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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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UNITED STATES DISTRICT COURTDISTRICT OF NEVADA
BEFORE THE HONORABLE PHILIP M. PRO, DISTRICT JUDGE ANDBEFORE THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE
---o0o---
Dennis Montgomery, et al.,
Plaintiff,
-vs-
ETreppid Technologies,et al.,
Defendant.
::::::::::
No. 3:06-cv-056-PMP-VPC
August 18, 2008
United States District Court400 S. Virginia StreetReno, Nevada 89501
:
TRANSCRIPT OF CASE ANAGEMENT CONFERENCE
A P P E A R A N C E S:
FOR THE PLAINTIFF: Ellyn Garofalo Randall Sunshine Mark Gunderson
Attorneys at Law
FOR DEFENDANT ETREPPID: Stephen Peek Jerry Snyder Attorneys at Law
FOR COUNTER-DEFENDANT: Robert Rohde Gregory Schwartz Rolan Tellis Bridgett Robb-Peck Attorneys at Law
FOR INTERESTED PARTY: Carlotta Wells U.S. Department of Justice
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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Proceedings recorded by mechanical stenography produced bycomputer-aided transcript
Reported by: KATHRYN M. FRENCH, RPR, CCRNEVADA LICENSE NO. 392CALIFORNIA LICENSE NO. 8536
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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Reno, Nevada, Monday, August 18, 2008, 10:00 a.m.
---OoO---
JUDGE COOKE: Please be seated.
JUDGE PRO: Please be seated.
THE CLERK: This is the date and time
set for a Case Management Conference in case number
3:06-cv-056-PMP-VPC, Dennis Montgomery, and others, versus
eTreppid Technologies, and others.
Present on behalf of plaintiff, Ellyn Garofalo,
Randall Sunshine, and Mark Gunderson.
Present on behalf of defendant, Stephen Peek and
Jerry Snyder.
Present on behalf of counter-defendant,
Robert Rohde, Gregory Schwartz, Rolan Tellis and
Bridgett Robb-Peck.
Present on behalf of interested party,
Carlotta Wells.
JUDGE PRO: Thank you very much, Miss Clerk.
And good morning, again, to all of you.
Counsel, I know that you've had occasion to spend
an awful lot of time before Judge Cooke. And, occasionally,
Judge Cooke and I have convened hearings together in this
case, as I do from time to time in cases which are as complex,
as this one is, with the magistrate judge who is presiding
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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over so much of the case. In this case, Judge Cooke has done
simply yeoman work in dealing with a host of discovery issues
and other issues that have arisen since the inception of this
case.
Recently, Judge Cooke and I were conferring,
discussing the case generally, and we came to a consensus
that it would be -- while I know Judge Cooke has regular
status conferences, it would be appropriate to convene a
Case Management Conference to address some issues that would
enable us to, as judges, and you as, parties, to ultimately
bring this case to resolution, if necessary in form of a
trial.
Now, these actions, of course, have been pending
for, what, two-and-a-half years, roughly. I think since they
were filed. I realize the relationship between the original
parties extends back nearly a decade, or perhaps more than a
decade. I appreciate, as well, that the perhaps significant
breakdown in the relationship occurring in late 2005, early
2006, precipitated the filing of these now consolidated
actions. And they have grown since then.
In the past two-and-a-half years, particularly
in the past year-and-a-half, since there were resolution of
certain underlying matters, there have been an awful lot of
discovery disputes. Some of them understandable; some of
them, frankly, not entirely understandable to me, between the
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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parties. We have, of course, government counsel present. The
specter of certain issues pertaining to the nature of some of
the records and information subject, otherwise, to discovery,
certainly has been a barrier, but an understandable and
important one, that has affected the progress of the case
and, undoubtedly, will continue to play a role.
But as Judge Cooke and I were discussing it, it
was clear to me that, at some point, we need to get this case
on track for a trial. And I don't want to set trial dates
precipitously. I don't want to set trial dates that have to
be moved because the parties are still embroiled in discovery,
or there are other matters pending which make it impossible.
And that's why Judge Cooke and I confer.
Judge Cooke directed, at one of the hearings, that
we have this conference, and that you all submit status
reports or proposals, which have been filed by the parties,
respectively, at documents 796, 797, and 799. And that gives
us something to take a look at in terms of fashioning what,
hopefully, would be realistic deadlines that we would expect
the parties to comply with.
Now, you hear that a lot, I'm sure, from a lot
of judges. And everybody sets those deadlines with the
expectations that things can happen that will make them
change. And, indeed, there can be events which will impact
deadlines that are set. But, I think it's going to be
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significant for everyone to try and get a trial date that we
can live with. You all have provided your proposals, and
Judge Cooke and I are going to consider those and, perhaps,
things that might be added today, in assessing what needs to
be done in terms of setting such a trial.
One of the things that occurred to me though, as I
was reviewing, going back and looking at the now consolidated
cases, is the First Amended Complaints that the parties had
filed on behalf of the plaintiffs Montgomery, the ten claims
for relief, I believe it was, set forth in there; First
Amended Complaint on behalf of eTreppid, I believe it was
seven claims for relief set forth. And I know that that has
grown with counter-claims and new parties have been brought
into the action since these actions were originally filed.
Something that it occurs to me has not happened, and probably
should have happened a long time ago, and that relates to, for
lack of a better term, and I think as I was discussing with
Judge Cooke, she came up with the term "first phase," the
need to actually have the principal parties sit down for a
deposition.
And I'm not talking about a deposition that somebody
says, well, we can't go forward because we haven't finished
document production. The plaintiffs, Montgomery; the
plaintiffs, eTreppid and Trepp, know what they meant when
they filed their First Amended Complaints. They understand
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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what the factual support, as they understood it, for the
various claims contained in those respective First Amended
Complaints are or were. And it seems to me, that it would be
productive to actually sit down, have each of them sit down
and be subjected to deposition; to testify, under oath, as to
what their claims are, how they morphed or changed perhaps,
but what they are, and what information they have that
supports them, even though it may not include some of the
exhaustive detail, in the form of documentation and other
things that are still at issue between the parties.
And so after consulting Judge Cooke, I've
decided that it would be appropriate to order that a round
of depositions take place by the 31st of October; between
now and the 31st of October, in this order, I think, just
to get it moving: Mr. Montgomery first, for a period not
to exceed -- and some of the parties suggested four days for
deposition. That seemed pretty, pretty good. I don't think
you'll need it in all cases. But Mr. Montgomery; followed by
Mr. Trepp; followed by Ms. Blixseth; followed by Mr. Sandoval,
to allow for you all, and to allow for Judge Cooke and myself,
as things go on, to have a better grasp of exactly what the
claims are and what the basis for those claims are.
