HomeMy WebLinkAbout04-3446Dechert LLP
By: Yvonn¢ M. McKenzie
Identification No. 90395
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000
Attorney for Defendant/Petitioner
Philip Morris U.S.A., Inc.
BRUCE E. COOLIDGE and PATRICIA
G. COOLIDGE
Plaintiffs,
PHILIP MORRIS INCORPORATED, PHILIP
MORRIS COMPANIES, INC., SANDY'S
LIQUOR STORE, DOES 1-300 inclusive,
Defendants.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TRIAL DIVISION
:
TERM, 2004
No.:
:
:
:
ORDER
AND NOW, this day of ,2004, upon consideration of the attached
Petition for Issuance of Subpoena to Take Deposition and upon Motion of counsel for the
Petitioner it is hereby ORDERED that the Prothonotary of Cumberland County issue a subpoena
duces tecum directed to the Custodian of Records, Rite-Aid Corporation, 30 Hunter Lane, Camp
Hill, Pennsylvania, directing his attendance at a deposition to be conducted in accordance with
the California Code of Civil Procedure at the Cumberland County Bar Association, 32 S.
Bedford Street, CarF~sle, Pennsylvania, or any other place that deponent and Petitioner may
agree, at 9:00 A.M. on August 9, 2004 or as soon thereafter as deponent and Petitioner may
agree, and directing that the deponent produce copies at the deposition of any and all documents
within his possession, custody or control, which are or may be responsive to Attachment A
hereto.
BY THE COURT:
Dechert LLP
By: Yvonne M. McKenzie
Identification No. 90395
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000
BRUCE E. COOLIDGE and PATRICIA
G. COOLIDGE
Plaintiffs,
Vo
PHILIP MORRIS INCORPORATED, PHILIP
MORRIS COMPANIES, INC., SANDY'S
LIQUOR STORE, DOES 1-300 inclusive,
Defendants.
Attorney for Defendant/Petitioner
Philip Morris U.S.A., Inc.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TRIAL DIVISION
TERM, 2004
PETITION FOR ISSUANCE OF SUBPOENA TO TAKE DEPOSITION
Pursuant to Pa. R.C..P. 234.1 and 42 Pa. C.S.A. § 5326, the issuance of a subpoena
is requested on the following grounds:
1. Petitioner Philip Morris U.S.A., Inc. is the defendant in an action currently
pending in the Superior Court of the State of California, City and County of Riverside, docket
number RIC 361063, captioned Bruce E. Coolidge and Patricia G. Coolidge v. Philip Morris
Incorporated, Philip Morris Companies, Inc., Sandy's Liquor Store, Does 1-300 inclusivefi
The undersigned represents Petitioner locally in connection with this
petition.
3. A Commission For Out of State Deposition of the Records Custodian for
Rite Aid Corporation was issued on July 12 2004, by the California court in the matter listed in
paragraph one. The Commission is attached hereto as Exhibit one. The California statute
permitting the Clerk of the California court to issue a commission is attached hereto as Exhibit
tWO.
4. Petitioner in the matter noted in Paragraph one requires the issuance of a
subpoena duces tecum by this Court to compel the attendance of the Custodian of Records for
Defendant Sandy's Liquor Store was already dismissed fi'om this case and Plaintiffs have
not identified the Does 1-300 referred to in the caption.
Rite-Aid Corporation, 30 Hunter Lane, Camp Hill, Pennsylvania, at a deposition and to compel
the production of the documents and things requested in Exhibit three.
WHEREFORE, Petitioner prays that the Court direct the issuance of a subpoena
duces tecum directed to the custodian named in paragraph four of this Petition.
Philip Morris U.S.A., Inc.
for purposes of this Petition
-2-
Exhibit 1
f~x0057& (1728x212~x2 mlj) [7]
JUL 22 2004 12:06 FR _ EC[I~LIZED LEORL
!
2
3
4
6
Walt L. Corer (Admired pro tIac V~ce)
Allcia $, Do~i.hue (SBN: 117412)
Chds A. Johnson (SBN: 183219)
SHOOK, HARDY & BACON LL.P.
333 Bush Street, Suite 600
Sa~ Francisco, California 94 ! 04-28:28
Telephone: 415.544.1900
Facsimile: 415.391.0281
Attonteys for Defeudmlt
pI-rrr .tm MORRIS USA, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE
JUL 1 2 200
$
9
10
12
13
14
~5
16
17
15
19
20
21
22
SUPBRIOR COURT OF ~ STATE OF 6ALIFO~
FOR THE COUNTY OF RIVI~RSIDE
BRUCE E. COOLIDGE and PATRICIA G.
