General Electric Company, et al. v. Wilkins

Filing 288

ORDER VACATING ORDER TO SHORTEN TIME 282 , and ORDER SETTING BRIEFING SCHEDULE re: MOTION TO COMPEL 279 signed by Magistrate Judge Jennifer L. Thurston on 2/2/2012. (Leon-Guerrero, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GENERAL ELECTRIC COMPANY, et al.,

12

Plaintiffs,

13

v.

14

THOMAS WILKINS, an individual

15

Defendant.

)
)
)
)
)
)
)
)
)
)

Case No.: 1:10-cv-00674 LJO JLT
ORDER VACATING ORDER TO SHORTEN
TIME; ORDER SETTING BRIEFING
SCHEDULE RE: MOTION TO COMPEL
(Docs. 282)

16
17

On January 31, 2012, Mitsubishi filed its motion to compel and determination of privilege.

18

(Doc. 279) In this discovery dispute, Mitsubishi claims that it received documents from GE in a

19

related litigation which GE contends were produced inadvertently. GE seeks to claw back the

20

documents and refuses to allow the documents to be used at depositions that are scheduled to occur

21

and are occurring as of the writing of this order. Along with its motion, Mitsubishi filed an ex parte

22

request for an order shortening time (Doc. 281) and cited the impending discovery deadline as basis

23

for the request. The Court granted the request and shortened time for the hearing and briefing. (Doc.

24

282)

25

Unbeknownst to the Court, Mitsubishi had reported to GE that it would cancel the scheduled

26

depositions and would not appear for the deposition scheduled on February 2, 2012. As a result, the

27

Court held a telephonic conference related to the dispute on February 1, 2012.

28

1

1

At the conference, GE reported that it needed additional time to investigate how and in what

2

context the documents at issue were disclosed. GE’s counsel asserted their every confidence that the

3

documents were not purposefully produced but, because the documents were produced in a different

4

action, current counsel was not fully privy to the occurrences in the other action. Counsel reported

5

that an investigation into the disclosure of the documents at issue has been initiated but the attorneys

6

in that matter had not yet responded. GE reported that it simply could not report fully or accurately

7

to the motion to compel within the shortened briefing schedule.

8
9

In addition, GE reported that scheduling the depositions had been difficult given the number
of attorneys involved and that the depositions were occurring and scheduled to occur at various

10

locations across the country. GE urged the Court to require the depositions to go forward as

11

currently set. In doing so, GE acknowledged that if a second deposition of any of the deponents were

12

required based upon the outcome of the motion to compel, it would be required to bear some or all of

13

the costs of taking the second depositions– in an amount that would be determined in connection

14

with the motion if necessary. Moreover, GE agreed that if the second depositions were required it

15

would make all reasonable efforts to ensure that they are completed expeditiously.

16

For their part, Mitsubishi and Wilkins argued that some of the documents were purposefully

17

provided by GE in the related litigation and others were ordered to be produced by that court. They

18

indicated that they had supporting documentation to this effect. Moreover, they agreed to provide

19

this documentation to GE immediately to allow, if possible, a resolution of the matter without the

20

court’s intervention. GE agreed likewise that if after their investigation and review of the

21

documentation showed that the records at issue are not properly clawed back, it would resolve the

22

matter with Mitsubishi and Wilkins informally.

23

Based in part on this documentation, Mitsubishi and Wilkins urged the Court to allow the

24

depositions to be taken off calendar and reset once the motion to compel is decided. Likewise, they

25

urged the Court to maintain the expedited briefing and hearing schedule. In taking this position,

26

however, they admitted that no matter the outcome of the motion, the depositions would need to be

27

taken though in an abbreviated fashion. Likewise, they could direct the Court to no specific urgency

28

2

1

for the motion–given that they would be permitted to take second depositions if needed and their

2

costs would be mitigated if they succeeded on the motion. Moreover, when advised that if they took

3

the depositions off calendar and then lost the motion to compel, there would be no probability that

4

the Court would allow them to take the depositions after the close of discovery, Mitsubishi agreed

5

that the depositions would go forward as currently scheduled.1

6

ORDER

7

Based upon the foregoing, the Court ORDERS:

8

1.

9
10

The order granting in part the ex parte application to shorten time (Doc. 282) is
VACATED;

2.

The hearing on the motion to compel (Doc. 279) is set for March 5, 2012 at 9:00 a.m.

11

at the United States Bankruptcy Courtroom at 1300 18th Street, Bakersfield, CA.

12

Counsel are authorized to appear by telephone via CourtCall. If they wish to appear

13

by telephone, they SHALL notify the Court of this fact by e-mailing their CourtCall

14

confirmation to [e-mail], no later than February 27, 2012;

15

3.

The parties SHALL file a joint statement re: discovery dispute no later than noon,

16

pacific standard time, on February 21, 2012. Exhibits to the joint statement SHALL

17

not exceed 15 pages per side. Counsel for the parties SHALL cooperate in developing

18

the joint statement. No other briefs will be accepted by the Court as to this dispute;

19

4.

As soon as practicable, but no later than February 8, 2012, Mitsubishi/Wilkins

20

SHALL provide GE all documentation that they contend demonstrates that the

21

records at issue are not subject to clawback because they were intentionally provided

22

by GE or they were ordered to be provided in the related action.

23

IT IS SO ORDERED.

24

Dated: February 2, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

25
26
1

27

The Court notes that this current situation–in which numerous depositions must be completed in a very short time–
is one of the parties’ own making.

28

3