Energy Intelligence Group Inc et al v. Plains All American Pipeline LP

MEMORANDUM in Opposition to EX PARTE APPLICATION to Compel Defendant to Comply with Fed. R. Civ. P. 34

C.D. Cal.September 6, 2012

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MESEREAU & YU, LLP Thomas A. Mesereau, Jr. (SBN 91182) Email: mesereau@mesereauyu.com Susan C. Yu (SBN 195640) Email: yu@mesereauyu.com 10390 Santa Monica Blvd., Suite 220 Los Angeles, CA, 90025 Telephone: (310) 789-1177 Facsimile: (310) 861-1007 Attorneys for Defendant and Counter-Claimant PLAINS ALL AMERICAN PIPELINE, L.P. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ENERGY INTELLIGENCE GROUP, INC. and ENERGY INTELLIGENCE GROUP (UK) LIMITED Plaintiffs, v. PLAINS ALL AMERICAN PIPELINE, L.P. Defendant. _________________________________ PLAINS ALL AMERICAN PIPELINE, L.P., Counter-Claimant, v. ENERGY INTELLIGENCE GROUP, INC. and ENERGY INTELLIGENCE GROUP (UK) LIMITED. Counter-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-10556 PA (SSx) DISCOVERY MATTER DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) (L.R. 7-19) DATE: n/a TIME: n/a PLACE: Courtroom 23 JUDGE: Hon. Suzanne H. Segal Discovery cutoff date: 9/24/12 Pretrial Conf. date: 11/2/12 Trial date: 12/4/12 [SUPPORTING DECLARATION OF SUSAN C. YU FILED CONCURRENTLY HEREWITH] Case 2:11-cv-10556-PA-SS Document 99 Filed 09/06/12 Page 1 of 7 Page ID #:1387 -1- DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION Defendant respectfully requests that the Court deny Plaintiffs’ Ex Parte Application (“Ex Parte”) because it (1) lacks merit and (2) is brought in bad faith. II. FACTS On Friday, August 31, 2012, Defendant’s counsel hand-delivered to Plaintiffs’ local counsel in Los Angeles a CD and an external hard drive containing 708,325 pages in TIFF format, bearing Bates Nos. PAA00000001-PAA00708325. Defendant’s counsel did so after explaining to Plaintiffs’ counsel by telephone at approximately 11:00 a.m. that morning that the balance of the production in TIFF would arrive in Los Angeles from Houston the next day, i.e., Saturday, September 1, 2012. Defendant’s counsel also explained that the load files would arrive in Los Angeles on Wednesday September 5, 2012 (i.e., two days after 9/3/12 Labor Day) because Defendant needed two full days (i.e., Friday, 8/31/12, and Tuesday, 9/4/12) to download the load files. I explained that Defendant started to export the load files on 8/31/12 after the clawback Order (Dkt. 93) was signed on 8/30/12. (Yu Decl., ¶ 2, Exhibits 1 and 2.) On Saturday, September 1, 2012, Defendant delivered to Plaintiffs’ primary counsel in New York by Federal Express the balance of the production totaling approximately 431,436 pages in TIFF format, bearing Bates Nos. PAA00708326-PAA01139761. (Yu Decl., ¶ 3, Exhibit 3.) Case 2:11-cv-10556-PA-SS Document 99 Filed 09/06/12 Page 2 of 7 Page ID #:1388 -2- DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On Wednesday, September 5, 2012, Defendant hand-delivered to Plaintiffs’ local counsel in Los Angeles a CD containing full and complete load files for the TIFF Nos. PAA00000001- PAA01139761. (Yu Decl., ¶ 4, Exhibit 4.) On September 5, 2012, Plaintiffs’ counsel telephoned Defendants’ counsel, giving notice that Plaintiffs would be seeking Ex Parte relief to compel Defendant to organize the TIFF and the accompanying load files in accordance with Plaintiffs’ document demand numbers. (Yu Decl., ¶ 5.) Defendant’s counsel told Plaintiffs’ counsel that Defendant did not understand Plaintiffs’ reasoning for this request because the purpose of producing TIFF and accompanying load files (i.e., metadata) was to enable the Plaintiffs to load, organize, and sort any way they want on any database, such as Summation. (Yu Decl., ¶ 6.) Plaintiffs’ counsel replied that Defendant was required to label the TIFF and load files with the responsive document demand number/numbers. Defendant’s counsel was dumbfounded because there was no way to do that with TIFF and load files. (Yu Decl., ¶ 7.) Plaintiffs’ counsel complained that Plaintiffs could not determine what was contained in the approximately 1.2 million pages of TIFF and load file production. (Yu Decl., ¶ 8.) Defendant’s counsel explained that this was a very simple case involving whether Defendant’s administrative assistant, the only person to whom Plaintiffs emailed the Oil Daily newspaper, was authorized to distribute the Oil Daily newspaper to others in the company. (Yu Decl., ¶ 9.) Case 2:11-cv-10556-PA-SS Document 99 Filed 09/06/12 Page 3 of 7 Page ID #:1389 -3- DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s counsel explained that since Plaintiffs claimed that Defendant’s administrative assistant was not authorized to forward the Oil Daily email to others in the company, Defendant searched for and produced to Plaintiffs all ESI documents relating to Oil Daily, Plaintiffs, and all third-party documents defined in the Court’s August 8, 2012 Order (Dkt. 79), as well as all emails which the administrative assistant