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Tri-State Generation and Transmission Association Inc. v. Mitsubishi International Corp.

United States District Court, D. Arizona

December 20, 2016

Tri-State Generation and Transmission Association Incorporated, et al., Plaintiffs,
v.
Mitsubishi International Corporation, et al., Defendants.

          ORDER

          Neil V. Wake Senior United States District Judge

         Before the Court is a Motion for Reconsideration filed by plaintiffs Tri-State Generation and Transmission Association Incorporated, et al. (“Tri-State”). (Doc. 151.) Tri-State alleges numerous grounds on which the Court previously erred in denying their motion to compel production of a document withheld by defendants Mitsubishi International Corporation, et al. (“Mitsubishi”) pursuant to the parties' jointly stipulated clawback agreement. (Docs. 150, 94.) Each of these alleged errors is considered in turn. For the reasons discussed below, Tri-State's motion is denied.

         1. Impeachment

         Tri-State first disputes the Court's finding that Tri-State presented “no authority that impeachment, in any of its manifestations, suffices under Rule 26(b)(3)(A)(ii) to pierce work product.” (Doc. 151 at 4.) Tri-State argues that in its original briefing it cited to the U.S. Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495, 511 (1947), and points specifically to the Hickman Court's invocation of the word “impeachment” to support its disagreement with the Court's finding.

         The Hickman Court, however, mentioned “impeachment” in the context of articulating when written materials prepared by counsel “may properly” be discoverable. Hickman, 329 U.S. at 511 (emphasis added). In the portion of the opinion Tri-State highlights, the Hickman Court notes that such written materials “might be useful for purposes of impeachment or corroboration.” Id. Precatory dicta such as this do not establish that impeachment “suffices” to justify piercing work-product protection. This Court was correct to conclude that neither Hickman nor any other authority cited by Tri-State establishes that “impeachment, in any of its manifestations, suffices under Rule 26(b)(3)(A)(ii) to pierce work product.”

         2. Waiver

         Tri-State next disputes the Court's finding that Mitsubishi did not waive work product protection because its actions were “reasonable and timely under the Clawback Order . . . which contemplates that inadvertent disclosures may be likely.” (Doc. 151 at 4.) According to Tri-State, the Court erred because it “did not controvert - or even address - plaintiffs' authorities in the Clawback Reply which establish that the failure to object to the introduction of an exhibit waives any privilege, regardless of the presence of a claw-back provision governing inadvertent disclosure - the precise scenario at issue here.” In its reply brief, Tri-State argued that “[i]t is well-settled that ‘[c]law-back provisions . . . govern only waivers by inadvertent disclosure.' . . . ‘Accordingly, failure to timely object to the introduction of an exhibit waives any privilege, regardless of the presence of a claw-back provision governing inadvertent disclosure.'” (Doc. 138 at 13 (emphasis and citations omitted).)

         However, the authority Tri-State cites for this “well-settled” proposition consists of three unpublished district court opinions from other districts, one of them not even in this circuit. This Court is not bound by those authorities. Tri-State has cited no case law from any controlling jurisdiction that undermines this Court's previous conclusion.

         3. Reasonableness

         Tri-State next contests this Court's finding that Mitsubishi “acted reasonably in completing the deposition” despite becoming aware of the possible inadvertent disclosure at the deposition itself. Tri-State disputes that Mitsubishi acted reasonably in “abstain[ing] from asserting any objections whatsoever during two hours of examination about [the] document [at issue], ” and flags United States v. Gurtner, 474 F.2d 297, 299 (9th Cir. 1973), as “controlling law on the subject of waiver.” (Doc. 151 at 5.) Tri-State points to Gurtner for the proposition that “[o]nce the subject matter is disclosed by a knowing failure to object there is nothing left to protect from disclosure” (Doc. 151 at 5), but offers no explanation of what the Court is supposed to take away from this principle.

         Whatever the intended takeaway, these objections do not controvert the Court's finding that Mitsubishi acted reasonably. Tri-State omits from its argument this Court's finding that the deposition, conducted in Japanese, was “scheduled under the demanding requirements of Japanese law.” (Doc. 150 at 2.) To suspend the deposition under the circumstances in order to evaluate clawback options would have jeopardized a proceeding not readily conducive to rescheduling or continuation at a later date. The Court reiterates that it was reasonable under the circumstances to have waited until the next morning to contest the document.

         Furthermore, Gurtner is both legally and factually distinct from this case. Legally, Gurtner dealt with the attorney-client privilege, not the work-product doctrine, a related but distinct notion not necessarily subject to the same guiding principles. And factually, Gurtner was a case where the defendant made an untimely objection while a witness was on the stand before the jury at trial, not amid pre-trial discovery. Gurtner, 474 F.2d at 299. The proposition cited by Tri-State (“Once the subject matter is disclosed by a knowing failure to object there is nothing left to protect from disclosure”) pertains to jury trials, not pre-trial discovery. In any case Mitsubishi's actions at the deposition did not amount to a “knowing failure to object.”

         Tri-State's arguments therefore fail to undermine the Court's conclusion that Mitsubishi acted reasonably in objecting the following morning instead of during the deposition itself.

         4. ...


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