Securities And Exchange Commission v. Sells et al

Filing 106

ORDER by Judge Claudia Wilken DENYING 92 MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE. (ndr, COURT STAFF) (Filed on 4/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SECURITIES & EXCHANGE COMMISSION,

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Plaintiff,

ORDER DENYING
MOTION FOR RELIEF
FROM NONDISPOSITIVE
PRETRIAL ORDER OF
MAGISTRATE JUDGE
(Docket No. 92)

v.

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CHRISTOPHER SELLS, et al.,

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Defendants.
________________________________/

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United States District Court
For the Northern District of California

No. C 11-4941 CW

Plaintiff Securities and Exchange Commission (SEC) moves for

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relief from the non-dispositive pretrial order of a magistrate

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judge.

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an opposition to the motion.

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parties’ submissions, the Court now denies SEC’s motion.

Defendant Tim Murawski, at the Court’s invitation, filed

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After considering all of the

BACKGROUND
SEC seeks relief from Judge Cousins’ February 4, 2013 order

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directing the agency to respond to three of Murawski’s

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interrogatories.

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information obtained by SEC during three interviews that it

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conducted during its pre-filing investigation of Murawski in 2010.

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SEC contends that the information Murawski requests in those

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interrogatories is protected by the work product doctrine.

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Docket No. 91.

The interrogatories seek

On February 25, 2013, this Court issued an order inviting

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Murawski to respond to SEC’s motion.

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asked Murawski to explain why he could not obtain the information

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requested in the interrogatories by simply taking depositions of

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the three witnesses that SEC interviewed in 2010.

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Docket No. 96.

That order

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Murawski filed his response on March 4, 2013.

Docket No. 97.

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In it, he argues that Judge Cousins’ order should stand because

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(1) Judge Cousins previously granted a similar discovery request

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in this case, (2) the information Murawski seeks is not protected

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by the work product doctrine, and (3) Murawski has a “substantial

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need” for this discovery.

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cannot obtain the information he seeks through depositions is that

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“the Court ruled that depositions in this case must be coordinated

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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

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No. 09-5094, “and Curry Defendants have suggested that a PSLRA

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stay of discovery is in effect.”

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cite any statement by the Court or Curry Defendants indicating

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that a discovery stay is actually in effect.

Docket 97, at 2.

He does not

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DISCUSSION

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Murawski has not adequately explained why he cannot take

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depositions of the three SEC witnesses.

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stayed in this case or in Curry and PSLRA only provides for such a

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stay when, unlike here, a motion to dismiss is pending.

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U.S.C. § 78u-4(b)(3).

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cannot take depositions of the three SEC witnesses is baseless.

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Discovery has not been

See 15

In short, Murawski’s contention that he

Nevertheless, Judge Cousins’ order directing SEC to respond

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to the interrogatories is not contrary to law.

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specifically distinguishes Hickman v. Taylor, 329 U.S. 495, 508-09

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(1947), the principal case on which SEC relies in its motion.

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the order explains, “this case presents a stark contrast to

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Hickman” because SEC, unlike the producing party in Hickman, has

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failed to produce any of the information Murawski seeks in its

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previous responses to his discovery requests.
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His order

As

Docket No. 91, at

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2-3.

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party seeking discovery in Hickman, had “presented more than

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‘adequate reasons’ to justify production.”

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these differences between Hickman and the present case, Judge

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Cousins’ order is adequately supported by law.

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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,

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it directs the agency to respond to Murawski’s interrogatories.1

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This diminishes SEC’s concerns about disclosing protected work

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United States District Court
For the Northern District of California

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product because it allows the agency to withhold or redact any

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documents that would reveal the contemporaneous thoughts and

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opinions of the attorneys who conducted the 2010 interviews.

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order only requires SEC to disclose the specific information

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Murawski requested in his interrogatories.

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The

CONCLUSION

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For the foregoing reasons, SEC’s motion for relief from the

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non-dispositive pretrial order of a magistrate judge (Docket No.

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92) is DENIED.

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8-10 within ten days of this order.

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SEC must respond to Murawski’s Interrogatories

IT IS SO ORDERED.

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Dated: 4/8/2013

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CLAUDIA WILKEN
United States District Judge

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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.

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