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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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tri-State Generation and Transmission
Association Incorporated, et al.,

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Plaintiffs,

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No. CV-14-08115-PCT-NVW
ORDER

v.
Mitsubishi International Corporation, et al.,
Defendants.

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Before the Court is a Motion for Reconsideration filed by plaintiffs Tri-State

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Generation and Transmission Association Incorporated, et al. (“Tri-State”). (Doc. 151.)

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Tri-State alleges numerous grounds on which the Court previously erred in denying their

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motion to compel production of a document withheld by defendants Mitsubishi

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International Corporation, et al. (“Mitsubishi”) pursuant to the parties’ jointly stipulated

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clawback agreement. (Docs. 150, 94.) Each of these alleged errors is considered in turn.

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For the reasons discussed below, Tri-State’s motion is denied.

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1. Impeachment

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Tri-State first disputes the Court’s finding that Tri-State presented “no authority

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that impeachment, in any of its manifestations, suffices under Rule 26(b)(3)(A)(ii) to

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pierce work product.” (Doc. 151 at 4.) Tri-State argues that in its original briefing it

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cited to the U.S. Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 511

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(1947), and points specifically to the Hickman Court’s invocation of the word

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“impeachment” to support its disagreement with the Court’s finding.

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The Hickman Court, however, mentioned “impeachment” in the context of

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articulating when written materials prepared by counsel “may properly” be discoverable.

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Hickman, 329 U.S. at 511 (emphasis added). In the portion of the opinion Tri-State

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highlights, the Hickman Court notes that such written materials “might be useful for

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purposes of impeachment or corroboration.” Id. Precatory dicta such as this do not

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establish that impeachment “suffices” to justify piercing work-product protection. This

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Court was correct to conclude that neither Hickman nor any other authority cited by Tri-

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State establishes that “impeachment, in any of its manifestations, suffices under Rule

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26(b)(3)(A)(ii) to pierce work product.”

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2. Waiver

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Tri-State next disputes the Court’s finding that Mitsubishi did not waive work

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product protection because its actions were “reasonable and timely under the Clawback

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Order . . . which contemplates that inadvertent disclosures may be likely.” (Doc. 151 at

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4.) According to Tri-State, the Court erred because it “did not controvert – or even

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address – plaintiffs’ authorities in the Clawback Reply which establish that the failure to

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object to the introduction of an exhibit waives any privilege, regardless of the presence of

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a claw-back provision governing inadvertent disclosure – the precise scenario at issue

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here.” In its reply brief, Tri-State argued that “[i]t is well-settled that ‘[c]law-back

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provisions . . . govern only waivers by inadvertent disclosure.’ . . . ‘Accordingly, failure

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to timely object to the introduction of an exhibit waives any privilege, regardless of the

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presence of a claw-back provision governing inadvertent disclosure.’” (Doc. 138 at 13

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(emphasis and citations omitted).)

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However, the authority Tri-State cites for this “well-settled” proposition consists

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of three unpublished district court opinions from other districts, one of them not even in

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this circuit. This Court is not bound by those authorities. Tri-State has cited no case law

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from any controlling jurisdiction that undermines this Court’s previous conclusion.

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3. Reasonableness

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Tri-State next contests this Court’s finding that Mitsubishi “acted reasonably in

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completing the deposition” despite becoming aware of the possible inadvertent disclosure

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at the deposition itself.

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“abstain[ing] from asserting any objections whatsoever during two hours of examination

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about [the] document [at issue],” and flags United States v. Gurtner, 474 F.2d 297, 299

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(9th Cir. 1973), as “controlling law on the subject of waiver.” (Doc. 151 at 5.) Tri-State

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points to Gurtner for the proposition that “[o]nce the subject matter is disclosed by a

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knowing failure to object there is nothing left to protect from disclosure” (Doc. 151 at 5),

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but offers no explanation of what the Court is supposed to take away from this principle.

Tri-State disputes that Mitsubishi acted reasonably in

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Whatever the intended takeaway, these objections do not controvert the Court’s

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finding that Mitsubishi acted reasonably. Tri-State omits from its argument this Court’s

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finding that the deposition, conducted in Japanese, was “scheduled under the demanding

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requirements of Japanese law.” (Doc. 150 at 2.) To suspend the deposition under the

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circumstances in order to evaluate clawback options would have jeopardized a

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proceeding not readily conducive to rescheduling or continuation at a later date. The

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Court reiterates that it was reasonable under the circumstances to have waited until the

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next morning to contest the document.

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Furthermore, Gurtner is both legally and factually distinct from this case. Legally,

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Gurtner dealt with the attorney-client privilege, not the work-product doctrine, a related

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but distinct notion not necessarily subject to the same guiding principles. And factually,

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Gurtner was a case where the defendant made an untimely objection while a witness was

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on the stand before the jury at trial, not amid pre-trial discovery. Gurtner, 474 F.2d at

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299. The proposition cited by Tri-State (“Once the subject matter is disclosed by a

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knowing failure to object there is nothing left to protect from disclosure”) pertains to jury

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trials, not pre-trial discovery. In any case Mitsubishi’s actions at the deposition did not

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amount to a “knowing failure to object.”

