To view graphic version of this page, refresh this page (F5)

Skip to page body

General Order No. 129 Re: New Filings

General Order No. 129 Re: New Filings
IN RE:
COMPLEX ASBESTOS LITIGATION   NO. 828684
_______________________________/ GENERAL ORDER
NO. 129 RE: NEW FILINGS

This General Order supersedes General Order No. 29 and is applicable to asbestos litigation cases filed in San Francisco Superior Court subsequent to January 1, 1997, which is the effective date of this General Order.

It being the policy of this court in the administration of complex asbestos litigation under Standard 19 of the Standards of Judicial Administration to:

  1. Promote the expeditious exchange of necessary and relevant information in order to facilitate the prompt and intelligent evaluation of liability and damage aspects wherever possible;

  2. Curtail and prevent unnecessary and repetitious discovery wherever possible;

  3. Encourage delegations of work responsibility and sharing of costs on common problems in an effort to avoid unnecessary duplication and expense to the litigants;

  4. Bring asbestos litigation to early and meaningful settlement negotiations in each case.

IT IS ORDERED:

  1. New Filings.

    1. Contemporaneous with the filing of a complaint for damages arising out of alleged exposure to asbestos there shall be filed a Preliminary Fact Sheet prepared and signed by plaintiff's counsel shall contain the information required by the fact sheet.

    2. The Preliminary Fact Sheet shall exactly comply with the form attached hereto. (See Exhibit A). All required exhibits shall be attached only to the copy provided to Designated Defense Counsel .

    3. The Preliminary Fact Sheet (without required exhibits) shall accompany any service of summons and complaint thereafter made.

    4. In the event plaintiff's counsel, after exercising due diligence and for good cause, is unable at the time of filing the complaint to provide the information required by the Preliminary Fact Sheet, the attorney shall attach to the complaint a declaration under penalty of perjury setting forth the reason(s) why he/she is unable to file the Preliminary Fact Sheet contemporaneously with the complaint. The execution of such a declaration shall serve to extend counsel's time for filing the preliminary fact sheet by not more than 30 days. In addition, if plaintiff's counsel is unable to supply the exhibits to Designated Defense Counsel at the time of service upon the first defendant, plaintiff's counsel shall advise Designated Defense Counsel by letter and shall advise when the exhibits will be provided. If the delay in supplying the exhibits to Designated Defense Counsel results in the case not being ready for trial setting at the Status and Setting Conference, Designated Defense Counsel may bring this to the court's attention so the case may be continued to a later Status and Setting Conference. Upon filing the Preliminary Fact Sheet, counsel for plaintiff shall immediately serve upon all defendants previously and thereafter served with summons and complaint in the action a conformed copy without required exhibits and upon Designated Defense Counsel a conformed copy with required exhibits. In the event that any defendant has served and filed an answer to the complaint in an action prior to having been served with the Preliminary Fact Sheet, such defendant may, without leave of court, serve and file an amended answer within 10 days of service of the Preliminary Fact Sheet.

    5. The Preliminary Fact Sheet is for informational and administrative purposes only and shall not be used by any party as evidence or for impeachment purposes.

  2. Coordination With San Francisco Superior Court Rules' Case Management Plan.

    Except as may otherwise be provided by the Presiding Judge or the designee of the Presiding Judge, all asbestos cases shall be assigned to Plan 2 pursuant to Rule 2.2 of the SanFrancisco Superior Court Rules of Court. Further, at the time of filing the complaint, the county clerk shall designate a Status and Setting Conference date which, except as otherwise provided by the court, shall be approximately 11 months after the date of the complaint. It is anticipated the trial date will be set approximately six to nine months after the Status and Setting Conference.

  3. Interrogatories Defendants' Interrogatories To Plaintiff.

    1. The court hereby adopts seven types of standard defense interrogatories to plaintiffs, to be answered by plaintiffs without objection except for the assertion of a claim of privilege. The seven types are as follows:

      1. For personal injury actions, there shall be a set of Defendants' Standard Interrogatories to Plaintiff (Personal Injury), Set 1 (Exhibit B); and a set of Defendants' Standard Interrogatories to Plaintiff (Personal Injury), Set 2 (Exhibit C).

