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Securities and Exchange Commission v. Lisa C. Berry

June 15, 2011

SECURITIES AND EXCHANGE COMMISSION, PLAINTIFF,
v.
LISA C. BERRY,
DEFENDANT.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed June 15, 2011 **

NOT FOR CITATION

ORDER DENYING DEFENDANT'S MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

[Re: Docket No. 175]

BACKGROUND

The Securities and Exchange Commission ("SEC") filed this civil enforcement action in 2007 in relation to alleged improper stock option backdating at KLA-Tencor Corporation ("KLA") 20 and Juniper Networks, Inc. ("Juniper"). Defendant Lisa Berry ("Berry") was General Counsel of KLA from September 1996 to June 1999 and of Juniper from June 1999 to January 2004. The SEC 22 alleges that she oversaw these companies' stock option granting processes.

Fact discovery closed on March 25, 2011. See Docket Nos. 154, 181. Berry timely moved to 24 compel the SEC to provide further responses to three of her interrogatories (Interrogatory Nos. 2, 4, 25 and 6) that essentially ask the SEC to identify all untrue statements and/or material omissions in 26 violation of law and to identify all facts that show that Berry substantially participated in or was intricately involved in making any such statements.*fn1 Docket No. 175 ("MTC"). These three 2 interrogatories (along with three others which Berry has not moved to compel) are set forth below:

* Interrogatory No. 1 asks the SEC to "[i]dentify each and every untrue statement that YOU contend MS. BERRY made in violation of the FEDERAL SECURITIES LAWS."

* Interrogatory No. 2 asks the SEC, "[f]or each untrue statement YOU identified in response to Interrogatory 1, state the specific language or phrase(s) that YOU contend constitutes the misstatement."

* Interrogatory No. 3 asks the SEC to "[i]dentify each and every omission of material fact that

YOU contend MS. BERRY made in violation of the FEDERAL SECURITIES LAWS."

("LaMarca Decl."), Ex. A at 4-7, 8-11. It objected to Interrogatory Nos. 2 and 4 in part because it 17 considered them to be duplicative of the information set forth in Interrogatory Nos. 1 and 3. Id. at 7-18

8, 11. It also objected to Interrogatory Nos. 5 and 6 because, in its opinion, they were "interposed 19 for the purpose of requiring [the SEC] to set forth an entire case in response to an 'interrogatory'" 20

Convergent Technologies Securities Litigation, 108 F.R.D. 328, 332 (N.D. Cal. 1985) (As Magistrate Judge Brazil explained: "[T]he phrase 'contention interrogatory' is used imprecisely to 22 refer to many different kinds of questions. Some people would classify as a contention 23 interrogatory any question that asks another party to indicate what it contends. Some people would define contention interrogatories as embracing only questions that ask another party whether it 24 makes some specified contention. Interrogatories of this kind typically would begin with the phrase 'Do you contend that . . . .' Another kind of question that some people put in the category

'contention interrogatory' asks an opposing party to state all the facts on which it bases some 26 specified contention. Yet another form of this category of interrogatory asks an opponent to state all the evidence on which it bases some specified contention. Some contention interrogatories ask the 27 responding party to take a position, and then to explain or defend that position, with respect to how the law applies to facts. A variation on this theme interrogatories that ask parties to spell out the 28 legal basis for, or theory behind, some specified contention.").

* Interrogatory No. 4 asks the SEC, "[f]or each omission of material fact YOU identified in response to Interrogatory 3, identify which affirmative statement YOU contend was rendered false or misleading by virtue of the alleged omission."

* Interrogatory No. 5 asks the SEC, "[f]or each untrue statement or omission of material fact identified in response to Interrogatories 1 and 3, state all facts supporting YOUR contention that the untrue statements or omissions were material."

* Interrogatory No. 6 asks the SEC, "[f]or each statement YOU contend constitutes an untrue statement or omission of material fact in response to Interrogatories 1 and 3, state all facts,

DOCUMENTS or information YOU contend demonstrate MS. BERRY'S substantial participation or intricate involvement in making those statements."

In its original responses, the SEC responded to Interrogatory Nos. 1 and 3. Docket No. 198

and responding to them would be unduly burdensome and would involve answering more than 25 2 separate questions. Id. at 12-13. 3

After meeting and conferring with Berry, the SEC agreed to supplement its responses. It then

provided supplemental substantive responses to Interrogatory Nos. 5 and 6. LaMarca Decl., Ex. B. 5

MTC. The SEC opposed Berry's motion. Docket No. 197 ("Opp'n").

"Rule 33 of the Federal Rules of Civil Procedure governs contention ...


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