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concluding that this factor "weigh[ed] strongly in favor of production" because "[a]t this late date, it would be difficult, if not impossible, ... to obtain the discovery expeditiously through Hague Convention procedures."
Summary of this case from Behrens v. Arconic, Inc.Opinion
No. C-13-1173-SC No. 13-cv-05724 No. 13-cv-05261 No. 13-cv-05264 No. 13-cv-05686 No. 13-cv-05727 No. 13-cv-05726 No. 13-cv-05723 No. 13-cv-05725 No. 13-cv-05668 No. 3:13-cv-05262 No. 13-cv-00157 No. 14-cv-02058 Case No. C-07-5944-SC
10-23-2014
IN RE: CATHODE RAY TUBE (CRT) ANTITRUST LITIGATION This Order Relates To: Sharp Electronics Corp. v. Hitachi Ltd. Electrograph Systems, Inc. v. Technicolor SA Siegel v. Technicolor SA Best Buy Co., Inc. v. Technicolor SA Target Corp. v. Technicolor SA Interbond Corporation of America v. Technicolor SA Office Depot, Inc. v. Technicolor SA Costco Wholesale Corporation v. Technicolor SA P.C. Richard & Son Long Island Corporation v. Technicolor SA Schultze Agency Services, LLC v. Technicolor SA, Ltd. Sears, Roebuck and Co. and Kmart Corp. v. Technicolor SA Tech Data Corp., et al. v. Hitachi, Ltd., et al. Crago, et al. v. Mitsubishi Elec. Corp., et al.
MDL No. 1917 ORDER RE: THOMSON DISCOVERY
I. INTRODUCTION
Now before the Court are several issues related to the Direct Action Plaintiffs' ("DAPs") discovery efforts against Defendants Thomson SA and Thomson Consumer ("Thomson"). First, Thomson objects to the Special Master's Recommended Order, ECF No. 2812 ("R&R") granting DAPs', led by Sharp, motion to compel production of various documents and witnesses in France pursuant to the Federal Rules of Civil Procedure. ECF No. 2849 ("Obj."). Without prejudice to the motion to compel, DAPs seek similar discovery via the issuance of letters of request for international judicial assistance in the production of documents, ECF No. 2716 ("Docs. Mot."), and depositions in France, ECF No. 2776 ("Depos. Mot."), pursuant to the procedures of the Hague Convention. Finally, in light of the passage of the fact discovery deadline on September 5, 2014, DAPs seek to extend the deadline to permit the aforementioned productions and depositions to take place. ECF No. 2773 ("Deadline Mot."). The motions and objection are fully briefed, and appropriate for resolution without oral argument under Civil Local Rule 7-1(b). For the reasons set forth below, the Court DENIES Thomson's objection and GRANTS DAPs' motion to compel. Having found that DAPs need not resort to Hague Convention procedures in seeking the documents and depositions at issue, DAPs are ORDERED to file a statement explaining whether they intend to proceed with their motions for the issuance of letters of request. Finally, the Court GRANTS DAPs' motion to extend the cutoff for discovery of Thomson.
On December 17, 2013 the Court appointed the Honorable Vaughn R. Walker, United States District Judge (Retired), as a Special Master to assist the Court with discovery matters. ECF No. 2272.
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 (codified at 28 U.S.C. § 1780) ("Hague Convention").
ECF Nos. 2727 ("Docs. Opp'n"); 2782 ("Depos. Opp'n"); 2783 ("Deadline Opp'n"). Plaintiff ViewSonic Corporation also submitted a brief memorandum in support of DAPs' motion to extend the discovery deadline. ECF No. 2778 ("Viewsonic Br.").
III. BACKGROUND
The parties are familiar with the factual and procedural background of the case. DAPs, led by Sharp, seek discovery of documents and witnesses in France. Specifically, DAPs pursue documents held by Thomson in France that are relevant to Thomson's communications with competitors and aspects of Thomson's CRT business, and documents produced to various foreign regulatory agencies during prior investigations related to price fixing in the CRT industry. Those include documents produced during a 2012 European Commission ("EC") investigation that found Defendants participated in a price fixing cartel for CRTs. See Docs. Mot. at 4-5. DAPs also wish to depose four former Thomson employees in France who have been identified as potential participants in meetings related to the alleged CRT conspiracy. Depos. Mot. at 2. To provide time for this discovery to take place, the DAPs request extension of the fact discovery deadline. Deadline Mot. at 4-5.
