Securities And Exchange Commission v. Schroeder

Filing 95

STIPULATION AND ORDER re defendant's motion to compel further responses to discovery requests re 94 Stipulation. Skadden's surreply due by 9/16/2008, 5:00 p.m. Signed by Magistrate Judge Howard R. Lloyd on 9/15/2008. (hrllc2, COURT STAFF) (Filed on 9/15/2008) Modified docket relationship on 9/23/2008 (ecg, COURT STAFF).

*ORDER E-FILED 9/15/2008* 1 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP RICHARD MARMARO (Cal. Bar No. 91387) 2 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071-3144 3 Telephone: [phone] Facsimile: [phone] [e-mail] m 4 Email: 5 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP JAMES E. LYONS (Cal. Bar No. 112582) 6 TIMOTHY A. MILLER (Cal. Bar No. 154744) Four Embarcadero Center, Suite 3800 7 San Francisco, California 94111-4144 Telephone: [phone] Facsimile: [phone] (fax) Email: jlyo [e-mail] m [e-mail] m 9 10 Attorneys for Non-Parties Skadden, Arps, Slate, Meagher & Flo m LLP and Individual Skadden Attorneys 11 12 13 14 15 16 SECURITIES AND EXCHANGE COMMISSION, 17 Plaint iff, vs. 18 19 KENNETH L. SCHROEDER, 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Defendant.

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CASE NO. C 07-3798-JW (HRL) STIPULATION AND [XXXXOXED]X PROPX S XX ORDER RE MOTION OF KENNETH L. SCHROEDER TO COMPEL FURTHER RESPONSES TO DISCOVERY REQUESTS (TESTIMONY AND DOCUMENTS) BY (1) KLA-TENCOR CORPORATION AND (2) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, ATTORNEYS FOR THE SPECIAL COMMITTEE OF KLA'S BOARD OF DIRECTORS [DKT. NO. 75] (MODIFIED BY THE COURT) Date: September 23, 2008 Time: 10:00 a.m. Courtroom: 8 Judge: Magistrate Judge Howard R. Llo yd

STIPULATION AND [PROPOSED] ORDER RE KENNETH L. SCHROEDER'S MOTION TO COMPEL

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WHEREAS, Defendant Kenneth L. Schroeder ( cree ) " hodr issued subpoenas to nonS "

2 parties Skadden, Arps, Slate, Meagher & Flo m LLP and individual Skadden attorneys Galen 3 Bellamy, Jack DiCanio, Zvi Gabbay, Elizabeth Harlan, Victoria Holstein-Childress, Cale Keable, 4 Morgan Lopez, Richard Marmaro, Thomas McDonald, Lanelle Meidan, Jonah Van Zandt and 5 Sheryl Wu (collectively, "Skadden"), and separately to non-party KLA-Tencor Corporation 6 ("KLA"); and 7 WHEREAS, Skadden and KLA timely objected to the subpoenas in part on the ground that

8 they called for the production o f documents and informat ion protected from disclo sure by the 9 attorney work product doctrine; and 10 WHEREAS, Skadden, KLA and Schroeder engaged in a "meet and confer" process to

11 resolve their disputes, but were ult imately unsuccessful; and 12 WHEREAS, on June 9, 2008, Schroeder filed his Motion of Kenneth L. Schroeder to

13 Compel Further Responses to Discovery Requests (Testimony and Documents) By (1) KLA14 Tencor Corporation and (2) Skadden, Arps, Slate, Meagher & Flo m LLP, Attorneys for the Special 15 Committee of KLA's Board of Directors (the "Motio n to Compel") (Dkt. No. 75), originally setting 16 the Motion to Compel for hearing on July 15, 2008, and later, at the request of KLA and Skadden, 17 continuing the hearing to August 26, 2008; and 18 WHEREAS, at the request of KLA and Skadden, the parties filed a stipulat ion dated July

19 25, 2008 (Dkt. No. 81) setting forth a proposed briefing schedule and continuing the hearing on the 20 Motion to Compel to September 9, 2008, and, based on the Court's order on that stipulation dated 21 August 1, 2008 (Dkt. No. 83), a schedule was set for the complet ion of briefing on the Motion to 22 Compel and the hearing on the Motion to Compel was continued to September 23, 2008, at 10:00 23 a.m.; and 24 WHEREAS, on August 1, 2008, Skadden filed its opposit ion to Schroeder's Motion to

