UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

Transcription

1 LEWIS BRISBOIS BISGAARD & SMITH LLP ERIC Y. KIZIRIAN, SB# 0 eric.kizirian@lewisbrisbois.com MICHAEL K. GRIMALDI, SB# 0 michael.grimaldi@lewisbrisbois.com North Figueroa Street, Suite 00 Los Angeles, California 00 Telephone:.0.00 Facsimile:.0.00 Attorneys for Nobel Biocare Holding AG, Nobel Biocare AB, and Nobel Biocare USA, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION JASON YAMADA, D.D.S., on behalf of himself and others similarly situated, v. Plaintiff, NOBEL BIOCARE HOLDING AG, NOBEL BIOCARE AB, NOBEL BIOCARE USA, LLC, and DOES 1 through, Defendants. CASE NO. CV-0 MWF (PLAx) Hon. Michael W. Fitzgerald DECLARATION OF ERIC Y. KIZIRIAN IN SUPPORT OF THE JOINT OPPOSITION OF DEFENDANTS NOBEL BIOCARE HOLDING AG, NOBEL BIOCARE AB, AND NOBEL BIOCARE USA, LLC TO PLAINTIFF S MOTION FOR AN AWARD OF FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TRIAL DATE: None set CV-0 MWF (PLAx)

2 I, Eric Y. Kizirian, declare as follows: 1) I am an attorney duly licensed to practice in all of the courts of the State of California and am a member of Lewis Brisbois Bisgaard & Smith LLP, attorneys of record for Defendants Nobel Biocare Holding AG, Nobel Biocare AB, and Nobel Biocare USA, LLC (together Nobel ). I have personal knowledge of the facts herein and if called to testify I could and would competently testify to them. ) Plaintiff Jason Yamada filed his class action complaint against Nobel on June 0,. (Dkt. No. 1.) The first amended complaint asserted five claims for (1) declaratory relief, () implied indemnity, () breach of express warranty, () breach of implied warranty, and () violation of the UCL (which plaintiff pled as separate causes of action for unfair and fraudulent conduct). ) In or about November, I traveled to the Newport Beach offices of Lopez McHugh for an in-person conference with Jason Ochs. The primary purpose of this meeting was to discuss matters that were to be included in the parties joint Rule report. Jason Ochs and Ramon Lopez both were initially present for this meeting, but Mr. Lopez excused himself shortly after the meeting commenced and did not return. ) The parties had preliminary discussions about electronically stored information ( ESI ) during their November meeting. In January, at my request, Mr. Ochs sent a letter that identified (1) the custodians whose ESI plaintiff was seeking, and () proposed search terms to be used in identifying relevant ESI. ) The ESI search terms were, in Nobel s view, overbroad because many could apply to virtually any dental implant Nobel made. Accordingly, I engaged in many good faith and amicable discussions with Jason Ochs and Jason Baker with a goal of curtailing the number of search terms plaintiff had proposed. Nobel was in the process of negotiating a more reasonable search term set with plaintiff when the Court issued an order requiring plaintiff to file his motion for class certification within six weeks, on or before February,. (Dkt. No..) Given the unanticipated need to CV-0 MWF (PLAx)

3 expedite both discovery and briefing, Nobel tried to accommodate plaintiff by accepting his overbroad proposed ESI search terms. Although Nobel cautioned that the proposed terms would likely lead to an unmanageable and inordinately broad set of ESI documents for review, plaintiff insisted on immediate production. ) Because of the need to accelerate the ESI collection and review process, Nobel hastily retained a vendor to process and store ESI for review and production. In addition, because the ESI search terms were overbroad, they initially generated hits in nearly, documents. Nobel hired contract attorneys to expedite document review and to undertake a first cut responsiveness and privilege review of the collected documents. With help from Jill Leversen and Jacqueline Collins at Nobel, I personally performed a second level responsiveness and privilege review of the documents that had been tagged as responsive by Nobel s contract attorneys. Because I reviewed all ESI documents prior to their production (as well as documents that were deemed non-responsive and not produced), I reviewed at least as many ESI documents as plaintiff s counsel, likely more. The ESI review and collection process using plaintiff s overbroad search terms took months because the proposed search terms generated hits in over 0,000 documents. As a result, the responsiveness and privilege review was very time consuming and expensive. Ultimately, Nobel produced,0 ESI documents to plaintiff. Any delay in the production of ESI was caused by the overbroad search terms plaintiff insisted be applied to ESI, not any lack of diligence by Nobel. ) Plaintiff also served an extensive written discovery in the form of ten separate sets of document requests and three sets of special interrogatories. I personally drafted responses and objections to each of those discovery requests. In total, my office reviewed, copied, and redacted (as necessary), thousands of documents in hard paper copy form. In total, Nobel produced, pages of documents that were maintained in paper (non-electronic) format. ) Class counsel claims that [e]ither by design or not, the nature of the CV-0 MWF (PLAx)