DAPs propose two alternative means of obtaining this discovery. First, DAPs argue that, notwithstanding the provisions of the so-called French Blocking Statute, the Federal Rules of Civil Procedure should govern the discovery sought here. Without prejudice to that position, DAPs propose the Court issue letters of request for international judicial assistance in obtaining the documents and depositions sought. Thomson disagrees with both positions, arguing (1) that permitting discovery to go forward under the Federal Rules of Civil Procedure will, by virtue of the French Blocking Statute, subject them to possible French criminal sanctions for compliance, and (2) DAPs' letters of request are overly broad, unduly burdensome, and do not comply with the Hague Convention and French government's requirements for international discovery requests.
See Loi No. 80-538 du 16 juillet 1980 relative à la communication de documents et renseignements d'ordre économique, commercial ou technique à des personnes physiques ou morales étrangères [Law 80-538 of July 16, 1980 relating to the Communication of Economic, Commercial, Industrial, Financial or Technical Documents or Information to Foreign, Natural or Legal Person], J. Officiel de la République Française [J.O.] [Official Gazette of France], July 17, 1980, p. 1799 ("French Blocking Statute"). The law provides:
"Subject to treaties or international agreements and applicable laws and regulations, it is prohibited for any party to request, seek or disclose, in writing, orally or otherwise, economic, commercial, industrial, financial or technical documents or information leading to the constitution of evidence with a view to foreign judicial or administrative proceedings or in connection therewith."
DAPs' first position, that the discovery sought should be obtained through the Federal Rules of Civil Procedure, was raised in a motion to compel production of documents and a Rule 30(b)(6) deponent before the Special Master. In that motion, DAPs contended that the Supreme Court's decision in Société Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522 (1987) ("Aerospatiale"), forecloses any obligation to resort first to Hague Convention procedures. Instead, DAPs argued that under the factors identified in Aerospatiale, DAPs' interest in obtaining this discovery outweighed the interests of international comity that might otherwise compel them to seek discovery through the Hague Convention. The Special Master concurred, finding that Sharp and the DAPs need not resort to the Hague Convention procedures, they "may be well advised to proceed simultaneously under the more cumbersome procedures of the Hague Convention" and as a result, the Special Master suggested the Court give its prompt attention to DAPs' motions for issuance of letters of request. R&R at 6.
The Special Master did, however, deny the motion to compel as to one category of documents he found might run afoul of the undersigned's prior order foreclosing discovery of the European Commission's investigation and confidential decision involving these Defendants. See In re Cathode Ray Tube (CRT) Antitrust Litig., No. 07-cv-5944-SC, 2014 WL 1247770, at *2-4 (N.D. Cal. Mar. 26, 2014). That decision is currently the subject of a renewed motion to compel by DAPs. ECF No. 2843.
Now Thomson objects.
III. LEGAL STANDARDS
A. Review of Orders by the Special Master
The Court reviews the Special Master's factual findings for clear error, his legal conclusions de novo, and his procedural decisions for abuse of discretion. Fed. R. Civ. P. 53(f)(3)-(5); ECF No. 302 (appointing the previous special master).
B. Discovery of Evidence Located Abroad
The Federal Rules of Civil Procedure authorize party-initiated discovery of any evidence that is relevant to any party's claims or defenses. Fed. R. Civ. P. 26(b)(1). However, Rule 26 grants the court discretion to limit discovery on several grounds, including international comity. See Aerospatiale, 482 U.S. at 544.
