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Securities and Exchange Commission v. Schroeder

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


September 15, 2008

SECURITIES AND EXCHANGE COMMISSION, PLAINTIFF,
v.
KENNETH L. SCHROEDER, DEFENDANT.

The opinion of the court was delivered by: The Honorable Howard R. Lloyd, U.S. Magistrate Judge

STIPULATION AND ORDER RE MOTION OF KENNETH L. SCHROEDER TO COMPEL FURTHER RESPONSES TO DISCOVERY REQUESTS (TESTIMONY AND DOCUMENTS) BY (1) KLA-TENCOR CORPORATION AND (2) SKADDEN, ARPS, SLATE, MEAGHER & FLOM COMMITTEE OF KLA'S BOARD OF DIRECTORS [DKT. NO. 75]

(MODIFIED BY THE COURT)

Date: September 23, 2008

Time: 10:00 a.m.

Courtroom: 8

Judge: Magistrate Judge Howard R. Lloyd

WHEREAS, Defendant Kenneth L. Schroeder ("Schroeder") issued subpoenas to nonparties Skadden, Arps, Slate, Meagher & Flom LLP and individual Skadden attorneys Galen Bellamy, Jack DiCanio, Zvi Gabbay, Elizabeth Harlan, Victoria Holstein-Childress, Cale Keable, Morgan Lopez, Richard Marmaro, Thomas McDonald, Lanelle Meidan, Jonah Van Zandt and Sheryl Wu (collectively, "Skadden"), and separately to non-party KLA-Tencor Corporation ("KLA"); and

WHEREAS, Skadden and KLA timely objected to the subpoenas in part on the ground that they called for the production of documents and information protected from disclosure by the attorney work product doctrine; and

WHEREAS, Skadden, KLA and Schroeder engaged in a "meet and confer" process to resolve their disputes, but were ultimately unsuccessful; and

WHEREAS, on June 9, 2008, Schroeder filed his Motion of Kenneth L. Schroeder to Compel Further Responses to Discovery Requests (Testimony and Documents) By (1) KLATencor Corporation and (2) Skadden, Arps, Slate, Meagher & Flom LLP, Attorneys for the Special Committee of KLA's Board of Directors (the "Motion to Compel") (Dkt. No. 75), originally setting the Motion to Compel for hearing on July 15, 2008, and later, at the request of KLA and Skadden, continuing the hearing to August 26, 2008; and

WHEREAS, at the request of KLA and Skadden, the parties filed a stipulation dated July 25, 2008 (Dkt. No. 81) setting forth a proposed briefing schedule and continuing the hearing on the Motion to Compel to September 9, 2008, and, based on the Court's order on that stipulation dated August 1, 2008 (Dkt. No. 83), a schedule was set for the completion of briefing on the Motion to Compel and the hearing on the Motion to Compel was continued to September 23, 2008, at 10:00 a.m.; and

WHEREAS, on August 1, 2008, Skadden filed its opposition to Schroeder's Motion to Compel, arguing principally that the documents and information sought in Schroeder's subpoenas were protected from disclosure by the attorney work product doctrine (Dkt. No. 84, and related entries); and

WHEREAS, on August 26, 2008, Schroeder filed his reply brief in support of his Motion to Compel (the "Schroeder Reply") (Dkt. No. 89) in which he argues, in part, that "the Court need not even consider any of Skadden's arguments concerning work product protection," citing cases including In re California Public Utilities Commission, 892 F.2d 778, 781 (9th Cir. 1989) (hereinafter "CPUC") (see Schroeder's Reply (Dkt. 89) at page 17 line 1 through page 18 line 8); and

WHEREAS, Skadden contends that Schroeder's argument based on CPUC and related cases was not raised by Schroeder in the "meet and confer" process or at any point prior to the filing of Schroeder's Reply; and

WHEREAS, after receiving Schroeder's Reply, Skadden contacted counsel for Schroeder and requested that Schroeder agree, in light of Schroeder's CPUC argument, to continue the hearing on the Motion to Compel to permit Skadden to move for a protective order prohibiting the disclosure of documents or information sought in the Motion to Compel that Skadden claims are protected from disclosure by the attorney work product doctrine; and

WHEREAS, Schroeder's counsel explained to Skadden that Schroeder does not wish to continue the hearing on the Motion to Compel, but would instead agree that Skadden may file a surreply in further opposition to Schroeder's Motion to Compel, not to exceed five pages, by Tuesday, September 16, 2008, limited to responding to the arguments raised by Schroeder at page 17 line 1 through page 18 line 8 of Schroeder's Reply (Dkt. No. 89); and

