaim (including a bad faith claim) on February 17, 2009. 

II. PROPOSED AMENDMENTS TO PLEADINGS

At this time, neither Plaintiff nor Defendant anticipates amendment of its pleadings. 

III. ADMISSIONS OF FACTS AND STIPULATIONS REGARDING DOCUMENTS

The parties have conferred in an effort to determine what admissions of fact and 

stipulations regarding the authenticity of documents may be presented. The parties agree that the 

copy of the policy attached as Exhibit “A” to Plaintiff’s complaint is authentic. As to other 

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material facts, the parties have been unable to reach agreement regarding such admissions or 

stipulations. 

IV. DISCOVERY TOPICS

A. Plaintiff 

 Plaintiff anticipates that discovery will include matters relating to the litigation for 

which Defendant seeks insurance coverage, as well as matters relating to the underwriting of the 

insurance policy (including matters relating to other claims or lawsuits that may be relevant to 

rescission of the policy or other coverage defenses asserted by Plaintiff). 

B. Defendant 

Defendant anticipates that discovery will include all aspects of Plaintiff’s decisions to 

issue a policy and to rescind coverage to Defendant. 

V. DEPOSITIONS 

At this time, the parties do not expect to depose more than 5-10 witnesses each. The 

parties are presently unable to better estimate the number of depositions in light of the fact that 

even preliminary discovery disclosures have not yet occurred. 

Each deposition shall be limited to one day of seven hours, unless extended by agreement 

of the parties or by order of the Court. 

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A. Plaintiff 

Plaintiff is currently unaware of the identity of all witnesses it may need to depose in this 

matter, however, Plaintiff intends to take the following depositions, at a minimum: 

• Rule 30(b)(6) deposition of Defendant regarding matters relating to Plaintiff’s 

rescission of the policy, as well as Plaintiff’s other coverage defenses. 

• Deposition of the Broker. 

B. Defendant 

Defendant is currently unaware of the identity of all witnesses it may need to depose in 

this matter, however, Defendant intends to take the following depositions, at a minimum: 

• Rule 30(b)(6) deposition of Plaintiff on the factual basis for the rescission claim 

pleaded by Plaintiff. 

• Deposition of Scott A. Swift, Assistant Vice President – Claims for Media 

Professional Insurance, Plaintiff’s representative/agent. 

• Deposition of the Broker. 

VI. INTERROGATORIES 

At this time, Plaintiff anticipates seeking leave to serve in excess of twenty-five 

interrogatories, including sub-parts. At this time, Defendant does not anticipate seeking leave to 

serve an excess number of interrogatories. 

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VII. EXPERT TESTIMONY

A. Plaintiff 

Plaintiff is not presently able to determine whether expert testimony will be needed to 

support its claims, positions or defenses or to rebut Defendant’s. 

B. Defendant 

It is Defendant’s position that expert testimony may be needed regarding the issue of the 

reasonableness of Plaintiff’s claims handling practice in relation to Defendant’s bad faith 

counterclaim. 

VIII. ELECTRONIC DISCOVERY 

The parties agree to preserve evidence material to issues likely to be litigated in the above 

case and which are properly discoverable. This includes both paper and electronically stored 

information. The parties agree that they will use their best efforts to produce all electronically 

stored information in both its native format and text-readable Bates-numbered PDF format. 

IX. PROTECTION OF ATTORNEY-CLIENT PRIVILEGE

The parties agree that, as to claims of privilege or of protection as trial-preparation 

material asserted after production, the procedure of Fed. R. Civ. P. 26(b)(5)(B) will apply. The 

parties may also address such matters through a protective order. 

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X. DISCOVERY DISPUTES

There are no discovery disputes outstanding at this time. Discovery has only recently 

commenced, and, therefore, it is difficult to anticipate at this time whether and what type of 

discovery disputes will arise between the parties. 

XI. INITIAL DISCLOSURES

The parties do not object to the initial disclosure requirements of Rule 26(a)(1). The 

parties agree to exchange initial disclosures via email on or before May 15, 2009. 

XII. PROPOSED CASE MANAGEMENT PLAN

Exchange initial disclosures – May 15, 2009 (via email) 

Discovery commences – April 16, 2009 

Close of fact discovery – October 2, 2009. 

Exchange of expert reports (per burden of proof) – November 2, 2009 

Exchange of rebuttal expert reports – December 4, 2009 

Close of expert discovery – January 15, 2010 

Dispositive motions filed by – February 19, 2009 

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XIII. RESOLUTION

The parties agree that settlement cannot be evaluated at this time as some fact discovery 

will be necessary before the parties can accurately assess their settlement positions. 

Dated: April 16, 2009 

/s/ Ronald L. Ohren (with permission) /s/ Phyllis Golden Morey 

MORLEY WITUS (P30895) MARK CANTOR (P32661) 

BARRIS, COTT, DENN & DRIKER, P.L.L.C. PHYLLIS GOLDEN MOREY (P40765) 

211 W Fort Street, 15th Floor MARC LORELLI (P63156) 

Detroit, MI 48226-3202 BROOKS KUSHMAN P.C. 

Tel: (313) 965-9725—Fax: (313) 983-3329 1000 Town Center, 22nd Floor 

 Southfield, Michigan 48075 

RONALD L. OHREN Tel: (248) 358-4400—Fax: (248) 358-3351 

LINDSAY A. PHILBEN 

BAKER & McKENZIE, LLP 

One Prudential Plaza 

130 E. Randolph Dr., Ste. 3500 

Chicago, Illinois 60601 

Tel: (312) 861-8000—Fax: (312) 861-2899 

ERIC R. LITTLE (169021) 

LITTLE REID & KARZAI, LLP 

3333 Michelson Drive, Suite 310 

Irvine, California 92612 

Tel: (949) 333-1699—Fax: (494) 333-1697 

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CERTIFICATE OF ELECTRONIC SERVICE

 I hereby certify that on April 16, 2009 , I electronically filed the foregoing 

JOINT DISCOVERY PLAN IN ACCORDANCE WITH FED. R. CIV. P. 26(f) with the 

Clerk of the Court for the Eastern District of Michigan using the ECF System which will send 

notification to the following registered participants of the ECF System as listed on the Court's 

Notice of Electronic Filing: Eric R. Little, Mark A. Cantor, Marc Lorelli, Phyllis Golden Morey, 

Ronald L. Ohren and Morley Witus. 

 I also certify that I have mailed by United States Postal Service the paper to the 

following non-participants in the ECF System: None. 

 BROOKS KUSHMAN P.C.

 By: /s/ Phyllis Golden Morey 

 MARK A. CANTOR (P32661) 

 PHYLLIS GOLDEN MOREY (P40765) 

 MARC LORELLI (P63156) 

 1000 Town Center, 22nd Floor 

 Southfield, Michigan 48075-1238 

 Tel: (248) 358-4400 — Fax: (248) 358-3351 

 Email: mcantor@brookskushman.com 

 pmorey@brookskushman.com 

 mlorelli@brookskushman.com 

 Attorneys for Innovation Ventures, LLC 

 d/b/a Living Essentials

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