4 discovery of this case was never straightforward. Plaintiff met roadblocks at ever turn. (Baker Dec..) They make this claim to shift blame for the increased workload and burden onto Nobel. (Id.,.) This does not present an accurate record. The claimed roadblocks to discovery were necessary because Nobel perceived significant overreach on discovery on numerous occasions. For example, plaintiff served interrogatories far in excess of the federal interrogatory limit without Nobel s consent or a court order. Plaintiff served interrogatories numbered 1- on defendant Nobel Biocare USA on or about August,. Nobel Biocare USA responded to these interrogatories on October,. Thus, as of October,, plaintiff was entitled to serve an additional interrogatories on Nobel Biocare USA under Fed. R. Civ. P.. Plaintiff then served and received responses to a second set of interrogatories (-) directed at all three Nobel defendants. Nobel objected to those interrogatories that were served in excess of the -interrogatory limit and invited a meet and confer on the issue to see if a mutually acceptable result could be negotiated. Nobel objected to this and other discovery that it perceived was in excess of allowable limits or beyond the scope of permissible discovery. ) The PMK deposition that plaintiff requested on marketing materials related predominantly to events that occurred in 0 through 0. Given the significant passage of time, most, if not all, of the individuals at Nobel who had any knowledge regarding marketing for NobelDirect implants had left the company. Contrary to plaintiff s characterization (Baker Dec. ), Nobel complied with its statutory obligations in producing a witness that was most knowledgeable regarding the marketing topics identified in the deposition notice. At the time of the deposition, Nobel no longer employed any individual that both was an employee of Nobel Biocare, USA LLC during the relevant time period and that had information about the marketing issues plaintiff identified in his deposition notice. ) The warranty files plaintiff requested were -boxes of materials containing separate files for each NobelDirect warranty claim made by dentists. These CV-0 MWF (PLAx)

5 were not files that Nobel could legally simply copy and turn over to plaintiff because they contained both the physical returned implant and charts or patient identifying information. Because Nobel cannot produce patient information without proper consent, it agreed to allow plaintiff s counsel to inspect the files (attorney s eyes only) at my firm s Costa Mesa offices with the presence of a Lewis Brisbois paralegal. This was done to ensure that the confidentiality of the information was preserved to the extent possible. It was not to make the review any more difficult or burdensome. (Baker Dec..) Prior to class counsel s review of the files, Nobel had agreed to provide redacted copies of any files class counsel found relevant. When class counsel identified the few files of interest during their review, Nobel promptly redacted patient or other confidential information, copied the requested files, and produced them to class counsel. ) Nobel and class counsel maintained an amicable relationship throughout the litigation and often were able to reach compromise positions on any discovery related issues. Regrettably, plaintiff at times did not accept what Nobel considered to be an accommodating and reasonable discovery compromise offer. Plaintiff then pressed forward with a joint stipulation under Central District Local Rule on two occasions. One of those motions in particular stands out because the Court decided the discovery dispute by adopting the compromise positions that Nobel had offered on three of the four disputed issues. (Dkt. Nos. 0, 1.) This is just one example of a motion and cost that could have been avoided. ) Nobel was the moving party on several motions including the motion to dismiss (Dkt. Nos., ), motion for summary judgment (Dkt. Nos., 0,, ), motion to reconsider certification order or to decertify the class (Dkt. No. 1, ), and a Rule (f) Petition for Review in the Ninth Circuit (Case No. -0, Dkt. Nos. 1, ). As the moving party, Nobel filed two briefs the moving brief and a reply on each of these motions and thus, carried a significantly greater workload. When the case settled, I personally drafted the settlement agreement, class notice, and CV-0 MWF (PLAx)

