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Special General Memorandum 2006-08

Department of Health and Human Services USA logo
     Indian Health Service
 Rockville MD 20852

SGM 2006-08
NOV 27, 2006

TO: All Employees

FROM: Director

SUBJECT: Tobacco Litigation Records Freeze

On August 15, 2006, Mr. David S. Cade, Deputy General Counsel, Department of Health and Human Services, (HHS), sent a memorandum to all Heads of Operating and Staff Divisions that the HHS continues to operate under the first case management order issued in United States (U.S.) v. Phillip Morris, Inc., No. 99-Civil-02496 (District Court of the District of Columbia filed September 22, 1999), under which the parties are to “preserve all documents and other records containing information potentially relevant to the subject matter of this litigation.”  A copy of the case management order is attached for your reference, with the relevant language contained in paragraph 7.

All program records that are potentially relevant to the tobacco litigation should continue to be preserved.  The term “potentially relevant” should be interpreted very broadly.  It includes not only documents in existence when the case management order was issued, but any potentially relevant documents created since that time.  Moreover, note that the court’s preservation order encompasses all potentially relevant documents, not just those that the Indian Health Service (IHS) has already produced in response to the defendants’ discovery requests.

All program records must be retained in hard copy as specified by the disposition authorities approved by the Archivist of the U.S. in both the Indian Health Service Records Disposition Schedule and the National Archives and Records Administration General Records Schedule.

The Department of Justice’s litigation team advises that program records retained past their disposition authority time frame, as a result of the preservation order, may be retained as perfectly imaged documents in lieu of hard copies.  For example, if you would retain hard copies of documents for 10 years absent the protective order, you should continue to retain those hard copies.  You could image those documents that are older then 10 years and would be destroyed were it not for the protective order.

If you have any questions regarding the Tobacco Litigation records freeze or about documents that would be covered by the court’s order, please contact Mr. Thomas Todacheeney, Records Management Officer, at (301) 443-8030.

/Charles W. Grim, D.D.S./
Charles W. Grim, D.D.S., M.H.S.A.
Assistant Surgeon General

Refer to : OMS/DAS


(This is a replica of the Order, it is not the official Order)

Aug 16, 2006 16:28:18 WS# 06

10/19/99  10:49 fax 202 354 3525  US DISTRICT COURT RM 1800




et al.,


Civil Action
No. 99-2496 (GK)
OCT 19, 1999


First Case Management Order for Initial Scheduling Conference

The above-captioned case has been assigned to this Judge.  In order to secure its just, speedy, and inexpensive resolution, it is this 19th day of October, 1999, hereby ORDERED:

  1. The Initial Scheduling Conference is set for November 19, 1999, at 9:30 a.m. in Courtroom 19.

    Parties are not required to attend the Conference.  Parties with similar interests may, to the extent practicable, agree on a single attorney to act on their joint behalf at the conference.  A party will not, by designating any attorney to represent its interests at the Conference, be precluded from other representation during the litigation.  Attendance at the Conference will not waive objections to jurisdiction, venue, or service.

    This Order is being mailed to those counsel who have already entered appearances in this case.  Counsel are requested to forward a copy of the Order to other attorneys who should be notified of the Conference.

    Persons who are not named as parties in this litigation but may later be joined as parties or are parties in related litigation pending in other federal and state courts are invited to attend in person or by counsel.

  2. Each Defendant is granted an extension of time for responding by answer or motion to the Complaint, until a date to be set at the Conference.  Pending the outcome of the Conference, all outstanding disclosure and discovery proceedings and obligations under the Federal Rules (including Fed. R. Civ. p. 26(a)(1)) are stayed, and no further discovery shall be initiated.  This Order does not preclude voluntary informal discovery regarding the identification and location of relevant documents and witnesses.

  3. To assist the Court in identifying any problems of recusal or disqualification, counsel will submit to the Court by November 12, 1999, a list of all companies affiliated with the parties and all counsel associated in the litigation, as required by Local Rule 26.1.

  4. The Conference shall be held for the purposes specified in Fed. R. Civ. P. 16(a), 16(b), 16(c), 26(f), and Local Rule 16.3.

  5. Before the Conference, counsel shall meet and confer, in accordance with Fed. R. Civ. P. 16(c), 26 (f) and Local Civil Rule 16.3, about the relevant matters itemized in those Rules.  In particular, counsel are to address the following topics, all of which will be discussed at the Conference:

    1. the naming of liaison counsel for the receipt and distribution of all Court Orders and the coordination of all Court dates and conferences;

    2. the necessity or desirability of amendments to the pleadings or joinder of other parties;

    3. the formulation and simplification of the issues;

    4. a case management plan that identifies the stage in which counsel believe this litigation should develop;

    5. what dispositive motions (including jurisdictional) are likely to be filed and the most efficient point at which to file them, as well as whether discovery is needed for any of those motions;

    6. a phased plan/schedule for all other aspects of discovery, (including interrogatories, production of documents, depositions of parties, depositions of non-parties), what limits should be placed on discovery (i.e., number of interrogatories, number and duration of depositions, etc.), and a realistic date for completion of all discovery;

    7. the use of master interrogatories to all parties with supplemental interrogatories to individual parties as relevant;

    8. a procedure for handling discovery objections based on privilege such as attorney-client, trade secrets, deliberative process, etc.;

    9. whether selection of a neutral to work with the parties on developing and implementing a detailed discovery plan is desirable, and if so, the procedures for choosing such a neutral;

    10. the creation of one (or more) central depository(ies) for the storage and maintenance of all discovery;

    11. the availability and use of discovery materials from pending, settled, or dismissed state and federal cases throughout the country;

    12. the use of extraterritorial discovery and procedures for facilitating it;

    13. the need for, use, and scope of protective orders;

    14. the use of computerized systems for retrieval of all discovery materials;

    15. the use, identification, and subject matter of expert witnesses, whether the requirement of exchange of expert witness reports and information pursuant to Fed. R. Civ. P.26(a) (2) should be modified, whether and when depositions of experts should occur, and whether Daubert challenges are anticipated.

      Counsel are invited to raise any other issues they deem relevant to the just, speedy, and inexpensive resolution of this litigation.

  6. Counsel are to submit their Joint Meet and Confer Statement no later than November 12, 1999.

  7. Each party shall preserve all documents and other records containing information potentially relevant to the subject matter of this litigation.  Each party shall also preserve any physical evidence or potential evidence and shall not conduct any testing that alters the physical evidence without notifying opposing counsel and, unless counsel stipulate to the test, without obtaining the Court's permission to conduct the test.

/Gladys Kessler/
Gladys Kessler
U.S. District Judge

Copies to:

J. Patrick Glynn
Department of Justice
Civil Division, Torts Branch
P.O. Box 340
Ben Franklin Station
Washington DC 20044

Timothy M. Broas
Winston & Strawn
1400 L. Street, NW
Washington, DC 20005

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