Securities And Exchange Commission v. Mercury Interactive LLC et al

Filing 239

AMENDED ORDER by Magistrate Judge Jacqueline Scott Corley granting 237 Stipulation Granting Further Extension for Filing Supplemental Briefing on Defendants' Motion for Discovery Sanctions. Defendant's supplemental brief due: 7/25/2012 by noon. Plaintiff's supplemental brief due: 7/31/2012 by noon. Hearing is scheduled for 8/3/2012 at 10:00 a.m. (ahm, COURT STAFF) (Filed on 7/20/2012)

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MICHAEL D. TORPEY (STATE BAR NO. 79424)
[e-mail]
JAMES N. KRAMER (STATE BAR NO. 154709)
[e-mail]
JAMES A. MEYERS (ADMITTED PRO HAC VICE)
[e-mail]
M. TODD SCOTT (STATE BAR NO. 226885)
[e-mail]
MATTHEW A. TOLVE (STATE BAR NO. 267334)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
SUSAN SKAER

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SECURITIES AND EXCHANGE
COMMISSION,

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Plaintiff,
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v.
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MERCURY INTERACTIVE, LLC
(F/K/MERCURY INTERACTIVE, INC.),
AMNON LANDAN, SHARLENE
ABRAMS, DOUGLAS SMITH and SUSAN
SKAER,

Case No. 5:07-cv-02822 WHA
AMENDED
STIPULATION AND [PROPOSED]
ORDER GRANTING FURTHER
EXTENSION FOR FILING
SUPPLEMENTAL BRIEFING ON
DEFENDANTS’ MOTION FOR
DISCOVERY SANCTIONS

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Defendants.

Date:
Time:
Dept:
Judge:
Magistrate:

August 3, 2012
10:00 a.m.
Courtroom F, 15th Floor
Hon. William J. Alsup
Hon. Jacqueline S. Corley

Trial Date:

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December 10, 2012

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STIPULATION AND [PROPOSED] ORDER
RE: FURTHER EXTENSION FOR SUPPLEMENTAL BRIEFING
CASE NO . 5:07-CV-02822 WHA JSC

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Plaintiff and Defendants (collectively, the “Parties”), by and through their respective
counsel, stipulate and agree as follows:
WHEREAS, on May 10, 2012, Defendants Amnon Landan, Douglas Smith, and Susan

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Skaer brought a Motion for Discovery Sanctions pursuant to Federal Rules of Civil Procedure 26

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and 37 and the inherent authority of the Court (Dkt. 212);

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WHEREAS, Plaintiff SEC filed an Opposition on May 24, 2012 (Dkt. 217), and
Defendants filed a Reply on May 31, 2012 (Dkt. 222);

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WHEREAS, on June 7, 2012, the Court heard oral argument on Defendants’ Motion;

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WHEREAS, at the June 7, 2012 hearing the Court agreed to continue the hearing to (1)

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allow Defendants to conduct additional discovery from Davis Polk & Wardwell LLP (“DPW”);

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(2) attempt to obtain the Missing Documents (as that term is defined in Defendants’ Motion) from

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Hewlett-Packard Company (“HP”) with Plaintiff’s assistance; and (3) thereafter, allow the Parties

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to submit supplemental briefing in light thereof;

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WHEREAS, on June 12, 2012, the Court ordered supplemental discovery and briefing
(Dkt. 229);
WHEREAS, on July 5, 2012, Kristofor Henning of Morgan, Lewis & Bockius, counsel

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for HP, informed counsel for Defendants that HP had located one or more disks and

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approximately 20 boxes of hard copy documents, two of which it had reviewed, that potentially

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contain documents on the list of Missing Documents (collectively, the “Found Materials”);

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WHEREAS, after having conferred with one another, the Parties agreed at that time that,

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given the uncertainty as to what the Found Materials may contain and the degree to which they

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match the Missing Document list, if at all, supplemental briefing by Defendants and/or Plaintiff

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on the then-current schedule would have been premature;

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WHEREAS, on July 9, 2012, the Parties filed a stipulation and proposed order granting a
ten-day extension of the briefing schedule under the Court’s June 12 Order (Dkt. 235);

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WHEREAS, on July 9, 2012, the Court granted such extension (Dkt. 236);

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WHEREAS, between July 9 and 18, 2012, the Parties worked diligently with Mr.

