Shukh v. Seagate Technology, LLC et al

Filing 387

MEMORANDUM OPINION AND ORDER overruling plaintiff's 350 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION; affirming Maigstrate Judge's 344 Order(Written Opinion). Signed by Judge John R. Tunheim on January 3, 2013. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ALEXANDER M. SHUKH,

Civil No. 10-404 (JRT/JJK)
Plaintiff,

v.
SEAGATE TECHNOLOGY, LLC,
SEAGATE TECHNOLOGY, INC.,
SEAGATE TECHNOLOGY,
UNKNOWN OWNERS AND
ASSIGNEES, and SEAGATE
TECHNOLOGY PLC,

MEMORANDUM OPINION AND
ORDER AFFIRMING THE
SEPTEMBER 24, 2012 ORDER OF
THE MAGISTRATE JUDGE

Defendants.

Constantine John Gekas and John C. Gekas, GEKAS LAW LLP, 11 South
LaSalle Street, Suite 1700, Chicago, IL 60603; James H. Kaster and
Katherine M. Vander Pol, NICHOLS KASTER, PLLP, 80 South Eighth
Street, Suite 4600, Minneapolis, MN 55402, for plaintiff.
Calvin L. Litsey, Chad Drown, Charles F. Knapp, David J. F. Gross,
Elizabeth Cowan Wright, and Jeya Paul, FAEGRE BAKER DANIELS
LLP, 90 South Seventh Street, Suite 2200, Minneapolis, MN 55402;
Sarah E. Benjes, FAEGRE BAKER DANIELS LLP, 1700 Lincoln Street,
Suite 3200, Denver, CO 80203, for defendants.
Plaintiff Alexander M. Shukh objects to the Magistrate Judge’s order denying his
motion to modify the amended scheduling order and extend the time to complete
discovery. (Order, Sept. 24, 2012, Docket No. 344.) The Court has carefully considered
Shukh’s timely objections. Because the Court finds that Shukh has had adequate time to

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complete discovery, and the Magistrate Judge’s conclusions are neither clearly erroneous
nor contrary to law, the Court will overrule Shukh’s objections.
BACKGROUND1
This case has been the subject of extensive litigation. Shukh filed suit in February
2010, raising numerous claims related to the termination of his employment with
Defendants (collectively “Seagate”). In the first year of litigation alone, the parties filed
a combined total of twenty motions seeking, among other things, amendments to the
complaint, dismissal, summary judgment, a preliminary injunction, surreply briefing, and
disqualification of counsel. After a year of litigation, six of Shukh’s thirteen claims
survived a motion to dismiss, and the Court allowed Shukh’s claims based on correction
of inventorship for six United States patents, fraud, and employment discrimination to go
forward. (Order, Mar. 30, 2011, Docket No. 140.)
On June 28, 2011, United States Magistrate Judge Jeffrey J. Keyes entered a
pretrial scheduling order, setting fact discovery to be completed by September 1, 2012,
and expert discovery to be completed by November 1, 2012. (Pretrial Scheduling Order,
June 28, 2011, Docket No. 185.)

Shukh served interrogatories and requests for

production of documents to which Seagate timely responded. Seagate has produced
documents on a rolling basis, with its largest production being 287,858 pages on

1

The Court recites the facts here only to the extent necessary to rule on Shukh’s
objections. A more thorough factual background is available in the Court’s earlier orders in this
case. (See Order, Mar. 30, 2010, Docket No. 140; Order, Nov. 30, 2011, Docket No. 242.)

