In re LDK Solar Securities Litigation

Filing 286

SIXTH DISCOVERY ORDER. Signed by Magistrate Judge Bernard Zimmerman on 8/26/2009. (bzsec, COURT STAFF) (Filed on 8/27/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This document relates to: ALL ACTIONS. IN RE LDK SOLAR SECURITIES LITIGATION, ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C07-5182 WHA (BZ) SIXTH DISCOVERY ORDER

Lead plaintiff Shahpour Javidzad ("plaintiff") moves for an order compelling LDK Solar Co., Ltd. ("LDK) and Xiaofeng Peng, Xingxue Tong, Jack Lai, Qiqiang Yao, Liangbao Zhu, Yonggang Shao, and Gang Wang (collectively "defendants") to produce documents over which defendants have claimed work product protection or attorney-client privilege. Specifically, plaintiff's motion seeks 184 documents withheld by defendants, which plaintiff claims are documents in LDK's possession, which LDK exchanged with its Audit Committee and with its Audit Committee's independent counsel, Simpson Thacher & Bartlett ("Simpson"). The parties' initial dispute concerns whether the 1

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stipulation entered into between the parties on May 27, 2009 bars plaintiff from seeking the withheld documents from LDK. The Court has reviewed the stipulation and finds that the stipulation encompasses two categories of documents, which the parties defined as "Investigative Work Product" and "Underlying Documents". The stipulation defines

"Investigation Work Product" as documents created by Simpson (or those entities retained by Simpson, hereafter referred to as "consultants"), and defines "Underlying Documents" as documents collected by Simpson or its consultants during the course of the Audit Committee's investigation. Stipulation Order p.1:8-13, p.2:14-18.) Plaintiff stipulated not to seek any "Underlying Documents" from Simpson or its consultants. Plaintiff did not (See

stipulate that it would not seek "Underlying Documents" from defendant LDK. Accordingly, the stipulation permits plaintiff

to seek documents from LDK that were collected by Simpson or its consultants during the Audit Committee's investigation. To the extent that any of the underlying documents constitute the work product of LDK's counsel and were disclosed to the Audit Committee or Simpson, the work product protection was not lost. See Samuels v. Mitchell, 155 F.R.D. 195, 201 (N.D.

Cal. 1998); In re McKesson HBOC, Inc. Secs. Litig., No. 99-20743, 2005 U.S. Dist. LEXIS 7098 (N.D. Cal., March 31, 2005); SEC v. Roberts, 254 F.R.D. 371 (N.D. Cal. 2008). Plaintiff also agreed not to seek any "Investigative Work Product" from "any person or entity" unless specified conditions were met; however, those conditions do not seem to 2

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apply here.

(See Stipulation Order ¶¶ 8, 9.)

Accordingly, to

the extent that the disputed documents were created by Simpson or its consultants, plaintiff is barred from seeking them from Simpson or LDK. From the motion papers and the privilege log, the Court cannot tell whether the documents sought by plaintiff are "Underlying Documents" or "Investigative Work Product" documents. Accordingly, the parties are ORDERED, by

September 4, 2009, to meet and confer about whether the documents plaintiff requests are barred from discovery by the parties' stipulation, as construed by the Court. If the

parties cannot resolve their dispute, the parties shall jointly file a letter identifying which documents remain in dispute, and which of the two categories those documents fall into. Dated: August 26, 2009 Bernard Zimmerman United States Magistrate Judge
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