The Supreme Court and the Ninth Circuit agree that comity and foreign law alone are not dispositive when a discovery dispute arises regarding a foreign law's protection of documents sought in a United States court. See id. at 544 & n.29; Societe Internationale Pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 208 (1958); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1474-75 (9th Cir. 1992). The Court must consider the following factors in determining whether or not foreign law excuses noncompliance with a United States court's discovery orders:
(1) the importance to the . . . litigation of the documents or other information requested; (2) the degree of specificity of the request; (3) whether the information originated in the United States; (4) the availability of alternative means of securing the information; and (5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.Aerospatiale, 482 U.S. at 544 n.28. This list is not exhaustive. The Ninth Circuit has also considered other factors, including "the extent and the nature of the hardship that inconsistent enforcement would impose upon the person, . . . [and] the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state." United States v. Vetco, Inc., 691 F.2d 1281, 1287 (9th Cir. 1981); see also Richmark, 959 F.2d at 1475.
C. Modification of Scheduling Orders
Scheduling orders "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). Pretrial scheduling orders may be modified if the dates scheduled "cannot reasonably be met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The focus of the good cause inquiry is "on the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Id.
IV. DISCUSSION
The Court addresses three main issues in this order. First, Thomson's objections to the Special Master's report and recommendation granting Sharp and DAPs' motion to compel Thomson to produce documents and deponents under the Federal Rules of Civil Procedure. After concluding that the motion to compel should be granted, the Court then turns to DAPs' parallel requests for the same or similar discovery by means of letters of request for international judicial assistance, and DAPs' motion to extend the discovery deadline to permit the discovery at issue to take place.
A. Objection to Special Master's Recommendation
In granting Sharp's motion, the Special Master made three findings Thomson considers objectionable. First, the Special Master apparently misinterpreted a letter received from the French Ministry of Foreign Affairs stating that the provisions of the Blocking Statute are "mandatory," and as a result, Thomson concludes his analysis is "premised on a fundamental error." Obj. at 1. Second, Thomson argues the "extraordinary expense and burden" imposed by DAPs' requests, id. at 2, belies the Special Master's conclusion that the discovery sought could be "completed in a matter of weeks, not months or years." R&R at 7. Finally, Thomson seizes upon the Special Master's observation that the Court might cure possible prejudice resulting from these late discovery requests in addressing forthcoming proposals for structuring the trials in these matters, and argues that separate treatment would "severely prejudice Thomson . . . ." Obj. at 2.
The Court reviews each issue de novo.
1. Blocking Statute and International Comity
Thomson's chief objection to the Special Master's report and recommendation relates to the French Blocking Statute. Perhaps no single law better illustrates the gulf between American and civil law countries' attitudes toward pre-trial discovery than the Blocking Statute. See Diana Lloyd Muse, Note, Discovery in France and the Hague Convention: The Search for a French Connection, 64 N.Y.U. L. Rev. 1073, 1073-78 (1989) (reviewing the historical, social, and cultural context of the Blocking Statute). As the Special Master put it, were the Blocking Statute to be applied literally, it "would thwart much of the normal process of discovery from French nationals and of evidence located in that country." R&R at 4-5.
In short, the parties disagree as to what extent, if any, the interests in international comity embodied in the Hague Convention should compel DAPs to refine their requests and resort to the Convention's letters of request process so as to avoid running afoul of the Blocking Statute. DAPs argue that because the Supreme Court held in Aerospatiale that the Hague Convention's procedures for obtaining discovery abroad serve as a "permissive supplement, not a pre-emptive replacement, for other means of obtaining evidence abroad," 482 U.S. at 539-40, and the comity factors identified by the Court and the Ninth Circuit weigh in their favor, the Court should order Thomson to submit to discovery pursuant to the Federal Rules of Civil Procedure. Thomson disagrees, citing a letter from an official at the French Ministry of Foreign Affairs suggesting that the Blocking Statute's provisions are "mandatory," and that Hague Convention procedures are "potentially applicable in this case." As a result, Thomson argues it may be subjected to potential criminal sanctions if it were compelled to produce these documents or witnesses outside the Hague Convention process. See Docs. Opp'n at 2-3 (citing In re Advocat Christopher X., Cour de cassation [Cass. Crim.], Paris, crim., Dec. 12, 2007, Bull. crim., No. 7168 [JurisData No. 2007-83228] (Fr.) (fining a lawyer €10,000 for violating the blocking statute)).
