Patricia Galvin v. Provident Life and Accident Insurance Company, et al

Filing 45

****PLEASE DISREGARD--ORDER FILED IN INCORRECT DOCKET****ORDER OVERRULING IN PART 315 OBJECTIONS TO MAGISTRATE JUDGE'S ORDER. Signed by Judge Jeremy Fogel on 7/20/09. (jflc3, COURT STAFF) (Filed on 7/20/2009) Modified on 7/20/2009 (jflc3, COURT STAFF).

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**E-Filed 7/20/09**

IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Case Number C 06-3359 JF (RS) DONG AH TIRE & RUBBER CO., LTD, Plaintiff, v. RE: Docket No. 315 GLASFORMS, INC., Defendant/Third-Party Plaintiff. v. CTG INTERNATIONAL (NORTH AMERICA) INC., and TAISHAN FIBERGLASS, INC., Third-Party Defendants. ORDER1 OVERRULING IN PART OBJECTIONS TO MAGISTRATE JUDGE'S ORDER

Third-party Defendant Taishan Fiberglass, Inc. ("Taishan") objects to the Magistrate Judge's order imposing sanctions for its alleged spoliation of evidence after litigation reasonably was anticipated. The Court has considered the full record before it, the Magistrate Judge's

This disposition is not designated for publication in the official reports.

C a s e No. C 06-3359 JF (RS) O R D E R OVERRULING IN PART OBJECTIONS TO MAGISTRATE JUDGE'S ORDER ( JF L C 3 )

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order, and the arguments of counsel, and finds that with respect to all but Taishan's purported duty to preserve or track its graphite rollers, the order was not clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). With respect to Taishan's purported duty to preserve or track the use of its graphite rollers, the source of such a duty is unclear, and the Court will request further briefing, as set forth below. Glasforms used Taishan-manufactured glass in its insulators from June 2004 until sometime in December 2004. Adopting the September 6, 2005 date established by the Magistrate Judge as the point at which Taishan reasonably should have anticipated litigation, the fact remains that approximately nine months had passed since Glasforms ceased using Taishan glass to make its rods­meaning that well over nine months likely had passed since Taishan actually manufactured the glass. Taishan has asserted in declarations that the subject rollers bear no identification marks, are physically identical, and are used interchangeably, being rotated onto and off of the production line as required. At least at present, the Court is aware of no evidence that contradicts this assertion, or that indicates why Taishan should have been expected to preserve or track the rollers in the highly detailed manner urged by Glasforms and in effect required by the Magistrate Judge's order. Glasforms may file opposition to Taishan's objections with respect to the graphite rollers not later than Thursday July 23, 2009 at 5 PM. Taishan may file a reply in support of its objections not later than Monday July 27, 2009 at 5 PM. In all other respects, Taishan's objections are overruled. IT IS SO ORDERED.

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C a s e No. C 06-3359 JF (RS) O R D E R OVERRULING IN PART OBJECTIONS TO MAGISTRATE JUDGE'S ORDER ( JF L C 3 )

DATED: 7/20/09

JEREMY FOGEL United States District Judge

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This Order has been served electronically upon the following persons: April E. Sellers David K. Herzog Eugene Ashley [e-mail] [e-mail] [e-mail], [e-mail],

[e-mail], [e-mail] Jennifer M. Phelps Kevin M. Toner Lisa J. Cummins Noelle Dunn [e-mail], [e-mail] [e-mail], [e-mail] [e-mail]

[e-mail], [e-mail] [e-mail], [e-mail]

Robert A. Christopher 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sophie N. Froelich Tod C. Gurney

[e-mail], [e-mail]

[e-mail]

Notice has been delivered by other means to: Glasforms Inc., William Whitcom Faulkner McManis, Faulkner & Morgan 50 West San Fernando St., Suite 1000 San Jose, CA 95113

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C a s e No. C 06-3359 JF (RS) O R D E R OVERRULING IN PART OBJECTIONS TO MAGISTRATE JUDGE'S ORDER ( JF L C 3 )