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March 23, 2012. (Third Decl. of Jeya Paul ¶ 2, Oct. 22, 2012, Docket No. 357.) Shukh
claims that the March 23, 2012 document production was incoherent and included
mislabeled tiff files, each containing more than one document. Shukh has not raised any
formal objections to Seagate’s document production with the Court, nor has he requested
that the Court require Seagate to reproduce the documents in a different format.
Additionally, Magistrate Judge Keyes has found that all of the documents produced by
Seagate in response to Shukh’s broad document requests “were produced in the ordinary
course.” (Third Paul Decl., Ex. A at 12.)
Shortly after discovery commenced, Seagate claimed attorney-client privilege
protection of certain documents and testimony sought by Shukh relating to internal
Seagate communications regarding inventorship of the patents at issue. Seagate claimed
the privilege over 575 invention records and communications, and also asserted the
privilege during a deposition, after which Shukh suspended all deposition discovery.
Shukh brought a motion to compel production of the materials over which Seagate had
claimed privilege. (Am. Mot. to Compel, Oct. 7, 2011, Docket No. 206.)
On December 15, 2011, Magistrate Judge Keyes granted Shukh’s motion to
compel in part. (Order, Dec. 15, 2011, Docket No. 251.) Magistrate Judge Keyes found
a narrow subject-matter waiver of privilege with respect to five invention disclosures
Seagate had produced to Shukh, and granted Shukh’s motion to compel only with respect
to communications related to the subject matter of those invention disclosures. (Id. at 23.) Shukh filed timely objections to Magistrate Judge Keyes’ order. (Pl.’s Objections,
Dec. 28, 2011, Docket No. 252.) While those objections were pending before the Court,
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Shukh continued to submit additional materials in support of his objections. (See Reply,
Feb. 9, 2012, Docket No. 285; Letter, Mar. 29, 2012, Docket No. 296.)
In April 2012, Shukh brought a motion seeking a six month extension of the time
to complete discovery, citing Seagate’s March 23, 2012 document production and the
privilege dispute as the bases for such an extension. (Mot. to Modify Scheduling Order,
Apr. 2, 2012, Docket No. 299.) Seagate agreed to stipulate to a three month extension.
(Opp. to Pl.’s Mot. to Modify Scheduling Order at 6, Apr. 24, 2012, Docket No. 305.)
Magistrate Judge Keyes granted Shukh’s motion in part, extending the discovery
deadlines by three months, setting fact discovery to be completed by December 1, 2012,
and expert discovery by February 1, 2013. (Am. Pretrial Scheduling Order, May 2, 2012,
Docket No. 309.) Shukh did not appeal Magistrate Judge Keyes’ decision.
In June 2012, the Court affirmed Magistrate Judge Keyes’ order regarding
Shukh’s motion to compel the production of documents over which Seagate had asserted
privilege. (Order, June 29, 2012, Docket No. 320.) In the order, the Court denied
Shukh’s request to certify the privilege issue for interlocutory appeal to the Federal
Circuit, finding that Shukh had made “no effort whatsoever to satisfy [the] standard” for
certifying an interlocutory appeal. (Id. at 16.) Shukh then filed a petition for a writ of
mandamus with the Federal Circuit, seeking to vacate the Court’s order denying in part
Shukh’s motion to compel the production of privileged documents. (Notice from the
USCA for the Federal Circuit, July 23, 2012, Docket No. 326.) The Federal Circuit has
since denied Shukh’s petition. (Order, Oct. 22, 2012, Docket No. 358.) In denying his
petition, the Federal Circuit found that Shukh had not demonstrated that review of the
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Court’s privilege ruling was an extraordinary situation demanding mandamus relief.
Specifically, the Federal Circuit found that Shukh’s petition did not raise an important
issue of first impression and that “Shukh has not shown that he has no other adequate
remedy to attain the desired relief, i.e., he has not shown that he could not raise issues
concerning his requests to compel documents within any timely appeal to this court from
a final district court decision.” (Id. at 2.)
On June 29, 2012, Seagate brought a motion for partial summary judgment on
Shukh’s fraud and correction of inventorship claims. (Mot. for Summ. J., June 29, 2012,
Docket No. 313.) This Court held a hearing on September 20, 2012, and Seagate’s
motion for summary judgment is currently under advisement. (Minute Entry, Sept. 20,
2012, Docket No. 342.)
On September 10, 2012, Shukh brought a motion seeking another modification of
the scheduling order to further extend the time to complete discovery. (Mot. to Modify
Am. Scheduling Order, Sept. 10, 2012, Docket No. 332.) Shukh provided three grounds
in support of his request for a three month extension: Seagate’s March 23, 2012
document production; the pending petition for a writ of mandamus related to the privilege
issue; and Seagate’s partial summary judgment motion pending before the Court. (Pl’s
Memo. at 1-2, Sept. 10, 2012, Docket No. 333). At the hearing before Magistrate Judge
Leung, Shukh also suggested that a petition for a writ of certiorari pending in front of the
United States Supreme Court in a different case raised issues related to Shukh’s claims
and weighed in favor of an extension. (Hr’g Tr. (“Tr.”) at 6, Oct. 16, 2012, Docket
No. 353.)
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Magistrate Judge Leung denied Shukh’s motion to amend the scheduling order,
finding that Shukh had failed to demonstrate good cause for such an amendment.
Specifically, Magistrate Judge Leung rejected each of Shukh’s grounds for an extension
and found that Shukh’s failure to conduct discovery in the time prescribed by the
amended scheduling order was his “own strategic decision.” (Id. at 30.) Shukh filed
timely objections, and contends that Magistrate Judge Leung abused his discretion when
he determined that none of the bases proffered by Shukh in support of modifying the
scheduling order demonstrated good cause.