received from Plaintiffs and forwarded to others in the company and all emails received and forwarded (if any) by others in the company. (Yu Decl., ¶ 9.) Defendant’s counsel explained that virtually all of the 1,139,761 TIFF pages represented such ESI documents and emails with the attached Oil Daily newspapers for the 3 year period, i.e., January 1, 2009 – December 2011 for approximately 80- 85 people. (Yu Decl., ¶ 10.) Defendant’s counsel reminded Plaintiffs’ counsel that all ESI prior to January 1, 2009 were stored on inaccessible backup tapes. Defendant’s counsel also reminded Plaintiffs’ counsel that all ESI on the three administrative assistants’ local drives were already produced. Thus, the only remaining production that was due on 8/31/12 was the ESI on Defendant’s company-wide server for January 1, 2009 – December 2011. (Yu Decl., ¶ 10.) Defendant’s counsel explained that each Oil Daily email which Plaintiffs sent to Defendant’s administrative assistant yielded approximately 21 pages (i.e., 1 page for the email cover plus approximately 16-20 pages for the attached double-sided Oil Daily newspaper). (Yu Decl., ¶ 11.) Defendant’s counsel explained that, using the 20 as a rough number for each email (i.e., 1 page for the email cover and 19 pages Case 2:11-cv-10556-PA-SS Document 99 Filed 09/06/12 Page 4 of 7 Page ID #:1390 -4- DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for the newspaper), and using 250 as a rough number for the number of times Plaintiffs sent the Oil Daily to the administrative assistant (i.e., 20-22 emails per month x 12 months = 250), Defendant’s administrative assistant received approximately 15,000 pages in 3 years (i.e., 20 x 250 x 3 = 750). (Yu Decl., ¶ 11.) Multiplying 15,000 times 80 or so employees to whom the administrative assistant sent the email would yield approximately 1,200,000 pages. (Yu Decl., ¶ 11.) Defendant’s counsel explained that there may be other ESI that may have been picked up during the search, which Defendant did not have enough time to exclude by the August 31, 2012 deadline. Defendant’s counsel explained that the TIFF and load files would enable Plaintiffs to load and sort any way they wanted. (Yu Decl., ¶ 12.) Plaintiffs’ counsel, however, insisted that Defendant was required to label the TIFF and load files and that Plaintiffs would seek Ex Parte Relief. (Yu Decl., ¶ 12.) III. ARGUMENT A. Plaintiffs’ Ex Parte Application Lacks Merit. Defendant is not aware of any Rule or authority requiring the Defendant to label each TIFF and load file with document demand number or provide an index to the TIFF and load file production. Federal Rule of Civil Procedure 34(b)(2)(E)(i), too, does not require Defendant to undertake such a burdensome task. Indeed, Defendant understood that the purpose of producing ESI in TIFF with the accompanying load files (which Plaintiffs Case 2:11-cv-10556-PA-SS Document 99 Filed 09/06/12 Page 5 of 7 Page ID #:1391 -5- DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specifically requested) was to enable Plaintiffs to freely and readily sort, organize, search, and find records on a database, such as Summation. If, for the sake of argument, it was possible to label each TIFF page and load file with Plaintiffs’ document demand number – which it is not - then what is the purpose for producing ESI in TIFF with the load files? Plaintiffs’ demand is unreasonable. Plaintiffs’ demand that Defendant must provide an index to the TIFF and load file production is likewise unreasonable. Rule 34 imposes no such requirement, and Defendant should not be required to undertake such a burdensome and oppressive task. The Ex Parte should be denied. B. Plaintiffs’ Ex Parte Application Is Brought In Bad Faith. Plaintiffs have repeatedly obstructed Defendant’s efforts to move this case along and prepare for trial. (Yu Decl., ¶ 13.) Defendant’s Court-Ordered depositions of Plaintiffs’ managing agents and non-managing agents, as well as Defendant’s duly-noticed depositions of Plaintiffs’ Rule 30(b)(6) designees, will commence in just three (3) business days from today (i.e., September 11, 12, 13, 14, 17, 19, 20, 21, 2012). (Yu Decl., ¶ 13.) Thus, seeking this unreasonable Ex Parte request on the eve of these depositions can only be interpreted as an attempt to distract and harass Defendant. The Ex Parte should be denied. // // Case 2:11-cv-10556-PA-SS Document 99 Filed 09/06/12 Page 6 of 7 Page ID #:1392 -6- DEFENDANT’S OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR AN ORDER COMPELLING DEFENDANT TO COMPLY WITH F.R.C.P. 34(B)(2)(E)(I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For all of the foregoing reasons, Defendant respectfully requests that the Court deny Plaintiffs’ Ex Parte Application. Respectfully Submitted, MESEREAU & YU, LLP Dated: September 6, 2012 By: /s/ Susan C. Yu____________ SUSAN C. YU Attorneys for Defendant and Counter-Claimant PLAINS ALL AMERICAN PIPELINE, L.P. Case 2:11-cv-10556-PA-SS Document 99 Filed 09/06/12 Page 7 of 7 Page ID #:1393