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Henning in requesting an opportunity to inspect the Found Materials;
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STIPULATION AND [PROPOSED] ORDER
RE: FURTHER EXTENSION FOR SUPPLEMENTAL BRIEFING
CASE NO . 5:07-CV-02822 WHA JSC

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WHEREAS, counsel for HP agreed to make the Found Materials available to the SEC for

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it to determine which, if any, of the Found Materials contained documents identified as missing

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and to produce any such documents to Defendants;

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WHEREAS, by approximately July 18, 2012, HP had shipped the boxes of materials to
Morgan Lewis’s office in Washington, D.C., for the SEC to review;
WHEREAS, by the afternoon of July 18, 2012, SEC counsel had determined that the

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Found Materials contained at least some of the Missing Documents but that the SEC would need

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a further day to finish cataloging the Found Materials;

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WHEREAS, the SEC received an additional three boxes of documents from Morgan
Lewis on July 19, 2012;
WHEREAS, by the afternoon of July 19, 2012, SEC counsel had determined that at least

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61,000 pages of the Missing Documents had been located but that certain hard drives, which

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counsel for the SEC believed might contain the remaining or at least additional Missing

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Documents, had not been located;

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WHEREAS, SEC counsel stated that he had asked counsel for HP to re-search its records
to determine if it had any of the aforementioned missing hard drives;
WHEREAS, after conferring the evening of July 19, 2012 and morning of July 20, 2012,

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the Parties agree that any supplemental briefing would be premature in light of the continuing

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uncertainty as to how many Missing Documents the SEC may be able to recover from HP;

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WHEREAS, under the Court’s July 9th Order, Defendants’ supplemental brief would be
due today (Dkt. 236); and

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WHEREAS, the Parties believe it is appropriate to further extend the time for filing of

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supplemental briefing and prefer, if possible and convenient to the Court, to keep the currently

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scheduled August 3, 2012 hearing date;

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NOW THEREFORE, the Parties stipulate and agree, subject to the approval of the
Court, to further extend the time for filing of supplemental briefing as follows:

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Defendants’ Supplemental Brief due: July 26, 2012

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Plaintiff’s Supplemental Brief due:

August 1, 2012
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STIPULATION AND [PROPOSED] ORDER
RE: FURTHER EXTENSION FOR SUPPLEMENTAL BRIEFING
CASE NO . 5:07-CV-02822 WHA JSC

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Hearing:

August 3, 2012, 10:00 a.m. (or as soon as
practicable thereafter)

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IT IS SO STIPULATED.

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Dated: July 20, 2012
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MICHAEL D. TORPEY
JAMES N. KRAMER
JAMES A. MEYERS
M. TODD SCOTT
MATTHEW A. TOLVE

ORRICK, HERRINGTON & SUTCLIFFE LLP

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By:

/s/ James A. Meyers
JAMES A. MEYERS

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Attorneys for Defendant
SUSAN SKAER

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Dated: July 20, 2012

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FRANKLIN B. VELIE (Admitted Pro Hac Vice)
ANDREW T. SOLOMON (Admitted Pro Hac Vice)

SULLIVAN & WORCESTER LLP

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/s/ Andrew T. Solomon
ANDREW T. SOLOMON

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Attorneys for Defendant
AMNON LANDAN

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By:

Dated: July 20, 2012

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JEFFREY S. FACTER
PATRICK D. ROBBINS
EMILY V. GRIFFEN

SHEARMAN & STERLING LLP

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By:

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/s/ Patrick D. Robbins
PATRICK D. ROBBINS
Attorneys for Defendant
DOUGLAS SMITH

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Dated: July 20, 2012
By:

/s/ A. David Williams
A. DAVID WILLIAMS

Attorney for Plaintiff
SECURITIES AND EXCHANGE COMMISSION
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STIPULATION AND [PROPOSED] ORDER
RE: FURTHER EXTENSION FOR SUPPLEMENTAL BRIEFING
CASE NO . 5:07-CV-02822 WHA JSC

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ATTESTATION PURSUANT TO GENERAL ORDER 45, X

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I, James A. Meyers, attest that concurrence in the filing of this document has been

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obtained from all signatories.

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Dated: July 20, 2012

/s/
James A. Meyers
Orrick, Herrington & Sutcliffe LLP
Counsel for Susan Skaer

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
Defendant's supplemental brief due: 7/25/2012 by noon. Plaintiff's supplemental brief due: 7/31/2012 by noon. Hearing is

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Dated:

July 20, 2012
THE HONORABLE JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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STIPULATION AND [PROPOSED] ORDER
RE: FURTHER EXTENSION FOR SUPPLEMENTAL BRIEFING
CASE NO . 5:07-CV-02822 WHA JSC