ANALYSIS
I.

STANDARD OF REVIEW
The standard of review applicable to an appeal of a Magistrate Judge’s order on

nondispositive pretrial matters is extremely deferential. Roble v. Celestica Corp., 627
F. Supp. 2d 1008, 1014 (D. Minn. 2007). This Court will reverse such an order only if it
is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a);
D. Minn. LR 72.2(a). “A finding is clearly erroneous when ‘although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Lisdahl v. Mayo Found., 633 F.3d 712,
717 (8th Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985)). “A decision is contrary to law when it fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Knutson v. Blue Cross & Blue Shield of Minn,
254 F.R.D. 554, 556 (D. Minn. 2008) (internal quotation marks omitted).

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II.

AMENDMENT OF SCHEDULING ORDER
Federal Rule of Civil Procedure 16 provides that a scheduling order “may be

modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see
also D. Minn. LR 16.3(b)(1). “The primary measure of good cause is the movant’s
diligence in attempting to meet the order’s requirements.” Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 716 (8th Cir. 2008) (internal quotations omitted); Fed R. Civ. P. 16(b),
advisory committee note (explaining that “the court may modify the schedule on a
showing of good cause if it cannot reasonably be met despite the diligence of the party
seeking the extension”). The “exacting” standard set by Rule 16(b) requires that a
moving party first make the requisite good cause showing. E.E.O.C. v. Hibbing Taconite
Co., 266 F.R.D. 260, 265 (D. Minn. 2009). Even then, however “the district court retains
discretion as to whether to grant the motion.” Bradford v. DANA Corp., 249 F.3d 807,
809 (8th Cir. 2001). Because scheduling orders are “a vehicle designed to streamline the
flow of litigation through [the Court’s] crowded docket,” the Court does not take such
orders lightly, and where good cause to modify has not been shown, “will enforce them.”
Id.

A.

March 23, 2012 Document Production

Magistrate Judge Leung found that Seagate’s March 23, 2012 production of over
280,000 documents did not establish good cause to extend the discovery deadline.
Magistrate Judge Leung specifically found that the issue of the voluminous March 23,
2012 document production had already been argued to Magistrate Judge Keyes in
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Shukh’s first motion to modify the scheduling order, and warranted only the original
three month extension granted by Magistrate Judge Keyes. (Tr. at 27-28.) Furthermore,
in his October 2012 ruling, Magistrate Judge Leung found that Shukh had failed to
exercise diligence, explaining that even though the documents had been available since
March 2012, “the fact that plaintiff decided . . . to only take one deposition to this point
doesn’t seem [to indicate] that much progress has occurred on the document analysis.”
(Tr. at 30.) Shukh objects to Magistrate Judge Leung’s conclusion, arguing that due to
the volume of documents produced, he has been substantially delayed in preparing for
depositions.
This Court concludes that Seagate’s March 23, 2012 document production does
not provide good cause to extend the discovery deadlines. Shukh has not demonstrated
why seven months (from the time the documents were produced until the time Magistrate
Judge Leung ruled on the motion to modify the scheduling order) was an insufficient
period of time in which to review the documents, and his continued failure to review the
documents and conduct depositions demonstrates a lack of diligence. If there were, as
Shukh suggests, problems with the manner in which Seagate produced its documents,
Shukh should have been diligent in seeking to correct those problems immediately, rather
than requesting multiple extensions of the discovery deadlines.

See Hernandez v.

Mario’s Auto Sales, Inc., 617 F. Supp. 2d 488, 495 (S.D. Tex. 2009) (declining to grant

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an extension where the plaintiffs never sought the aid of the court in obtaining adequate
responses to their discovery requests).2
Additionally, Shukh made an identical argument about the burdensome nature of
Seagate’s March 23, 2012 document production in his first motion for an amended
scheduling order. (Pl.’s Memo. in Supp. of Mot. to Modify Scheduling Order at 1-2,
Apr. 17, 2012, Docket No. 302.) Magistrate Judge Keyes agreed that the volume of the
March 23, 2012 document production warranted a three month extension to the discovery
deadlines, and specifically noted that the three month extension did not foreclose a future
extension “if unforeseen additional problems arise.” (Third Paul Decl., Ex. A at 12
(emphasis added).) In support of his second motion to extend the discovery deadlines,
Shukh brought no new facts or unforeseen additional problems to Magistrate Judge
Leung’s attention which would indicate that the production of documents over seven
months ago warrants a further extension. Rather, Shukh’s continued failure to review
these documents after Magistrate Judge Keyes granted a three month extension in which
to do so, demonstrates a lack of diligence. See Hernandez, 617 F. Supp. 2d at 495
(“Plaintiffs were already granted an extension of the discovery period for this very
reason. That they seek another extension for the exact same reason shows a lack of
diligence on Plaintiffs’ part.” (internal citation omitted)). Accordingly, the Court finds
2

