4:02-cv-01486
Document Case 792
Filed 01/02/2007
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M ORGAN , L EWIS & B OCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO
MORGAN, LEWIS & BOCKIUS LLP HOWARD HOLDERNESS, State Bar No. 169814 TERA M. HEINTZ, State Bar No. 241414 COURTNEY CRUZ, State Bar No. 240276 One Market, Spear Street Tower San Francisco, CA 94105-1126 Tel: [phone] Fax: [phone] Attorneys for Third-Party Respondent CISCO SYSTEMS, INC.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
IN RE JDS UNIPHASE CORPORATION SECURITIES LITIGATION,
Master File No. C 02-1486 CW OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY AND TO REQUIRE CISCO SYSTEMS, INC. TO SEARCH FOR DOCUMENTS RESPONSIVE TO PLAINTIFF'S PRIOR DISCOVERY REQUEST Date: Time: Dept.: January 23, 2007 9:00 a.m. Courtroom of the Honorable Elizabeth D. Laporte
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
Case 4:02-cv-01486
Document 792
Filed 01/02/2007
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M ORGAN , L EWIS & B OCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO
Third-Party Respondent Cisco Systems, Inc. ("Cisco") respectfully submits this Opposition to Plaintiff's Motion to Compel Further Deposition Testimony and to Require Cisco Systems, Inc. to Search for Documents Responsive to Plaintiff's Prior Discovery Request. I. INTRODUCTION Plaintiff's Motion to Compel documents and testimony regarding events that took place over seven years ago should be denied as both untimely and unreasonable. Cisco produced all documents responsive to Plaintiff's subpoena for production of documents on February 23, 2006 and March 13, 2006. Plaintiff did not object to Cisco's production at the time and, in fact, failed to contact Cisco regarding the production for nearly 10 months after Cisco initially produced documents. Plaintiff's Motion to Compel a further search for documents is nothing but a stale motion to compel additional documents to a subpoena issued almost a year ago, and it should be denied as untimely out of hand. Moreover, Cisco conscientiously and in good faith discharged its obligations to produce both documents and testimony. Cisco contacted each of its current employees with knowledge of the subject matters covered by the subpoenas and produced all unprivileged responsive documents within its custody or control. Indeed, Cisco has gone out of its way to assist Plaintiff in locating responsive documents and identifying a knowledgeable 30(b)(6) witness. Plaintiff had initially intended to depose two Cisco employees who had little or no knowledge of the subject matters covered by the deposition subpoena. Out of professional courtesy, Cisco voluntarily conducted an investigation to locate a more knowledgeable witness to save Plaintiff the expense and frustration of deposing numerous individual Cisco employees with no knowledge of JDSU. Given Cisco's consistent cooperation in this matter, Plaintiff's accusations of a nefarious plot to deprive Plaintiff of relevant information is pure bluster. Plaintiff's apparent dissatisfaction with the quantity and quality of information received from Cisco is due largely to the remote timeframe for which Plaintiff seeks information, and not to any deficiencies in Cisco's investigation of this matter. Cisco takes its response to third party subpoenas very seriously, including hiring a specific
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
Case 4:02-cv-01486
Document 792
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attorney at Morgan, Lewis & Bockius LLP to respond to virtually all of its third-party subpoenas. See Cruz Decl., 2. Cisco and its attorneys have an efficient system in place for responding to third party subpoenas, conferring with opposing counsel to understand the facts and background of the case, collecting and producing documents, and locating and preparing appropriate witnesses. In responding to Plaintiff's discovery requests alone, Cisco has expended approximately forty-five hours of attorney time, including reviewing Plaintiff's broadly worded subpoenas, meeting and conferring regarding the scope of the subpoenas, interviewing numerous Cisco employees to collect potentially relevant documents, reviewing thousands of documents to cull out