As mentioned before, the Court considers a series of factors in weighing whether foreign laws like the French Blocking Statute excuse compliance with an American discovery requests. Specifically the Court considers: (1) the importance of the discovery to this litigation, (2) the specificity of the requests, (3) the origin of the information sought, (4) whether alternative means are available to obtain the discovery, (5) the interests of the United States and foreign state, (6) the extent of hardship, and (7) "the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state." 2014 WL 1247770, at *2 (quoting Aerospatiale, at 544 n.28; Vetco, 691 F.2d at 1287).
The parties agree that the information sought originated in France, and as a result, that factor weighs in favor of denying the motion to compel. The Court will address each remaining factor in turn.
a. Importance of the Discovery Sought
First, the discovery sought is highly significant to this litigation. Courts are often more likely to heed a foreign state's concerns when the case "does not stand or fall on the present discovery order," or if the evidence sought is cumulative, Richmark, 959 F.2d at 1475; In re Rubber Chems. Antitrust Litig., 486 F. Supp. 2d 1078, 1081 (N.D. Cal. 2007). Here, while it is possible DAPs would be able to prove their claims against Thomson without access to this discovery, doing so would be challenging to say the least. For example, DAPs seek discovery into Thomson's communications and meetings with competitors. This information is crucial to DAPs' liability case against Thomson and may inform their liability cases against the other alleged co-conspirators.
Nevertheless, some other materials sought, while relevant, are perhaps less important to this litigation. For instance, documents produced to the European Commission ("EC") in its confidential investigation of the same alleged cartel are likely to be largely cumulative of other DAPs' other requests. Finally, while documents and information regarding the disposition of Thomson's CRT business are certainly relevant for discovery purposes, DAPs have not made immediately clear how central those documents are to this litigation.
Despite these flaws, on balance this factor weighs strongly in favor of granting the motion to compel.
b. Specificity of the Requests
Second, while always staying within the bounds of permissible discovery under the Federal Rules, at times DAPs requests sweep quite broadly. "[G]eneralized searches for information whose disclosure is prohibited under foreign law are discouraged." Rubber Chems., 486 F. Supp. 2d at 1083 (citing Richmark, 959 F.2d at 1475). Thomson argues that many of DAPs' requests are imprecise, overly broad, burdensome, or seek information that has already been produced by Thomson Consumer. In particular, Thomson takes issue with DAPs' requests for production of documents related to (1) Thomson Consumer's relationship with Thomson SA, (2) the disposition of Thomson's CRT business, and (3) the European Commission's confidential investigation of Thomson and other Defendants in this case. See ECF No. 2716-2 ("Benson Letters Decl.") Ex. A ("RFP") Requests Nos. 33, 35-37, 42, 46-60.
Several of Thomson's complaints have merit. For instance, Request Number 33 calls for:
All Documents relating to any contemplated, proposed, planned, pending or executed purchases, sales, acquisitions, mergers, joint ventures, divestitures, transfers, spin-offs or any other change in ownership of any assets, liabilities, subsidiaries, departments, units or other subdivisions of Your or another company relating to production, distribution, marketing, pricing, sale or resale of CRTs during the Relevant Period.While this request certainly satisfies the test for relevance in discovery, Rule 26(b)(1), the request is also likely to capture a significant amount of irrelevant information. At the same time, many, if not most, of DAPs' requests are narrowly-tailored and fall far short of "generalized searches for information." Rubber Chems. 486 F. Supp. 2d at 1083 (citation omitted). For instance Request Number 2 asks for the identity of executives or employees in management positions with respect to specifically enumerated aspects of Thomson's CRT business. See ECF No. 2773-1 ("Benson Decl.") Ex. 9 at 9.
As a result this factor weighs only minimally against granting the motion to compel.
c. Availability Through Alternative Means
Third, while these documents are nominally available through Hague Convention procedures, at this stage they may be unavailable as a practical matter. "If the information sought can easily be obtained elsewhere, there is little or no reason to offend foreign law." Rubber Chems., 486 F. Supp. 2d at 1083.