I'm not going to sit here today and announce a trial
date. I want, and Judge Cooke may have some matters to add
to what I have just said, and I want to allow her to chime
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in as well, and then hear from you all. But that's something
that I think would be helpful, to me, in assessing what needs
to be done with regard to this case, from the perspective
of the judge is going to have to try the case when all the
discovery disputes are resolved, and the person who is going
to have to address the case dispositive summary judgment
motions at the end of the day, or perhaps address other
matters that are important, maybe pertinent to settlement
if that's ever in the offing.
I remain, obviously, involved routinely with the
case; particularly, when objections are filed to orders that
Judge Cooke has been entering. But, Judge Cooke is the person
with the day-to-day, hands-on experience with this case, as
is exemplified by the numerous proceedings that are going
to occur this week. We have a couple this morning. And
Judge Cooke then will be addressing with you a host of
matters today, and throughout the week. And I'm very
pleased that she's able to do that.
But, Judge Cooke with those preliminary thoughts,
let me ask if you have something to add before we hear from
counsel.
JUDGE COOKE: Thank you, Judge Pro. I need the
microphone more than you do.
What I did want to say is we had had a conference,
as counsel and the parties are aware, with the Department of
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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Justice lawyers this morning, and did indicate during that
conference the tentative plan that Judge Pro just announced
for these four depositions.
And those of you who have been present at the
continued Order to Show Cause hearing concerning discovery
disputes, recall, on June 24th, that there were exhibit
binders that were provided in anticipation of questions.
And it became apparent, quickly, to Department of Justice
lawyers, that there were items in those exhibit binders that
were subject to the United States Protective Order. So, those
binders had to be turned in and so forth. And then the matter
was resolved.
And I think I just should add that I don't think
that there is occasion, that I've noticed, that anyone is
overtly attempting to circumvent that order. It's just that
there are a lot of documents. And the eye of the Department
of Justice is keener to see issues that are implicated by the
Protective Order.
In any case, it is the Court's order, as a
consequence of that, that ten business days prior to the
deposition of the four persons who have been identified,
counsel who are anticipating they will submit exhibits as
part of that deposition, will submit them to the Department
of Justice so that -- the purpose of that review is to avoid
the proof of publication that could arise, otherwise, with
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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having to take, in the middle of deposition, stop it, take
documents, go review them, talk with maybe clients back in
Washington, D.C. and so forth.
And I know that there may be concerns that counsel
for the parties have about your work product as it relates to
preparation for the deposition. But the fact is that we have
a U.S. Protective Order in place, and we have to attend to it.
And that seems, to Judge Pro and me, an expeditious and fair
way to approach the -- you just submit to the government.
We aren't suggesting that you have to exchange or
submit your deposition exhibits to opposing counsel. But if
you plan to use exhibits, the order is ten business days in
advance, you will provide those exhibits to justice department
lawyers.
So that's all I have to add, Judge Pro, with respect
to that issue.
JUDGE PRO: Thank you, Judge Cooke, for picking
up on that. And that was something I neglected to mention.
But, Judge Cooke is entirely correct. And
after meeting with Ms. Wells, I think that something that
is essential to allow for the orderly progress of the
depositions that we want to see conducted and completed --
and we'll leave it to you all to figure out your schedules
as to which of those weeks -- I was just looking over at the
calendar. We're at, what, the 18th of August. So, we got the
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months of September and October for the parties to accomplish
what amounts to four weeks, if necessary. And I'm not
suggesting you'll need four days per, but you certainly
may in a couple of them. I'm not sure. So when you're
scheduling, keep in mind that obligation that Judge Cooke has
just mentioned.
Those are matters which I wanted to begin with.
Now I want to give counsel, Judge Cooke and I want to give
counsel an opportunity to address any other matters concerning
scheduling. Judge Cooke is going to go through, as she has
done with regularity, and I think the last time was on, as I
recall, the minutes, July 15th or thereabouts. I know she's
got a variety of matters she likes to track with you all.
And I'm glad to be present to listen to her do that, and doubt
that I'll have much to add on that.
We'll then go into the Order to Show Cause hearing
concerning the order which I entered, and which affirmed
Judge Cooke's order concerning the discovery regarding Source
Code material, which I also will participate in. And then
Judge Cooke has a variety of other motions, which I know she's
going to be dealing with you, whatever is left of the morning
and the afternoon. And I will not be participating in that.
But if counsel have anything to address beyond what
you've already set forth in your status reports regarding case
management, I would, Judge Cooke and I, would welcome hearing
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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from you at this point.
Why don't we begin with counsel for the Montgomery
parties, if they have anything to add.
MR. SUNSHINE: Your Honor, Randy Sunshine. I
have nothing to add, except that I share the Court's belief
that early depositions in the next couple of months is an
excellent idea. I believe that many issues can be brought to
the table quite quickly. And we welcome that.
JUDGE PRO: They say even a broken clock is
right twice a day. So, once in a while, I come up with a
good idea. And after Judge Cooke and I discussed it, since
she agreed with me, then I knew it must be a good idea. I
wouldn't have presumed to think that otherwise.
Thank you, Mr. Sunshine.
On behalf eTreppid or Mr. Trepp, Mr. Peek.
MR. PEEK: Thank you, Your Honor. And I also
welcome the opportunity to commence depositions, as the Court
has ordered them to be conducted. I am concerned, and
remain concerned, about the lack of production of documents.
For example, we still do not, yet today, have any e-mail
correspondence which involved Blixseth, Montgomery, Sandoval
or Atigeo representatives. I know it's the subject matter,
certainly, with respect to the Confidentiality Agreement.
We, likewise, don't have complete productions as
well from Mr. Montgomery. We do not yet have, to date, any
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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documents that have been produced by either Sandoval, Atigeo,
Sandoval or Blixseth.
So, yes, I want to take the depositions. I am
concerned, however, about proceeding with those depositions
wherein fact I have produced over 310,000 pages of documents,
I have a little less than that. I have nothing from Atigeo,
Sandoval or Blixseth. I certainly do have numerous hard
drives from Mr. Montgomery. Most of which, Your Honor,
contain what I would refer to as garbage in; garbage out.
And that will be the subject matter of the follow-up hearing
today.
JUDGE PRO: Right.
MR. PEEK: So, I am concerned about meeting
that deadline. I would like the opportunity to start. But I
would also like the opportunity, when I do start, to have at
least some production, if not a complete production. And if I
don't have a complete production, the ability to come back and
take those depositions once I do have complete productions.
JUDGE PRO: Oh, and I'm not suggesting -- let me
pick up on that latter point.
