Securities And Exchange Commission v. Sells et al

Filing 106


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 SECURITIES & EXCHANGE COMMISSION, 5 6 Plaintiff, ORDER DENYING MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (Docket No. 92) v. 7 CHRISTOPHER SELLS, et al., 8 Defendants. ________________________________/ 9 10 United States District Court For the Northern District of California No. C 11-4941 CW Plaintiff Securities and Exchange Commission (SEC) moves for 11 relief from the non-dispositive pretrial order of a magistrate 12 judge. 13 an opposition to the motion. 14 parties’ submissions, the Court now denies SEC’s motion. Defendant Tim Murawski, at the Court’s invitation, filed 15 16 After considering all of the BACKGROUND SEC seeks relief from Judge Cousins’ February 4, 2013 order 17 directing the agency to respond to three of Murawski’s 18 interrogatories. 19 information obtained by SEC during three interviews that it 20 conducted during its pre-filing investigation of Murawski in 2010. 21 SEC contends that the information Murawski requests in those 22 interrogatories is protected by the work product doctrine. 23 Docket No. 91. The interrogatories seek On February 25, 2013, this Court issued an order inviting 24 Murawski to respond to SEC’s motion. 25 asked Murawski to explain why he could not obtain the information 26 requested in the interrogatories by simply taking depositions of 27 the three witnesses that SEC interviewed in 2010. 28 Docket No. 96. That order 1 Murawski filed his response on March 4, 2013. Docket No. 97. 2 In it, he argues that Judge Cousins’ order should stand because 3 (1) Judge Cousins previously granted a similar discovery request 4 in this case, (2) the information Murawski seeks is not protected 5 by the work product doctrine, and (3) Murawski has a “substantial 6 need” for this discovery. 7 cannot obtain the information he seeks through depositions is that 8 “the Court ruled that depositions in this case must be coordinated 9 with the related class action,” Curry v. Hansen Med., Inc., Case Murawski’s only explanation for why he United States District Court For the Northern District of California 10 No. 09-5094, “and Curry Defendants have suggested that a PSLRA 11 stay of discovery is in effect.” 12 cite any statement by the Court or Curry Defendants indicating 13 that a discovery stay is actually in effect. Docket 97, at 2. He does not 14 DISCUSSION 15 Murawski has not adequately explained why he cannot take 16 depositions of the three SEC witnesses. 17 stayed in this case or in Curry and PSLRA only provides for such a 18 stay when, unlike here, a motion to dismiss is pending. 19 U.S.C. § 78u-4(b)(3). 20 cannot take depositions of the three SEC witnesses is baseless. 21 Discovery has not been See 15 In short, Murawski’s contention that he Nevertheless, Judge Cousins’ order directing SEC to respond 22 to the interrogatories is not contrary to law. 23 specifically distinguishes Hickman v. Taylor, 329 U.S. 495, 508-09 24 (1947), the principal case on which SEC relies in its motion. 25 the order explains, “this case presents a stark contrast to 26 Hickman” because SEC, unlike the producing party in Hickman, has 27 failed to produce any of the information Murawski seeks in its 28 previous responses to his discovery requests. 2 His order As Docket No. 91, at 1 2-3. 2 party seeking discovery in Hickman, had “presented more than 3 ‘adequate reasons’ to justify production.” 4 these differences between Hickman and the present case, Judge 5 Cousins’ order is adequately supported by law. 6 Furthermore, Judge Cousins found that Murawski, unlike the Id. at 3. In light of Critically, Judge Cousins’ order does not direct SEC to turn over its attorneys’ actual notes from the 2010 interviews; rather, 8 it directs the agency to respond to Murawski’s interrogatories.1 9 This diminishes SEC’s concerns about disclosing protected work 10 United States District Court For the Northern District of California 7 product because it allows the agency to withhold or redact any 11 documents that would reveal the contemporaneous thoughts and 12 opinions of the attorneys who conducted the 2010 interviews. 13 order only requires SEC to disclose the specific information 14 Murawski requested in his interrogatories. 15 The CONCLUSION 16 For the foregoing reasons, SEC’s motion for relief from the 17 non-dispositive pretrial order of a magistrate judge (Docket No. 18 92) is DENIED. 19 8-10 within ten days of this order. 20 SEC must respond to Murawski’s Interrogatories IT IS SO ORDERED. 21 22 Dated: 4/8/2013 23 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 1 Murawski contends in his response that “SEC is withholding from production more than one hundred pages of its summaries of the interviews.” Docket No. 97, at 2. However, as noted above, Judge Cousins’ order does not direct SEC to produce these summaries -- it only directs it to respond to Murawski’s interrogatories. Nothing in Judge Cousins’ order suggests that these interrogatories should be construed as requests for production. 3

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