responsive documents, preparing and sending out two document productions, meeting and conferring with Plaintiff regarding deposition topics, locating a knowledgeable 30(b)(6) witness, preparing that witness for deposition, attending a full day of deposition, and meeting and conferring regarding this Motion. See Declaration of Courtney Cruz ("Cruz Decl."), 26. As Cisco has conducted a conscientious and thorough investigation and has produced all relevant documents and its person most knowledgeable to testify regarding the topics identified by Plaintiff, Plaintiff's Motion to Compel should be denied. II. STATEMENT OF FACTS Plaintiff's Motion to Compel relates to two subpoenas: a subpoena for production of documents served on Cisco on January 18, 2006 ("Document Subpoena") and a subpoena for personal appearance under Fed. R. Civ. P. 30(b)(6) served on Cisco on November 13, 2006 ("30(b)(6) Subpoena"). See Cruz Decl., 3, 14. The Document Subpoena requested thirty-three categories of documents, including purchase orders, communications and demand projections from Cisco to JDS Uniphase Corporation ("JDSU") between January 1, 1999 and December 31, 2001. The Document Subpoena also identified fifteen employees at Cisco that potentially possessed relevant information and forty-seven individuals at JDSU with whom the Cisco employees might have communicated. As part of its investigation, Cisco contacted all but one of the individuals identified in the Document Subpoena that were still employed at Cisco at that time.1 See Cruz Decl., 4. Cisco
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Cisco did not contact one individual named in the Document Subpoena, the Senior Vice President of Manufacturing
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requested that each of the individuals search their computers and their records for documents responsive to the Document Subpoena. Not surprisingly given the passage of time, the majority of individuals no longer had responsive documents in their custody, possession or control; nor would they have had any reason to retain such aged records where Cisco itself was not involved in any dispute. Cisco gathered all responsive documents from individuals who still retained documents even arguably relevant to Plaintiff's subpoena. Cisco cast the net broadly enough that it took two days to review the documents in order to identify those documents that were temporally relevant and responsive. Cisco produced these documents to Plaintiff on February 23, 2006 and made a supplemental production on March 13, 2006. See Cruz Decl., 78. On October 24, 2006, Daniel Harris of Berman DeValerio Pease Tabacco Burt & Bucillo contacted Courtney Cruz, counsel for Cisco. See Cruz Decl., 9. Mr. Harris stated his intention to serve deposition subpoenas on two Cisco employees - Karen Ashley and James Wholley. Mr. Harris informed Ms. Cruz that Plaintiff's discovery cutoff was in early December. Out of courtesy and in an effort to save both Plaintiff and Cisco time and inconvenience, Ms. Cruz offered to determine whether Ms. Ashley or Mr. Wholley possessed any relevant information and, if not, to determine who might serve as a more knowledgeable witness. See Cruz Decl., 10. Ms. Cruz later reported to Mr. Harris that Ms. Ashley and Mr. Wholley had virtually no memory of Cisco's interactions with JDSU that were relevant to Plaintiff's case, and therefore Plaintiff's proposed deposition of Ms. Ashley and Mr. Wholley would be a tremendous waste of time and expense. Id. Accordingly, Ms. Cruz requested that Mr. Harris provide a list of deposition topics so that she could locate a more knowledgeable Cisco witness. After repeated requests from Ms. Cruz, Mr. Harris finally provided a list of topics on November 10, 2006. See Cruz Decl., 11. Ms. Cruz then spoke to several individuals at Cisco and determined that Mr. Moises Mares had the most relevant information regarding Cisco's relationship with JDSU during the relevant timeframe. See Cruz Decl., 12. Ms. Cruz subsequently contacted Mr. Harris and told him that no employee at Cisco
for World Wide Operations, because discussions with Cisco employees with relevant knowledge revealed that he was not involved with JDSU and contacting him was, therefore, not necessary.