At this late date, it would be difficult, if not impossible, for DAPs to obtain the discovery expeditiously through Hague Convention procedures. As an empirical study of Hague Convention document and deposition requests found, France is particularly slow to execute Hague Convention requests, and when they are executed, often the results are unsatisfactory. Furthermore, while Thomson complains that some categories of evidence are available in the U.S. and have already been produced, most of the information sought in the motion to compel must be obtained one way or another from France.
See Am. Bar Ass'n, Int'l Litig. Comm., Section of Int'l L. & Prac., Report on Survey of Experience of U.S. Lawyers with the Hague Evidence Convention Letter of Request Procedures, at 7, 10-11, n.16 (Oct. 9, 2003) ("ABA Report"), available at: http://www.hcch.net/upload/wop/lse_20us.pdf.
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Accordingly, the lack of alternative means for obtaining much of the information sought weighs strongly in favor of production.
d. The Interests of the United States and France
Fourth, the strong national interests of the United States are at play. This is a case alleging violations of United States antitrust laws, laws that are of "fundamental importance to American democratic capitalism." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 634 (1985). As the Supreme Court has recognized, enforcement of the antitrust laws through private civil actions is an important part of encouraging compliance with those laws. See Hawaii v. Std. Oil Co. of Cal., 405 U.S. 251, 262 (1972). On the other hand, France's interests here are significantly weaker. To be sure, France has an interest in controlling foreign access to information within its borders, and in protecting its citizens from foreign discovery practices it views as antithetical to the French legal culture. Nevertheless, France also shares an interest in preventing price-fixing behavior, as is demonstrated by the European Commission's investigation and confidential decision involving price-fixing allegations in the CRT market. See 2014 WL 1247770, at *1 (describing the European Commission decision); see also In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 54 (E.D.N.Y. 2010) (noting that "France, given its membership in the European Economic Community . . . " has also adopted prohibitions against price-fixing). The national interests in enforcement of antitrust laws are "only realized if the parties have access to relevant discovery." Air Cargo, 278 F.R.D. at 54.
As a result, the United States' strong national interests weigh in favor of granting the motion to compel.
e. Extent of Hardship
Fifth, while Thomson argues this factor weighs strongly in its favor, its position is weaker than it may initially appear. Specifically, Thomson points to the potential for criminal sanctions if they comply with discovery requests outside the Hague Convention process and a letter from the French Ministry of Foreign Affairs stating that the provisions of the Blocking Statute are "mandatory." Obj. at 1. Furthermore, they argue that the Special Master misinterpreted this letter when he concluded that it stems from an "unrelated matter . . . ." R&R at 5.
Thomson is right that the Special Master misinterpreted the letter, however that is not enough to tip the scales on this factor heavily in their favor. While the Supreme Court has stated that "fear of criminal prosecution constitutes a weighty excuse for nonproduction," Aerospatiale, 357 U.S. at 211, many courts have discounted that risk in the context of the French Blocking Statute, noting that the Blocking Statute "does not subject defendants to a realistic risk of prosecution . . . ." Bodner v. Banque Paribas, 202 F.R.D. 370, 375 (E.D.N.Y. 2000); see also Air Cargo, 278 F.R.D. at 53-54; Strauss v. Credit Lyonnais, S.A., 249 F.R.D. 429, 454-55 (E.D.N.Y. 2008); Adidas (Canada) Ltd. v. SS Seatrain Bennington, Nos. 80 Civ. 1911, 82 Civ. 0375, 1984 WL 423, at *3 (S.D.N.Y. May 30, 1984). In fact, the legislative history of the Blocking Statute "gives strong indications that it was never expected or intended to be enforced against French subjects but was intended rather to provide them with tactical weapons and bargaining chips in foreign courts." Adidas, at *3.