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Tri-State’s arguments therefore fail to undermine the Court’s conclusion that

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Mitsubishi acted reasonably in objecting the following morning instead of during the

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deposition itself.

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4. Discoverable By Other Means

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Next, Tri-State opposes the Court’s determination that “[a]ll the subjects of the

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factual recitations in the disputed documents are discoverable by other means.” They

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contend that such a ruling is “manifestly unjust and/or reflects a misapprehension of the

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facts” because the fact discovery deadline had passed more than a month before the

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Court’s order. (Doc. 151 at 5.)

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This ignores the ample time Tri-State had to conduct discovery. Tri-State never

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claims they were unaware of the discovery deadline, or that they did not have the

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opportunity to conduct discovery prior to (and including) the deposition at issue. The

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information Tri-State seeks has all along been discoverable by other means regardless of

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whether they capitalized on all opportunities to acquire it.

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5. Characterization of Plaintiff’s “Real Intended Use” of the Documents

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Tri-State next contends that the Court was incorrect to conclude that “[p]laintiffs’

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real intended use of the documents is to show that the Defendants thought the valve was

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supposed to be a stopper . . . .” Tri-State points to arguments in its briefing that

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addressed “the critical admissions against interest about the potential for over-rotation of

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the valve and the defendants’ failure to warn plaintiffs that over-rotation could crash the

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turbine.” (Doc. 151 at 6.)

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Whether or not the Court comprehensively characterized Tri-State’s intentions

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does not bear on the outcome of this motion. Rule 59 does not counsel reconsideration

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because one party disagrees with an immaterial characterization of its motives.

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6. Ordinary vs. Opinion Work Product

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Tri-State next argues that the Court “apparently determined sua sponte” that

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portions of the disputed statements “are ‘opinion’ work product to which no discovery

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exception applies,” this despite the fact that, in Tri-State’s view, the parties do not dispute

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that the document at issue “amount[s] to ‘ordinary’ work product, which is entitled to

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only the most minimal protection.” (Doc. 151 at 6.)

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The Court is not aware of anywhere in the record—and indeed Tri-State points to

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nothing—in which Mitsubishi concedes that the disputed document is “ordinary” work

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product. Regardless, Tri-State’s attribution lacks what they themselves characterize as

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the hallmark of “ordinary” work product: “raw factual information” (Doc. 132 at 17).

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Tri-State instead points to various conclusions throughout the document—Mitsubishi’s

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reference to the tab as a stopper and other internal observations about the nature of the

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device (Doc. 151 at 6-7; Doc. 132 at 18-19)—and simply labels these as facts. This

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sleight-of-hand gets Tri-State nowhere.

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opinions and conclusions, not facts. The Court made no error in this regard.

Mitsubishi’s opinions and conclusions are

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7. Characterization of Plaintiffs’ Position

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Tri-State next contends that the Court incorrectly “assumed plaintiffs’ position to

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be that ‘the valve was supposed to be a stopper.’” (Doc. 151 at 7 (quoting Doc. 150 at

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2).) Based on this, Tri-State contends that the Court “misapprehended the facts,” and that

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correctly understanding the nature of the device in question “is critical to the evaluation

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of plaintiffs’ arguments.” (Doc. 151 at 7.)

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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:

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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).

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(Doc. 150 at 2 (emphasis added).) The Court’s order took no position on what Tri-State

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believes the stopper to be. The order did take a position on what Tri-State wanted from

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the document: to show that Mitsubishi believed the valve was supposed to be a stopper.

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Even if that incorrectly states why Tri-State wants to the disputed document, it still

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attributes no position to Tri-State on whether the stopper is a valve. The Court made no

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misapprehension of the facts.

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8. Undue Hardship

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Finally, Tri-State takes issue with the Court’s purported conclusion “that ‘undue

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hardship’ only exists ‘when one party has investigated facts that are no longer viable for

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the other party to investigate, such as because of loss or destruction of tangible things.’”

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(Doc. 151 at 7.) Tri-State contends this definition is “unduly restrictive, manifestly

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unjust and contrary to established law.”

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The Court’s order did not say that undue hardship “only” exists where facts

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investigated by one party are no longer viable for investigation by the other. The order

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simply called this “the paradigm of ‘undue hardship’” (emphasis added), which it is.

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Any confusion over the meaning of “paradigm” could have been dispelled by consulting

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a

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http://www.merriam-webster.com/dictionary/paradigm (last visited Dec. 20, 2016)

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(defining “paradigm” as “example, pattern; especially: an outstandingly clear or typical

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example or archetype”).

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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.

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Online

Neil V. Wake
Senior United States District Judge

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