      2. For wrongful death actions, there shall be a set of Defendants' Standard Interrogatories to Plaintiff (Wrongful Death), Set 1 (Exhibit D) to be answered by plaintiff; a set of Defendants' Standard Interrogatories to Plaintiff (Wrongful Death), Set 2 (Exhibit E); and a standard set of interrogatories to be answered by each heir and/or legal representative (Exhibit F).

      3. For loss of consortium actions, there shall be a set for use in personal injury cases only (Exhibit G).

      4. In any asbestos case involving allegations of exposure to friction products, the court adopts Defendants' Standard Interrogatories to Plaintiff (Friction), which shall be used in both personal injury and wrongful death actions (Exhibit H). A plaintiff contending that his/her asbestosrelated disease is related to exposure to friction products, in whole or in part, shall, without the necessity of defendants' service of said Defendants' Standard Interrogatories to Plaintiff (Friction), also answer said interrogatories by the earlier of: at least 30 days prior to the date initially noticed by Designated Defense Counsel for the deposition of the plaintiff; or, in the event plaintiff's deposition is noticed by plaintiff, contemporaneous with service of the deposition notice.

    2. Within 15 days after plaintiff has served the complaint, plaintiff shall serve answers to the appropriate initial set(s) of standard interrogatories upon each defendant then served in the case and upon Designated Defense Counsel. Service is to be made on local counsel. A copy of the answers to the standard interrogatories shall be served concurrently or within five days of service of the summons and complaint on any defendant thereafter served in the action.

    3. Plaintiff shall serve answers to the appropriate standard defense interrogatories to plaintiff, Set 2 and, when applicable, to the standard friction interrogatories, upon all defendants then served in the case and upon Designated Defense Counsel, at least 30 days prior to the date initially noticed by Designated Defense Counsel for the deposition of the plaintiff. In cases in which plaintiff's deposition has not been noticed, plaintiff shall serve upon all defendants and Designated Defense Counsel responses to the applicable standard defense interrogatories to plaintiffs, Set 2 and, when applicable, to the standard friction interrogatories, no later than the date of the Status and Setting Conference. Except as otherwise agreed by the parties or ordered by the court, the initial notice of the deposition of the plaintiff will precede the intended commencement of the deposition by at least 75 days. In the event the plaintiff's deposition is noticed by plaintiff, the plaintiff's answers to the appropriate set of standard defense interrogatories to plaintiff, Set 2, shall be served with the deposition notice.

    4. Answers to standard interrogatories, within the time periods specified above, shall be served by the plaintiff without the necessity of defendants' service of said standard interrogatories upon plaintiff. Verifications should accompany the answers if possible and, in all events, must be served no later than the earlier of 30 days after service of the answers or immediately prior to the commencement of plaintiff's deposition.

  4. Interrogatories Plaintiff's Interrogatories To Defendants.

    1. The court hereby adopts Standard Plaintiff Interrogatories to Defendants, to be answered by defendant under oath without objection except for the assertion of a claim of privilege or as provided in subparagraph B below. The standard set is attached as Exhibit I.

      1. Upon motion by any defendant made within 75 days of the effective date of this order, unless the court for good cause shown authorizes such a motion at a later date, the Presiding Judge or the designee of the Presiding Judge shall determine on a onetime basis the propriety of an objection by such defendant that providing answers to specific question(s) in the Standard Plaintiff Interrogatories to Defendants would impose on such defendant a particular burden which is not justified by the likelihood that such answers will provide or lead to the discovery of relevant and material evidence. When a new defendant is served in the litigation for the first time after the effective date of this order, that defendant shall have 90 days following service of the complaint to move the court to review any claim of burden it may have on the same basis.