Furthermore, Thomson's reliance on a case in which a French court imposed a monetary sanction for violating the Blocking Statute is misplaced. That case, In re Advocat Christopher X, involved a French attorney who made false statements to a potential French witness in an effort to obtain evidence to be used in a case pending in California. See Air Cargo, 278 F.R.D. at 54 (summarizing the facts of Christopher X). Christopher X did not involve discovery requests made in the California litigation nor did it involve a court order compelling production under protest. Id. Thomson has pointed to no similar case, nor indeed any other case, in which the Blocking Statute was enforced against a French company. As such the Court finds the risk of prosecution in this case, if any, is minimal. This is true even in light of the Ministry of Foreign Affairs' letter in this litigation. Notably, nowhere does the letter suggest or threaten prosecution for complying with discovery requests or orders in this litigation. Instead, as at least one other court has found in considering (and rejecting) a similar letter, the letter "does little more than generally state [France's] interest in sovereignty and restate . . . that French civil and criminal laws prohibit [Thomson] from disclosing . . . the information in dispute here." Strauss, 249 F.R.D. at 448.
In short, neither the letter nor the specter of potential criminal prosecution is enough to convince the Court that this factor weighs anything more than minimally in Thomson's favor.
f. Conclusion
Having considered the relevant factors, they weigh in favor of permitting discovery to go forward in France pursuant to the Federal Rules of Civil Procedure. Accordingly, on this point Thomson's objection is DENIED.
2. Remaining Objections
Having found that the factors in Aerospatiale favor production pursuant to the Federal Rules, the Court must turn now to Thomson's remaining two objections. First, Thomson contends that the Special Master failed to appropriately weigh the burdens of production. Obj. at 3-5. Second, Thomson objects to the Special Master's passing reference to trial phasing and Federal Rule of Civil Procedure 42(b) bifurcation motions to the extent he suggested that Thomson's claims may be tried on a different schedule than the other Defendants'. Obj. at 5.
The Rule 42(b) issue can be dispensed with quickly. Nowhere was the Special Master suggesting that Thomson's case should be tried on a separate schedule than the remaining Defendants'. Instead, the Court reads the Special Master to have simply pointed out the possibility that in ruling on the (then unseen) Rule 42(b) motions, the Court might factor in unfinished discovery issues. Now that those motions have been filed, it appears that neither side is seeking to try any of the Defendants on a separate schedule than the others, and the Court is acutely aware of the potential prejudice that Thomson would suffer were their claims to be tried on a different schedule. See ECF No. 2897 ("IPP & DAP 42(b) Mot."); 2903 ("Best Buy Joinder"); 2914 ("Defs.' 42(b) Cross-Mot."). As a result, the Court sees no reason the Special Master's aside regarding the Rule 42(b) motions undermines his (or the Court's) conclusion that DAPs are entitled the discovery at issue here.
The issue of the burdens of discovery is more complicated, but ultimately does not alter the Court's conclusion. In support of their objection on this basis, Thomson provides only scant citation to authority, but the Court takes their objection to be based on Rule 26's requirement that the Court limit discovery if it determines that the discovery sought is "unreasonably cumulative or duplicative," "the party seeking discovery has had ample opportunity to obtain the information," or the burden of discovery outweighs its expected benefits. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). Specifically Thomson argues that the Special Master was wrong when he concluded that "diligent efforts and cooperation between the parties should allow the discovery sought here to be completed in a matter of weeks, not months or years . . . ," and in any event, because DAPs have long been aware of the information they seek, the Court should deny the motion to compel. See Obj. at 5 (citing Rule 26(b)(2)(C)(ii) for the proposition that Courts must limit discovery where "the party seeking discovery has had ample opportunity to obtain the information.").
The Court is not entirely unsympathetic to Thomson's complaints. As the Court previously observed, some of DAPs' requests are indeed broad. Furthermore, Thomson's financial situation does appear to be less secure than that of many of the other Defendants. Nonetheless, DAPs' requests are indisputably relevant, and even if not perfectly tailored, they are essential to DAPs' case against Thomson. As Rule 26(b)(2)(C)(i) expressly contemplates, sometimes discovery may be somewhat cumulative or duplicative while nonetheless being permissible. See id. (stating the court must limit discovery if it is "unreasonably cumulative or duplicative") (emphasis added). Furthermore, "broad discovery may be needed to uncover evidence of invidious design, pattern, or intent" in antitrust cases. In re Urethane Antitrust Litig., 261 F.R.D. 570, 573 (D. Kan. 2009) (quoting source). Accordingly, the Court finds no need to limit discovery on the bases enumerated in Rule 26(b)(2)(C)(i).
