Tri-State Generation and Transmission Association Incorporated et al v. Mitsubishi International Corporation et al

Filing 154

ORDER that Plaintiffs' Motion for Reconsideration (Doc. 151 ) is denied. See order for complete details. Signed by Senior Judge Neil V. Wake on 12/20/16. (NKS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tri-State Generation and Transmission Association Incorporated, et al., 10 Plaintiffs, 11 12 13 14 No. CV-14-08115-PCT-NVW ORDER v. Mitsubishi International Corporation, et al., Defendants. 15 16 Before the Court is a Motion for Reconsideration filed by plaintiffs Tri-State 17 Generation and Transmission Association Incorporated, et al. (“Tri-State”). (Doc. 151.) 18 Tri-State alleges numerous grounds on which the Court previously erred in denying their 19 motion to compel production of a document withheld by defendants Mitsubishi 20 International Corporation, et al. (“Mitsubishi”) pursuant to the parties’ jointly stipulated 21 clawback agreement. (Docs. 150, 94.) Each of these alleged errors is considered in turn. 22 For the reasons discussed below, Tri-State’s motion is denied. 23 24 1. Impeachment 25 Tri-State first disputes the Court’s finding that Tri-State presented “no authority 26 that impeachment, in any of its manifestations, suffices under Rule 26(b)(3)(A)(ii) to 27 pierce work product.” (Doc. 151 at 4.) Tri-State argues that in its original briefing it 28 cited to the U.S. Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 511 1 (1947), and points specifically to the Hickman Court’s invocation of the word 2 “impeachment” to support its disagreement with the Court’s finding. 3 The Hickman Court, however, mentioned “impeachment” in the context of 4 articulating when written materials prepared by counsel “may properly” be discoverable. 5 Hickman, 329 U.S. at 511 (emphasis added). In the portion of the opinion Tri-State 6 highlights, the Hickman Court notes that such written materials “might be useful for 7 purposes of impeachment or corroboration.” Id. Precatory dicta such as this do not 8 establish that impeachment “suffices” to justify piercing work-product protection. This 9 Court was correct to conclude that neither Hickman nor any other authority cited by Tri- 10 State establishes that “impeachment, in any of its manifestations, suffices under Rule 11 26(b)(3)(A)(ii) to pierce work product.” 12 13 2. Waiver 14 Tri-State next disputes the Court’s finding that Mitsubishi did not waive work 15 product protection because its actions were “reasonable and timely under the Clawback 16 Order . . . which contemplates that inadvertent disclosures may be likely.” (Doc. 151 at 17 4.) According to Tri-State, the Court erred because it “did not controvert – or even 18 address – plaintiffs’ authorities in the Clawback Reply which establish that the failure to 19 object to the introduction of an exhibit waives any privilege, regardless of the presence of 20 a claw-back provision governing inadvertent disclosure – the precise scenario at issue 21 here.” In its reply brief, Tri-State argued that “[i]t is well-settled that ‘[c]law-back 22 provisions . . . govern only waivers by inadvertent disclosure.’ . . . ‘Accordingly, failure 23 to timely object to the introduction of an exhibit waives any privilege, regardless of the 24 presence of a claw-back provision governing inadvertent disclosure.’” (Doc. 138 at 13 25 (emphasis and citations omitted).) 26 However, the authority Tri-State cites for this “well-settled” proposition consists 27 of three unpublished district court opinions from other districts, one of them not even in 28 this circuit. This Court is not bound by those authorities. Tri-State has cited no case law -2- 1 from any controlling jurisdiction that undermines this Court’s previous conclusion. 2 3 3. Reasonableness 4 Tri-State next contests this Court’s finding that Mitsubishi “acted reasonably in 5 completing the deposition” despite becoming aware of the possible inadvertent disclosure 6 at the deposition itself. 7 “abstain[ing] from asserting any objections whatsoever during two hours of examination 8 about [the] document [at issue],” and flags United States v. Gurtner, 474 F.2d 297, 299 9 (9th Cir. 1973), as “controlling law on the subject of waiver.” (Doc. 151 at 5.) Tri-State 10 points to Gurtner for the proposition that “[o]nce the subject matter is disclosed by a 11 knowing failure to object there is nothing left to protect from disclosure” (Doc. 151 at 5), 12 but offers no explanation of what the Court is supposed to take away from this principle. Tri-State disputes that Mitsubishi acted reasonably in 13 Whatever the intended takeaway, these objections do not controvert the Court’s 14 finding that Mitsubishi acted reasonably. Tri-State omits from its argument this Court’s 15 finding that the deposition, conducted in Japanese, was “scheduled under the demanding 16 requirements of Japanese law.” (Doc. 150 at 2.) To suspend the deposition under the 17 circumstances in order to evaluate clawback options would have jeopardized a 18 proceeding not readily conducive to rescheduling or continuation at a later date. The 19 Court reiterates that it was reasonable under the circumstances to have waited until the 20 next morning to contest the document. 21 Furthermore, Gurtner is both legally and factually distinct from this case. Legally, 22 Gurtner dealt with the attorney-client privilege, not the work-product doctrine, a related 23 but distinct notion not necessarily subject to the same guiding principles. And factually, 24 Gurtner was a case where the defendant made an untimely objection while a witness was 25 on the stand before the jury at trial, not amid pre-trial discovery. Gurtner, 474 F.2d at 26 299. The proposition cited by Tri-State (“Once the subject matter is disclosed by a 27 knowing failure to object there is nothing left to protect from disclosure”) pertains to jury 28 trials, not pre-trial discovery. In any case Mitsubishi’s actions at the deposition did not -3- 1 amount to a “knowing failure to object.” 