      2. Prior to filing such motion, counsel for such defendant shall meet and confer in good faith with counsel for every plaintiff in all actions then pending against such defendant in an attempt to agree upon the extent to which answers will be provided to the interrogatories as to which the objections are asserted. Any stipulations that may be entered shall be binding only upon such defendant and plaintiffs represented by counsel entering such stipulation.

      3. Within 120 days of the effective date of this order, each defendant in any pending action served with a copy of this order shall serve upon all counsel on Designated Defense Counsel's current service list of plaintiff and defense counsel in this jurisdiction its answers to the Standard Plaintiff Interrogatories to Defendants. These answers shall be deemed served in all pending cases, and thereafter it shall be deemed that the defendant has served the same answers in all other subsequently served cases which are subject to this General Order No.129 or General Order No.140. If at any time a defendant amends or provides further answers, in whole or in part, to the Standard Plaintiff Interrogatories to Defendants, it shall serve said amended and/or further answers on all such counsel and said amended and/or further answers shall apply to all cases subject to General Order No.129 or General Order No.140.

      4. In any asbestos case involving allegations of exposure to friction products, the court adopts Plaintiffs' Standard Interrogatories to Friction Defendants (Exhibit J). Defendants sued only for alleged exposure to friction products shall respond only to such standard interrogatories. In all other respects, the requirements of 4.B., 4.C.1., 4.D. and 4.E. shall apply.

      5. In any asbestos case involving allegations of exposure to friction products, the court adopts Plaintiffs' Standard CaseSpecific Interrogatories to Friction Defendants (Exhibit K). Defendants sued only for alleged exposure to friction products shall respond only to such standard casespecific interrogatories. Plaintiff's counsel may serve the notice specified in Paragraph H, below, at any time after commencement of the action. Friction defendants designated in the notice shall answer such interrogatories within 30 days after service of the notice, but no sooner than 120 days after service of the complaint upon that defendant.

    2. Any defendant served in any case subject to this General Order No. 129 which has not already served upon all counsel on Designated Defense Counsel's current service list of plaintiff and defense counsel in this jurisdiction its answers to the appropriate standard plaintiff interrogatories to defendant shall, within 120 days of service of plaintiff's complaint, serve upon all counsel on Designated Defense Counsel's current service list of plaintiff and defense counsel in this jurisdiction its answers to the appropriate standard plaintiff interrogatories to defendant.
    3. Answers to the standard plaintiff interrogatories to defendant, within the time periods specified above, shall be served by the defendant without the necessity of service of said interrogatories upon the defendant.

    4. The time for plaintiffs with presently served actions to move pursuant to Code of Civil Procedure section 2030(l) to compel further answers to any of the standard interrogatories referenced in this Section 4 is extended from 45 days to 180 days. The time for plaintiffs to move to compel further answers to any supplement or update (as described in Section G, infra.) shall be 90 days.

    5. On the annual anniversary of the date upon which it served its initial answers to the Standard Plaintiff Interrogatories to Defendants and/or Standard Plaintiff Interrogatories to Defendants (Friction), each defendant shall either: 1)supplement its answers with information subsequently discovered, inadvertently omitted, or mistakenly stated in the initial interrogatory responses; or 2)serve a verified statement from defendant's most knowledgeable agent(s), officer(s) or employee(s) stating that such individual(s) has/have reviewed defendant's answers to such interrogatories and that the answers are still true and complete. Said supplement or statement shall be served on all counsel on Designated Defense Counsel's current service list of plaintiff and defense counsel in this jurisdiction. Absent a showing of good cause, the scope of any motion to compel further responses to the supplement or statement shall be limited to the subject matter of said supplement or statement. Any defendant not providing supplemental answers pursuant to this paragraph because of not being a party in asbestos litigation shall provide supplemental answers pursuant to this paragraph within 90 days of again becoming a party in asbestos litigation.