COOLIDGE
Plaintiffs,
PHILIP lVlORB~ INCORPORAT~,h ~ .r~
MORRIS COM~PA.,'q~.S, ~C., S~Y'S
~QUOR S~, ~ES I-3~ i~lusive,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
~ Igo. RIC
COMMISSION FOR OUT-OF-$'tATE
Di~O~ITION OF'I'~ s; CRIS'I~DIAN OF
RECORDS OF R.ITI/-AII) CORPORATION
(PENNSYLVANIA)
[C.C.P. §
23
24
25
26
27
28
3
COiv~'{s$10N FOR OUT O7 5'rAm I;~OSlTIO~ SU~I~OENA iW)R THE CUSTODIAN OF RF..CORDS
~UL 12 2~4 10:57
P~4~E. 08
ORIGINAL
6
7
B
9
10
11
12
13
15
16
17
18
19
20
21
2~
26
27
28
To any peraon authorized to adm~sl~r oaghs and/or a qualified d~p~itlon officer under tl~
laws of ~he state of Peansylvama:
Wh~'ea~, it apl~ars tO the Superior Court of the Sm~ of Calffozma, County of Riversi ,09, that
the m~ca~ and pbalmacy records a~i other business r~o~s [~l't~ining tO Mt'. Btl~¢e ~. Coolidge
ar~ mamfial ia th~ above cutiLlud action, cu~cnfly pending in this Court; ~at the cusrodiau of
records at Ri~-Aid ~orporatkm iD t~re~ore a mab~a] wium~s in ~he above entitl~cl action; and that
the production of documents and tangible thiugs aud the testimony of the witnesses cau now
taken by d~poaifion on ol~ exmuination in the Stat~ of Ptamsylvania; this Court, pursuant to
California Code of Civil Procedure, se-t. ion 2026(¢), in confidenc~ of your prud~r~c.~ aud fidelity,
appoints you as a comma$$ione, r to e~amino the
You arc authorized and empow~d, at th-, ti~ and plac. cs noticed by counsel, w adu~nist~r
au 0a~h to the witness aud re cause the testJRwuy of the witu~ on oral examination to be reduced to
~,di/ing aud subscl~b~d by the wimes$, w videotape the dcposi~ous, aud to c~_,~ify the depositions to
the above-enfitJed Court, and to forward the depositiou transc~pts, iu a ~aJod envelolc~, e~dorsafl
w~th the fi~Ie of the a~tiun and mark-~d "]~posiliou of Custodian of Record~ at Rite-Aid
Corpo~atlon" by c~rfified m~il to Chris A- lohuson, Shook, Han:ly & Bacon L.LP., 333 BusJh~tre~t,
Suitc 600, San Francisco, California 9~104.
JUL 1 2 21114
DATED: By:
This must be in red to be a
-CERTIFIED COPY"
Each document to which this cefl~,cate is ati,~hed
is certified to be a full, t~ue and couect cogy of the
original on fide and of record in my office. /j
Superior Cour~ of California
County of Riverside
JUL 1 2 2004
{~erljflcation m-si I~e id red to De a
"CERTIFIED COPY"
cu~P.~ o~~{0~ COU~T
PAGE.09
Exhibit 2
Get a Document - by Citation - Cal Code Civ Proc § 2026 Page 1 of 6
Service: Get by LEXSTAT®
TOC: Deerincls California Code Annotated~u~rL_Rules and ALS > / · ·. / > ARTI LEC~. Discovery > § 2026. Oral
deposition in another state
Citation: cai cede civ proc 2026
Cai Code Civ Proc § 2026
DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2004 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** THIS DOCUMENT IS CURRENT THROUGH THE 2004 SUPPLEMENT ***
INCLUDING URGENCY LEGISLATION THROUGH 2004 REG. SESS. CH.91, 7/1/04
(WITH THE EXCEPTION OF CH.69)
2003-04 3RD EXTRA. SESS., CH.1 AND 5TH EXTRA. SESS., CH.2
CODE OF CIVIL PROCEDURE
PART 4. Miscellaneous Provisions
TITLE 3. Production of Evidence
CHAPTER 3. Manner of Production
ARTICLE 3. Discovery
* G~O TO CALTFORNIA C~ODES_ ARCHZVE DIRE~CTOR~Y
Cai Code Civ Proc § 2026 (2004)
§ 2026. Oral deposition in another state
(a) Any party may obtain discovery by taking an oral deposition, as described in
subdivision (a) of Section 2025, in another state of the United States, or in a territory or an
insular possession subject to its jurisdiction. Except as modified in this section, the
procedures for taking oral depositions in California set forth in Section 2025 apply to an oral
deposition taken in another state of the United States, or in a territory or an insular
possession subject to its jurisdiction.
(b)(1) If a deponent is a party to the action or an officer, director, managing agent, or
employee of a party, the service of the deposition notice is effective to compel that deponent
to attend and to testify, as well as to produce any document or tangible thing for inspection
and copying. The deposition notice shall specify a place in the state, territory, or insular
possession of the United States that is within 75 miles of the residence or a business office of
a deponent.
(2) If the deponent is not a party to the action or an officer, director, managing agent, or
employee of a party, a party serving a deposition notice under this section shall use any
process and procedures required and available under the laws of the state, territory, or
insular possession where the deposition is to be taken to compel the deponent to attend and
to testify, as well as to produce any document or tangible thing for inspection, copying, and
any related activity.
(c) A deposition taken under this section shall be conducted (1) under the supervision of a
person who is authorized to administer oaths by the laws of the United States or those of the
place where the examination is to be held, and who is not otherwise disqualified under
subdivision (k) and subparagraph (B) of paragraph (2) of subdivision (I) of Section 2025f or
(2) before a person appointed by the court. This appointment is effective to authorize that
person to administer oaths and to take testimony. On request, the clerk of the court shall
issue a commission authorizing the deposition in another state or place. The commission shall
http://www.lexis.conffresearch/retrieve?_m=fcddd3 f3bb4al abbe660054517dc814a&esvc=... 7/15/2004
Get a Document - by Citation - Cai Code Civ Proc § 2026 Page 2 of 6
request that process issue in the place where the examination is to be held, requiring
attendance and enforcing the obligations of the deponents to produce documents and answer
questions. The commission shall be issued by the clerk to any party in any action pending in
its venue without a noticed motion or court order. The commission may contain such terms
as are required by the foreign jurisdiction to initiate the process. If a court order is required
by the foreign jurisdiction, an order for a commission may be obtained by ex parte
application.
HISTORY:
Added Stats 1986 ch 1334 § 2, operative July 1, 1987. Amended Stats 1987 ch 86 § 9,
effective and operative July 1, 1987.
Amended Stats 2000 ch 474 § 3 (SB 877); Stats 2001 ch 812 § 10 (AB 223).
NOTES:
FORMER SECItONS:
Former § 2026 was added Stats 1957 ch 1904 § 3, operative January 1, 1958, amended
Stats 1959 ch 1590 § 8, and repealed Stats 1961 ch 192 § 8.