25 Compel, arguing principally that the documents and informat ion sought in Schroeder's subpoenas 26 were protected from disclo sure by the attorney work product doctrine (Dkt. No. 84, and related 27 entries); and 28 -1STIPULATION AND [PROPOSED] ORDER RE KENNETH L. SCHROEDER'S MOTION TO COMPEL

1

WHEREAS, on August 26, 2008, Schroeder filed his reply brief in support of his Motion to

2 Compel (the "Schroeder Reply") (Dkt. No. 89) in which he argues, in part, that "the Court need not 3 even consider any o f Skadden's arguments concerning work product protection," cit ing cases 4 including In re California Public Utilities Commission, 892 F.2d 778, 781 (9th Cir. 1989) 5 (hereinafter "CPUC") (see Schroeder's Reply (Dkt. 89) at page 17 line 1 through page 18 line 8); 6 and 7 WHEREAS, Skadden contends that Schroeder's argument based on CPUC and related

8 cases was not raised by Schroeder in the "meet and confer" process or at any po int prior to the 9 filing of Schroeder's Reply; and 10 WHEREAS, after receiving Schroeder's Reply, Skadden contacted counsel for Schroeder

11 and requested that Schroeder agree, in light of Schroeder's CPUC argument, to continue the 12 hearing on the Motion to Compel to permit Skadden to move for a protective order prohibit ing the 13 disclosure of documents or informat ion sought in the Motion to Compel that Skadden claims are 14 protected fro m disclosure by the attorney work product doctrine; and 15 WHEREAS, Schroeder's counsel explained to Skadden that Schroeder does not wish to

16 continue the hearing on the Motion to Compel, but would instead agree that Skadden may file a 17 surreply in further opposition to Schroeder's Motion to Compel, not to exceed five pages, by 18 Tuesday, September 16, 2008, limited to responding to the arguments raised by Schroeder at page 19 17 line 1 through page 18 line 8 of Schroeder's Reply (Dkt. No. 89); and 20 WHEREAS, icni r i o S adns gem nt poed y in a ur p n os e t n f kde'ar eto rce b fi srel d ao e lg ry

21 rather than filing an administrative motion for an order continuing the hearing date, Schroeder has 22 further agreed that (i) he has not contended, in his Reply or elsewhere, and will not contend that 23 Skadden's arguments under the attorney work product doctrine in its opposit ion papers or its 24 surreply have been compro mised or affected in any way by the fact that Skadden did not file a 25 mot ion for a protective order, and (ii) to expedite the final reso lut ion of the dispute between 26 Skadden and Schroeder, if the Court finds that the filing of a motion for protective order by 27 Skadden or KLA (or both) is appropriate or necessary in light of Schroeder's CPUC argument, 28 Skadden's opposit ion papers and surreply should be deemed by the Court to constitute a motion for -2STIPULATION AND [PROPOSED] ORDER RE KENNETH L. SCHROEDER'S MOTION TO COMPEL

1 protective order under Rule 26(c) and Rule 45(c) of the Federal Rules of Civil Procedure 2 prohibit ing the disclosure of the documents and information sought in Schroeder's Motion to 3 Compel that Skadden contends are protected from disclosure by the attorney work product 4 doctrine; and 5 WHEREAS, to induce Skadden not to file an administrative motion seeking a cont inuance

6 of the hearing date, Schroeder and Skadden have further agreed that, if after reviewing the briefs o f h a i i l i S adnsur l n a e hai a m no Spe e 2,08the e ts n u n e, t ng m 7 t pre, c d g kde'sr pyad f r er g ru et n et br 320, 8 Court determines that it cannot deny the Motion to Compel or issue a protective order under Rule 9 26(c) or Rule 45(c) of the Federal Rules of Civil Procedure prohibit ing the disclosure of the 10 documents and informat ion sought in Schroeder's Motion to Compel that Skadden or KLA 11 contends are protected from disclo sure by the attorney work product doctrine without the filing of a 12 new motion for protective order by Skadden or KLA (or both), then the Court should defer its 13 ruling on Schroeder's Motion to Compel to permit Skadden and/or KLA to move the court for a 14 protective order, so that the Court can address the issue with the benefit of full briefing; 15 WHEREAS, to the extent that KLA, in its opposit ion to Schroeder's Motion to Compel, has