Second, Thomson's suggests that, because DAPs have been aware of the information sought since "sometime between 2011 and 2013," the Court should deny them access to the information now. Thomson is mistaken on this point as well. First, it is difficult to conclude that DAPs have had "ample opportunity to obtain the information" at issue here given that discovery was stayed during the pendency of Thomson's motion to dismiss. Benson Decl. at Ex. 3 ("Order Staying Discovery"). Because of the stay, discovery against Thomson only began after March 13, 2014, when the Court denied Thomson's motion to dismiss. ECF No. 2240 ("Thomson MTD Order"). Furthermore it appears that DAPs have been extraordinarily diligent since that date, seeking the instant discovery as of April 2014 -- roughly a month after discovery of Thomson began -- and furnishing to the Court numerous other discovery requests also served on Thomson during that period. Benson Decl. ¶¶ 16-32 (showing numerous discovery requests since April 2014); ¶¶ 33-41 (outlining Sharp's initial efforts to seek the specific materials at issue here and the subsequent attempts to resolve those issues through meeting and conferring). Accordingly, the Court cannot find DAPs had "ample" opportunity to obtain this discovery sooner.
Finally, even if Thomson is right that the discovery sought will take longer than the Special Master suggested, that does not fatally undermine Judge Walker's recommendation. After all, based on their motion to extend the discovery deadline, DAPs appear to believe that the discovery at issue here can be completed within sixty days of the signature date of this order. See Deadline Mot. at 4. Thomson has offered no suggestions as to how long would be necessary to review and produce the documents at issue here, aside from saying that granting DAPs' requests will push discovery "months past the September 5, 2014 deadline," and "make it extremely difficult . . . to prepare for a March 2015 trial." Obj. at 4. Thomson's complaints about the challenges of translation and the size of the necessary productions are well met, but tempered by the fact that Thomson's production to date of 15,799 documents is paltry in the context of this large and complex case. See Benson Decl. ¶¶ 6-7 (comparing Thomson's production with the approximately 1.2 million documents produced by all defendants). Finally, even if the discovery at issue here is burdensome, Rule 26 once again recognizes that the burden of discovery must be weighed against its likely benefit. Rule 26(b)(2)(C)(iii). As the Court has repeatedly found, these materials are essential for DAPs' case against Thomson. Accordingly, even considering the burdens of production on Thomson, the Court finds they are offset by the benefits of permitting this discovery.
3. Conclusion
Having considered Thomson's objections to the Special Master's report and recommendations, the objection is DENIED. Accordingly, DAPs' motion to compel is GRANTED. B. Remaining Motions
Having rejected Thomson's objections, two issues remain: First, DAPs' motions for the issuance of letters of request, and second, DAPs' motion to extend the discovery deadline.
The Court believes that DAPs' motions for the issuance of letters of request may be denied as moot. However, the record is not sufficiently clear for the Court to do so at this time. For instance, in DAPs' motion to compel before the Special Master, DAPs appear to seek only documents and perhaps just one Rule 30(b)(6) deponent. R&R at 2. Nonetheless DAPs' motion for the issuance of letters of request seeks depositions of four witnesses. Accordingly, within five (5) days of the signature date of this order, Sharp is ORDERED to file a statement of not more than four (4) pages explaining whether it wishes to continue to press its motions for the issuance of letters of request. If Sharp does not file the statement within five days, the Court will deny the motions for letters of request as moot.
