Opinion
Case No. 3:03-cv-142.
April 20, 2006
DECISION AND ORDER DENYING PLAINTIFF'S URGENT MOTION FOR STAY
This case is before the Court on Paxar's Urgent Motion to Stay Intermec Discovery Pending Resolution of Paxar's Objections and Other Issues, filed April 10, 2006 (Doc. No. 319). Defendants (collectively "Zebra") oppose the Motion (Doc. No. 322) and Paxar has filed a Reply in Support (Doc. No. 323).
On March 21, 2006 (30 days before the entry of this Decision), the Magistrate Judge granted Zebra leave to depose Intermec (Doc. No. 313, the "Second Intermec Order"), provided the notice of deposition was served not later than March 31, 2006, and the deposition taken not later than April 30, 2006. Paxar has objected to this Order and seeks to stay its effectiveness pending Judge Rice's ruling on the Objections (Doc. No. 318). Under Fed.R.Civ.P. 72(a), magistrate judge orders on non-case-dispositive motions are effective when entered. Under S.D. Ohio Civ. R. 72.3, a magistrate judge's ruling on a non-case dispositive motion is remains effective, even though objections are filed, unless stayed by either the magistrate judge or a district judge.
As noted in the Second Intermec Order sought to be stayed, the Magistrate Judge had previously prohibited the Intermec deposition in 2005 in part because of the imminently impending discovery cut-off. While discovery has not been reopened since then, the trial date, which was then set for October 2005, has been re-set to January, 2007, making the timeliness portion of the prior rationale for prohibiting the deposition altogether disappear.
Plaintiff now suggests three reasons for staying the deposition:
1. A stay is necessary to preserve Plaintiff's right to appeal.
2. A stay is necessary to prevent multiple Intermec depositions because Paxar is also appealing the Magistrate Judge's decision denying, after in camera inspection, Paxar's Motion to Compel production of certain documents withheld by Zebra on a claim of work product protection. If the Magistrate Judge's decision is reversed and the documents are ordered produced, Paxar will then want to re-depose Intermec with respect to those documents.
3. Although Zebra has now obtained the post-discovery-cut-off right to depose Intermec, it objects to Paxar's deposing Intermec on the same grounds on which the Magistrate Judge had previously prevented that deposition altogether, to wit, that fact discovery is over.
4. Zebra has still not produced to Paxar the Intermec documents Paxar needs for the Intermec deposition.
5. The 30(b)(6) deponent Intermec intends to produce is a person who has knowledge about the Swedot prior art in the custody, care, or control of a subsidiary rather than Intermec itself. The Magistrate Judge finds these arguments unpersuasive.
First of all, the only possible prejudice Paxar will suffer from not having the stay is that it will be required to attend the Intermec deposition subject to a possible later conclusion by Judge Rice that it should not have been held. If Judge Rice concludes the deposition should not have been conducted, the results would likely be excluded. If Judge Rice upholds the Second Intermec Order, at least Paxar would not have suffered the possible trial delay about which it has repeatedly expressed its concern.
As to a possible second Intermec deposition which might be needed, Paxar has created its own difficulty by not seeking as an alternative to denial of Zebra's request to depose Intermec that it also be granted that right. As to the possibility that Judge Rice will grant the Motion to Compel which the Magistrate Judge denied, the Magistrate Judge does not believe, on the basis of the in camera inspection he conducted, that there are many close questions about Zebra's work product claims. In any event, Paxar has a great many substantive Swedot documents on which it can conduct cross-examination. Based on what the Magistrate Judge saw during the in camera inspection, it is very unlikely he would grant any request Paxar would make to re-depose Intermec, using those documents if Judge Rice ordered them produced.
Zebra has now obviated the objection that it had not produced responsive Intermec documents by doing so substantially in advance of the Intermec deposition. Paxar notes that Zebra has still withheld some documents under the work product protection claim the Magistrate Judge upheld and claims that this is improper under Tenn. Laborers H W Fund v. Columbia/HCA Healthcare Corp., 293 F. 3d 289 (6th Cir. 2002). In that case the court rejected the concept of selective waiver as to both attorney-client privilege and work product protection. Paxar's reading overextends the holding of the case. There Columbia sought to withhold from private plaintiffs the same documents it had already disclosed to the federal government, albeit under a confidentiality order. Here, it is different documents which are withheld, not the same documents. Nothing in Tenn. Laborers suggests that when the attorney-client privilege is waived for some communications, it is waived for all.
Finally, the Court fails to see the prejudice arising from the fact that Intermec may be producing for a discovery deposition a person employed by a subsidiary.
The Urgent Motion for Stay is denied.