16 asserted work product object ions wit h respect to certain of the documents and informat ion sought 17 in Schroeder's separate subpoena to KLA, KLA agrees with and jo ins Skadden's posit ions set forth 18 above; 19 IT IS HEREBY STIPULATED AND AGREED, by and between Schroeder, Skadden and

20 KLA through their respect ive counsel, as fo llows: 21 1. Skadden may file a surreply in further opposition to Schroeder's Motion to

22 Compel not to exceed five pages, limited to responding to the arguments raised by Schroeder at 23 page 17 line 1 through page 18 line 8 of Schroeder's Reply (Dkt. No. 89). 24 25 2. 3. Skadden's surreply shall be filed no later than Tuesday, September 16, 2008. The hearing on the Motion to Compel shall go forward as scheduled on

26 September 23, 2008. 27 4. Skadden's and KLA's object ions based on the applicabilit y o f the attorney

28 work product doctrine to the production of documents or informat ion requested in Schroeder's -3STIPULATION AND [PROPOSED] ORDER RE KENNETH L. SCHROEDER'S MOTION TO COMPEL

1 subpoenas shall not be overruled, compro mised or affected in any way on the ground that neither 2 Skadden nor KLA has moved for a protective order. 3 5. Subject to the discret ion and approval o f the Court, if the Court determines

4 that it cannot deny the Motion to Compel or issue a protective order under Rule 26(c) or Rule 45(c) 5 of the Federal Rules of Civil Procedure prohibit ing the disclosure of the documents and 6 informat ion sought in Schroeder's Motion to Compel that Skadden or KLA contends are protected 7 fro m disclo sure by the attorney work product doctrine without the filing of a new motion for 8 protective order by Skadden or KLA (or both), then the Court will defer its ruling on Schroeder's 9 Motion to Compel to permit Skadden or KLA (or both) to move the court for a protective order, so 10 that the Court can address the issue wit h the benefit of full briefing. 11 12 13 DATED: September 12, 2008 14 15 16 17 18 19 I, Timothy A. Miller, am the ECF User whose ID and password are being used to SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP By: /s/ TIMOTHY A. MILLER Attorneys for Non-Parties Skadden, Arps, Slate, Meagher & Flo m LLP and Individual Skadden Attorneys IT IS SO STIPULATED.

20 file this STIPULATION AND [PROPOSED] ORDER RE MOTION OF KENNETH L. 21 SCHROEDER TO COMPEL FURTHER RESPONSES TO DISCOVERY REQUESTS 22 (TESTIMONY AND DOCUMENTS) BY (1) KLA-TENCOR CORPORATION AND (2) 23 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, ATTORNEYS FOR THE SPECIAL 24 COMMITTEE OF KLA'S BOARD OF DIRECTORS [DKT. NO. 75]. In compliance with General 25 Order 45, X.B., I hereby attest that each of the two signatories identified below has concurred in 26 this filing. 27 28 -4STIPULATION AND [PROPOSED] ORDER RE KENNETH L. SCHROEDER'S MOTION TO COMPEL

1 DATED: September 12, 2008 2 3 4 5 6 7 8 9 DATED: September 12, 2008 10 11 12 13 14 15 16 17 18 19 20 21

DLA PIPER US LLP SHIRLI FABBRI WEISS DAVID A. PRIEBE JEFFREY B. COOPERSMITH By: /s/ Jeffrey B. Coopersmit h 200 Universit y Avenue East Palo Alto, California 94303 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Kenneth L. Schroeder

MORGAN, LEWIS & BOCKIUS LLP JOHN H. HEMANN JOSEPH E. FLOREN By: /s/ Joseph E. Floren One Market Street, Spear Street Tower San Francisco, CA 94105-1126 Telephone: [phone] Facsimile: [phone] Attorneys for Non-Party KLA-Tencor Corporation

ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED. Skadden's surreply shall be filed no later than 5:00 p.m. on September 16, 2008. S __ ember __ ____ept______15 , 2008 The Honorable Howard R. Llo yd United States Magistrate Judge

22 Dated: 23 24 25 26 27 28

-5STIPULATION AND [PROPOSED] ORDER RE KENNETH L. SCHROEDER'S MOTION TO COMPEL