WHEREAS, in consideration of Skadden's agreement to proceed by filing a surrreply rather than filing an administrative motion for an order continuing the hearing date, Schroeder has further agreed that (i) he has not contended, in his Reply or elsewhere, and will not contend that Skadden's arguments under the attorney work product doctrine in its opposition papers or its surreply have been compromised or affected in any way by the fact that Skadden did not file a motion for a protective order, and (ii) to expedite the final resolution of the dispute between Skadden and Schroeder, if the Court finds that the filing of a motion for protective order by Skadden or KLA (or both) is appropriate or necessary in light of Schroeder's CPUC argument, Skadden's opposition papers and surreply should be deemed by the Court to constitute a motion for protective order under Rule 26(c) and Rule 45(c) of the Federal Rules of Civil Procedure prohibiting the disclosure of the documents and information sought in Schroeder's Motion to Compel that Skadden contends are protected from disclosure by the attorney work product doctrine; and

WHEREAS, to induce Skadden not to file an administrative motion seeking a continuance of the hearing date, Schroeder and Skadden have further agreed that, if after reviewing the briefs of the parties, including Skadden's surreply, and after hearing argument on September 23, 2008, the Court determines that it cannot deny the Motion to Compel or issue a protective order under Rule 26(c) or Rule 45(c) of the Federal Rules of Civil Procedure prohibiting the disclosure of the documents and information sought in Schroeder's Motion to Compel that Skadden or KLA contends are protected from disclosure by the attorney work product doctrine without the filing of a new motion for protective order by Skadden or KLA (or both), then the Court should defer its ruling on Schroeder's Motion to Compel to permit Skadden and/or KLA to move the court for a protective order, so that the Court can address the issue with the benefit of full briefing; WHEREAS, to the extent that KLA, in its opposition to Schroeder's Motion to Compel, has asserted work product objections with respect to certain of the documents and information sought in Schroeder's separate subpoena to KLA, KLA agrees with and joins Skadden's positions set forth above;

IT IS HEREBY STIPULATED AND AGREED, by and between Schroeder, Skadden and KLA through their respective counsel, as follows:

1. Skadden may file a surreply in further opposition to Schroeder's Motion to Compel not to exceed five pages, limited to responding to the arguments raised by Schroeder at page 17 line 1 through page 18 line 8 of Schroeder's Reply (Dkt. No. 89).

2. Skadden's surreply shall be filed no later than Tuesday, September 16, 2008.

3. The hearing on the Motion to Compel shall go forward as scheduled on September 23, 2008.

4. Skadden's and KLA's objections based on the applicability of the attorney work product doctrine to the production of documents or information requested in Schroeder's subpoenas shall not be overruled, compromised or affected in any way on the ground that neither Skadden nor KLA has moved for a protective order.

5. Subject to the discretion and approval of the Court, if the Court determines that it cannot deny the Motion to Compel or issue a protective order under Rule 26(c) or Rule 45(c) of the Federal Rules of Civil Procedure prohibiting the disclosure of the documents and information sought in Schroeder's Motion to Compel that Skadden or KLA contends are protected from disclosure by the attorney work product doctrine without the filing of a new motion for protective order by Skadden or KLA (or both), then the Court will defer its ruling on Schroeder's Motion to Compel to permit Skadden or KLA (or both) to move the court for a protective order, so that the Court can address the issue with the benefit of full briefing.

IT IS SO STIPULATED.

I, Timothy A. Miller, am the ECF User whose ID and password are being used to file this STIPULATION AND [PROPOSED] ORDER RE MOTION OF KENNETH L. SCHROEDER TO COMPEL FURTHER RESPONSES TO DISCOVERY REQUESTS (TESTIMONY AND DOCUMENTS) BY (1) KLA-TENCOR CORPORATION AND (2) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, ATTORNEYS FOR THE SPECIAL COMMITTEE OF KLA'S BOARD OF DIRECTORS [DKT. NO. 75]. In compliance with General Order 45, X.B., I hereby attest that each of the two signatories identified below has concurred in this filing.

ORDER

PURSUANT TO STIPULATION, IT IS SO ORDERED. Skadden's surreply shall be filed no later than 5:00 p.m. on September 16, 2008.

20080915

© 1992-2008 VersusLaw Inc.



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