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
Case 4:02-cv-01486
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would have knowledge of all the topics identified in the schedule of deposition topics,2 but that Mr. Mares appeared to be the person with the most relevant knowledge. Cruz Decl., 13. Only after Ms. Cruz informed Mr. Harris of the results of her investigation did Plaintiff decide to serve the 30(b)(6) Subpoena. Plaintiff served the 30(b)(6) subpoena on November 13, 2006. Cruz Decl., 14. Plaintiff proposed November 28, 2006 as the date of the deposition, just three days before Plaintiff's discovery cutoff. See Cruz Decl., 14. Taking into the consideration the Thanksgiving Holiday, Cisco was left with seven business days to prepare Mr. Mares for the 30(b)(6) deposition this despite the fact that Plaintiff knew since January 2006 that Cisco was a potential source of third-party discovery. Notwithstanding this tight timeframe, Cisco agreed to produce Mr. Mares for a deposition on November 27, 2006 in an effort to accommodate Plaintiff's discovery deadline. See Cruz Decl., 14. On November 27, 2006, Plaintiff's counsel, Mark Labaton, deposed Mr. Mares for a full 8 hours. At the outset of the deposition, Mr. Labaton asked Mr. Mares to review the 30(b)(6) Subpoena and to identify the topics for which he had "limited" knowledge. See Plaintiff's Exhibit 7, pp. 4748. Mr. Mares identified six topics in which his knowledge was "limited." See Plaintiff's Exhibit 7, pp. 4748. In using this term, Mr. Mares meant only that his knowledge of topics was not expansive, an unremarkable statement given the seven years that had passed since the events identified in the Document Subpoena had taken place. See Declaration of Moises Mares ("Mares Decl.") 8. When asked about these topics later in the deposition, however, Mr. Mares testified at length regarding four of the six topics. See Cruz Decl., 1821. Notwithstanding Mr. Mares's substantive testimony regarding these four topics, Plaintiff chose not to question Mr. Mares further about the other two topics. Instead, Mr. Labaton repeatedly asked Mr. Mares the same questions about the timeframe during which Cisco had given JDSU notice of its intent to cancel its orders. Mr. Labaton was apparently dissatisfied with Mr. Mares's
In Plaintiff's motion, Plaintiff claims that Cisco never raised the issue that no one at the company could testify fully as to all of the deposition topics. See Plaintiff's Motion to Compel, page 7. This is simply not true. When Ms. Cruz was originally contacted by Mr. Harris regarding the deposition and the proposed deposition topics, Ms. Cruz informed Mr. Harris that it would be very difficult, if not impossible, for Cisco to be able to provide a witness who could testify fully as to each and every topic because of the seven years that had passed. See Cruz Decl., 13. Mr. Labaton, upon whose declaration Plaintiff relies, never made any contact with Ms. Cruz or counsel for Cisco until they first met at the deposition of Mr. Mares.
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
Case 4:02-cv-01486
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response, which contradicts Plaintiff's theory of its case (and may provide some insight as to why Plaintiff have filed this patently frivolous Motion to Compel). On December 4, 2006, Plaintiff requested a meet and confer conference regarding the deposition. See Cruz Decl., 22. On December 5, 2006, Plaintiff requested a meet and confer conference regarding Cisco's document production. See Cruz Decl., 23. The parties exchanged correspondence and met and conferred on December 8, 2006. See Cruz Decl., 25. At that time, Cisco informed Plaintiff of its thorough efforts to produce documents and to identify the individual at Cisco with the most knowledge regarding the subjects identified by Plaintiff in its 30(b)(6) Subpoena. Cisco also explained that no one at Cisco would be able to testify further as to the deposition topics and that the time for Plaintiff to challenge the document production had long since passed. See Cruz Decl., 25. III. ARGUMENT A. Cisco Should Not Be Required to Search for Documents in Response to Plaintiff's 10-month Old Discovery Request. 1. Plaintiff's Motion to Compel Cisco to Search for Documents is Not Timely.
Plaintiff's Motion to Compel further responses to its Document Subpoena should be denied as untimely. A motion to compel must be filed within a "reasonable" period of time. A court may conclude that the motion to compel is untimely if a party unduly delayed in filing a motion to compel. See, e.g., Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev.1999) (denying as untimely plaintiff's motion to compel filed 136 days after receipt of the allegedly deficient responses and after the close of discovery); see also 8A Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d 2285 (1994 & Supp. 1998). Here, Plaintiff served its Document Subpoena on Cisco on January 18, 2006, nearly one year ago. Cisco produced documents in February and March of 2006. Plaintiff had ample time to review and challenge the scope of Cisco's production, yet it never informed Cisco that it believed that its document production was "scant." See Plaintiff's Motion to Compel, p. 9. Nor did Plaintiff request additional documents or express any dissatisfaction with Cisco's document production at that time. Significantly, Plaintiff makes no attempt to justify this inexcusable ten-month delay in
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
Case 4:02-cv-01486
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filing its Motion to Compel. Given Plaintiff's extraordinary and unexplained delay in responding to Cisco's document production, this Court should deny Plaintiff's Motion to Compel further documents as untimely. 2. Cisco Has Conducted a Diligent and Thorough Search for Documents.