2 Tri-State’s arguments therefore fail to undermine the Court’s conclusion that 3 Mitsubishi acted reasonably in objecting the following morning instead of during the 4 deposition itself. 5 6 4. Discoverable By Other Means 7 Next, Tri-State opposes the Court’s determination that “[a]ll the subjects of the 8 factual recitations in the disputed documents are discoverable by other means.” They 9 contend that such a ruling is “manifestly unjust and/or reflects a misapprehension of the 10 facts” because the fact discovery deadline had passed more than a month before the 11 Court’s order. (Doc. 151 at 5.) 12 This ignores the ample time Tri-State had to conduct discovery. Tri-State never 13 claims they were unaware of the discovery deadline, or that they did not have the 14 opportunity to conduct discovery prior to (and including) the deposition at issue. The 15 information Tri-State seeks has all along been discoverable by other means regardless of 16 whether they capitalized on all opportunities to acquire it. 17 18 5. Characterization of Plaintiff’s “Real Intended Use” of the Documents 19 Tri-State next contends that the Court was incorrect to conclude that “[p]laintiffs’ 20 real intended use of the documents is to show that the Defendants thought the valve was 21 supposed to be a stopper . . . .” Tri-State points to arguments in its briefing that 22 addressed “the critical admissions against interest about the potential for over-rotation of 23 the valve and the defendants’ failure to warn plaintiffs that over-rotation could crash the 24 turbine.” (Doc. 151 at 6.) 25 Whether or not the Court comprehensively characterized Tri-State’s intentions 26 does not bear on the outcome of this motion. Rule 59 does not counsel reconsideration 27 because one party disagrees with an immaterial characterization of its motives. 28 -4- 1 6. Ordinary vs. Opinion Work Product 2 Tri-State next argues that the Court “apparently determined sua sponte” that 3 portions of the disputed statements “are ‘opinion’ work product to which no discovery 4 exception applies,” this despite the fact that, in Tri-State’s view, the parties do not dispute 5 that the document at issue “amount[s] to ‘ordinary’ work product, which is entitled to 6 only the most minimal protection.” (Doc. 151 at 6.) 7 The Court is not aware of anywhere in the record—and indeed Tri-State points to 8 nothing—in which Mitsubishi concedes that the disputed document is “ordinary” work 9 product. Regardless, Tri-State’s attribution lacks what they themselves characterize as 10 the hallmark of “ordinary” work product: “raw factual information” (Doc. 132 at 17). 11 Tri-State instead points to various conclusions throughout the document—Mitsubishi’s 12 reference to the tab as a stopper and other internal observations about the nature of the 13 device (Doc. 151 at 6-7; Doc. 132 at 18-19)—and simply labels these as facts. This 14 sleight-of-hand gets Tri-State nowhere. 15 opinions and conclusions, not facts. The Court made no error in this regard. Mitsubishi’s opinions and conclusions are 16 17 7. Characterization of Plaintiffs’ Position 18 Tri-State next contends that the Court incorrectly “assumed plaintiffs’ position to 19 be that ‘the valve was supposed to be a stopper.’” (Doc. 151 at 7 (quoting Doc. 150 at 20 2).) Based on this, Tri-State contends that the Court “misapprehended the facts,” and that 21 correctly understanding the nature of the device in question “is critical to the evaluation 22 of plaintiffs’ arguments.” (Doc. 151 at 7.) 23 24 This argument amounts to a failed exercise in cherry-picking. Unfortunately for Tri-State, the full sentence from which the quote was taken reads as follows: 25 26 27 28 Plaintiffs’ real intended use of the disputed documents is to show that the Defendants thought the valve was supposed to be a stopper because they themselves used the word “stopper” (the interpreter’s word in translating from Japanese). -5- 1 (Doc. 150 at 2 (emphasis added).) The Court’s order took no position on what Tri-State 2 believes the stopper to be. The order did take a position on what Tri-State wanted from 3 the document: to show that Mitsubishi believed the valve was supposed to be a stopper. 4 Even if that incorrectly states why Tri-State wants to the disputed document, it still 5 attributes no position to Tri-State on whether the stopper is a valve. The Court made no 6 misapprehension of the facts. 7 8 8. Undue Hardship 9 Finally, Tri-State takes issue with the Court’s purported conclusion “that ‘undue 10 hardship’ only exists ‘when one party has investigated facts that are no longer viable for 11 the other party to investigate, such as because of loss or destruction of tangible things.’” 12 (Doc. 151 at 7.) Tri-State contends this definition is “unduly restrictive, manifestly 13 unjust and contrary to established law.” 14 The Court’s order did not say that undue hardship “only” exists where facts 15 investigated by one party are no longer viable for investigation by the other. The order 16 simply called this “the paradigm of ‘undue hardship’” (emphasis added), which it is. 17 Any confusion over the meaning of “paradigm” could have been dispelled by consulting 18 a 19 (last visited Dec. 20, 2016) 20 (defining “paradigm” as “example, pattern; especially: an outstandingly clear or typical 21 example or archetype”). 22 23 24 dictionary. See, e.g., Paradigm Definition, Merriam-Webster IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Reconsideration (Doc. 151) is denied. Dated this 20th day of December, 2016. 25 26 27 Online Neil V. Wake Senior United States District Judge 28 -6-

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