I'm not suggesting that this is the only
opportunities for deposition of the principal parties. And
if I knew then what I know now, in terms of this so-called
first phase, it's something that, perhaps, I would have
thought of a long time ago before there was perhaps the
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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uneven production of documents that has taken place.
Nonetheless, I think it's an important step, and
a necessary step, to allow this case to move forward. And
while I'm sure there will be a lot of documents and exhibits,
and that's why Judge Cooke so perceptively made sure you get
those screened with the Department, with the government
counsel before they're utilized, I really look at this as an
opportunity for the people to talk about, what on earth, took
place; what their agreements were; what their understandings
were; who said what; who did what, at what time. The kind of
thing that I think would remove a lot of the mysteries that
at least confront me when I look at some of the paperwork
that's coming across.
And, you know, memories begin to fade. Time is
moving on. And 1998 is now a decade ago. And 2005 is almost,
December 2005 was almost three years ago. I just think it's
necessary to get moving.
But, you're right. These production issues -- and
Judge Cooke has been -- you guys are presenting stacks of
pleadings and papers. And I'm sorry, that if this was the
only case that Judge Cooke or I had to deal with, it would
perhaps be a little simpler. But, as you know, we've got a
lot of cases. And those are being ruled upon expeditiously by
Judge Cooke, and as quickly as I can get to the matters before
me as well.
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
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But, I appreciate your concerns. But, nonetheless,
those depositions will have to go forward even without the --
whatever production has taken place up to that point.
What about on behalf of the other parties, Blixseth
and Sandoval? Do counsel have anything to add on their
behalf.
MR. TELLIS: Good morning, Your Honor. My
name is, Rolan Tellis with the law firm of Bingham McCutchen.
I'm here on behalf of defendant, counter-defendant,
Michael Sandoval.
JUDGE PRO: Great. Thank you Mr. Tellis.
MR. ROHDE: Bob Rohde on behalf of Atigeo, Your
Honor.
THE COURT: Thanks, Bob Rohde, on behalf of
Atigeo.
MR. TELLIS: Your Honor, I would like to address
two issues; one, the deposition schedule, and just to comment
on Mr. Peek's mention of Mr. Sandoval's production of
documents, or lack thereof.
On the depositions, Your Honor, Mr. Sandoval was
only recently added to this case in January.
JUDGE PRO: Right.
MR. TELLIS: As an individual defendant, we
promptly moved to dismiss the claims against him, which was
denied.
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JUDGE PRO: Right.
MR. TELLIS: And part of the argument was
that the allegations were cryptic, at best, as to what
he had done. The alleged that trade secrets had been
misappropriated. And given the notice pleading rules, the
motion was denied.
Your Honor's rationale for setting the deposition
schedule, as least for this first phase, was predicated
on if these parties made claims, presumably they had some
information as to what the claims are.
Mr. Sandoval has made no claims in this case.
He's only an individual defendant. And I don't believe I'm
going to convince Your Honor that this deposition shouldn't
be taken. I'm not advocating for that. But I would
respectfully request that his deposition be taken past the
October 31st cutoff because, in many instances, he may be
learning about the claims against him, days before, when some
of the depositions of the principal players are taken.
So, I don't believe that his deposition should not
be taken. He would like to have his say. But, I don't
believe it would be fair to him to have it on an expedited
schedule, at least in this first phase, until we get a better
understanding of what the claims are against him. As I
mentioned, he's being sued in this case in his individual
capacity.
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As to the documents, I just wanted the record to
reflect -- I don't want to interpret Mr. Peek's comments
as suggesting Mr. Sandoval has resisted the production of
documents in this case. He has made initial disclosures.
He's responded to the only written document request that
was propounded on him. To my knowledge, there was no issue
as to his response. It's very simple. He possesses no
documents in his individual capacity. And Atigeo, the
corporate defendant in this case, to my knowledge, is
producing documents.
I just wanted to correct the record, should there
be any suggestion that he was resisting production of
documents.
JUDGE PRO: Right. Let me say with regard to
Mr. Sandoval, I appreciate Mr. Sandoval is not a plaintiff,
and has not made a claim, counter-claims, has made no, to my
knowledge, at least of yet, any such claims. And that does
put him, somewhat, in a different posture.
I also appreciate that when allegations are made
against him that he has misappropriated trade secrets, he
would, he would benefit from knowing precisely what those
trade secrets are, with a little more clarity, then perhaps
he already has from the pleadings.
That said, I think it goes back to my earlier
comment that if I could do it over, I suppose -- and I guess
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I wasn't even involved in the beginning -- but I would have
done it earlier with everybody, before they had the same
kinds of, perhaps, information -- though we did have people
making claims. That's why I think Judge Cooke and I, when we
discussed it, thought that the order of the depositions should
go as I've mentioned they should be. And I certainly don't
have an objection, when you all are scheduling, if you put a
week or two in between those of Blixseth and Sandoval, after
Montgomery and Trepp. But I think that after those do go
forward, you're going to have an awful lot more information
on behalf of your client as to what the nature of the claims
are against him or, in the case of Atigeo, against Atigeo.
And so I appreciate your comments, but it doesn't
persuade me to change, other than to acknowledge that I don't
have a problem with a gap in between the first two and the
second two.
MR. TELLIS: Fair enough. Thank you.
MR. ROHDE: As to document production, Your
Honor, Atigeo has been busy gathering documents since the
requests were propounded. We have given dates when we will
be producing them to counsel, and they will not adversely
impact the Court's proposed deadlines.
JUDGE PRO: Great. Thank you, Mr. Rohde. I
appreciate it.
All right. Anything else, Judge Cooke, on
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that matter?
JUDGE COOKE: I don't think so.
JUDGE PRO: Okay. Well, appreciate that.
And as I said, Judge Cooke and I will be consulting.
And I think probably after this week's activities -- she's
going to be awfully busy with you this week -- but we will
be fashioning an order which will include a trial setting.
Let me ask generally, before I get to that, have
the parties explored the utilization of some form of ADR with
regard to this case at all? I'm not interested in soliciting
ADR proposals that would take this off calendar or alter the
dates.
In kind of a assessing where we stand, is that
something which the parties have considered? Something which
would be productive in your judgment.
Counsel always say, well, sure, we're glad to talk
settlement, judge. And I don't want to send you down a
rabbit hole on something like this. But is this a case --
since I'm here and it's a good time to raise it -- that any
of you think would really be productive? And have you made
any -- I don't want you to disclose settlement discussions,
but have you made any serious assessment of whether some form
of ADR, either another magistrate judge -- and, I'd offer
Judge Cooke could do it, but I don't want to do anything that
would interfere with Judge Cooke's essential involvement in
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the case in addressing the discovery matters -- though, that
might also be the one that puts her in the posture of being
the one person on behalf of the Court that could effectively
do that -- or outside the Court, is that something which the
parties have considered?
