Dornoch Holdings Intern., LLC v. ConAgra Foods Lamb Weston, Inc.
Dornoch Holdings Intern., LLC v. ConAgra Foods Lamb Weston, Inc.
2012 WL 12539341 (D. Idaho 2012)
July 23, 2012

Bush, Ronald E.,  United States Magistrate Judge

Exclusion of Witness
Forensic Examination
Native Format
Privilege Log
Failure to Produce
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Summary
The court granted Lamb Weston's motion to compel Plaintiffs' identification of the Bates number range of the documents responsive to each of Lamb Weston's requests for production, as well as a privilege log. The court also granted Plaintiffs' motion to remove the Attorney Eyes Only designation from certain documents produced by Lamb Weston. However, the court denied Lamb Weston's motion to compel production of Plaintiffs' server and hard drives for purposes of forensic imaging and analysis.
Dornoch Holdings InternationaL, LLC and Dornoch Global, LLC, both Nevada Limited Liability Companies; and Smith Individuals/Entities I-XX, Plaintiffs,
v.
Conagra Foods Lamb Weston, Inc., a Delaware Corporation; Conagra International Commercial Y Agricola Limitada, a Chilean Limited Liability Company, and Doe Individual/Entities I-XX, Defendants
Case No. 1:10-CV-135-S-EJL-REB
Signed July 23, 2012
Bush, Ronald E., United States Magistrate Judge

ORDER

*1 Pending before the Court is Defendant ConAgra Foods Lamb Weston, Inc.'s (“Lamb Weston”) Motion to Compel Documents Improperly Withheld (Dkt.50), Lamb Weston's Motion to Compel and for Exclusion of Testimony of Marco Galaz (Dkt.51), and Plaintiffs Dornoch Holdings International LLC and Dornoch Global LLC's Motion to Compel and Motion to Remove Attorney Eyes Only Designation (Dkt.52). Having reviewed the record and heard oral argument on these pending motions, and good cause appearing therefor;
IT IS HEREBY ORDERED THAT:
1. Lamb Weston's motion to compel Plaintiffs' identification of the Bates number range of the documents responsive to each of Lamb Weston's requests for production is hereby GRANTED. In response to each request for production in Lamb Weston's Second Set of Requests for Production, Plaintiffs shall identify in good faith the specific Bates number range of each document that is responsive to the request. Conversely, Lamb Weston must identify by Bates number range the “white paper” identified by Paul Burger in his deposition and any fully executed version of the Transition Agreement.
2. Lamb Weston's motion to compel Plaintiffs' production of the documents underlying Unisur Alimentos Limitada's (“Unisur”) general ledgers is GRANTED in part. Plaintiffs shall promptly produce to Lamb Weston documents that detail Unisur's sales generated between January 1, 2005 and the present, including documents that identify or contain (a) the name of each customer of Unisur, and (b) the details of any and all sales Unisur has made to each such customer (e.g., information pertaining to the what, where, and when of such sales). Additionally, Plaintiffs shall promptly produce to Lamb Weston a sample invoice evidencing the terms of Unisur's sale of product to its customers, and if these terms changed at any point, Plaintiffs shall produce a sample invoice containing each version of the terms.
3. Lamb Weston's motion to compel Plaintiffs' production of a privilege log is GRANTED. If the responding party withholds a responsive document on the basis of attorney-client privilege or the work product doctrine, the responding party shall identify that document in a privilege log in accordance with Federal Rule of Civil Procedure 26(b)(5)(A). However, the parties have agreed that the identification of such documents in a privilege log is unnecessary for correspondence between the parties and their outside counsel and work product created after the initiation of this litigation.
4. Lamb Weston's motion to compel the deposition of Marco Galaz is GRANTED in part. Plaintiffs shall make Mr. Galaz available in Boise, Idaho as soon as reasonably possible at a time mutually convenient to the parties and Mr. Galaz for purposes of allowing Lamb Weston to depose him in his capacity as a non-retained expert witness pursuant to Federal Rule of Civil Procedure 26(b)(4)(A); provided, however, that Lamb Weston shall pay for Mr. Galaz's reasonable expenses arising from this deposition.
*2 5. Lamb Weston's motion to compel production of Plaintiffs' server and hard drives for purposes of forensic imaging and analysis is DENIED WITHOUT PREJUDICE. Nothing in this order shall prevent Lamb Weston from addressing the issue of Plaintiffs' lost electronically stored information during trial examination.
6. Lamb Weston's motion to compel production in native file format of the Excel spreadsheet bearing Bates number UNI006693/UNI006767 is DENIED.
7. The remainder of Lamb Weston's motion to compel is DENIED on the basis that Plaintiffs have represented that they have made reasonable efforts to produce all documents requested and have produced all non-privileged documents that they have been able to recover.
8. Plaintiffs' motion to remove the Attorney Eyes Only designation from certain documents produced by Lamb Weston is GRANTED in part. Lamb Weston shall remove the Attorney Eyes Only designation only from documents that the parties agree reflect Lamb Weston's processing/quality procedures; provided, however, that before the Attorney Eyes Only designation is lifted, the parties shall execute an agreement governing the use of these documents. The agreement must include the following: (a) only James Hungelmann and Oscar Contreras may review the documents from which Lamb Weston removes its Attorney Eyes Only designation; (b) any copying of these documents by Mr. Hungelmann or Mr. Contreras is strictly prohibited; (c) Mr. Hungelmann and Mr. Contreras shall promptly return these documents to Lamb Weston's counsel following the conclusion of the trial in this litigation; and (d) following the conclusion of the trial in this litigation, Mr. Hungelmann and Mr. Contreras shall promptly sign under penalty of perjury and submit to Lamb Weston's counsel a written certification prepared by Lamb Weston that Mr. Hungelmann and Mr. Contreras have complied with the terms of this order.
9. The preceding paragraphs apply equally to the issues raised in Plaintiffs' motion to compel; otherwise, Plaintiffs' motion is DENIED on the basis that Plaintiffs withdrew their motion during oral argument.