Synthes (USA) v. Spinal Kinetics Inc.

Filing 208

INTERIM ORDER re 182 Defendant's Motion to Compel an In Camera Inspection of Documents. 5/17/2011 motion hearing is vacated. Parties' attorneys, including lead counsel, to meet-and-confer in person in the next 14 days. If the disputes are not resolved, parties to file joint status report, not to exceed 7 pages, by 6/3/2011 re issues that remain in dispute. Court to decide whether a hearing is warranted and will provide notice accordingly. Signed by Magistrate Judge Howard R. Lloyd on 5/13/0211. (hrllc2, COURT STAFF) (Filed on 5/13/2011)

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*E-FILED 05-13-2011*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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SYNTHES USA, LLC (f/k/a SYNTHES
(U.S.A.)); SYNTHES USA SALES, LLC; and
SYNTHES, INC.,

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Plaintiffs,

No. C09-01201 RMW (HRL)
INTERIM ORDER RE DEFENDANT’S
MOTION TO COMPEL AN IN CAMERA
INSPECTION OF DOCUMENTS

v.
SPINAL KINETICS, INC.,
Defendant.
/

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Defendant moves for an in camera inspection of nearly 100 documents listed on

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plaintiffs’ privilege logs, contending that plaintiffs have failed to describe the documents in a

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manner that will allow defendant to properly assess the claimed protection. Plaintiffs believe

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that their privilege logs are sufficient, but argue that defendant’s criticisms apply equally to its

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own privilege log. As such, they request that this court permit their opposition brief to serve as

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a cross-motion to compel re defendant’s privilege log, notwithstanding that it was filed after the

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filing deadline for such motions.

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On the record presented, the quality of the meet-and-confer on these issues is

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underwhelming. This court is unpersuaded that plaintiffs were absolutely hampered from

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timely bringing their own motion as to defendant’s privilege log. At the same time, however,

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there was several months’ gap between defendant’s initial correspondence on the issue and the

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subsequent correspondence revisiting the matter less than one month before the fact discovery

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cutoff. And, the court cannot fault plaintiffs for seeking to fully meet-and-confer on the issues

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before seeking judicial intervention. The record indicates that the parties did not hold a phone

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conference until the March 18, 2011 deadline for filing motions to compel. Plaintiffs believe

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that the conference was lackluster and that defendant is to blame; defendant claims that the prior

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written correspondence satisfied its meet-and-confer obligations. “The mere sending of a

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written, electronic, or voice-mail communication, however, does not satisfy a requirement to

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‘meet and confer’ or to ‘confer.’ Rather, this requirement can be satisfied only through direct

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dialogue and discussion—either in a face to face meeting or in a telephone conversation.” CIV.
L.R. 1-5(n). Moreover, at a minimum, good faith requires that the meet-and-confer be

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For the Northern District of California

United States District Court

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conducted by an attorney with knowledge about the issues.

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Accordingly, the May 17, 2011 motion hearing as to defendant’s motion for an in
camera review is vacated, and this court orders as follows:

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Within the next 14 days, the parties’ attorneys shall meet and confer in person, face-to-

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face about the matters concerning each side’s respective privilege logs. The meet-and-confer

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shall be attended by lead counsel for each side. If lead counsel are not the most familiar with

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the issues to be discussed, then the attorney(s) who are most knowledgeable shall also attend the

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meeting. If, after 14 days all of the issues have not been resolved, then no later than June 3,

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2011, the parties shall file a joint status report, not to exceed 7 pages, identifying the issues (if

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any) that remain in dispute and stating the parties’ respective positions as to each one. Upon

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review of that status report, the court will decide whether it will hold a hearing and will provide

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notice to the parties accordingly.

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SO ORDERED.

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Dated:

May 13, 2011

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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5:09-cv-01201-RMW Notice has been electronically mailed to:

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Allan William Jansen [e-mail], [e-mail],
[e-mail]

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Andre De La Cruz

[e-mail], [e-mail]

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Daniel E. Gustafson

[e-mail], [e-mail]

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Ehab Monsef Samuel [e-mail], [e-mail],
[e-mail]

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James W. Geriak [e-mail], [e-mail],
[e-mail], [e-mail]

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Jeffrey Martin Olson

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

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Kurt Timothy Mulville

[e-mail], [e-mail]

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[e-mail]

Monte M.F. Cooper
For the Northern District of California

United States District Court

Matthew Spencer Jorgenson
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[e-mail], [e-mail], [e-mail]

Paul Howard Meier

[e-mail]

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Robert W. Dickerson

[e-mail]

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Robert William Dickerson [e-mail],
[e-mail]

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Samuel N. Tiu

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail]

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