MR. SUNSHINE: Your Honor --
JUDGE PRO: Mr. Sunshine.
MR. SUNSHINE: Thank you, Your Honor. While
this is a complicated case in many ways, my belief is that
all civil cases should settle. I don't think this case
is any different. I'm relatively, as Your Honor knows, I'm
relatively new to the case.
JUDGE PRO: Right.
MR. SUNSHINE: But I believe that an early ADR
of some kind could be very beneficial to this case.
Now, the only question I had in my mind is whether
that should occur sometime shortly after the depositions that
Your Honor just ordered, or even before, or both.
On behalf of Mr. Montgomery and Ms. Blixseth, we
welcome the suggestion, and we are open to any methods that
Your Honor thinks would work, or that perhaps we could work
out ourselves.
JUDGE PRO: All right.
Mr. Peek.
MR. PEEK: Your Honor, I share Mr. Sunshine's
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observations as well. Like Mr. Sunshine, I'm not sure if it's
something that should be done before or after deposition. My
instinct is it will be better served after the depositions are
conducted as opposed to before. But, certainly, I'm open to
that.
With respect to it being a magistrate, I would
welcome to have Magistrate Judge Cooke sit as the settlement
judge. I know that her time is very limited. And I suspect
that this would be a case that would take at least two, if
not more days for a settlement conference. I don't know
whether Magistrate Judge Cooke has that much time on her
calendar, because, as I know, she has a very busy calendar.
But I think she would be the best suited, respectfully, to
conduct that type of settlement proceeding; particularly, if
we go before the depositions.
JUDGE PRO: And I agree completely agree with
that latter sentiment. I just don't want to impose that on
her. Whatever we do, I would consult with Judge Cooke, and
she would be the one who would decide how that would go.
MR. PEEK: Yeah, I didn't want to perempt her
schedule.
JUDGE COOKE: No, I'll just say for everyone's
edification, I'd be very pleased to preside over a settlement
conference, if the parties are amenable to that. And I think
that, just an observation I have, having conducted lots of
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settlement conferences, one of the problems that I foresee
could happen if you -- we don't generally go to different
magistrate judges. Occasionally, that will happen. It's
usually, within our district, the magistrate judge assigned
to the case is who presides over the settlement. But
the other observation I'll make, with regard to private
settlement, you might go ahead and pursue that. Things are
said, discussions are had, and then trouble comes, and you
may want a further settlement conference or it, frankly, gums
up the works with respect to the litigation, and I'm not privy
to what happened. And I don't understand the dynamics that
occurred prior in that settlement.
And, of course, the other benefit is, obviously, I'm
familiar with the case. But counsel, of course, are always
free to pursue private ADR, if that's what you want to do.
It's just a concern I have is I've seen that settlement can
sometimes just go south. Then people come to the Court and it
can't be fixed. And a case that might otherwise settled, does
not. So --
JUDGE PRO: Do other counsel have anything else
to add?
(No response.)
JUDGE PRO: All right. Well, let Judge Cooke
and I confer with that. I agree with her expressions
completely that, number one, she's in the best position to
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conduct the settlement conference. And, number 2, one of
the pitfalls of outside settlement efforts, though they can
be very productive, I realize, but if there is a problem, it
can be very difficult for the magistrate judge who's been
presiding over the matters, to capture the same sense as to
what had occurred.
But I'll tell you what, why don't we impose upon
counsel the burden of conferring and submitting, within ten
days of this date, your, or a proposal. It doesn't have to
be -- if it can be joint, great. If not, your individualized
proposals concerning potential ADR options, and just what you
think would be helpful. And you've kind of expressed that
here, but I think that would be useful to us in terms of then
assessing what could be set, and when, in terms of pursuing
that potential option the Court.
Miss Clerk, what date is that?
THE CLERK: Thursday, August 28th, 2008,
Your Honor.
JUDGE PRO: Submit it jointly. It can contain
separate points of view, but I think it would be helpful to
have it jointly submitted.
All right. Well, if there's nothing further on the
status conferences, I think we should move on to the other
subject that Judge Cooke and I had also conferred on, and
agreed should result in the issuance of an order. Am I --
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Did you have something else?
JUDGE COOKE: No.
MR. PEEK: Your Honor, I know you haven't done
that, but there certainly were dates set forth with respect to
discovery cutoffs and expert disclosures and things of that
nature.
JUDGE PRO: Right.
MR. PEEK: So when you say status conference,
are we moving to the Order To Show Cause, Your Honor?
JUDGE PRO: Yes. I'm sorry. Moving to the
Order to Show Cause.
MR. PEEK: I was really trying to finalize, if
we could the Case Management, so that we know -- or is the
Court just going to issue its own standard order?
JUDGE PRO: Oh, we'll take what you submitted
and confer on it and issue it, I think would be -- did you
have something to --
(Judge Pro and Judge Cooke confer.)
JUDGE PRO: I'm sorry. I got ahead of myself.
No, on the deadlines, particularly on the trial
date, I've got the benefit now of what you all had filed on
the last, the 12th, last week, I think it was. Yes.
MR. PEEK: And more particularly -- sorry, Your
Honor.
JUDGE PRO: And so I've got to look at my trial
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calendar and --
MR. PEEK: One of the things that concerned
me more particularly, Your Honor, is that I had put forward,
at least in my Case Management Report, that we propose to
amend our pleadings to add claims of defamation against
Ms. Blixseth, and may well add aiding and abetting,
conspiracy type claims against Sandoval, Atigeo and Opspring
with respect to those, as well as a defamation claim against
Mr. Montgomery. Those are very critical, at least to our
proceedings.
And as we have gone through the discovery process
and learned more and more about the so called Glogauer and
Jale Trepp e-mails that were reported in both the Wall Street
Journal, on two occasions, and then NBC News on one occasion,
and then trying to get to the bottom of those e-mails -- and
we're still not there -- it certainly has become evident to,
at least the eTreppid and Trepp parties, more particularly,
and to Warren Trepp, individually, that there are claims of
defamation, per se, as well as conspiracy, and aiding and
abetting, and filing of false police reports, if you will,
or reports with government authorities of crimes that have
been committed. There are --
JUDGE PRO: Refresh my recollection. When did
you propose to file?
MR. PEEK: Well, that's what I thought we were
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going to discuss here. If you want to give me a deadline
within the next two weeks, we can do that.
JUDGE COOKE: Well, let me just back up a
minute. And I just reminded Judge Pro what our procedure in
numbering, kind of, stages we're going into today. We'll go
ahead, I think, if this --
JUDGE PRO: Yeah.
