Mitsubishi Hitachi Power Sys. Am., Inc. v. Siemens Energy, Inc.
Mitsubishi Hitachi Power Sys. Am., Inc. v. Siemens Energy, Inc.
2021 WL 4935730 (M.D. Fla. 2021)
September 3, 2021
Irick, Daniel C., United States Magistrate Judge
Summary
The Court ordered the parties to continue to confer regarding the production of ESI, and that any redactions based solely on a confidentiality objection would not be allowed. If a dispute remained after conferral, the proponent of any redaction must submit a hard copy of the redacted document production for an in camera review.
MITSUBISHI HITACHI POWER SYSTEMS AMERICAS, INC., Plaintiff,
v.
SIEMENS ENERGY, INC., JOHN DOE 1 and MICHAEL HILLEN, Defendants
v.
SIEMENS ENERGY, INC., JOHN DOE 1 and MICHAEL HILLEN, Defendants
Case No. 6:20-cv-1845-WWB-DCI
United States District Court, M.D. Florida
Signed September 03, 2021
Counsel
Benjamin Jordan Robinson, Nelson Mullins Broad and Cassel LLP, David E. Cannella, Ben William Subin, Holland & Knight, LLP, Orlando, FL, John L. Brownlee, Pro Hac Vice, Holland & Knight, LLP, Washington, DC, for Plaintiff.Adeel A. Mangi, Pro Hac Vice, Joshua A. Goldberg, Pro Hac Vice, Julie A. Simeone, Pro Hac Vice, Maren J. Messing, Pro Hac Vice, Saul Shapiro, Pro Hac Vice, Jason Robert Vitullo, Pro Hac Vice, Jonathan H. Hatch, Pro Hac Vice, Patterson Belknap Webb & Tyler LLP, New York, NY, Robert Sowell, Robert W. Thielhelm, Jr., Baker & Hostetler, LLP, Orlando, FL, Gregg F. LoCascio, Pro Hac Vice, Kirkland & Ellis, LLP, Washington, DC, for Defendant Siemens Energy, Inc.
Adeel A. Mangi, Pro Hac Vice, Joshua A. Goldberg, Pro Hac Vice, Julie A. Simeone, Pro Hac Vice, Jason Robert Vitullo, Pro Hac Vice, Jonathan H. Hatch, Pro Hac Vice, Patterson Belknap Webb & Tyler LLP, New York, NY, Robert Sowell, Robert W. Thielhelm, Jr., Baker & Hostetler, LLP, Orlando, FL, Gregg F. LoCascio, Pro Hac Vice, Kirkland & Ellis, LLP, Washington, DC, for Defendant Michael Hillen.
Irick, Daniel C., United States Magistrate Judge
Order
*1 This cause comes before the Court for consideration without oral argument on the following motions:
MOTION: Defendant Siemens Energy, Inc.’s Motion to Compel Plaintiff to Remove Improper Confidentiality Designations Applied to its “Unclean Hands” Production (Doc. 125)
FILED: August 13, 2021
MOTION: Defendant Siemens Energy, Inc.’s Motion to Compel Plaintiff to Remove Improper Confidentiality Designations Applied to its “Unclean Hands” Production (Doc. 126)
FILED: August 13, 2021
MOTION: Defendant Siemens Energy, Inc.’s Notice of Non-Compliance with Court Order and Motion to Compel Compliance (Doc. 132)
FILED: August 25, 2021
THEREON it is ORDERED that Defendant's Motions (Docs. 125, 126, 132) are DENIED without prejudice.
The parties have been embroiled in discovery disputes resulting in the filing of ten motions to compel or for protective order in the last three months. Docs. 86, 87, 102, 103, 108, 114, 116, 125, 126, and 132. There is no limit on the quantity of these types of motions, but it seems that some of the issues raised in the filings, if not all, are brought to the Court's attention prematurely, unnecessarily (because production is forthcoming), without an adequate conferral between counsel to resolve the dispute, or with no conferral at all in violation of the Local Rules and the Standing Order on Discovery. At least, this is the complaint both parties have raised at times, and the Court has addressed on its own accord.[1] As a result, the parties’ discovery motions have left the Court unsure as to what transpired during the conferral process given the conflicting portrayal of events offered in motions and responses. The Court is left to guess which topics still require attention or if conferral on the requested relief happened at all. These problems also plague the three motions now pending before the Court.
*2 This matter was previously before the Court because the parties filed several motions related to various discovery requests and Defendant Siemens Energy, Inc.’s filed a motion requesting a protective order concerning a non-party subpoena. Docs. 102, 103, 108, 114-116. By Order dated August 10, 2021, the Court granted in part Siemens’ Motion to Compel Plaintiff to Remove Redactions from its “Unclean Hands” Document Production to the extent that the parties were directed to continue to confer regarding the production at issue, with the understanding that the Court would not allow redactions based solely on a confidentiality objection if the material was otherwise responsive to a discovery request. Doc. 122 at 4. Relevant here, the Court specified that:
If a dispute remains after the conferral, then, on or before August 24, 2021, the proponent of any redaction shall submit to Chambers a hard copy of the redacted document production (with the redacted material highlighted, not redacted) for an in camera review of the proposed redactions.