    6. The court hereby adopts Plaintiffs' Standard CaseSpecific Interrogatories to Defendants (Exhibit "L") and a Notice of Service of Plaintiffs' Standard CaseSpecific Interrogatories to Defendants (Exhibit "L1"). Plaintiffs' counsel may serve such Notice at any time after commencement of the action. Thereupon, unless excused from the obligation to answer by order of the Presiding Judge or designee of the Presiding Judge requested by motion served and filed within 10 days of service of such Notice, the defendant(s) designated in the Notice shall be required to answer such interrogatories within 30 days after service of the Notice, but no sooner than 120 days after service of the complaint upon that defendant.

  5. Request For Identification and Production of Documents and Things.
    1. The court hereby adopts Defendants' Standard Request for Identification and Production of Documents and Things to Plaintiff(s) (Exhibit "M"). Defendants' Standard Request for Identification and Production of Documents and Things to Plaintiff shall be deemed served at the time of a defendant's answer to the complaint. These standard requests shall be answered under oath by plaintiff without objection except for the assertion of a claim of privilege and shall be served on all defendants and Designated Defense Counsel by the earlier of 15 days prior to the date initially noticed by Designated Defense Counsel for the deposition of the plaintiff or, in the event plaintiff's deposition is noticed by plaintiff, concurrently with service of the deposition notice. The verified response shall specify a central location at which all responsive documents and things will be made available to defendants for inspection and copying at defendants' expense. Nothing in this section shall preclude the use of subpoenas for obtaining records.

    2. Any document(s) described or referenced in answers to standard interrogatories, and any index to documents, if not previously produced pursuant to this General Order, shall be made available for inspection and copying upon request and at a mutually convenient time without a formal request for production of documents. Any party that answers any standard interrogatory pursuant to Code of Civil Procedure section 2030(f)(2) shall make available for inspection and copying all such documents. If a party makes documents available for inspection and copying pursuant to a notice under an In Re: Complex Asbestos Litigation caption with notice to all parties, that party need not produce those documents again absent a showing of good cause.
    3. A party withholding documents on the ground of any privilege shall deliver to opposing counsel and any requesting party a list of such documents. For any documents dated January 1, 1974 or later, such list may refer to specific categories of documents, provided that any indices of documents withheld shall be individually identified.

  6. Record Procurement.

    1. Within 10 days of receipt of plaintiff's answers to the appropriate set(s) of standard defense interrogatories to plaintiff as set forth in Section 3 above, defendants through Designated Defense Counsel shall:

      1. Specify in writing those records requested;

      2. Prepare and send all authorizations and stipulations necessary for production of records. Copies of blank authorizations and stipulations in the form to be used are attached as Exhibits N1 through N5.

    2. Preparing, sending, filing, serving and/or processing authorizations and stipulations shall not constitute a general appearance by or on behalf of any party.

    3. This section shall not apply to authorizations and/or stipulations to obtain Social Security Earnings records which will have been provided by plaintiff with the Preliminary Fact Sheet and for which there shall be no "first look". Except for firstlook procedures, this section shall not apply to authorizations and/or stipulations to obtain National Personnel Records Center records.

    4. Within 30 days of mailing, plaintiff and plaintiff's counsel will sign, notarize and return to Designated Defense Counsel the above authorizations and stipulations. Unless otherwise agreed by the parties or ordered by the court, plaintiffs shall execute the authorizations and stipulations as prepared, without deletion and/or modification. Designated Defense Counsel will forward the executed documents to the copy service.

    5. The duration of all authorizations shall be 180 days.

    6. Upon receipt of records obtained by stipulation or authorization, the copy service will forward these records to plaintiff's counsel.

    7. No sooner than 21 days after forwarding the records to plaintiff's counsel, the copy service will provide copies of all records to Designated Defense Counsel, unless the copy service and Designated Defense Counsel are advised in writing by plaintiff's counsel of an objection to such production.

    8. Plaintiff's counsel must advise Designated Defense Counsel of any objection to record production in writing, specifying the grounds upon which said objections are based. Any party may either make or oppose a motion to compel and/or a motion for a protective order or, without waiving the objection, make a motion in limine for disclosure of records at trial.