JUDGE COOKE: -- is fine with you, judge. We'll
go ahead and take up some matters in the Case Management
Report. And that includes, Mr. Peek, the issues that you
just raised. And so what we're going to do is spend the next
part of this morning going through the July 15th case status
report. There are some matters that I want to follow-up on,
as I've been doing in the past few months. I use that as
a template for discussions today. And, also, of course, in
conjunction with that, have reviewed your Case Management
Reports that all counsel have filed and submitted to the
Court.
And in the context of those discussions, I think we
can address, at least preliminarily, some of these issues.
So, I think --
JUDGE PRO: Let's do that. I got -- when you
rose and raised that issue, I wasn't familiar with it from the
Joint Status Report. This was something else that Judge Cooke
has routinely been going through with you.
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JUDGE COOKE: Right.
JUDGE PRO: I indicated my preference would be
to let her continue with that. And I thought we'd simply move
forward to the Order to Show Cause, but we'll do that after
Judge Cooke has a chance to go through the status conference.
And I'll just listen in while that occurs.
MR. PEEK: Thank you, Your Honor.
JUDGE COOKE: All right.
All right. So the order is we're now going to turn
to the Case Management Conference. Then we will, as Judge Pro
indicated, deal with the Order to Show Cause with respect
to the Source Code order. Then there are, I believe, two
outstanding discovery motions; Motion to Compel by the
Montgomery parties concerning business records, and then a
Motion to Compel by Atigeo -- no, I'm sorry, it's Opspring,
concerning Warren Trepp's tax returns.
Judge Pro, for those two motions, will excuse
himself and go attend to other matters. Because you may
well file an objection that you wish to take up if you're
dissatisfied with this Court's order, and so he'll excuse
himself for that.
And then, of course, after we take care of those
three segments of the work here today, then we'll commence
with the Order to Show Cause hearing concerning the May Order
to Show Cause in those proceedings.
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So, with that, why don't we go ahead and address the
case management. And so what I'm doing, as I've indicated,
is looking at the Minutes of docket number 760, of the July 16
status conference. And I've also reviewed Atigeo and
Sandoval's Case Management Report, dockets 796; eTreppid's
report, 797; and the Montgomery parties' report, 799.
And I have some questions. First of all, turning
to page 2 of that Case Management Report, my first question
concerns -- Miss Clerk, for your information, item one is
production of compact disks by the Montgomery parties.
At that hearing, it was reported, Montgomery party's
counsel advised that with respect to production of CDs and
hard drives, that production is available for inspection.
Therefore, parties are to make necessary arrangements to
conduct this inspection.
And my question is, did that happen?
Mr. Peek.
MR. PEEK: Your Honor, we have received from
the Montgomery parties approximately 21 hard drives that were
represented to be available for inspection and copying. Of
those 21 hard drives, 13 of them are currently unreadable.
Whether it was the manner in which they were sent, or the
manner in which they were copied, or the manner in which
they were sent. I don't know. What I do know is that 13
of them, of the 21, are currently unreadable. We have let
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Mr. Sunshine's office know that, and I assume that he will
make arrangements to have those recopied and packaged and
forwarded to us. But, that's the only production that we have
received that was discussed.
JUDGE COOKE: What about CDs?
MR. PEEK: We have no more CDs, Your Honor. We
have asked for, in correspondence -- and that will be one of
our exhibits today -- that what CDs do you have, and when will
they be copied and forwarded to us? And we have not received
a response from Mr. Sunshine's office.
JUDGE COOKE: All right. Thank you, sir.
Mr. Sunshine.
MR. SUNSHINE: Your Honor, my understanding
is -- well, first of all, with respect to the hard drives,
obviously, we are going to look into that problem. I don't
have any specifics on why those 13 were unreadable. I'm -- my
office is looking into that right now. And I am not aware of
the exact status of the CDs, whether or not there are any.
But my office, also, is looking into that as well.
JUDGE COOKE: All right. So what I want then --
when were the -- Mr. Peek, when did you receive the 21 hard
drives, sir?
MR. PEEK: We received them, Your Honor,
Friday -- Thursday?
Yeah, we received them Thursday, via overnight
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express. Thursday, the -- looking at the calendar, that would
be the --
JUDGE COOKE: August 7th?
MR. PEEK: August 14th.
JUDGE COOKE: Oh, excuse me. August 14th.
So if they were available for inspection,
Mr. Sunshine, as reported on June 16, why is it August 14
before these hard drives, such as they are, I guess 13 are
unreadable, why was there this delay of about a month?
MR. SUNSHINE: Your Honor, I can't answer that
from personal knowledge, because I was not personally involved
in the case during that period. All I can say is that they
have been produced. From personal knowledge, I can say that.
And I can also say that, to the extent there are any problems
with them, I've already told Mr. Peek informally, and I will
tell the Court now, that I personally am going to make sure
those problems are resolved quickly and expeditiously.
JUDGE COOKE: So when will those problems be
resolved? Give me a date, sir. Today is the 18th.
MR. SUNSHINE: Your Honor, because I don't
know how much work it will take to deal with that unreadable
problem, and because we're here all week, I would like at
least a week to get back to Mr. Peek about those.
JUDGE COOKE: So you want until the 25th, sir?
MR. SUNSHINE: I would appreciate that.
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MR. PEEK: Is that to produce, or just to get
back to me?
MR. SUNSHINE: We'll get back -- well --
JUDGE COOKE: That's my question, too, sir.
MR. SUNSHINE: We will get back to -- because my
law firm and the people working on the case are here this
week, we will get back to him by the 25th. And, hopefully, we
will put things in motion while we're here to make sure that
we not only have an answer, but perhaps we have information to
actually give him.
JUDGE COOKE: Well, you, perhaps, might sense
some frustration that I have.
The representation made to the Court on July 16th
was these are available for inspection. So, in my mind,
that, to me, says, gee, the week of July 16th, that week or
the following week, those will be produced to these folks.
And here I find out they don't get them until less than a
week before this hearing. This has been, Mr. Sunshine -- and
I greatly appreciate that you are new to this case -- but
this pattern is not new to this Court. And it's got to stop.
So, what I'm going to tell you is you work out,
readable, unreadable, you figure that out. And I do
appreciate that you're here in court all week. And I
sympathize with that. You are going to produce those, the 13
unreadable DVDs will be produced by Wednesday, August 27th.
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MR. PEEK: Your Honor, they're hard drives.
JUDGE COOKE: Excuse me. Hard drives. Pardon
me.
The hard drives are to be produced by Wednesday,
August 27th. And I'm sure the technical people, the lawyers
here, can make a call and figure out what is going on with
that.