See also Smith v. BCE Inc., 225 Fed. Appx. 212, 217 (5th Cir. 2007) (declining to find
good cause to extend a discovery deadline when the party seeking the extension alleged that the
opposing party had failed to respond to discovery requests, holding that rather than seeking an
extension “[a] diligent party attempts to compel discovery through the presiding court after
opposing counsel unjustly refuses to provide responses”).

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that Magistrate Judge Leung’s conclusion that the March 23, 2012 document production
did not establish good cause to modify the discovery deadlines in the scheduling order
was not clearly erroneous.

B.

Petition for Writ of Mandamus

Magistrate Judge Leung concluded that Shukh’s pending petition for a writ of
mandamus related to the privilege issue did not establish good cause to modify the
scheduling order. Magistrate Judge Leung concluded that the privilege argument had
already been addressed to, and considered by, Magistrate Judge Keyes in granting the
original three month extension to the discovery deadlines and that Shukh had presented
no new evidence establishing good cause for further extension. Magistrate Judge Leung
found that Shukh’s argument based on privilege provided less basis for modification of
the scheduling order in his current motion than it did in his original motion for an
extension. In the time between Shukh’s two motions for extensions, the privilege issue
had become even more final because the Court had affirmed the Magistrate Judge’s
order.

Shukh objects to Magistrate Judge Leung’s conclusion, arguing that the

uncertainty of the privilege issue has impeded his ability to conduct discovery.
The Court concludes that Shukh’s continued failure to conduct depositions
consistent with the privilege ruling of Magistrate Judge Keyes that was affirmed by this
Court demonstrates a lack of diligence.

Shukh has characterized the privileged

documents as “relevant to his proof of inventorship and fraud.” (Pl.’s Objections at 4,
Oct. 8, 2012, Docket No. 350.) Yet Shukh has failed to demonstrate how a pending

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petition for a writ of mandamus affected his ability to depose non-Seagate employees
unconnected with the privileged documents or conduct discovery relevant to his
discrimination claims. Additionally, Shukh has failed to demonstrate good cause for his
failure to conduct discovery more generally with respect to non-privileged information.
Shukh makes only a sweeping generalization that all of his proposed discovery is so
intertwined that no discovery could proceed without a final privilege determination.
Shukh’s argument misapprehends the fact that there was, at all times since Magistrate
Judge Keyes’ December 15, 2011 order, a privilege determination governing the case.
The Federal Circuit’s order denying Shukh’s petition for mandamus specifically indicated
that “Shukh has not shown that he has no other adequate remedy to attain the desired
relief, i.e., he has not shown that he could not raise issues concerning his requests to
compel documents within any timely appeal to this court from a final district court
decision.” (Order at 2, Oct. 22, 2012, Docket No. 358.) In other words, that Shukh may
ultimately have grounds for appeal from a final decision of the Court does not constitute
good cause to extend discovery deadlines where Shukh has failed to diligently pursue
discovery within the confines of the privilege determinations governing this case.
Therefore, the Court concludes that Magistrate Judge Leung did not err in concluding that
the petition for a writ of mandamus did not establish good cause to modify the scheduling
order.

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C.

Pending Motion for Partial Summary Judgment

Magistrate Judge Leung also found that Seagate’s motion for partial summary
judgment pending before the Court did not provide good cause to modify the discovery
deadlines. Magistrate Judge Leung characterized Shukh’s failure to take discovery as a
“strategic decision.” (Tr. at 30.) Shukh objects to this conclusion, arguing that he should
be allowed to wait and see how the Court will rule on Seagate’s motion before incurring
discovery costs related to the fraud and correction of inventorship claims which may
ultimately be dismissed.3
Shukh has not shown that good cause exists to modify the scheduling order due to
the pending summary judgment motion. Rather, the “wait and see” approach is a tactical
decision, and does not demonstrate diligent pursuit of discovery. See Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 759-60 (8th Cir. 2006) (holding that “tactical
decision[s]” do not provide good cause to modify case management orders); cf. Watt v.
All Clear Bus. Solutions, LLC, 840 F. Supp. 2d 324, 326 (D.D.C. 2012) (rejecting as a
basis for extending a discovery deadline the plaintiff’s assertion that he expected the case
to settle prior to the need for incurring the additional costs of deposing an expert, finding
“no authority for the proposition that merely hoping for or anticipating settlement and
3