Within a few days of the August 10, 2021 Order—and well before the August 24, 2021 deadline—Siemens filed the Motion to Compel Plaintiff to Remove Improper Confidentiality Designations Applied to its “Unclean Hands” Production (Doc. 125) and the Motion to Compel Plaintiff's Compliance with the Court's June 9, 2021 Order Regarding Plaintiff's Unclean Hands Production (Doc. 126) (collectively the August 13 Motions). Then, on August 25, 2021, Siemens filed a Notice of Plaintiff's Non-Compliance with the Court's August 10, 2021 Order and Motion to Compel Compliance (the August 25 Motion). Doc. 132.[3] The following day—and after the deadline to do so—Plaintiff filed a Notice of Delivery of Documents for In Camera Inspection; Plaintiff submitted the documents to Chambers for review on August 26, 2021. Doc. 134.
The Court will first address Siemens’ August 25 Motion (Doc. 132) and the documents filed for in camera review, because that ruling impacts the outcome of the August 13 Motions. In its August 25 Motion, Siemens states that during the two-week period that the parties were directed to confer, Plaintiff “did not remove any of its redactions and would not confer with [Siemens] regarding this issue, despite the Court's Order and [Siemens’] multiple requests.” Doc. 132 at 3. Siemens also states that Plaintiff was required to submit the redacted documents for in camera review on August 24, 2021, and Plaintiff failed to do so. Id. Because of the “refusal to confer,” Siemens requests that the Court find that Plaintiff has waived any relevance objections and must produce, within two business days, unredacted copies of the July 23, 2021 unclean hands production. Id. at 4. With respect to the Local Rule 3.01(g) certification, Siemens states that counsel for Plaintiff did not respond to multiple requests to confer. Id. at 6.
To the contrary, Plaintiff responds that the Court should strike the August 25 Motion and the supplemental brief (Docs. 131, 132) because Siemens is misleading the Court regarding the “state of conferral and [Siemens’] so-called compliance with Local Rule 3.01(g).” Doc. 133 at 1. Consistent with a recurring theme in this litigation, Plaintiff argues that the August 25 Motion was prematurely filed, and that it is, in fact, Siemens that avoided participating in good faith conferrals with respect to the redactions following the August 10, 2021 hearing. Id. Plaintiff claims that it requested to meet on August 19, 2021 to engage in a discussion of discovery related matters, but that Siemens rejected the request, “indicating they would not be available until August 24 [but] Defendants then filed Docs. 131-32 on August 24 and 25, respectively.” Doc. 133 at 3. Plaintiff concludes that “Siemens’ conduct betrays its unwillingness to confer in good faith or cooperate as required by the Court and expected in Rule 1” and renews its invitation to confer on the matter. Id. at 3.
*3 Plaintiff then filed a Notice of Conferral pursuant to Local Rule 3.01(g), which notice states that the parties have agreed to hold substantive discussions to attempt to resolve disputes regarding the redacted production and that Plaintiff will advise the Court whether the in camera review of the material is necessary. Doc. 135. This filing triggered a response from Siemens in which Siemens claims that Plaintiff's Notice misrepresents Siemens’ position to the Court, describes the notice as improper, and explains that it made several rejected attempts to confer before the August 24, 2021 deadline. Doc. 136.[4]
Based on this back and forth between the parties (all represented by able and experienced counsel who are well aware of the rules of this Court), the Court cannot make heads or tails of who (if anyone) is at fault for the breakdown in the necessary conferral process concerning the redaction issues. Further, the Court is disturbed by counsel lobbing statements around accusing each other of, for example, “misleading” the Court. The Court does not take these allegations lightly, but, at least at this point, the Court assumes these allegations are invective brought on by this contentious and high stakes litigation, and that cooler heads will ultimately prevail.
Because of the conflicting accounts regarding the requirements of Local Rule 3.01(g), the Court finds that it cannot grant Siemens’ request to compel production of the unredacted documents at this time. However, Siemens is correct that Plaintiff did not comply with the Court's August 24, 2021 Order and, therefore, the Court will not review the documents submitted for in camera inspection.[5] Instead, the Court finds that the parties need to try again before bringing this matter to the Court's attention, keeping in mind that the Court will not countenance anymore failures to confer—further allegations of “misleading” the Court or vehement disagreements about basic concepts (such as whether the parties conferred about a request) will be met with sanctions for the party, if any, who is actually “misleading” the Court.
That leaves Siemens’ August 13 Motions. Docs. 125, 126. First, to the extent that these Motions seek an order directing Plaintiff to remove the redactions from the unclean hands production, that request is moot given the Court's ruling on the August 25 Motion.