Now, what about the CDs that were available for
inspection? Do they exist or don't they? And where are they
and what's going on with that?
MR. SUNSHINE: We will have those produced by
the end of this week.
JUDGE COOKE: All right. Those will be, the
CDs will be produced, that were the subject of the June --
July 16th hearing, will be produced no later than Friday,
August 22nd, 2008.
All right. Thank you.
MR. PEEK: Your Honor, just a note on the hard
drives, at least that we have been able to open and read, is
that there are no PST files on any of those hard drives.
And as the Court knows, e-mails, in native format -- well,
actually, complete original e-mails in PST form, with all
native format information on them, have yet to be produced.
And there are none of those are on the CDs that we've read.
MR. SUNSHINE: Your Honor, not to get in a
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debate at this point about rather mundane technical issues,
but my understanding, as represented to me, is that the Trepp
parties have produced no PST files themselves.
Now, what is good for the goose is good for the
gander. We've made a good faith effort to produce everything
that was called for. I'm following up on the CDs, and will
have those produced shortly, as Your Honor ordered, as well
as determining what the problem is with the hard drive.
JUDGE COOKE: Right. All right.
MR. PEEK: Your Honor, I don't think
Mr. Sunshine has really made himself aware, but we have
produced, in native format, the e-mails with the complete PST
already. And if he has an issue with it, we have not -- he
has not even called it to my attention. We have produced
electronic copies of e-mails, PST files, in native format,
already to them.
JUDGE COOKE: I thought you had. I thought you
had. All right.
Well, we know that this is -- I'm not -- we aren't
going to discuss this today, this issue right now.
I'm focusing on this. So, the production of CDs is
going to be completed, and the hard drives as the Court has
ordered.
The next item, really nothing to report. The
evidentiary hearing regarding the FBI search warrant return
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is set for September 5, 2008 at nine o'clock. I don't think
there's any issue there.
Turning back, again, to docket 760, item 3, I don't
believe there are any outstanding issues with respect to that.
The Court had ordered on July, that no later than July 25,
2008, eTreppid's custodian of records file a declaration
attesting as to how documents were kept in the ordinary
course of business. And I have filed, on July 25th, were two
declarations, docket number 772 of Robert Powers; and docket
773, of Sue Perez, in compliance with the Court's order.
Are there any -- has that matter been resolved, or
are there any other matters to take up, just with respect to
the declarations concerning how eTreppid's records were kept
in the ordinary course.
MR. SUNSHINE: Your Honor, none that we're aware
of right now.
JUDGE COOKE: Okay. Very good. Thank you, sir.
All right. The next item was, let's see, there was
a problem -- the Montgomery parties requested that to the
extent documents were produced in the ordinary course, they
ought to provide, eTreppid ought to provide the Montgomery
parties with the bates number range to indicate which
documents are responsive to which document production
requests. The Court directed the parties to meet and confer
and try and figure out how they could do that. And I think
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the parties -- I was hopeful they could supplement responses
and agree on a protocol for that. And you were directed to
meet and confer on this issue no later than July 25.
Has that matter been resolved?
MR. SUNSHINE: Your Honor, the parties have done
a substantial amount of work in that regard. We believe that
there has been substantial compliance. To the extent that
there are any other problems that we have, we believe we will
be able to work them out with Mr. Peek.
JUDGE COOKE: Very good.
Mr. Peek.
MR. PEEK: Yes, Your Honor. That is correct.
We have done electronic method of doing that. However, what
we have not received -- sort of goose/gander -- we have not
received anything from the Montgomery parties that would give
bates range of what documents that they have produced, very
little, and how it responds to interrogatory requests.
JUDGE COOKE: All right. Well, let's just focus
on this production.
So, it sounds to me, Miss Clerk, that counsel have
undertaken and agreed upon a protocol for a bates number range
for eTreppid to identify those documents that are responsive
to specific requests for production of documents, and other
discovery by the Montgomery parties. And to the extent that
there are continued need do so, it appears that they'll be
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able to resolve that without any further action by the Court.
The next item concerns, looking on the Case
Management Report, concerns the Montgomery parties' requests
for production, including a privilege log. And let's see, I
think that you anticipated, Mr. Snyder, you reported to the
Court how that was proceeding, and you -- and I recall at the
July hearing, the lawyers were a little unclear, not being the
technical experts about how that would be done.
Has that been created? Are there any outstanding
with respect to privilege log.
MR. SNYDER: With respect the Montgomery party's
privilege log?
JUDGE COOKE: Yes.
MR. SNYDER: We, as we mentioned in our status
report, the privilege log which they provided, we believe, is
inadequate. It lists the day of an e-mail string, or the date
of a communication, and the participants and, in very vague
terms, the subject matter. But, we don't know the author of
the e-mail. We don't know the position of all the recipients.
In most cases, of course, we know who the players are. But,
in some cases, there's names that we just haven't seen. Don't
know their position. And so from that privilege log, we can't
fully evaluate.
JUDGE COOKE: All right. Well, I'm confused.
So thank you very much, Mr. Snyder.
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Let me clarify. All right. There was the
Montgomery parties' privilege log that was the subject of
that section of the Minute Order. And then there was the
Montgomery parties -- Montgomery parties had filed a Motion
for Protective Order regarding a Common Interest Agreement.
That was docket 717. And I denied that motion without
prejudice, and said that the Court gave the Montgomery parties
leave to submit a privilege log as to the discreet group of
documents that the Montgomery parties were -- for which they
were seeking this Protective Order. And so I directed that
the Montgomery parties would produce a version of that
privilege log to me by July 25th, 2008, in camera. And
Ms. Klar had asked could that be -- she wanted to do that in
camera, because she thought that would give the Court -- she
would supply more detail in that privilege log.
I did receive a privilege log on July 25th from the
Montgomery parties. And that's what I thought that was. But,
maybe I'm wrong.
So, that's the only privilege log I've received.
And then there is this other privilege log that the Montgomery
parties were supposed to produce. So, which one are you
talking about?
MR. SNYDER: I'm referring to -- they were
supposed to produce two versions, is my understanding. One
for the Court, which contained more detailed information.
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JUDGE COOKE: Right.
MR. SNYDER: And one for eTreppid, which
would still comply with the Rule 26 obligations of a privilege
log.
JUDGE COOKE: Right. Maybe my misunderstanding,
and perhaps this is just my misunderstanding, is I thought
there were two different privilege logs. I thought there
was one for -- that was due. It says: "ETreppid's counsel
reports concerning responses to Montgomery parties' request
for production of documents, including a privilege log, which
are due July 28th," and so forth.