Plaintiff's Motion to Compel further documents should also be denied on the grounds that Cisco has conducted a thorough investigation and produced all relevant documents in its possession. Cisco has contacted all current Cisco employees that have been identified as having potentially relevant information. See Cruz Decl., 4-5. Cisco has also interviewed many individuals that were identified during the course of the investigation as having potentially responsive documents. Id., 5. Cisco has produced all nonprivileged responsive documents within these individuals' possession, custody or control. There are simply no additional people at Cisco from which to request documents. Indeed, if this Court were to grant Plaintiff's Motion to Compel, Cisco would be at a loss as to what further investigation could be conducted. In support of its Motion to Compel, Plaintiff states that Mr. Mares's testimony indicated "that Cisco failed to perform an adequate document search and failed to produce certain documents in response to Plaintiff's prior document requests." Plaintiff's Motion at 3. Notably, Plaintiff fails to cite to any specific testimony by Mr. Mares to support this vague and conclusory allegation. Contrary to Plaintiff's bald assertions, Ms. Cruz has repeatedly informed Plaintiff that no Cisco employee has information regarding Cisco's search for documents because the investigation was conducted by counsel. See Cruz Decl., 17. Notwithstanding the lack of relevance of this topic to Plaintiff's case, and the fact that Plaintiff's time to challenge Cisco's production had long expired, Cisco nonetheless provided Plaintiff a list of all individuals that were interviewed during the course of Cisco's investigation in an effort to accommodate Plaintiff. See Cruz Decl., 17. Tellingly, Plaintiff has not identified any individuals that Cisco should have, but failed to, interview. Instead, Plaintiff continues to rely solely on the fact that Cisco produced "only" 349 pages of documents. See Plaintiff's Motion, p. 8. This production, however, does not reflect any deficiencies in Cisco's investigation. Rather, the production is
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
Case 4:02-cv-01486
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entirely reasonable given the remote timeframe for which documents have been requested. Seven years is a lifetime in the span of a large technology company. Many of the people who worked at Cisco in 1999-2001 in connection with JDSU are no employed at Cisco and most of the documents were not retained in the ordinary course of business. Through this motion, Plaintiff attempts to squeeze blood from a stone, but the fact is, Mr. Mares deposition testimony represents Cisco's institutional memory of the dealings between Cisco and JDSU more than seven years ago. Because Cisco has conducted a good faith and diligent investigation and produced all responsive documents within its possession, custody or control, Plaintiff's Motion to Compel should be denied. B. Cisco Should Not Be Required to Provide Further Deposition Testimony
Plaintiff's Motion to Compel further deposition testimony should also be denied because Cisco has produced its person most knowledgeable on the topics identified. Mr. Mares, as a Commodity Manager at Cisco, worked extensively with JDSU during the relevant time period. See Mares Decl., 5. All other employees involved in the JDSU relationship with additional relevant information have either left the company, or could not recall the details of Cisco's dealings with JDSU and had not retained any documents with which to refresh their recollection. See Mares Decl., 6. Mr. Mares was the remaining Cisco employee who was most involved with JDSU, Cisco's orders of JDSU products, Cisco's cancellations of JDSU products, and the other topics of the deposition notice. See Mares Decl., 5. He is, therefore, the person with the most knowledge of the topics identified in Plaintiff's 30(b)(6) Subpoena. See Mares Decl., 5. Plaintiff's objection to Mr. Mares's deposition appears to rest entirely on his statement during the deposition that he had "limited" knowledge regarding six topics identified by Plaintiff. When asked whether his knowledge was limited as to certain topics, Mr. Mares understood "limited" to mean "not expansive." See Mares Decl., 8. Mr. Mares obviously does not remember as much as he did seven years ago. See Mares Decl., 7. He was able to refresh his memory, however, as to many of the topics by reviewing the documents that he and others at Cisco had maintained. See Mares Decl., 7. Moreover, Mr. Mares testified at length regarding four of the six topics for which he stated he had limited knowledge. For example, Mr. Mares