Shukh also seems to suggest that Seagate’s motion for summary judgment was in some
way improper because it was brought before the close of discovery. Federal Rule of Civil
Procedure 56(b) allows a party to move for summary judgment “at any time until 30 days after
the close of all discovery.” Thus, there was nothing facially improper about the timing of
Seagate’s motion. Furthermore, the appropriate mechanism to deal with a premature summary
judgment motion is not amending the scheduling order, but rather through an affidavit under Fed.
R. Civ. P 56(d), which Shukh has submitted in connection with the summary judgment motion
and is currently under consideration by the Court.

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stipulations excuses [plaintiff’s] failure to meet court-ordered deadlines”). That Shukh
anticipates the Court may dismiss some of his claims due to Seagate’s motion for
summary judgment does not provide a good cause basis to extend the discovery
deadlines. If Shukh does not wish to conduct the discovery necessary to support his fraud
and correction of inventorship claims, he is free to move for their dismissal.
Furthermore, Shukh’s argument that the resolution of the summary judgment motion will
substantially reduce the discovery he expects to take is belied by his argument with
respect to privilege that he has been unable to conduct any discovery because discovery
for all of his claims is inextricability intertwined. The Court could not find that Seagate’s
filing of summary judgment caused Shukh to stop conducting discovery, when the record
suggests that Shukh was not diligently pursuing discovery before the motion was filed.
Because Seagate’s pending motion did not establish good cause, the Court concludes that
Magistrate Judge Leung did not err in denying Shukh’s motion to modify the scheduling
order.

D.

Petition for Writ of Certiorari

Finally, Magistrate Judge Leung found that a pending petition for a writ of
certiorari in a separate case did not establish good cause to amend the scheduling order.
Shukh argues that the pending petition relates to the legal viability of one of the bases for
Shukh’s correction of inventorship claim, which basis the Court previously dismissed.
Shukh contends that if the Supreme Court grants the petition, and overturns the Federal

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Circuit case upon which the Court relied, the current case “will be drastically changed,”
and Shukh will be required to conduct more discovery.
Shukh has failed to demonstrate that the pending petition establishes good cause
for extending the discovery deadline. Scheduling orders would be meaningless indeed if
discovery was halted every time there was a mere possibility that, sometime in the future,
the Supreme Court would grant a petition for a writ of certiorari which could result in an
opinion that might ultimately bear upon some of the legal issues in the case. The link
between the pending petition for certiorari and Shukh’s ability to conduct discovery is
simply too tenuous to establish good cause. Furthermore, Shukh only requested a three
month extension to discovery deadlines, suggesting that the petition for certiorari is not a
true basis of his motion for an extension. In three months, it is impossible that the
Supreme Court, even if it accepted certiorari of the case in question, would have rendered
an opinion in the case. As with the privilege determination, after this case is resolved,
Shukh is free to appeal the Court’s legal determination regarding his correction of
inventorship claim. The ability to appeal does not, however, establish good cause to
postpone discovery. Therefore, the Court concludes that Magistrate Judge Leung did not
err in denying Shukh’s motion to modify the scheduling order. 4

4

Because the Court concludes that Magistrate Judge Leung did not err in finding that
Shukh had not shown good cause to extend the discovery deadlines, the Court need not address
whether Seagate demonstrated that the extension would cause it to be prejudiced. Magistrate
Judge Leung correctly concluded that Seagate did not need to show prejudice in order for
Shukh’s request to extend the scheduling order to be denied, and properly only relied on
prejudice as another, independent reason to deny Shukh’s motion. See Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008) (“While the prejudice to the nonmovant
(Footnote continued on next page.)

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES plaintiff’s objections [Docket No. 350] and AFFIRMS the
Magistrate Judge’s Order dated September 24, 2012 [Docket No. 344].
DATED: January 3, 2013
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

____________________________________
(Footnote continued.)

resulting from modification of the scheduling order may also be a relevant factor, generally, we
will not consider prejudice if the movant has not been diligent in meeting the scheduling order’s
deadlines.”).

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