So, that's what --
MR. SNYDER: The eTreppid parties' privilege
log --
JUDGE COOKE: Right.
MR. SNYDER: -- and our document production,
that has been completed.
JUDGE COOKE: Right. That's all I'm asking.
I'm sorry --
MR. SNYDER: Okay. Sorry for that
misunderstanding.
JUDGE COOKE: I know there is this other one.
So, your privilege log is completed, is that
correct, sir?
MR. SNYDER: That's correct.
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JUDGE COOKE: And you may have problems with the
privilege log. I don't know about that. I'm just asking was
it done. It was done.
Is that correct, Mr. Sunshine.
MR. SUNSHINE: Yes, Your Honor.
JUDGE COOKE: All right. So eTreppid's
privilege log is completed. Thank you.
All right. I'm just going to make a comment about
some of the items that we discussed in July were resolved.
And I'm certainly not going to rehash them. One, though, I
just want to remark on. Montgomery parties' counsel advised
that, just in passing, they were interested in maybe moving to
modify the existing Protective Order. I just want to make
clear on the record that, in the Minutes of the Court, I
just indicated that that was something that was discussed.
I did not wish to give the impression that the Court had any
position one way or another on it. I'm simply trying to keep
track of what's going on in this case.
So, I just didn't want there to be a misperception
that somehow by including the reference to that might be
something that the Montgomery parties want to do, that I was
agreeing that that was a good idea or disagreeing. Just so
you're clear on that.
All right. Let's see. I'm turning, now, to page 6
of the Minutes. Item 9, dispute regarding Opspring's requests
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for production of documents outputs. And this -- there was
an argument about, basically, as I understood it, Montgomery
parties requested production of documents concerning outputs.
Montgomery parties said we can't do that until we get the
Source Code. And I'm just noting --
MR. PEEK: You mean the eTreppid parties said
they couldn't do it.
JUDGE COOKE: Yes. I'm sorry. Pardon me, sir.
And then I said, after a meet and confer, this
dispute is unresolved, Opspring has leave to file a motion to
compel. Opspring hasn't done that. I'm just noting that for
the record. I don't know if Opspring plans to. But if you
do, I'll just hear it, I guess, at the September Discovery
Status Conference. But, I don't believe one has been filed.
Has one been filed?
MR. SUNSHINE: No, Your Honor.
JUDGE COOKE: All right. The next item,
deposition of Sue Perez. The parties agreed to set a date.
She's the bookkeeper for eTreppid.
Has that deposition been set, Mr. Peek?
MR. PEEK: Your Honor, we have not been able to
agree on dates with everybody yet, but I think we're still
working towards that goal.
JUDGE COOKE: All right. So there's no dispute
about it. You're just trying to get the calendars together,
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correct, sir?
MR. PEEK: Yes, Your Honor.
THE COURT: All right. Correct, Mr. --
MR. SUNSHINE: That's correct, Your Honor.
JUDGE COOKE: Any other counsel wish to be
heard?
Please speak up. I don't mean to ignore you over
there. A lot of these issues, as you well know, have to do,
in many respects, to do with the Montgomery parties and
eTreppid.
MR. PEEK: Your Honor, one of the issues on that
one though, by the way, is, again, and maybe that will be
addressed in the Case Management Order, as to the length of
depositions, and the number of depositions. So that was part
of the issues that we hadn't yet worked out with counsel for
Montgomery, Opspring and Blixseth, as to what the length of
that deposition was. We couldn't get an agreement on that.
But that may get address if we know, pursuant to the Court's
scheduling order, how many depositions we're allowed to take,
the length of those, so we can begin to work through that
process.
JUDGE COOKE: All right. Well, how long do you
need, Mr. Sunshine?
MR. SUNSHINE: Well, Your Honor, in light of
this morning's pronouncement from the Court about the four
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depositions of the four principals, just throwing it out, it
may make sense, at this point, to delay Ms. Perez's deposition
until those take place. I don't have a firm position on that.
I want to confirm about that. But, I believe that Mr. Peek
and I can work out those scheduling issues with the parameters
that the Court set out.
JUDGE COOKE: All right. Well, why don't you do
this. During the break, talk to one another. It sounds like
it might make sense, to me, to do the four, since those have
been ordered, and then worry about Sue Perez's later. But,
other counsel and parties may wish to think about that. So
we'll take that up at a recess and so forth.
All right. This is the -- I think the next item is
item 11. This is the privilege log Mr. Snyder was referring
to, and the one that is of concern to the Court.
The Court, at that July hearing, denied without
prejudice the motion for Protective Order, and finds that the
parties, Montgomery parties hadn't met their initial burden to
establish an attorney/client privilege existed, which then --
actually, it's not a common interest privilege. It's actually
a waiver.
Anyway, but the Court then, as I indicated in my
order, set out protocol where the parties, the Montgomery
parties were to deliver certain kind of privilege log, but a
more detailed in camera privilege log to the Court. And
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Mr. Snyder has already mentioned and reported in eTreppids'
Case Management Report that the privilege log that he got is
wholly insufficient. And I would like to see it.
And so I would like -- I want to see what yours is.
I have questions about the privilege log I got. Some serious
questions.
MR. PEEK: Your Honor, you want that today,
right away?
JUDGE COOKE: Yes, sir.
MR. PEEK: Let me -- we'll --
JUDGE COOKE: At the recess, give it to my court
clerk or my law clerk.
MR. PEEK: Oh, we have it, Your Honor, here.
JUDGE COOKE: Okay. You can just give it to me.
I want to take a look at it. And I want to compare it to what
I received.
And, Miss Clerk, during the recess, you can just
make a copy of it and return it to Mr. Peek. That's fine.
THE CLERK: I will, Your Honor.
JUDGE COOKE: All right.
MR. PEEK: Your Honor, may I approach the clerk?
JUDGE COOKE: Yeah. Go ahead and just give it
to clerk. And then, at a recess, she'll copy it. I want to
take a look at that.
MR. PEEK: Could we have an extra copy for
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Mr. Sunshine as well?
JUDGE COOKE: Certainly. And, for everyone else
over here and, also, Ms. Wells. So, however many that is,
Miss Clerk.
THE CLERK: I will.
JUDGE COOKE: All right. So I'm going to deal
with that later on.
The Court already issued its order on Friday
concerning requests for production set two, request for
production number 26. So, that's been disposed of.
So those are, I believe, just in reviewing the
laundry list of what was leftover from July that we've taken
care of, as I indicated, I'll deal with the privilege log
issue after we hear the Order to Show Cause. But if there is
anything only about the -- and I guess, Judge Pro, they want
to talk about this whole case management issue. So if there's
anything other, from the July 16 hearing that ought to be
discussed that has not, is there anything counsel wish to
raise that needed to be followed up on that has not?