Former § 2026, relating to authority of commissioner, was enacted 1872, amended Stats
1907 ch 392 § 6, and repealed Stats 1957 ch 1904 § 1, operative January 1, 1958.
AMENDMENTS: 2000 Amendment:
Amends subd (c) by adding "and subparagraph (B) of paragraph (2) of subdivision (I)".
2001 Amendment:
(1)Amended subd (c) by (a)substituting "On request, the clerk off' for "When necessary or
convenient,"; (b)adding "authorizing the deposition in another state or place."; and (c)adding
the last four sentences.
HISTORICAL DERIVATION: (a) Former CCP § 2018, as added Stats 1957 ch 1904 § 3, amended Stats 1961 ch 192 § 1
(b) Former CCP § 2023, as added Stats 1907 ch 392 § 3.
(c) Former CCP § 2024, as added Stats 1961 ch 192 § 5.
CROSS REFERENCES:
Discovery in municipal and justice courts; use of oral deposition under this section: C~CP §
9~4.
Powers of judicial officers to call witnesses and take depositions: CCP [i§ 177, 179.
Service of notices: CCD §§ 1010 et seq.
Subpoena for witnesses: CCP ~Ei 1985, 1985.5, 1986.
Default or nonappearance after notice as waiver of notice of application: CCP ~i 2004.
"Action": CCP E 2016.
"Court": CCP [ 2016.
"Document": CCP ~i 2016.
Oral depositions in California: CCP ~i 2025.
Oral deposition in another nation: CCP § 2027.
Written depositions: CCP ~ 2028.
Application of this section to deposition of listed trial expert witness: _C_.C. P § 2034.
Oral depositions for discovery before action filed: CCP § 2035.
Oral depositions for discovery pending appeal: CCP ~i 2036.
Persons authorized to administer oaths: CCP § 2093.
Form of oath: CCP § 2094.
Examination of witnesses on commission in criminal cases: Pen C_~§. 1349 et seq.
Oil and gas conservation proceedings, depositions in: Pu~b Re_s~ 3357.
Format of discovery motions: CRC Rule 335.
Service of papers on non-party deponent: CRC Rule 337.
http://www.lexis.com/research/retrieve?_m=fcddd3 f3bb4al abbe660054517dc814a&csvc=... 7/15/2004
Get a Document - by Citation - Cal Code Civ Proc § 2026 Page 3 of 6
COLLATERAL REFERENCES:
_Cai Forms PI & Practice (Matthew Bender) ch 190 "Depositions and Discovery" III.
Matthew Bender(R) Practice Guide: California Civil Discovery, ch. 7.
Matthew Bender(R) Practice Guide: California Landlord-Tenant Litigation, ch. 1.
Witkin Evidence (3d ed) Discovery and Production of Evidence §§ 1461, 1473.
Cai Jur 3d (Rev) Discovery and Depositions §§ 15 et seq.
_Am Jut 2d (Rev) DePositions and Discovery ~[ 15 et seq.
Preparing for Discovery Under the New Act. (1986, CEB) pp 145-146.
Obtaining discovery: Initiating and responding to discovery procedures. CEB Action Guide,
Spring 1991.
Unavailable witnesses and out-of-state records and documents. 10 CEB Civ Lit Rep No. 3 p
93.
Persons before whom deposition may be taken within the United States: USCS FRCP 28(a).
FO RM S:
Suggested form is set out below, following notes of decisions.
LAW REVIEW ARTICLES:
Review of Selected 1987 Legislation. 19 Pacific I1 514.
ANNOTATIONS:
Deposition expenses as includible in judgments for costs under 28 USCS sec. 2412 in
civil actions brought by or against United States. 29 ALR Fed 932.
NOTES OF DECISIONS
To authorize taking of a deposition under former statute, it was not necessary that witness
be nonresident~ all that was required was that witness be out of state. Dolbeer Estate (1906)
149 C 227, 86 P 695._
An irregularity in commission which was directed "to any notary public or other officer," but
did not designate anyone to take deposition, was waived where no motion to suppress was
made and no objection on that ground was urged when the deposition was offered in
evidence. King v Green (1908) 7 CA 473, 94 P 777.
Under former provisions of section, in event of disagreement between parties to action,
court could issue commission to take deposition of witness out of state, to any person whom
court deemed competent and proper party to act. Alcorn v Gieseke (1910) 158 C 396, 111 P
9_8.
Where parties stipulate that deposition be taken before F, "a notary public" in Chicago,
court could construe term as words of description and issue a commission to him as person
agreed upon rather than to him in his official capacity. Henry v Caswell (1913) 23 CA 14, 136
P 726.
A deposition of a witness taken out of state upon a commission which did not have
attached to it seal of court as required by former § 2024, was subject to amendment by
affixing seal thereto, and could properly be read in evidence, upon a showing that witness
was no longer at place where deposition was taken, but somewhere in foreign country, and
that to have a deposition again taken would cause indefinite delay of action. M~arvin v Eng-
Skell Co. (1917) 33 CA 42, 164 P 332.
Either party to an action may initiate proceedings for taking of depositions of nonresident
witnesses. Hopkins v Superior Court (1930) 105 CA 133, 286 P 1053.
Generally issuance of commission to take testimony out of state is a matter of right. Levin
v~S_uperior Court (1934) 139 CA 693, 34 P2d 832.
The court, in exercise of discretion, was justified in refusing to issue commission to take
depositions out of state where applicant had been negligent in applying therefor and rights of
other party would be prejudiced by continuing trial. Levine v Superior Court (1934) 139 CA
693, 34 P2d 832.
http://www.lexis.com/research/retrieve?_m=fcddd3 f3bb4al abbe660054517dc814a&csvc=... 7/15/2004
Get a Document - by Citation - Cal Code Civ Proc § 2026 Page 4 of 6
Either party could use depositions of out-of-state witnesses and such depositions were not
subject to some of limitations which applied to depositions of witnesses within state. Huqhes
v Ouackenbush (1934) 1 CA2d 349, 37 P2d 99.