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
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answered many of Plaintiff's questions regarding topic four, Cisco's return of JDSU products during the relevant time. See Cruz Decl., Ex. G, Deposition Transcript at 6869. Additionally, Mr. Mares spent a significant amount of time answering Plaintiff's questions regarding topic five, Cisco's orders for JDSU products during the relevant time. See Cruz Decl., 19. With regard to topic eight, the quantity and value of JDSU products held by Cisco on a consignment basis, Mr. Mares testified that he did not believe that Cisco purchased any products from JDSU on a consignment basis. See Cruz Decl., 21. Further, Mr. Mares answered all of Plaintiff's questions regarding topic number ten, communications between Cisco and JDSU during the relevant timeframe. At no time during the deposition or during Cisco and the Plaintiff's meet and confer process did Plaintiff mention any dissatisfaction with Mr. Mares's testimony as to this topic. Thus, contrary to Plaintiff's claims, Mr. Mares provided substantive testimony regarding all but three of the deposition topics identified by Plaintiff. As to the three topics about which Mr. Mares did not testify, there is no one at Cisco that could provide substantive testimony regarding these topics. For example, there is no one at Cisco that would be able to discuss topic number seven, Cisco's inventory of JDSU products seven years ago, without referring to documents to refresh their recollection. See Mares Decl., 10. As no such documents have been located, there is simply no one qualified to discuss this topic. See Mares Decl., 10. As to topic number one, Cisco's search for documents in response to Plaintiff's Document Subpoena, Cisco has repeatedly informed Plaintiff that the search was conducted by counsel and is, therefore, privileged.3 See Cruz Decl., 17. Morever, this topic is irrelevant to Plaintiff's case. Finally, as to topic nine, regarding the recognition of revenue by JDSU, Mr. Mares testified that no one at Cisco would know when JDSU recognized its revenue. See Cruz Decl., 18. If Plaintiff was not asking for information as to how JDSU recognized its revenue, Plaintiff should have clarified its question to Mr. Mares during the deposition. Indeed, Plaintiff still has not clarified the meaning of this question, or how anyone at Cisco could possibly testify regarding this topic. Plaintiff cites United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996) for the
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Cisco served objections to the 30(b)(6) deposition on November 22, 2006. See Cruz Decl., Ex. C.
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel
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proposition that a corporation is not relieved from preparing its Rule 30(b)(6) designee if it no longer employs individuals who remember relevant information. United States v. Taylor, however, explains that a corporation must prepare its designee "to the extent matters are reasonably available." Id. As the events that are the subject matter of this litigation occurred in 1999-2001, there are no individuals who remember additional detailed facts that are the subject matter of the litigation other than Mr. Mares. See Cruz Decl., 13. Additionally, there are no additional documents that were reasonably available to assist Cisco in its preparation of Mr. Mares for the deposition. See Cruz Decl., 5. Given the paucity of documents found during Cisco's thorough investigation, it was entirely proper and reasonable for Cisco to use the documents it produced to educate Mr. Mares regarding facts he no longer personally remembered. As Cisco has clearly met its obligations under Fed. R. Civ. P. 30(b)(6), Plaintiff's Motion must be denied. IV. CONCLUSION Cisco respectfully requests that the Court deny Plaintiff's Motion to Compel Further Deposition Testimony and to Require Cisco Systems, Inc. to Search for Documents Responsive to Plaintiff's Prior Discovery Requests.
Dated: January 2, 2007
MORGAN, LEWIS & BOCKIUS LLP
By
/s/ Courtney Cruz Attorneys for Third-Party Respondent CISCO SYSTEMS, INC.
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Case No. C 02-1486 CW Opposition to Plaintiff's Motion to Compel