MR. SUNSHINE: No, Your Honor.
MR. PEEK: No, Your Honor.
JUDGE COOKE: All right.
MR. TELLIS: No, Your Honor.
JUDGE COOKE: Seeing heads shaking, that's good
news.
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All right. I guess the next issue, Judge Pro, that
counsel are interested in discussing, is this whole issue of
case management and depositions and so on. And, you know, I
noticed, I note in Atigeo's and Sandoval's Case Management
Report, they had suggested, in 796, a new date for dates for
discovery and scheduling. I note eTreppid -- and Judge Pro
and I talked about this -- in 797, discussed some deposition
guidelines and so forth. So with, I guess -- and perhaps
Judge Pro has another idea -- my thought is you've got the
four depositions in October. Do you -- I'm not quite sure --
JUDGE PRO: Well, let me suggest something that,
after sitting here and listening to Judge Cooke go through the
many discovery matters that she has been addressing, it seems
to me, we do have different protocols. When I look at the
Montgomery parties' proposal, they cite the joint -- or, I'm
sorry, the Status Report -- they cite the earlier established
deadlines and suggest a two-month extension, I think it was
being reported. That's pretty close to the time line that
Atigeo proposed in their Status Report.
As you said, Judge Cooke, the eTreppid parties had
some guidelines concerning length of depositions, number of
depositions and the like. And they all filed those on the
12th, as we ordered them to. But I wonder, and I'm just
thinking out loud, whether it might be appropriate to have
them -- in light of they're all here this week, and they're
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going to have plenty of opportunities to talk -- and we set a
deadline for ten days hence, I think it was, to submit their
proposal with regard to any alternative dispute resolution, if
we ought to have them confer and submit a joint proposal with
regard to discovery cutoff deadlines for the dispositive
motions and the like. Do you see --
JUDGE COOKE: Well, we tried that, with not a
lot of success, but I'm certainly open to and amenable to
that. I know there's another, I think earlier submitted -- I
think it was prior to the June 16 Case Management Conference
we had, the parties submitted a Case Management Report.
And I have to get that. I'm not sure if I have it
here. It must be in my pile of papers.
Counsel, do you know what I'm talking about?
MR. SCHWARTZ: Yes, Your Honor.
JUDGE COOKE: All right.
JUDGE PRO: Alternatively, we just let them air
their views on the depositions, number of depositions, length
of depositions and the like. We've got your submissions. We
can certainly sit down and take those and fashion them. But
I think getting your positions on the number of depositions,
length of depositions, is certainly appropriate.
MR. SUNSHINE: Your Honor, if I may. I welcome
the suggestion to allow the parties to meet and confer on
all of these issues. I -- whatever happened in the past, I
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believe, particularly in light of the setting of the four
depositions over the next couple of months, I believe that it
would be helpful to at least have the opportunity to see if
we can work out these other issues, including when we think
discovery cutoff should be, and the trial date. And, you
know, the approximate time for the trial date. If we could
try that and get back to you, that's my proposal.
JUDGE PRO: Mr. Peek.
MR. PEEK: Your Honor, I think that Mr. Sunshine
is correct. Having looked at the submittal by Atigeo, I
think, certainly, I think that they have really set forth what
they think is reasonable and responsible --
JUDGE PRO: They did. They gave --
MR. PEEK: -- proposal. I'd like to -- and I
think we can work through that. And I would like, though,
however, before we leave, this week, to have at least that
conference with the Court, if the Court is available, the
magistrate judge is available, to make sure that we do get
that before everybody leaves and we, you know, run away. So,
we can try to work through that.
JUDGE COOKE: Yes. That's a good idea.
JUDGE PRO: That's a good idea. Judge Cooke, of
course, is going to be here with you during much of the week.
And that would be great.
MR. PEEK: So I will meet with Mr. Sunshine,
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Mr. Rohde, and Mr. -- Rolan, I forgot your last name. I
apologize.
JUDGE PRO: Tellis.
MR. PEEK: Tellis. As well as the government,
to make sure we can work through that.
The one issue that does come up to me is they're
only talking in each of the case management orders, or
proposals, about discovery cutoffs. The one thing that
is missing in that is the Motion to Amend. And I'm very
concerned about that, as far as the Trepp and eTreppid parties
are concerned, because I want to make sure that there's at
least a time. And if the Court says you need to file your
motion within a certain period of time, I'm happy to do that,
because it's already pretty much drafted, but the time to add
parties, and to amend, has expired, as the Court knows. But,
yet, I want to make sure that there is one new one.
And I don't -- although there won't be, there will
be one new party proposed to be added, and that's Blixware,
which is an entity owned by Edra Blixseth, that will be the
only new party. But, there will be proposed to be a new party
added in there.
JUDGE PRO: Okay. Give me just a moment.
Yeah, I think unless Mr. Rohde or Mr. Tellis had
something to add to that, I think that -- Judge Cooke and I
have conferred -- and while, as Judge Cooke said it's been
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attempted before, things which can be jointly submitted, where
there is agreement, obviously, are much easier to receive on
the part of the Court, and much happier on the part of the
parties, because you're not just getting it arbitrary from the
Court, or if not arbitrary, at least less agreeable to you.
I'm not saying that we will adhere to everything
that you propose, but I think that since you're going to be
with Judge Cooke this week, this is an issue that Judge Cooke
has indicated she can revisit with you on Thursday.
So during your time when you're not actively arguing
before Judge Cooke on matters, I think conferring on these
deadlines, perhaps refining them somewhat, would be an
appropriate thing to do. And then you can finalize that with
Judge Cooke this week.
JUDGE COOKE: Right. And then in addition to
the motion to amend the pleadings, or add parties, I noted
there should also be a rebuttal discovery deadline --
MR. PEEK: I saw that, too.
JUDGE COOKE: -- as well. I think it was just
a typo, because you had 60 days in between. But that also
needs to be included. And just do try to work this out.
Thank you.
Are there any other items, before we turn to the
Order to Show Cause, which are setout in the parties -- I note
there were some discovery issues that the parties had talked
Case 3:06-cv-00056-PMP-VPC Document 832 Filed 09/03/08 Page 49 of 68
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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584
50
about in your Case Management Reports and so forth. But is
there anything in those Case Management Reports that merit
discussion today, other than you reported to the Court there
are some issues that you're dealing with, but I guess I'll
just poll counsel.
Mr. Sunshine, anything from you, sir.
MR. SUNSHINE: No, Your Honor.
JUDGE COOKE: Mr. Peek.
MR. PEEK: No, Your Honor.
JUDGE COOKE: Mr. Tellis?
MR. TELL