The trial court's refusal to issue a commission to take depositions out of the state should
not be disturbed in absence of a showing of an abuse of discretion. Patrick Farms, Inc. v
Superior Court (1936) 13 CA2d 424, 56_ P2d 1283.
Taking of depositions out of state is subject to reasonable control by trial court. Patrick~
Farms, Inc. v Superior Court (1936) 13 CA2d 424, 56 P2d 1283.
The refusal of a commission to take depositions out of state relating solely to an accounting
was not an abuse of discretion where issue as to the right to accounting was first to be
determined and there was no showing of prejudice in such refusal or that evidence will not be
available at any time. Patrick Farms, Inc. v Superior Court (1936) 13 CA2d 424, 56 P2d
1283.
Former statute required issuance of commission to take testimony of material witness upon
showing of diligence and assurance of proving by witness facts which were vital to
determination of suit. Moran v Superior Court (1940) 38 CA2d 328, 100 P2d 1096.
Although trial judge possessed discretion to grant or deny motion for commission to take
testimony in another state to be used on motion for new trial, when there was conflict of
evidence with respect to exercise of diligence, and prima facie showing of diligence had been
established, in absence of counteraffidavits or evidence to contrary, commission should issue.
Moran v Superior Court (1940) 38 CA2d 328, 100 P2d 1096.
The court's exercise of discretion in refusing to permit taking of testimony in another state
would not be disturbed, where motion therefor was not made until evidence was in and
movant gave no specific reason why, in view of evidence presented, deposition was
necessary to a decision, Knox Estate (1942) 52 CA2d 338, 126 P2d 108.
Trial court did not err in denying defendant's motion for commission to examine witnesses
in another state in absence of evidence to show that plaintiff complied with this section, in
action to recover on money Judgment issued in such states based on orders in divorce decree
of such state requiring defendant to pay for child support. Kubon v Kubon (1958) 51 C2d
229, 331 P2d 636.
Whether motion for commission to take deposition of witness in another state should be
granted or denied rests in court's sound discretion. _Beverly Hills Nat. Bank & Trust Co. v
Superior Court (1961) 1.95 CA2d 861., 16 Cai Rptr 236.
Where no showing is made as to nature of testimony to be obtained in deposition of
witness in another state, court cannot determine whether taking of such deposition is
necessary and motion for issuance of commission should be denied. Beverly Hills Nat. Bank &
Trust Co. v Superior Court (1961) 195 CA2d 861, 16 Cai Rptr 236.
Section authorizing issuance of commission to take deposition of witness in another state
for use in pending trial should be liberally construed to end that litigant in such pending
action may be afforded reasonable opportunity to procure available testimony in support of
his cause. Beverly Hills Nat. Bank & Trust Co. v Superior Court (1961) 195 CA2d 861, 16 Cai
R~0tr 236.
Though party initiating proceeding to take deposition of witness in another state has choice
of designating that it be taken either on oral examination or on written interrogatories, trial
court has discretion, after hearing, to direct whether interrogatories are to be written or oral,
and in exercising such discretion elements of convenience and expense, among others, may
be considered. Beverly Hills Nat. Bank &Trust Co. v Superior Court (1961) 195 CA2d 861, 16
Cai Rptr 236.
It was abuse of discretion to deny motion for issuance of commission to take deposition of
witness in another state where affidavit in support of motion alleged that witness was
material witness without benefit of whose testimony party could not faithfully proceed to
trial, that witness resided in certain city in another state, and that witness' testimony was
material because there was dispute as to character of property involved and he could state
what property decedent owned prior to coming to this state. Beverly Hills Nat. Bank & Trust
Co. v Superior Court (1961) 195 CA2d 861, 16 Cai Rptr 236.
Mandamus is proper proceeding to require issuance of commission to take testimony out of
http://www.lexis.com/research/retrieve?_m=fcddd3 f3bb4al abbe660054517dc814a&csvc=... 7/15/2004
Get a Document - by Citation - Cal Code Civ Proc § 2026 Page 5 of 6
state, ~everly_J-li]!$ Nat;, Bank ~'T_ru!t~Co~..~ ~pe£ior Court (1961) 195 CA2d 861., 116 Cam~tr
236.
Mandamus is the proper remedy to require the issuance of a commission to take testimony
out of the state and to enforce a proper discovery right, but the burden is on the petitioner to
make a clear showing in the Court of Appeal that the trial court abused its discretion in
refusing such order. Dow Chemical Co. v Sul~erior Court (1969) 2 CA3d 1, 82 Cai Rptr 288.
Defendant in a civil action was entitled to proceed with the taking of plaintiffs deposition at
her place of residence outside the state, where timely notice was given in compliance with
_Code Civ Proc, [ 2019~, and where plaintiff failed to move the court for a protective order
pursuant to that section; Code Civ Proc. ~i 2024, designating the procedure to be followed for
out-of-state depositions as that set forth in Code Civ Proc, ~i 2019, does not-make court
authorization a precondition of the taking of such a deposition, but makes the procedure for
taking depositions out of state, but within the United States, identical to taking them within
the state. Snyder v Superior Court (1970) 9 CA3d 579, 89 Cai Rptr 534.
Counsel may follow the procedures prescribed by Code Civ. Proc., ~ 2025 (oral depositions
in California), and obtain an order to depose an out-of-state resident in California, pursuant
to Code Civ. Proc., [ 2025_, subd. (e)(3). Alternatively, counsel may travel to the witness's
home state or territory and depose the witness within 75 miles of his or her residence,
pursuant to Code Civ. Proc., ~i 2026 (oral deposition in another state). In short, § 2026 is
merely permissive; it does not require nonresidents be deposed outside California. Gla$_s v
Superior Court (1988, 4th Dist) 204 Cai ADp 3d 1048, 251 Cai Rptr 690.