    9. All records produced pursuant to this section are presumed to be authenticated and to satisfy the business records exception of the hearsay rule unless the party objecting to the admission establishes the contrary by a preponderance of the evidence.

    10. Nothing in this section shall preclude the use of subpoenas for obtaining records and service of such subpoenas shall not constitute a general appearance by or on behalf of any party. If subpoenas are used, notice to all parties of such subpoenas and/or depositions must be given.

    11. Except as otherwise ordered by the court, records obtained pursuant to this section shall be used only for purposes of the action in which they are so obtained unless the records are obtained in another case by subpoena or unless the plaintiff has consented to have his or her personnel records used in other cases.

  7. Deposition Plaintiffs.

    1. The plaintiff's deposition may be noticed only by Designated Defense Counsel or by the plaintiff.

    2. The deposition shall cover all relevant subjects.

    3. In the event plaintiff's deposition is not completed prior to the Status and Setting Conference, the date of the Status and Setting Conference may be vacated upon request of any party to the Presiding Judge or the designee of the Presiding Judge and rescheduled for a later date.

    4. If the deposition is noticed by Designated Defense Counsel, it shall be limited in duration to 20 hours on the record absent agreement of the parties or court order. The court may extend or shorten the length of the deposition upon a showing of good cause.

    5. If the plaintiff advises defendants and Designated Defense Counsel in writing at least five days in advance of the deposition that plaintiff's counsel intends to proceed first, the plaintiff may complete his or her direct testimony before crossexamination is conducted by defendants. If this procedure is used, absent agreement of the parties or court order, the time for defendants' crossexamination shall be either 20 hours on the record or three times the amount of time used by plaintiff to complete the direct examination, whichever is longer. If, before the start of the deposition, plaintiff has not served answers to the Standard Defense Interrogatories to Plaintiff, Set 2, on each defendant then served in the case and upon Designated Defense Counsel, the duration of the deposition shall, absent agreement of the parties or court order, be the longer of 30 hours on the record or three times the amount of time used by plaintiff to complete the direct examination. The defendants will be expected to allocate the available time among themselves and, in the event of inability to agree, shall make a timely motion for protective order before expiration of the time limit.

    6. In the event any defendant is served after completion of plaintiff's deposition, such lateserved defendant(s) may request that Designated Defense Counsel schedule and notice a further deposition of the plaintiff. Said deposition shall be limited to those matters not adequately covered in the initial deposition including liability issues pertaining to the newly served defendant.

  8. Physical Examination.

    1. The defendants or any of them at their option may request that plaintiff be presented to a physician of defendants' selection for a complete physical examination. The examination may at defendants' option include chest xrays, pulmonary function test, and oral history taken by the examining physician.

    2. Nothing in this provision shall limit the right of the parties to apply to the court to obtain additional examination and/or discovery.

  9. Limitation On Plaintiffs' Discovery To Defendants.

    Except upon order of the court, after noticed motion or by agreement between the propounding and responding parties, no other discovery shall be conducted by the plaintiff with respect to a defendant other than that specified in this General Order No. 129 and in General Order No.140 until the earlier of 90 days before the Status and Setting Conference or that defendant's service of answers to the Plaintiffs' Standard CaseSpecific Interrogatories. Nothing in this General Order limits the right of any party to seek relief from this provision in appropriate circumstances. Any subsequent discovery shall not duplicate prior discovery pursuant to the general orders.

  10. Limitation On Defendants' Discovery To Plaintiffs.

    Except upon order of the court after noticed motion or by agreement between the propounding and responding parties, no discovery shall be conducted by the defense other than that specified in this General Order No. 129 and in General Order No. 140 until plaintiff's service of answers to Defendants' Standard Interrogatories to Plaintiffs, Set 2. Thereafter, a defendant may pursue all discovery except that to be coordinated through Designated Defense Counsel pursuant to this or other general order of the court. Nothing in this general order limits the right of any party to seek relief from this provision in appropriate circumstances. Any subsequent discovery shall not duplicate prior discovery pursuant to the general orders.

