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United States v. Western Titanium

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 5, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WESTERN TITANIUM, INC. (1), MACH 2 METALS, INC. (2), DANIEL SCHROEDER (3), BRIAN MISAK (4), JOHN COTNER (5), CHEEMANG (6) DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court

Order Granting In Part and Denying In Part Motion for Relief From Discovery Costs [Doc. No. 343]

The Defendant, Western Titanium, Inc., filed a motion for relief from discovery costs seeking to:

1) review documents produced by the government in advance of the documents being sent to a third party copy vendor selected by the government; and 2) be permitted to select their own third party vendor for document reproduction. Plaintiff's filed an opposition to the Defendant's motion, however, the Plaintiff states that in an attempt to resolve the matter, Plaintiff offered to allow Defendant's counsel an opportunity to review all discovery at issue in this case at the U.S. Attorney's Office prior to copying and stated that the Defendant could bring a copy service of its choosing into the U.S. Attorney's Office to make copies. In the Defendant's reply, Defendant states that they would agree only to a private review of documents with subsequent copying or scanning of the documents at the U.S. Attorney's Office using their own third party copy vendor.

A hearing on this motion was held at 10:00 a.m. in Courtroom A before Judge Battaglia. Appearing on behalf of the Plaintiff were Assistant U.S. Attorneys Melanie K. Pearson and Stacy Sullivan. Appearing on behalf of Defendants Western Titanium, Inc., Daniel Schroeder & Mach 2 Metals, Inc. was attorney Sarah Kleven McGann, appearing on behalf of Defendant Brian Misak was attorney Raymond J Coughlan, and appearing on behalf of Defendant Cheem Ang was attorney Frank J.

It appears from the moving papers and was confimred by counsel at the hearing that all that remains at issue in this motion is whether the Plaintiff's request that a government representative be present during Defendant's inspection and copying, to which the Defendant adamantly objects, is reasonable. The Plaintiff states that the presence of government representative is necessary to ensure that the documents, some of which are not bates stamped, are not altered, destroyed or removed during the inspection. The Plaintiff also states that the representative will not hover, eavesdrop, or attempt to ascertain which documents the Defendant inspects or elects to copy.

Based upon the foregoing, the Court finds the Defendant's objection to the presence of the government representative during inspection and/or copying to be without merit, as the Court finds the request to be reasonable to maintain the integrity of the documents and to avoid arguments or suspicion of tampering with the documents. As such, the Defendant's motion seeking to: 1) review documents produced by the government in advance of the documents being sent to a third party copy vendor; and 2) be permitted to select their own third party vendor for document reproduction is hereby GRANTED. Defendant's request for private inspection of the documents is DENIED, however, the Plaintiff's representative shall, as stated, ensure that the documents are not altered, destroyed or removed during the inspection and will maintain a reasonable distance so as to avoid hovering, eavesdropping, or any attempt to ascertain which documents the Defendant inspects or elects to copy. The Plaintiff will provide adequate advance notice of the government representative to be present during document inspection by Defendants. Such notice shall include the agent's identity, employer and relation to the present case, if any.

IT IS SO ORDERED.

20100305

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