The trial court properly ordered defendant insurer to produce documents used by a former
claims adjuster for the insurer to refresh his recollection during a deposition taken in
Connecticut. The documents belonged to the insurer and were provided by it to the
deponent. Code Civ. Proc., ~ 2026, subd. (b)(2), permitting a party to California litigation to
depose a nonparty in another state according to the "process and procedures" of the other
state's laws, did not mean plaintiffs request for the documents had to be made in a
Connecticut court in accordance with Connecticut law, which requires a court order and is a
precondition to production of documents. Except as otherwise expressly provided, California
law governs discovery in California cases, including depositions (_Code Civ. Proc., f 2025,
subd. (a)). The documents belonged to the insurer and it could not immunize itself from
California's liberal discovery rules by showing the documents to the deponent, a non-
California resident. International Ins. Co. v Montrose Chemical Corp. (1991, 2nd Dist) 231
Cai App 3d 1367, 282 Cai R0tr 783.
SUGGESTED FORMS
NOTICE OF TAKING ORAL DEPOSITION OUT OF STATE
[Title of Court and Cause]
Please take notice that on ...... ,19--, at ...... o'clock .... .m., at the
offices of ...... , located at ...... [address], ...... [name of party
noticing deposition], pursuant to CCP ~i2026, will take the deposition on oral
examination of ...... [deponent] whose address and telephone number are
...... . The deposition will be taken before ...... [name of deposition
officer], - ..... la person authorized to administer oaths by the laws of the
...... (United States or other place where examination is to be held), or a
person appointed by the court]. - ..... [Name of deposition officer] is not
otherwise disqualified under CCP ~i2025(k). The deposition shall proceed from
day to day, excluding weekends and holidays, until it is completed.
...... [When deponent is not a natural person, include: The deposition will
be regarding ...... (describe with reasonable particularity all matters on
which examination is sought). Pursuant to CCP ~i2025(d), - ..... (name of
deponent organization) must designate and produce at the deposition those of
its officers, directors, managing agents, employees, or agents who are the most
http://www.lexis.corn/research/retrieve?_m=fcddd3 f3bb4al abbe660054517dc814a&csvc=... 7/15/2004
Get a Document - by Citation - Cal Code Civ Proc § 2026 Page 6 of 6
qualified to testify on its behalf as to those matters to the extent of any
information known or reasonably available to ...... (deponent organization).]
Please take further notice that ...... [name of party noticing deposition]
intends to record testimony at the deposition by ...... [method of recording,
such as: videotape] in addition to recording the testimony stenographically.
Please take further notice that ....... [name of party noticing deposition]
may use the ...... [videotapedli deposition of ...... [name of deponent], who
is ...... Ia treating physician or a consulting physician or an expert
witness], at the trial of the above-entitled matter, pursuant to CCP
§2025(u)(4).
This notice has been served on the following parties and attorneys for
parties: ...... [list all parties and attorneys on whom notice has been
served].
Dated: ...... , 19--.
[Signature of attorney]
Service: Get by LEXSTAT~)
TOC: Deednas California Code Annotated, Court Rules and ALS > /... / · ARTICLE 3. Discovery > § 2026. Oral
deposition In another state
Citation: cai code civ proc 2026
View: Full
Date/Time: Thursday, July 15, 2004 - 9:37 AM EDT
~s~s I ~e~tions_
2004 LexisNexis, a division of Reed Elsevier Inc. All dghts reserved.
http://www~~exis~~~m/research/retrieve?-m=fcddd3f3bb4a~abbe66~~545~7dc8~4a&csvc=~.~ 7/15/2004
Exhibit 3
SCHEDULE OF DOCUMENTS TO BE PRODUCED
TO:
RITE-AID CORPORATION
30 HUNTER LANE
CAMP HILL, PA 17011
DOB:
SSN:
o
BRUCE E. COOLIDGE
11/25/53
571-98-5582
ALL DOCUMENTS THAT DESCRIBE OR REFLECT BRUCE COOLIDGE'S
MEDICAL HISTORY AND/OR MEDICAL INSURANCE CLAIMS HISTORY FROM
JULY 2000 TO THE PRESENT INCLUDING, BUT NOT LIMITED TO, ALL
BILLING RECORDS FOR ALL SERVICES RENDERED, ALL MEDICAL AND/OR
PHARMACY RECORDS, PHYSICIANS RECORDS, SURGEONS RECORDS, X-
RAYS, CT SCANS, MRI FILMS, PHOTOGRAPHS, AND ANY OTHER
RADIOLOGICAL, NUCLEAR MEDICINE, OR RADIATION THERAPY FILMS,
PATHOLOGY MATERIALS, SLIDES, TISSUES, PHYSICALS OR HISTORIES,
LABORATORY REPORTS, OPERATING ROOM RECORDS, DISCHARGE
SUMMARIES, PROGRESS NOTES, PATIENT INTAKE FORMS,
CONSULTATIONS, PRESCRIPTIONS, NURSES NOTES, MEDICATION
RECORDS, AND ANY OTHER PAPERS RELATING TO ANY EXAMINATION,
DIAGNOSIS OR TREATMENT REGARDING BRUCE E. COOLIDGE (DOB:
11/25/53; SSN: 571-98-5582) FROM JULY 2000 TO THE PRESENT.
ALL MEDICAL AND/OR PHARMACY RECORDS OF BRUCE E. COOLIDGE
FROM 1964 UNTIL THE PRESENT THAT MENTION BRUCE COLLIDGE AND
ANY OF THE FOLLOWING:
Co
D.