Turning finally to Sharp's motion for an extension of the discovery deadline, the Court finds that Sharp and DAPs have diligently pursued discovery against Thomson and good cause exists to extend the discovery deadline. As the Ninth Circuit has observed, scheduling orders may be modified for good cause, and any analysis of good cause focuses "on the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609. The Court has previously observed that "centering the good cause analysis on the moving party's diligence prevents parties from profiting from carelessness, unreasonability, or gamesmanship, while also not punishing parties for circumstances outside their control." ECF No. 2877 ("Cal. AG Discover Order"), at 5 (citing Orozco v. Midland Credit Mgmt. Inc., No. 2:12-cv-02585-KJM-CKD, 2013 WL 3941318, at *3 (E.D. Cal. July 30, 2013)).
Ultimately, the diligence inquiry comes down to two questions. First, did Sharp and DAPs unreasonably delay in seeking this discovery given that they knew or should have known of the potential relevance of this discovery earlier? Second, did DAPs act diligently after discovering Thomson's position on the applicability of the French Blocking Statute? ECF No. 2554 ("Thomson Discovery Stip.") at 4 (emphasis added).
First, in Thomson's view, "it is undisputed that the DAPs knew of the potential relevance of" certain witnesses "no later than August 2013," yet failed to seek deposition testimony from them until much later. However, as the Court noted earlier, discovery of Thomson was stayed for much of that time, and it appears that DAPs specifically inquired as to the status of several of the witnesses at issue on April 11, 2014, approximately a month after the discovery stay was lifted. Benson Decl. at Ex. 8. Moreover, also approximately a month after discovery of Thomson began, DAPs served a Rule 30(b)(6) deposition notice on Thomson SA. Id. at Ex. 25. Similarly, the requests for production at issue here were also promulgated in April 2014. Id. at ¶¶ 16, 20. Because Sharp and the other DAPs were pursing the witnesses and materials at issue at an early date, the Court finds that Sharp and the other DAPs acted diligently in seeking the discovery at issue here.
Similarly, the Court cannot find a lack of diligence in DAPs' failure to pursue Hague Convention procedures earlier, or to otherwise seek judicial resolution of the parties' dispute about the applicability of the French Blocking Statute. Thomson argues that DAPs "have known since, at the very latest, May 14, 2014," that Thomson interpreted the French Blocking Statute to bar production of the documents and witnesses DAPs seek. Deadline Opp'n at 5. But the record shows that within thirteen days of receiving Thomson's objections, DAPs sought to meet and confer regarding this and other issues and the parties' attempts to resolve their dispute continued for almost two months. See Benson Decl. ¶¶ 33-41. After that meet and confer process was completed, DAPs filed the motion to compel before Judge Walker within days. Given Thomson's prior suggestion that it would work to produce documents and witnesses without demanding Hague Convention procedures where possible, the Court cannot fault DAPs for proceeding as they did. Furthermore, the Court certainly cannot conclude DAPs were not diligently pursuing discovery when they were, in fact, making an effort to resolve these issues without pursuing them before the Special Master or the Court.
Because the Court finds that Sharp and the other DAPs proceeded diligently in pursuing discovery against Thomson and good cause exists for an extension of the discovery deadline to permit document discovery and depositions to go forward, Sharp's motion to extend the discovery deadline to permit taking additional discovery from Thomson SA and Thomson Consumer is GRANTED. The cutoff of discovery with Thomson will therefore be extended sixty (60) days from the signature date of this order.
V. CONCLUSION
The Court ORDERS as follows:
• Thomson's objection to the Special Master's report and recommendation regarding DAPs' motion to compel is DENIED.
• DAPs' motion to compel is GRANTED.
• Sharp is ORDERED to file within five (5) days of the
signature date of this order, a statement of not more than four (4) pages explaining whether it wishes to continue to press its motions for the issuance of letters of request. If Sharp does not file the statement within five days, the Court will deny the motions for letters of request as moot.
• DAPs' motion to extend time for the taking of discovery from Thomson SA and Thomson Consumer is GRANTED.
IT IS SO ORDERED.
Dated: October 23, 2014
/s/_________
UNITED STATES DISTRICT JUDGE
Société Nationale Industrielle Aérospatiale v. United States Dist. Ct. for the So. Dist. of Iowa, 482 U.S. 522, 527 n.6 (1987).