Abrams v. Intuitive Surgical, Inc. et al
Filing
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ORDER by Magistrate Judge Howard R. Lloyd re 132 Discovery Dispute Joint Report No. 1. (hrllc2, COURT STAFF) (Filed on 9/19/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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IN RE INTUITIVE SURGICAL
SECURITIES LITIGATION
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Case No. 5:13-cv-01920-EJD (HRL)
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ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 1
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Re: Dkt. No. 132
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In this putative class action, plaintiffs sue Intuitive Surgical, Inc. (Intuitive) and several
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individual defendants for alleged securities fraud. Briefly stated, plaintiffs claim that defendants
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concealed safety defects in Intuitive’s da Vinci Surgical System and lied about the company’s
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business metrics and financial prospects.
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At issue in Discovery Dispute Joint Report (DDJR) No. 1: Whether plaintiffs should be
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compelled to produce notes and a memo concerning pre-litigation interviews of non-party Charles
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Endweiss, a former Intuitive employee. This court is told that Endweiss’ third interview was
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conducted by plaintiff’s counsel and their investigator and that a portion of that interview was
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recorded to aid counsel’s preparation of an investigative memo. That memo, which plaintiffs say
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was not disclosed to Endweiss, served as the basis for certain statements alleged in the Amended
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Class Action Complaint (Dkt. 48), the operative pleading. Those statements apparently were
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included in the complaint to support plaintiffs’ scienter allegations, i.e., that the individual
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defendants knew of and closely monitored adverse event data concerning the da Vinci system.
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(Id. ¶¶ 164-169). Defendants moved to dismiss, arguing (among other things) that those
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allegations were insufficiently pled. Judge Davila disagreed and denied the motion to dismiss, as
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well as defendants’ subsequent motion for reconsideration, on that issue.
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Defendants subsequently deposed Endweiss. They cite portions of the deposition
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transcript and claim that he denied making statements attributed to him in the complaint. Citing
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other portions of Endweiss’ testimony, plaintiffs insist that he “overwhelmingly confirmed the
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complaint allegations attributed to him.” That same day, defendants served plaintiffs with a
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document request seeking “All recordings (audio or video, regardless of the media upon which
they are saved) and transcriptions of any statements provided by any former employee of Intuitive
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United States District Court
Northern District of California
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relating to the allegations in the Complaint, including but not limited to statements provided by
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Charles Endweiss.” (Dkt. 131-4 at 7, DDJR No. 1, Ex. A, Request for Production No. 25).1
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Plaintiffs advised that the recording of Endweiss’ interview no longer exists because it had been
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overwritten in the usual course of business. They otherwise object to the production of the notes
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and memo concerning Endweiss’ interview on the ground that those documents are attorney work
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product.
Unable to resolve the dispute, the parties filed this DDJR. The matter is deemed suitable
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for determination without oral argument. Civ. L.R. 7-1(b). Upon consideration of the parties’
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respective arguments, this court denies defendants’ request for discovery.
Defendants offer no serious argument as to the applicability of the attorney work product
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doctrine to the requested documents. Indeed, a number of courts have concluded that “[i]nterview
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notes and witness summaries drafted by counsel are subject to attorney work product protection.”
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Hatamian v. Advanced Micro Devices, Inc., No. 14-cv-00226-YGR (JSC), 2016 WL 2606830, at
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*3 (N.D. Cal., May 6, 2016) (citing cases); see also In re Harmonic Securities Litig., 245 F.R.D.
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424, 427 (N.D. Cal. 2007) (stating that “preliminary notes or other memoranda written during the
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Ostensibly, Request 25 seeks documents pertaining to statements provided by any former
Intuitive employee. Endweiss, however, is the sole focus of the present DDJR.
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interviews of these [non-party] witnesses . . . would be considered protected work product.”).
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Where, as here, the documents in question were prepared in anticipation of litigation, the work
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product protection also extends to an attorney’s investigator or consultant. In re Convergent
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Techs. Second Half 1984 Securities Litig., 122 F.R.D. 555, 557 (N.D. Cal. 1988); Hatamian, 2016
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WL 2606830 at *3; In re JDS Uniphase Corp. Securities Litig., No. C02-1486 CW (EDL), 2005
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WL 6296194, at *1 (N.D. Cal., Sept. 23, 2005). While verbatim witness statements are considered
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ordinary fact work product, “an attorney’s notes and memoranda of statements are protected as
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opinion work product because they reveal the attorney’s mental processes and show what facts the
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attorney deems legally significant.” Hatamian, 2016 WL 2606830 at *3.
Defendants disclaim any interest in opinion work product. But, to the extent any
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United States District Court
Northern District of California
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information contained in the requested documents might constitute fact work product, defendants
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argue that the protection has been waived. And, even if there has been no waiver, defendants
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contend that they have a substantial need for the interview notes and memo and that the
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information cannot be obtained through any other means.
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Defendants argue that the work product protection was waived during Endweiss’ interview
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because he was asked about his communications with plaintiffs’ counsel and investigator, and
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Endweiss provided detailed answers, with no work product objection from plaintiffs’ counsel. See
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Carrasco v. Campagna, No. C03-4727 SBA (EMC), 2007 WL 81909, at *3 (N.D. Cal., Jan. 9,
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2007) (concluding that the work product protection was waived as to recordings or transcripts of
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witness interviews where witnesses provided substantive answers when specifically asked what
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they discussed with an investigator). However, this court agrees that “[t]he issue here presented is
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not whether defense counsel have a right to learn the relevant factual information, but whether
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they have a right to that information in a particular form, namely, a piece of paper prepared by
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plaintiffs’ counsel . . .” In re Convergent Techs. Second Half 1984 Securities Litig., 122 F.R.D. at
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558. There is no indication that the documents in question were disclosed during Endweiss’
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deposition. This court therefore does not find that the work product protection was waived. See
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Hatamian, 2016 WL 2606830 at *4 (finding that the work product protection of interview notes
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and reports was not waived where plaintiffs never showed the witnesses those notes or reports in
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deposition).
Defendants nevertheless express concern that plaintiffs, who currently assert the work
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product protection as a shield, might later seek to use the documents in question as a sword to fend
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off further attacks on the complaint’s allegations. Defendants argue that plaintiffs cannot have it
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both ways. Plaintiffs state that they do not intend to rely on the notes or memo in their affirmative
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case, or for impeachment, or to dispute Endweiss’ sworn testimony. Nor will they use those
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documents to defend against any motion for summary judgment or any further motions for
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reconsideration of Judge Davila’s decision on defendants’ prior motion to dismiss. However,
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plaintiffs reserve their rights to use the notes and memo to defend against any motion that argues
that counsel lacked a basis for the allegations made in the complaint. (Dkt. 131 at 7 n.4).
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United States District Court
Northern District of California
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Defendants say that they intend to bring precisely such a motion---in which case, they contend that
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the documents must now be produced.
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At the moment, however, no such motion has been brought, and it remains to be seen what
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plaintiffs will do to defend themselves against such a motion, if it ever is filed. On this record,
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this court therefore is unprepared to rule prospectively as to any waiver.
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For the foregoing reasons, and on the record presented, defendants’ request to compel
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production of the Endweiss interview notes and memo is denied. The denial is without prejudice
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to revisiting the issue, should circumstances warrant it.
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SO ORDERED.
Dated: September 19, 2016
________________________
HOWARD R. LLOYD
United States Magistrate Judge
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