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In re Papst Licensing Gmbh & Co. KG Litigation

May 6, 2008

IN RE PAPST LICENSING GMBH & CO. KG LITIGATION
THIS DOCUMENT RELATES TO: CASIO
v.
PAPST, 06-1751



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MDL Docket No. 1880

MEMORANDUM OPINION DENYING PAPST'S OBJECTIONS TO MAGISTRATE JUDGE'S MAY 31, 2007 ORDER

Papst Licensing GMBH & Co. KG ("Papst") objects to the May 31, 2007 order of the Magistrate Judge requiring Papst to respond to the initial discovery propounded by Casio America Inc., formerly known as Casio, Inc., ("Casio USA") - without objections concerning attorney client privilege, consulting expert privilege, attorney work product protections, objections based on confidentiality, and objections based on relevance - due to Papst's failure to comply with the district court's order requiring Papst to respond to Casio USA's initial discovery requests. As explained below, the objections will be denied.

I. FACTS

Papst's objections arise from the earlier stages of this case before it was approved as Multi-District Litigation ("MDL") and transferred to the undersigned. Casio USA filed its complaint against Papst on October 16, 2007. Papst filed an answer and counterclaim, adding Casio Computer Company, Ltd. ("Casio Japan") as a defendant on January 2, 2007. The district court to whom the case was assigned set an initial scheduling conference for February 1, 2007, and then postponed the conference until March 20, 2007.

Under the Local Rules, parties are required to hold a Rule 26(f) conference twenty-one days before the initial scheduling conference. See LCvR 16.2; see also Fed. R. Civ. P. 26(f). The Local Rule provides that a party may move to extend the deadline for holding a Rule 26(f) conference if a defendant has not been served or appeared in the case. Papst did not move to extend the deadline for the Rule 26(f) conference despite the fact that it had not then served Casio Japan.

Counsel for Papst and counsel for Casio USA conducted a telephone conference on March 2, 2007. Casio USA understood and intended this teleconference to be the Rule 26(f) conference; all required topics were discussed. Papst takes the position that the March 2, 2007, teleconference was not a proper Rule 26(f) conference because Papst had not yet served Casio Japan. As a result, Casio Japan was not represented during the phone call.*fn1

On March 6, 2007, Papst filed a motion to continue the initial scheduling conference. Casio USA opposed the motion, challenging Papst's statement that it would take up to four months to serve Casio Japan under the Hague Convention, but also noting that if the Judge granted the motion, Casio USA requested that discovery continue. Casio Am., Inc. v. Papst Licensing GMBH & Co. KG, No. 06-1751, Casio's Resp. Dkt. #13 at 2. Casio USA explained:

It is black letter law that once a 26(f) conference takes place, discovery can begin. This is applicable whether or not all parties have been served. Casio [USA] and Papst have had their Rule 26(f) conference, and pursuant to Rule 26, discovery should begin.

Id. Casio USA also explained that it already had served interrogatories and document requests on Papst on March 2, 2007, after it completed its Rule 26(f) conference with Papst. Id. at 3. In its Reply, Papst first argued that the March 2, 2007 telephone call did "not satisfy Local Rule 16.3(a) because not all Defendants participated." See id., Papst's Reply Dkt. #14 at 2.*fn2 Second, Papst contended that "[p]roceeding with a discovery plan now, when Casio Japan has not yet been served and counsel for Casio U.S. will not and apparently cannot speak for Casio U.S. [sic], will waste the time and resources of the Court and parties." Id. Papst's third argument was that Casio U.S. was "attempting to gain tactical advantage in discovery by claiming to have conducted a good faith Rule 26(f) conference on March 2, and immediately thereafter serving written discovery on Papst Licensing, when the phone call was missing the critical Defendant's counsel." Id.

With this completely briefed argument before it, in a Minute Entry Order dated March 13, 2007, the Court entered its "Order granting the Motions to Continue; the Initial Scheduling Conference is hereby continued until May 14, 2007, at 10:15 a.m.; no further continuances will be granted; discovery between Plaintiff and Defendant is to proceed." Casio Am., Inc. v. Papst Licensing GMBH & Co. KG, No. 06-1751, Minute Order filed Mar. 13, 2007 (emphasis added).

Papst alleges that it believed that the court's order that discovery was "to proceed" meant that all three parties, Casio USA, Casio Japan, and Papst, should proceed with a Rule 26(f) conference before Papst was required to respond to the Casio USA interrogatories and document requests. Casio USA understood the Minute Order to mean that the time for response to its discovery requests began to run on March 2 when Casio USA served them upon Papst and that Papst's responses therefore were due on April 2, 2007. As is clear from its own argument to the Court, counsel for Papst acknowledged that they had received the Casio USA discovery requests on March 2, 2007. Despite the direct Order of the Court, and its clear knowledge of the outstanding discovery, Papst failed to respond by April 2.

On April 20, 2007, Casio USA moved to compel responses, and Papst opposed. The district court referred the motion to compel to the Magistrate Judge. The Magistrate Judge heard oral argument on May 31, 2007, and granted Casio USA's motion to compel from the bench, noting:

[T]he court reviewed the motion, the opposition and the reply . . . . Having done so, the Court will grant the motion, largely for the reasons offered by ...


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