Bridgestone Americas, Inc. v. International Business Machines Corporation

Filing 186

ORDER on Motion and scheduling order (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Brown, Joe)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIDGESTONE AMERICAS, INC.,

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Plaintiff
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant

No. 3:13-1196
Judge Sharp/Brown
Jury Demand

O R D E R
A 2½ hour telephone conference was held with the parties
on August 27, 2015, on a number of topics. The parties submitted a
joint statement of the issues for the telephone conference for
completeness and reference the joint submission will be filed as
the next exhibit in this case.
The first issue dealt with documents subpoenaed by IBM
from Deloitte. Although the subpoena was issued in late May, it
appears that not much has been done to either file a motion to
compel or a motion for a protective order or to bring it to the
Court’s attention. The parties advised that they were working on
the matter and that Deloitte is apparently committed to beginning
to collect documents. It remains to be seen whether there will be
any issues of privilege involved. Bridgestone needs to make a
decision in short order as to whether they intend to claim any
accounting privilege. The parties will file a report with the Court
by September 4, 2015, on the status of this subpoena and include a

schedule

for

briefing

privilege

issues,

if

necessary,

and

a

timetable for compliance with the subpoena.
The second issue dealt with 2253 documents produced by
Bridgestone/Japan. IBM contends that a lot of improper redactions
were made. Bridgestone responded that the documents were reviewed
apparently

by

Bridgestone/Japan

nonresponsive or

and

materials

they

considered

immaterial were redacted. During the course of

the discussion it appears that the redactions were actually made by
Bridgestone/Japan not Bridgestone/America. Bridgestone/America the
plaintiff did not review the redactions.
The

Magistrate

Bridgestone/America
produce

the

has

documents.

Judge

has

sufficient

previously

control

to

Bridgestone/America

be

needs

ruled

that

required
to

to

review

unredacted copies of the documents produced by Bridgestone/Japan
and

then

they

unresponsive

or

may

redact

immaterial.

materials

they

consider

Bridgestone/Japan

either

should

produce

unredacted copies to Bridgestone/ America by September 4, 2015.
Once

the

documents

are

reviewed

by

Bridgestone/America,

if

redactions remain, IBM may file objections and may select 50
documents,

which

Bridgestone/America

Bridgestone/America
will

submit

for

an

has
in

redacted

camera

and

inspection

unredacted copies of those 50 documents. If the Magistrate Judge
finds that a substantial number of the redactions are improper, he
will order that all the documents be produced in unredacted form.
On the other hand, if he finds that redactions are substantially

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accurate, he will not directed that the unredacted copies be
produced. The Magistrate Judge is of the opinion that a party may
redact material that is not responsive or not likely to lead to
relevant information, however give the scope of this case redaction
should be used only when the issue is clear.
The third topic dealt with privilege logs. The first set
deals with what has now been reduced to some 930 documents and a
separate

set

of

Bridgestone’s

parent

documents

of

some

101

documents. Any motion challenging the 930 documents should be filed
by September 4, 2015, and IBM may select 25 documents from the 930
documents as a sample for which Bridgestone will produce unredacted
copies

for

an

in

camera

review

by

the

Magistrate.

For

the

Bridgestone’s 101 documents, the revised log will be produced by
September 8, 2015. Any motions concerning the log will be filed by
September 8, 2015, and the parties will confer about the motion by
September 11, 2015. If motions are filed then by September 18,
2015,

IBM

may

select

10

documents

for

in

camera

review

and

Bridgestone will produce unredacted versions of those 10. In both
cases, 14 days will be allowed for a response, and seven days for
replies. The parties should not even think about asking for a
surreply.
Item 4 deals with IBM’s complaint that Bridgestone has
not produced adequate information concerning its claim for damages
in this case. Bridgestone contends that it has produced some 23,820
pages of damage calculations and is willing to provide some of the
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documents in an agreed

spreadsheet format and will produce tax

returns as available. Bridgestone is aware that failure to make
required disclosures concerning damages can result, and should
result, in their being precluded from seeking those damages at the
actual

trial.

IBM

has

sent

Bridgestone

letters

requesting

explanations about their responses on August 7 and 24, 2015.
Bridgestone should respond to those letters by September 11, 2015.
If differences arise, IBM should promptly file a motion to compel
a fuller answers to their requests for production. In general, the
Magistrate Judge expects reasonable and complete responses and
disclosure of damages. Seasonal supplementation is allowed and IBM
has stated that they are not seeking disclosure at this point of
Bridgestone’s expert calculations. The Magistrate Judge understands
that

Bridgestone

is

a

large

company,

however,

in

particular

concerning the loss of sales for replacement tires for both private
and commercial customers, it would seem that information of this
should be complete. Certainly, Bridgestone/America does not involve
Bridgestone/Europe, Bridgestone/Japan, or other entities that did
not have sales.
The next item dealt with the SAP code, with a subissue
concerning SAP codes from the solution manager program. IBM has
proposed four questions that they wish Bridgestone to answer: (1)
to explain what efforts were made to access solution manager; (2)
to explain why it has not produced solution manager information if
it is accessible; (3) to explain whether IBM can have direct access

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by a virtual machine; and (4) to set up a telephone conference with
technical experts so that the experts can inquire as to the
technical challenge and explore solutions. Bridgestone has agreed
to answer the questions and to set up a conference with the
technical people. The answers to the questions should be provided
by

September

2,

2015,

and

the

IT

conference

call

should

be

scheduled by September 9, 2015.
Bridgestone had three topics. No. 6 dealt with subpoenas
issued by IBM to accounting two accounting firms.

