Loop AI Labs, Inc. v. Gatti et al

Filing 949

Order by Magistrate Judge Donna M. Ryu on 939 Motion for Modification of Court's Nov. 4, 2016 Order.(dmrlc1, COURT STAFF) (Filed on 11/15/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 LOOP AI LABS INC, 7 Case No. 15-cv-00798-HSG (DMR) Plaintiff, 8 v. 9 ANNA GATTI, et al., 10 Defendants. Re: Dkt. No. 939 11 United States District Court Northern District of California ORDER ON DEFENDANTS' MOTION FOR MODIFICATION OF COURT'S ORDER REGARDING PRODUCTION OF TRANSLATED ORRICK DOCUMENTS 12 Defendants Almawave USA, Inc., Almawave S.r.l., and Almaviva S.p.A., filed a motion 13 for modification of this court’s November 4, 2016 order. That order required Defendants to 14 prepare certified English translations of all Italian-language emails previously submitted for in 15 camera review by November 18, 2016. Plaintiff Loop AI Labs Inc. filed an opposition brief. 16 Defendants waived a reply.1 [Docket Nos. 939 (Defs.’ Mot), 947 (Pl.’s Opp’n).] The court finds 17 that this matter is suitable for determination without oral argument. Civil L.R. 7-1(b). 18 Defendants’ motion for modification asked for a continuance of the November 18, 2016 19 deadline for submitting translations, as well as cost-shifting for the translation costs. In its 20 opposition brief, Plaintiff not only opposes these requests, but goes well beyond. It asks the court 21 to sanction Defendants and defense counsel for alleged misconduct relating to the motion for 22 23 24 25 modification, as well as alleged misconduct in responding to Plaintiff’s subpoena to third party Orrick, Herrington & Sutcliffe (“Orrick”). It also requests a finding that Defendants waived any privilege as to the Italian-language emails based on Defendants’ failure to submit English translations of the same for the court’s review. Plaintiff also revisits arguments that Defendants 26 27 28 1 Defendants filed a motion for an order shortening time for briefing and resolution of the motion for modification in which it waived a reply and hearing on the motion for modification. [Docket No. 940 at 1.] 1 waived any privilege in the Orrick documents and cites to alleged new evidence that it claims 2 resulted in waiver, including recently-filed declarations by defense counsel and others attesting to 3 communications between Defendants and Orrick. 4 At this time, the court will only address Defendants’ request to modify the November 4, 2016 order. The court originally ordered Defendants to submit the translations by November 18, 6 2016. In their motion for modification, Defendants claim that translating the documents by that 7 deadline would cost approximately $34,000. They ask the court to 1) continue the compliance 8 deadline; 2) order Defendants to produce a privilege log that would enable Plaintiff to assess the 9 claims of privilege and require translation of only those documents challenged by Plaintiff; and 3) 10 order Plaintiff to share the cost of obtaining translations for those documents it elects to challenge. 11 United States District Court Northern District of California 5 Defs.’ Mot. at 2. On November 10, 2016, the court denied Defendants’ motion for an order 12 shortening time, but continued the November 18, 2016 translation deadline to November 21, 2016 13 in order to give Plaintiff an opportunity file an opposition brief. [Docket No. 943.] Defendants 14 have since notified the court that they have identified a vendor that can translate all of the 15 documents within two weeks, and for a far lower cost (an estimated $10,485). [Docket No. 944.] 16 The court finds that imposing cost-shifting for the cost of translating the documents along 17 with implementation of a privilege log mechanism by which Plaintiff may challenge specific 18 documents is unjustified. Defendants argue that cost-shifting is appropriate because “each party 19 seeking discovery is expected to bear any special attendant costs.” Mot. at 2 (citing Saucedo v. 20 Brazelton, No. 13-CV-01696-SI, 2015 WL 4481795, at *4 (N.D. Cal. July 22, 20150 (quoting In 21 re Puerto Rico Elec. Power Authority, 687 F.2d 501, 509 (1st Cir. 1982)). However, neither of 22 these cases involves circumstances similar to those present here. Defendants previously argued 23 that a privilege log was not required because the Orrick documents were responsive to a third 24 party subpoena, and not party discovery. [Docket No. 335, Dec. 10, 2015 Hr’g Tr. at 67.] They 25 instead asked for in camera review of the documents, resulting in a considerable burden to the 26 court, which had to review over 4,000 pages of material. [See Docket No. 189 (Defs.’ Reply) at 27 14.] Had Defendants instead promptly produced a privilege log which permitted Plaintiff to 28 evaluate its claims of privilege as to the Orrick documents, Defendants would have been in a 2 1 2 stronger position to argue for cost-shifting. However, that ship sailed long ago. Defendants shall submit translations of all of the Italian-language emails by no later than 3 November 21, 2016, as previously ordered. Defendants shall bear all translation costs. [See 4 Docket No. 943.] After the court reviews the translations, it will issue any further orders 5 necessitated by the issues raised in Plaintiff’s opposition. Jud ER H 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 FO RT 11 United States District Court Northern District of California R NIA S ______________________________________ Donna M. Ryu . Ryu United ge DoMagistrate Judge States nna M NO 10 Dated: November 15, 2016 D RDERE OO IT IS S LI 9 IT IS SO ORDERED. A 8 UNIT ED 7 RT U O 6 S DISTRICT TE C TA N F D IS T IC T O R C

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