E.
F.
G.
H.
I.
CONDITIONS INVOLVING OR AFFECTING THE RESPIRATORY
SYSTEM, INCLUDING BUT NOT LIMITED TO, THE NOSE, MOUTH, AND
THROAT;
CONDITIONS INVOLVING OR AFFECTING THE PULMONARY SYSTEM,
INCLUDING, BUT NOT LIMITED TO THE LUNGS;
CONDITIONS INVOLVING OR AFFECTING BONES;
CHRONIC OBSTRUCTIVE PULMONARY DISEASE;
BRONCHITIS;
ASTHMA;
EMPHYSEMA;
TUBERCULOSIS;
PNEUMONIA;
K.
L.
M.
N.
O.
P.
Q.
R.
S.
T.
U.
V.
W.
X.
Y.
AA.
BB.
CC.
PLEURISY;
PULMONARY EMBOLISM;
SHORTNESS OF BREATH;
CHEST PAIN;
RECURRENT COUGHING;
CHRONIC OR UNUSUALLY SEVERE SORE THROAT;
CANCER;
LUEKEMIA, HODGKiN'S DISEASE, OR MYELOMA;
PRE-CANCEROUS CYSTS, POLYPS, OR OTHER GROWTHS;
THE GALLBLADDER;
GASTROINTESTINAL PROBLEMS, INCLUDING STOMACH PROBLEMS;
SORENESS OF OR INJURY TO THE BACK;
EXPOSURE TO TOXIC SUBSTANCES;
ALLERGIES;
SWOLLEN GLANDS;
ADDICTION TO, DEPENDENCE ON, OR HABITUAL USE OF ANY
SUBSTANCE, INCLUDING, BUT NOT LIMITED TO:
I. ALCOHOL;
II. HEDONIC DRUGS;
III. PRESCRIPTION DRUGS; OR
IV. TOBACCO.
EATING DISORDERS, WEIGHT OR OBESITY;
DIABETES;
HIGH CHOLESTEROL AND/OR TRIGLYCERIDES;
ANY OTHER POTENTIALLY LIFE-THREATENING CONDITION.
ALL DOCUMENTS FROM 1964 UNTIL THE PRESENT THAT MENTION OR
DISCUSS BRUCE COOLIDGE AND SMOKING INCLUDING, BUT NOT LIMITED
TO, BRUCE COOLIDGE'S SMOKING HISTORY, ANY COUNSELING THAT
BRUCE COLLIDGE MAY HAVE RECEIVED FROM ANY HEALTH CARE
PROVIDER REGARDING SMOKIlqG, ANY REFERENCE OF DISCUSSION WITH
BRUCE COOLIDGE REGARDING THE HEALTH RISKS OF SMOKING AND ANY
SMOKING CESSATION AIDS OR PRESCRIPTIONS PRESCRIBED OR
RECOMMENDED TO BRUCE E. COOLIDGE.
Dechert LLP
By: Yvorme M. McKenzie
Identification No. 90395
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000
Attorney for Defendant/Petitioner
Philip Moms U.S.A., Inc.
BRUCE E. COOLIDGE and PATRICIA
G. COOLIDGE
Plaintiffs,
PHILIP MORRIS INCORPORATED, PHILIP
MORRIS COMPANIES, INC., SANDY'S
LIQUOR STORE, DOES 1-300 inclusive,
Defendants.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TRIAL DIVISION
TERM, 2004
mo.~
COMMONWEALTH OF PENNSYLVANIA :
:
COUNTY OF CUMBERLAND :
Local Counsel for Petitioners, being duly sworn according to law, hereby deposes
and says that she is an attorney for Petitioners; that she is authorized to make this affidavit on
their behalf; and that the facts set forth in the foregoing Petition for Issuance of Subpoena to
Take Deposition are tree and correct to the best of her knowledge, information and belief.
Counsel for Petitioner
Philip Morris U.S.A., Inc.
for purposes of this Petition
Sworn to and subscribed
before me this ! §m~ day
Notar3FFublic (~ '
NO'r~,RIAL SEAL
OEBORAH J, KANE, Nolaot Pub c
City of Philadelphia, Phila Court
. ~ ~ss~on Expires December 15, 2005
~ ~v Comrn' . ty
CERTIFICATE OF SERVICE
I hereby certify that service ora tree and correct copy of the enclosed Petition for
Issuance of Subpoena to Take Deposition was made on July 15, 2004 to the following by United
States Mail, postage pre-paid:
Records Custodian
Rite-Aid Corporation
30 Hunter Lane
Camp Hill, Pennsylvania 17011
Shawn Khorrami, Esquire
Barak Berlin, Esq.
THE LAW OFFICES OF SHAWN KHORRAMI
14550 Haynes Street, Third Floor
Van Nuys, California 91411
Timothy P. Prince, Esqfflre
TOML1NSON, NYDAM AND PRINCE, LLP
290 North "D" Street, Suite 807
San Bemardino, California 92401
Attorneys for Plaintiffs
Attorneys for Plaint~[fs
I hereby further certify that service of a true and correct copy of the enclosed Petition for
Issuance of Subpoena to Take Deposition was made on July 15, 2004 to the following imerested
counsel by Facsimile and United States Mail, postage pre-paid:
Walt L. Corer, Esquire
Alicia J. Donahue, Esquire
Chris A. Johnson, Esquire
SHOOK, HARDY & BACON L.L.P.
333 Bush Street
Suite 600
San Francisco, California 94104-2828
Counsel for Petitioner
Philip Morris U.S.A., Inc.
for purposes of this Petition
-2-
Dechert LLP
By: Yvonne M. McKenzie
Identification No. 90395
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000
BRUCE E. COOLIDGE and PATRICIA
G. COOLIDGE
Plaintiffs,
PHILIP MORRIS INCORPORATED, PHILIP
MORRIS COMPANIES, INC., SANDY'S
LIQUOR STORE, DOES 1-300 inclusive,
Defendants.