Counsel for

Bridgestone stated that these two accounting firms were hired by
Bridgestone attorneys to provide services to the attorneys. This
appears to the Magistrate Judge to be classic work product and
protected from disclosure to IBM. IBM does not disagree with this
as

a

general

mentioned

in

proposition,
documents

and

however,
they

these

had

only

two

companies

recently

were

received

Bridgestone’s claim of a work product privilege. The parties may
discuss this matter further, but absent some indication by IBM that
they were seeking information that is not covered by the work
product privilege, the Magistrate Judge believes that the work
product privilege is appropriate. Of course, should either firm be
later used as a testifying expert, the Rule 26 disclosure of
experts and their depositions would be appropriate.
The next issue, Number 7, dealt with Bridgestone’s notice
of a Rule 30(b)(6) deposition of IBM to discuss a number of topics.
The Magistrate Judge believes that Rule 30(b)(6) witnesses are part

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of

fact discovery

and

the

case

management

order

setting

the

deadlines for completion of fact discovery includes Rule 30(b)(6)
witnesses. IBM should provide Bridgestone with specific objections
to any of the Rule 30(b)(6) topics by September 3, 2015. If the
parties are unable to resolve the matter they may file briefs or
request that the Magistrate Judge attempt to resolve the matter
with a telephone conference.
Topic No. 8 dealt with the redaction by IBM of certain
third-party identities from their document production. This request
dealt with companies that are alleged to have experienced similar
problems as Bridgestone to IBM’s work for them. IBM contends that
there was an agreement between the parties not to have to produce
the names. The Magistrate Judge does not have the letters that
purportedly set out such an agreement.
Bridgestone has until September 14, 2015, to file a
motion to compel production of the names. The Magistrate Judge will
then be in a position to determine whether there was an agreement.
To the extent there was an agreement between the parties the
Magistrate Judge would rule that the parties can agree to limit
discovery and the Magistrate Judge would not disturb such an
agreement, if it exists.
The final topic, which the Magistrate Judge raised, dealt
with an amended protective order, which the Magistrate Judge
entered

on

May

Bridgestone’s

15,

motion

2015

(Docket

(Docket

Entry

6

Entry
173)

141).
the

As

noted

Magistrate

in

Judge

entered the order because he believed it was an agreed order
between the parties. The Magistrate Judge is now satisfied that
there was no agreed order and accordingly Bridgestone is entitled
to

object

to

the

order

and

request

reconsideration.

After

considering the briefs (Docket Entries 173, 179, 180 and 185), the
Magistrate Judge will GRANT the motion in part and modify that
order to provide that either side may file 10 requests at any time
under the original case management order (Docket Entries 54 and
96). The Magistrate Judge does believe that unlimited objections
and telephone conferences over what are literally million of
documents that have been classified as confidential or highly
confidential, would bog this case down far too much. Accordingly,
regarding these disputes and limiting the number in the revised
case

management

order

(Docket

Entry

78)

is

a

reasonable

modifications.
After
Magistrate
concerning

Judge

considering
will

removing

allow

Bridgestone’s
each

side

confidential

or

to

objections,
file

highly

10

the

requests

confidential

designations. The parties are cautioned that if the parties abuse
this procedure by including a large number of documents in a single
request, the Magistrate Judge will very quickly substantially cut
or eliminate the exception entirely.
Bridgestone has indicated that it will use its first
exception to request resolution of the Plaintiff’s documents that
started this situation remove the confidential designation of the

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20 some documents attached to the amended complaint. If they wish,
they may start the process under the original case management order
and the Magistrate Judge will resolve that situation.
IBM advised the Court and the parties that they would be
filing in the near future motions to amend their pleadings to
include various affirmative defenses and counterclaims. They were
waiting to file these motions until the District Judge had an
opportunity to rule on the revised pending motion to dismiss
(Docket Entry 14) the amended complaint (Docket Entry 138).
Absent a ruling by the District Judge dismissing the
amended complaint, the parties are advised that the Magistrate
Judge will likely grant such a motion. However, before making that
as

a

final

decision,

the

Magistrate

Judge

will

consider

any

objection that Bridgestone may have to the requested amendment.
There are a number of deadlines set in this order, The
parties may request modifications if the Magistrate Judge has
misstated

any,

or

if

they

agree

on

a

change,

or

believe

modification is required.
It is so ORDERED.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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