6 claims form and provided them to plaintiff s counsel for review and comment. Plaintiff did not prepare the original drafts of these documents. ) Plaintiff filed motions that were deemed unnecessary or were unsuccessful. These included four evidentiary objections ( total pages) that challenged evidence Nobel had submitted in support of their opposition to class certification (Dkt. Nos. 0-), and a motion to strike Nobel s reconsideration motion (Dkt. Nos., 0). The Court did not consider the evidentiary objections in ruling on certification (Dkt. No., p., n.1), and effectively denied the motion to strike the reconsideration motion by granting in part Nobel s motion to decertify the class. (Dkt. No..) ) Either my partner, Roy Brisbois, or I personally defended the depositions of all Nobel Biocare employees, former employees, or consultants. Mr. Brisbois deposed plaintiff Jason Yamada, which was the only deposition Nobel took in this case. Plaintiff had no less than two timekeepers at every deposition. At the deposition of Steve Hurson on June,, plaintiff had the following four timekeepers present: Stephen Ochs, Jason Ochs, Ramon Lopez, and Jason Baker. I personally defended Mr. Hurson at this deposition. Mr. Lopez left mid-way through the deposition and did not return. ) In preparing this declaration, I reviewed each of the deposition transcripts in this case. Based on this review, I prepared the following chart that identifies the deponent, deposition date, the start and end times of the deposition, the plaintiff s attorneys that were present (with each attorney s ly rate), and the combined ly rate of all plaintiff s attorneys in attendance. Deponent Date Start/Stop Time Examiner (Hourly rate) Other Attorneys Present (Hourly Rate) Plaintiff s Combined Hourly Rate in Attendance B. Lang 0// : to S. Ochs J. Mann $1,00 per CV-0 MWF (PLAx)

7 Deponent Date M. Nillson J. Yamada Start/Stop Time 0// :0 to :0 0// : to : R. Foulds 0// : to : K. Mosher 0/0/ :0 to : S. Hurson 0// :0 to : M. Dragoo 0// :0 to :0 S. Hurson 0// :0 to : Ann Charlotte Olsson R. Sullivan 0// : to :1 0// : to : J. Day 0// : to : Examiner (Hourly rate) Other Attorneys Present (Hourly Rate) :0 ($0) ($0) W. Audet ($) R. Brisbois (Defendant) J. Mann ($0) S. Ochs ($0) B. Meyer ($0) J. Ochs ($0) J. Baker ($0) J. Ochs ($0) J. Baker ($0) S. Ochs ($0) S. Ochs ($0) J. Ochs ($0) J. Baker ($0) R. Lopez ($0) J. Ochs ($0) J. Baker ($0) J. Ochs ($0) J. Mann ($0) J. Baker ($0) S. Ochs ($0) J. Mann ($0) J. Ochs ($0) J. Ochs ($0) T. Shaw ($) Plaintiff s Combined Hourly Rate in Attendance $1,0 per $00 per $0 per $0 per $,0 per $1,0 per $0 per $0 per $1,000 per $0 per CV-0 MWF (PLAx)

8 Deponent Date Start/Stop Time Examiner (Hourly rate) Other Attorneys Present (Hourly Rate) Plaintiff s Combined Hourly Rate in Attendance ) On September,, I performed an internet search for flights that depart Casper, Wyoming and travel either to Los Angeles (LAX) or Orange County (John Wayne Airport). I found that Delta Air Lines flies from Casper, Wyoming to Orange County. This trip had a stated total travel time of s and minutes. Delta airlines also has flights from Casper, Wyoming to Los Angeles International Airport. This trip had a stated total travel time of s and minutes. ) I have access to my firm s timekeeping records for this matter. Based on my review of these records, as of August 1,, the firm s attorneys, paralegals, and support staff have billed a total of,1 s to the above-referenced litigation. 1, s of this total is time billed by the firm s attorneys. ) I have access to my firm s accounting records for this matter, which list all costs incurred in the defense of the above-referenced litigation. As of September,, the firm had paid a total of $,0. in filing fees for the life of the matter. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge. Executed on September, in Los Angeles, California. _ Eric Y. Kizirian _ CV-0 MWF (PLAx)