Second, at least with respect to the Motion filed at Doc. 125, there again seems to be an issue with conferral or lack of ripeness. Namely, Siemens contends that the parties conferred in accordance with Local Rule 3.01(g) (Doc. 125 at 6), but Plaintiff responds that the Motion was prematurely filed, that Siemens is non-compliant with the confidentiality agreement because it has not made a good faith effort to resolve the dispute, and that Siemens has acknowledged that Plaintiff is reviewing certain designations, and that the parties’ discussions were ongoing when the Motion was filed. Doc. 130 at 3. As with the August 13 Motion, the Court will not rule without an adequate conferral.
Third, with respect to Siemens’ request to compel Plaintiff to produce additional documents, the Court is uncertain as to which documents are at issue based on Plaintiff's response. Siemens complains that Plaintiff failed to conduct a reasonable search for responsive documents, as Plaintiff apparently conceded that it searched only email files for only select custodians limiting the search to a small subset of individuals. Doc. 126 at 2. Further, Siemens asserts that Plaintiff failed to produce responsive documents to certain requests and has refused to answer questions regarding its investigation or remediation efforts. Id. at 3. And Siemens states that it raised deficiencies regarding gaps in email production disclosure, but Plaintiff failed to produce a single document and only offered a single supplement regarding an employee's text messages that would be produced on August 31, 2021. Id.
*4 In response, Plaintiff argues that its search was “fulsome” and apparently disagrees with Siemens’ description of the events. Doc. 129 at 2. Plaintiff explains that it ran the “Siemens’ provided search terms” and “[Plaintiff] produced documents that include not only emails but other electronically stored information.” Id. Plaintiff contends that it has conducted broad searches, offered to revisit text messages during the conferral, and agreed to review the texts again and supplement the production. Id. at 2-3. Plaintiff then states:
On August 12, 2021, Siemens inquired about additional custodians, search terms and about availability for conferral “next week.” (Exhibit B). On Friday, August 13, 2021, at 5:51 p.m., Siemens’ counsel abruptly announced “we can wait no longer” and filed the Motion after 6 p.m. that same day. (Exhibit C).
Id. So, it appears that there is yet another conflict as to what discovery is outstanding and Plaintiff's willingness to produce the requested information. At the very least, the date to produce the employee's text messages has passed. The Court is not inclined to grant relief when the request may be moot or when one party was under the clear impression that the conferral process was ongoing.
That said, the Court is not unsympathetic to Siemens’ impatience with this matter since the original order directing production was entered on June 9, 2021. However, the parties must comply with the Local Rules of this Court to preserve judicial economy.
Based on the foregoing, it is ORDERED that:
1. Siemens’ Motions (Docs. 125, 126, 132) are DENIED without prejudice;
2. The parties may still continue to confer regarding the unclean hands document production with the understanding that the Court will not allow redactions based on a confidentiality objection if the material is relevant;
3. If a dispute remains after conferral, then on or before September 10, 2021, the parties may submit to Chambers for review a hard copy of the document production with the redacted material highlighted and may file with the Court on the date the hard copy is submitted supplemental briefs on the issue. On the date the hard copy is submitted, the parties must file a notice with the Court that the submission to Chambers occurred; and
4. The Clerk is directed to return Plaintiff's documents submitted for in camera inspection.
ORDERED in Orlando, Florida on September 3, 2021.
Footnotes
See e.g., Doc. 89 (“[Defendant Siemens] told Mitsubishi before Mitsubishi filed this motion that yet another production was imminent.... [Defendant Siemens’] last email also explained precisely why Mitsubishi's proposed motion had no merit...[and]... Mitsubishi ignored that communication”; Doc. 105 (“[Defendant Siemens] agree[d] to produce responsive documents... Mitsubishi's motion appears to be nothing more than an attempt to create a dispute where none exists,...[and]...[i]f Mitsubishi has some particular complaint, either now or after it receives [Defendant Siemens’] production, it should confer with [Defendant Siemens’] and try to resolve it, rather than seek a tactical advantage through premature, serial motions”); Doc. 119 ([Defendant] Siemens has rejected Mitsubishi's invitation to engage in a document-by-document conferral over particular redactions. Instead, [Defendant] Siemens prefers to put the onus on the Court”); Doc. 127 (“But I do want to start this hearing with the standing order itself because requirements 8 and 9 just were not complied with for the three motions that were set for hearing... and so documents 102, 103, and 108 are all due to be denied on that basis.”).
The August 10, 2021 Order also directs the parties to, on the date the hard copy is submitted for in camera review, file a notice with the Court that the submission to Chambers occurred.. Doc. 122 at 4.
Defendant Siemens also filed a Supplemental Brief in Support of its Motion to Compel Plaintiff to Remove Redactions from its “Unclean Hands” Document Production. Doc. 131.
Siemens cites to emails between counsel that reflect even more of a dispute, or possibly confusion, as to what topics were the subject of the invitations to confer. See e.g., Doc. 136-1 at 5.
Without ruling on the merits, the Court notes that it conducted a brief preliminary review of the documents and it seems that many of the redactions are inappropriate. For example, Plaintiff redacts selected words from otherwise unredacted sentences; there does not appear to be a basis grounded in the law for doing so.