Dell Inc. et al v. Sharp Corporation et al
Filing
380
ORDER DENYING AUO DEFENDANTS' OBJECTION TO SPECIAL MASTER'S ORDER RE: THE DEPOSITION OF RICHARD BAI 6574 (Illston, Susan) (Filed on 10/11/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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IN RE: TFT-LCD (FLAT PANEL) ANTITRUST
LITIGATION
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This Order Relates to:
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Dell, Inc. and Dell Products, L.P. v. Sharp
Corp., et al., C 10-1064 SI
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No. M 07-1827 SI
MDL. No. 1827
Case Nos.: C 10-1064 SI
ORDER DENYING DEFENDANTS’
OBJECTION TO SPECIAL MASTER’S
ORDER RE: THE DEPOSITION OF
RICHARD BAI
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Defendants AU Optronics Corporation and AU Optronics Corporation America have filed an
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objection to the Special Master’s Order Re: Plaintiffs’ Motion to Compel Deposition of AUO Witnesses,
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Bai. The matter is scheduled for a hearing on October 12, 2012. Pursuant to Civil Local Rule 7-1(b),
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the Court determines that this matter is appropriate for resolution without oral argument, and VACATES
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the hearing. For the reasons set forth below, the Court hereby DENIES defendants’ objection. Master
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Docket No. 6574.
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DISCUSSION
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The Court reviews the Special Master’s findings of fact for clear error, conclusions of law de
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novo, and procedural rulings for an abuse of discretion. Amended Order Appointing Martin Quinn as
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Special Master, Master Docket No. 6580 ¶ 18. In the order at issue, the Special Master ordered AUO
to produce a current AUO employee, Richard Bai, for deposition. Mr. Bai is a senior AUO executive
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who was indicted in United States v. AUO et al., CR 09-110 SI, and that indictment remains pending.
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The Special Master found that AUO must produce Bai for deposition pursuant to the parties’ November
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17, 2011 stipulation, and the Special Master’s order on that stipulation. The Special Master also found
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that Bai’s deposition could provide highly relevant testimony that outweighed any “burden or expense”
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to defendants, and that it would not be “unreasonably cumulative or duplicative” with other discovery
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taken by plaintiffs.
Defendants object to the Special Master’s Order on the following grounds: (1) to the extent Bai
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testifies about substantive matters, the deposition would be unreasonably duplicative, cumulative, and
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overly burdensome because plaintiffs have taken fourteen substantive depositions of AUO witnesses;
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United States District Court
For the Northern District of California
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(2) Bai has unequivocally stated that he will invoke his Fifth-Amendment privilege not to testify as to
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self-incriminating matters, which would make his deposition duplicative and cumulative with the
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testimony of three previous AUO deponents who invoked the privilege; (3) AUO will not call Bai at
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trial; and (4) plaintiffs should not be allowed to depose Bai because they have already exceeded the
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number of permissible depositions of AUO witnesses set by the Special Master.
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The Court finds that AUO’s objections lack merit, and that the Special Master did not err in
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ordering Bai’s deposition. Bai is one of the people who approved the prices of panels sold to Dell, he
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attended the “Crystal meetings,” and he authored or received relevant documents. Ganske Decl., Master
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Docket No. 6679, ¶¶ 6-8, Exs. D-F. Further, although Bai has stated he will invoke his Fifth-
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Amendment privilege, in order to seek an adverse inference for a witness’s assertion of the privilege,
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the witness must actually invoke the privilege. See, e.g., SEC v. Colello, 139 F.3d 674, 677 (9th
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Cir.1998) (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)); see also Nationwide Life Ins. Co.
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v. Richards, 541 F.3d 903, 909 (9th Cir. 2008) (holding that it is within a trial court’s discretion to draw
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the adverse inference from an invocation of the Fifth Amendment in a civil proceeding).
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Defendants’ argument that plaintiffs have already exceeded the allowable number of depositions
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is contradicted by the express language of the parties’ November 17, 2011, stipulation. As the Special
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Master noted in his Order, the parties’ stipulation modified any prior limit on the number of witness
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depositions that plaintiffs could take. Finally, the Court finds that the deposition will cause little burden
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to AUO, as plaintiffs already plan to travel to Taiwan in October 2012 to take the depositions of two
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other AUO witnesses, and thus Bai’s deposition can be taken during that same trip.
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For the foregoing reasons, the Court finds that the Special Master did not abuse his discretion
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or commit clear error, and thus defendants’ objection to the Special Master’s order granting plaintiffs’
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motion to compel the deposition of AUO witness Richard Bai is DENIED. This order resolves Master
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Docket No. 6574.
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IT IS SO ORDERED.
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Dated: October 11, 2012
SUSAN ILLSTON
United States District Judge
United States District Court
For the Northern District of California
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