Attorney for Defendant/Petitioner
Philip Morris U.S.A., Inc.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TRIAL DIVISION
___. TERM, 2004
PETITIONER'S PRAECIPE TO SUPPLEMENT PETITION FOR ISSUANCE OF
SUBPOENA TO TAKE DEPOSITION
Petitioner Philip Morris U.S.A. respectfully requests to :supplement the Petition for
Issuance of Subpoena to Take Deposition filed in the above captioned matter to include the
"Supplemental Schedule of Documents To Be Produced." This Supplemental Schedule is
attached as Exhibit A. In support of Petitioner's request, the following relevant facts are set forth
below:
1. Petitioner is the defendant in an action currently pending in the Superior
Court of the State of California, City and County of Riverside, docket number RIC 361063,
captioned Bruce E. Coolidge and Patricia G. Coolidge v. Philip Morris Incorporated, Philip
Morris Companies, Inc., Sandy's Liquor Store, Does 1-300 inclusive.
2. On July 15, 2004, Petitioner flied a Petition for Issuance of Subpoena to
Take Deposition with this Court. The Petition is attached hereto as Exhibit B.
3. This Petition requests that the Court issue of a subpoena duces tecum to
compel the attendance of the Custodian of Records for Rite-Aid Corporation, 30 Hunter Lane,
Camp Hill, Pennsylvania, at a deposition and to compel the production of certain documents
listed in Exhibit Three of the Petition.
4. Petitioner seeks to supplement Exhibit Three of the Petition to include the
"Supplemental Schedule of Documents To Be Produced."
WHEREFORE, Petitioner prays that the Court supplement the Petition for
Issuance of Subpoena to Take Deposition filed by Petitioner on July 15, 2004 to include the
"Supplemental Schedule of Documents To Be Produced."
Yvtbnn~M.~Kenzi~ ~ ~'-'
Counsel for Petitioner
Philip Moms U.S.A., Inc.
for purposes of this Petition
-2-
SUPPLEMENTAL SCHEDULE OF DOCUMENTS TO BE PRODUCED
TO:
RITE-AID CORPORATION
30 HUNTER LANE
CAMP HILL, PA 17011
DOB:
SSN:
BRUCE E. COOLIDGE
11/25/53
571-98-5582
COMPLETE COPIES OF ALL PRESCRIPTION PROFILE RECORDS,
PRESCRIPTION SLIPS, MEDICAL RECORDS, ORDERS FOR MEDICATION,
PAYMENT RECORDS, INSURANCE CLAIMS FORMS, CORRESPONDENCE, AND
OTHER RECORDS RELATING TO BRUCE COOLIDGE FROM JULY 2000 TO THE
PRESENT, INCLUDING, BUT NOT LIMITED TO, ALL BILLING RECORDS FOR
ALL SERVICES RENDERED, ALL MEDICAL AND/OR PHARMACY RECORDS,
PHYSICIANS RECORDS, SURGEONS RECORDS, X-RAYS, PHYSICALS OR
HISTORIES, LABORATORY REPORTS, OPERATING ROOM RECORDS,
DISCHARGE SUMMARIES, PROGRESS NOTES, PATIENT INTAKE FORMS,
CONSULTATIONS, PRESCRIPTIONS, NURSES NOTES, MEDICATION
RECORDS, AND ANY OTHER PAPERS RELATING TO ANY EXAMINATION,
DIAGNOSIS OR TREATMENT REGARDING BRUCE E. COOLIDGE (DOB:
11/25/53; SSN: 571-98-5582) FROM JULY 2000 TO THE PRESENT.
COMPLETE COPIES OF ALL PRESCRIPTION PROFILE RECORDS,
PRESCRIPTION SLIPS, MEDICAL RECORDS, ORDERS FOR MEDICATION,
PAYMENT RECORDS, INSURANCE CLAIMS FORMS, CORRESPONDENCE, AND
ANY OTHER RECORDS RELATING TO BRUCE COOLIDGE FROM 1964 TO THE
PRESENT THAT MENTION BRUCE COOLIDGE AND ANY OF THE
FOLLOWING:
D.
E.
F.
CONDITIONS INVOLVING OR AFFECTING THE RESPIRATORY
SYSTEM, INCLUDING BUT NOT LIMITED TO, THE NOSE, MOUTH, AND
THROAT;
CONDITIONS INVOLVING OR AFFECTING THE PULMONARY SYSTEM,
INCLUDING, BUT NOT LIMITED TO THE LUNGS;
CONDITIONS INVOLVING OR AFFECTING BONES;
CHRONIC OBSTRUCTIVE PULMONARY D]3EASE;
BRONCHITIS;
ASTHMA;
G. EMPHYSEMA;
H. TUBERCULOSIS;
I. PNEUMONIA;
j. PLEURISY;
K. PULMONARY EMBOLISM;
L. SHORTNESS OF BREATH;
M. CHEST PAIN;
N. RECURRENT COUGHING;
O. CHRONIC OR UNUSUALLY SEVERE SORE THROAT;
p. CANCER;
Q. LUEKEMIA, HODGKIN'S DISEASE, OR MYELOMA;
R. pRE-CANCEROUS CYSTS, POLYPS, OR OTHER GROWTHS;
S. THE GALLBLADDER;
T. GASTROINTESTINAL PROBLEMS, INCLUDING STOMACH PROBLEMS;
U. SORENESS OF OR INJURY TO THE BACK;
V. EXPOSURE TO TOXIC SUBSTANCES;
W. ALLERGIES;
X. SWOLLEN GLANDS;
y. ADDICTION TO, DEPENDENCE ON, OR HABITUAL USE OF ANY
SUBSTANCE, INCLUDING, BUT NOT LIMITED TO:
