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In re Papst Licensing GMBH & Co. KG Litigation

June 9, 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

MEMORANDUM OPINION REGARDING FIFTH ORDER ON CASIO/PAPST DISCOVERY: PAPST'S MOTION FOR CLARIFICATION CONCERNING SCOPE OF WAIVER

Papst Licensing GMBH & Co. KG ("Papst") requests clarification regarding the scope of the privilege waiver set forth in the May 6, 2008, Second Order Regarding Casio/Papst Discovery and its accompanying Memorandum Opinion. See Dkt. ## 81 & 82. In the May 6, 2008 ruling, the Court required Papst to "respond to Casio USA's initial discovery requests without objection based on attorney-client privilege, consulting expert privilege, or attorney work product." Mem. Op. [Dkt. # 82] at 8-9. Papst requests clarification on the following three issues:

(1) Whether the materials protected by attorney-client privilege, consulting expert privilege, or attorney work product (the "Privileged Materials") that Papst must produce may be limited to materials that relate solely to Casio's Products;

(2) Whether the Privileged Materials that Papst must produce may be limited to those materials that existed as of May 31, 2007, when the initial order allowing sanctions was issued; and

(3) Whether the Privileged Materials that Papst must produce may be disclosed only to Casio and not to the other Camera Manufacturers*fn1 in this MDL proceeding.

Casio,*fn2 as well as the other Camera Manufacturers, object to Papst's request for clarification. As explained below, the Court will grant in part and deny in part Papst's motion.

I. FACTS

The May 6, 2008, Second Order Regarding Casio/Papst Discovery and its accompanying Memorandum Opinion dealt with Papst's objections 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 - due to Papst's failure to comply with the district court's order requiring Papst to respond to Casio USA's initial discovery requests. The Magistrate Judge had heard oral argument on Casio's motion to compel on May 31, 2007, and had granted the 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 the Movant, both orally and in writing.

More specifically, the Court finds that what Papst urges upon the Court is a novel way of counting the number of days in which a party must serve responses to written discovery requests. The Court uses the term, quote, "novel," close quote, because there is simply no authority which supports this method of calculating the deadline. The rules make plain when it is that a party is to serve responses to written discovery requests. There was no motion for enlargement of time filed by Papst. Papst did not seek any clarification of the due date in the meet and confer report that counsel, along with opposing counsel, filed in this matter, and appears to have unilaterally taken the position that because Papst was displeased with the manner in which the Rule 26(f) meeting or conference was conducted that the responses to the written discovery requests would be withheld.

Tr. of May 31, 2007 hearing at 25. The Magistrate Judge ordered "that complete responses - that is without objections, which have been waived by the failure to respond in a timely fashion - be served within 10 calendar days of today's date." Id. at 27 (emphasis added). Papst then filed objections to the Magistrate's order. This Court denied Papst's objections as follows:

The Court finds that waiver of privileges is not too harsh a sanction under the circumstances presented here. Papst's failure to respond to Casio USA's discovery requests, as directly ordered, was entirely unjustified and inexcusable and smacks of bad faith. How difficult is it to understand a district court order that discovery is "to proceed"? Were there any doubt, Papst might have inquired. It did nothing. It merely delayed - a delay that continues, in part, to this day.*fn3 It may be a successful business model, when the "business" of a business is litigation, to interpose delay at any possible opportunity. Delay costs money to opponents and may, in the end, cause an opponent to settle a case. Ultimately, Papst offers no good reason why its experienced counsel should be allowed, without sanction, to ignore totally a court order on which they had been heard fully.

Accordingly, Papst is required to respond to Casio USA's initial discovery requests without objection based on attorney client privilege, consulting expert privilege, or attorney work product. Casio has agreed, and there is now a Protective Order entered by the Court, that will shield Papst's confidential documents from public display.

Mem. Op. [Dkt. # 82] at 8-9. Now, Papst seeks "clarification" of the Court's Order to respond to Casio USA's initial discovery requests without objection based on attorney-client privilege, ...


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