  11. Code of Civil Procedure Section 36 Cases.

    The time limits specified in General Order No. 140 rather than the time limits specified in this General Order No. 129 shall apply to any case in which a motion for preference has been filed and served under Code of Civil Procedure section 36, or to any case in which the plaintiff has indicated on the Preliminary Fact Sheet an intention to file such a motion within four months of the execution of that document. In the event that such motion is denied, the judge denying the motion shall specify whether the time limits in that action thereafter shall be governed by General Order No. 129 or General Order No. 140.

  12. Status And Setting Conference.

    1. All parties shall be deemed to have reserved a demand for jury trial until assigned to a trial department.
    2. Except as the Presiding Judge or the designee of the Presiding Judge may provide, the trial date initially set shall be no less than six months after the Status and Setting Conference.

    3. All parties shall be deemed to have objected to any proposal for consolidation or order consolidating or subgrouping cases for trial.

    4. Any party may raise further objections to a consolidation or subgrouping of cases for trial at any time additional facts become known that justify a renewed objection.

    5. At the time of the Status and Setting Conference, the Presiding Judge may schedule a settlement conference as provided by General Order No. 154 and an expedited summary judgment hearing date as provided by General Order No. 157.

  13. Crosscomplaints.

    Unless otherwise ordered, all crosscomplaints whether filed before or after the Status and Setting Conference shall be deemed severed at the time of the Status and Setting Conference.

  14. Motions.

    A party filing or opposing a motion need serve complete papers only on the plaintiff, Designated Defense Counsel, and the party or parties directly affected by the motion. As to all other parties to that case, service may be accomplished by service of the face page only, but the serving party shall provide the entire document(s) upon request from any party.

  15. Motions For Summary Judgment .

    Motions for summary judgment may be brought pursuant to Code of Civil Procedure section 437c and/or to General Order No. 157 on the terms provided therein. Absent a court order or agreement excusing the requirement to answer standard interrogatories (enumerated in Section 4 above), or the expiration of the period within which a motion to compel answers may be filed, failure of a defendant to have responded to any standard interrogatory, which response would have been relevant to the subject matter of the motion for summary judgment, may be grounds for denial of the motion or for other relief as authorized by Code of Civil Procedure section 437c(h).

  16. Jurisdiction.

    Participation in the procedures established by this General Order shall not constitute a general appearance or a waiver of any objection to jurisdiction. The preparation, sending, filing or serving of stipulations, authorizations for records and subpoenas by Designated Defense Counsel shall not constitute a general appearance by or on behalf of any party.

    DATED:_______________________

                           _______________________________
                                   STUART R. POLLAK
                             Judge of the Superior Court



                           ________________________________
                                 ALFRED G. CHIANTELLI
                              Judge of the Superior Court

CALIFORNIA SUPERIOR COURT
 
CITY AND COUNTY OF SAN FRANCISCO
 

IN RE:   NO. 828684
_______________________________/ GENERAL ORDER NO. 129
CERTIFICATE OF SERVICE BY MAIL
(Code Civ. Proc. µ 1013a(4)) 
 

I, ___________________________, a deputy clerk of the Superior Court for the City and County of SanFrancisco, certify that:

1) I am not a party to this action;

2) On________________________________, I served the attached:

GENERAL ORDER NO. 129 RE: NEW FILINGS

by placing a copy thereof in a sealed envelope, addressed as follows:

Plaintiff Liaison Counsel
Defendant Liaison Counsel

and

3) I then placed the sealed envelope in the outgoing mail at 633 Folsom Street, SanFrancisco, CA 94107, on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices.

         DATED:  _____________________ALAN CARLSON, Clerk       




         By:___________________, Deputy
Last updated: 9/15/2009 12:47:26 PM