I. ALCOHOL;
II. HEDONIC DRUGS;
III. pRESCRIPTION DRUGS; OR
IV. TOBACCO.
Z. EATING DISORDERS, WEIGHT OR OBESITY;
AA. DL~BETES;
BB. HIGH CHOLESTEROL AND/OR TRIGLYCERIDES;
CC. ANY OTHER POTENTIALLY LIFE-THREATENING CONDITION.
ALL DOCUMENTS FROM 1964 UNTIL THE pRESENT THAT MENTION OR
DISCUSS BRUCE COOLIDGE AND SMOKING INCLUDING, BUT NOT LIMITED
TO, BRUCE COOLIDGE'S SMOKING HISTORY, ANY COUNSELING THAT
BRUCE COLLIDGE MAY HAVE RECEIVED FROM ANY HEALTH CARE
PROVIDER REGARDING SMOKING, ANY REFERENCE OF DISCUSSION WITH
BRUCE COOLIDGE REGARDING THE HEALTH RISKS OF SMOKING AND ANY
SMOKING CESSATION AIDS OR PRESCRIPTIONS PRESCRIBED OR
RECOMMENDED TO BRUCE COOLIDGE.
Dechcrt LLP
By: Yvonne M. McKenzie
Identification No. 90395
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000
Attorney for Defendant/Petitioner
Philip Morris U.S.A., Inc.
BRUCE E. COOLIDGE and PATRICIA
G. COOLIDGE
Plaintiffs,
Vo
PHILIP MORRIS INCORPORATED, PHILIP
MORRIS COMPANIES, INC., SANDY'S
LIQUOR STORE, DOES 1-300 inclusive,
Defendants.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TF'2AL DIVISION
TERM, 2004
ORDER
AND NOW, this day of ,2004, upon consideration of the attached
Petition for Issuance of Subpoena to Take Deposition and upon Motion of counsel for the
Petitioner it is hereby ORDERED that the Prothonotary of Ct~mberland County issue a subpoena
duces tecum directed to the Custodian of Records, Rite-Aid Corporation, 30 Hunter Lane, Camp
Hill, Pennsylvania, directing his attendance at a deposition to be conducted in accordance with
the California Code of Civil Procedure at the Cumberland County Bar Association, 32 S.
Bedford Street, Carlisle, Pennsylvania, or any other place that deponent and Petitioner may
agree, at 9:00 A.M. on August 9, 2004 or as soon thereafter tu~ deponent and Petitioner may
agree, and directing that the deponent produce copies at the deposition of any and all documents
within his possession, custody or control, which are or may be responsive to Attachment A
hereto.
BY THE COURT:
Jo
CERTIFICATE OF SERVICE
I hereby certify that service of a tree and correct copy of the enclosed Petitioner's
Praecipe to Supplement Petition for Issuance of Subpoena to Take Deposition was made on July
21, 2004 to the following by United States Mail, postage pre-paid:
records Custodian
Rite-Aid Corporation
30 Hunter Lane
Camp Hill, Pennsylvania 17011
Shawn Khorrami, Esquire
Barak Berlin, Esq.
THE LAW OFFICES OF SHAWN KHORRAM1
14550 Haynes Street, Third Floor
Van Nuys, California 91411
Timothy P. Frince, Esquire
TOMLINSON, NYDAM AND PRINCE, LLP
290 North "D" Street, Suite 807
San Bemardino, California 92401
Attorne?s for Plaintiffs Attorneys fo; Plaintiffs
I hereby further certify that service of a true and correct copy of the enclosed Petitioner's
Praecipe to Supplement Petition for Issuance of Subpoena to Take Deposition was made on July
21, 2004 to the following interested counsel by United States Mail, postage pre-paid:
Walt L. Cofer, Esquire
Alicia J. Donahue, Esquire
Chris A. Johnson, Esquire
SHOOK, HARDY & BACON L.L.P.
333 Bush Street
Suite 600
San Francisco, California 94104-2828
c Cenzi6
Counsel for Petitioner
Philip Moms U.S.A., Inc.
for purposes of this Petition
-3-
Dechert LLP
By: Yvonne M. McKenzie
/dentification No. 90395
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-4000
BRUCE E. COOLIDGE and PATRICIA
G. COOLIDGE
Plaintiffs,
PHILIP MORRIS INCORPORATED, PHIL/I?
MORRIS COMPANIES, INC., SANDY'S
LIQUOR STORE, DOES 1-300 inclusive,
Defendants.
Attorney for Defendant/Petitioner
Philip Morris U.S.A., Inc.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
TRIAL DIVISION
__ _TERM, 2004
ORDER
AND NOW, this ._2 2, ~ day of ,~o [ ,2004, upon consideration of the attached
Petition for Issuance ;f SubpDena to ~ake-D;~a~d upon Motion of counsel for the
P, etiti°ner it is.hereby ORDERED ~at the Prothonotary of Cumberland Count is
uuces tecum directed to the Custodian ofv .... ~ .... _ ..... y sue a subpoena
· -~um~, vdte ,'ua tZorporataon, 30 Hunter Lane, Camp
Hill, Pennsylvania, directing his attendance at a d osifion , ·
the California Code of Civil Pr ,~ ....... ,__ ,-, e.p . . ~to be conducted m accordance wi
Bedford Street, oc,~,,~ at m~ ~um~erlana tzounlly Bar Association, 32 S th
Carlisle, Pennsylvania, or any other place that deponent and Petitioner may
agree, at 9:00 A.M. on August 9, 2004 or as soon thereafter as deponent and Petitioner may
agree, and directing that the deponent produce copies at the deposition of any and all documents
within his possession, custody or control, which are or may be responsive to Attachment A
hereto.
BY THE COUR/fi~