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General Electric Company, A New York Corporation; and Ge Wind v. Thomas Wilkins

March 7, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

Andrea Weiss Jeffries(Bar No. 180408) Wilmer Cutler Pickering Hale And Dorr LLP 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 213-443-5397 William F. Lee (pro hac vice) Elizabeth Reilly (pro hac vice) Louis W. Tompros (pro hac vice) Alexandra C. Boudreau(pro hac vice) Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 02109 617-526-6336 Lowell T. Carruth (Bar No. 34065) McCormick Barstow Sheppard Wayte and Carruth LLP 5 River Park Place East PO Box 28912 Fresno, CA 93729-8912 Attorneys for Plaintiffs General Electric Company and GE Wind Energy, LLC Filiberto Agusti (pro hac vice) Steven J. Barber (Bar No. 145645) Seth A. Watkins (pro hac vice) Andrew J. Sloniewsky (pro hac vice) Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC 20036 (202) 429-3000 Attorneys for Intervenor Defendants Mitsubishi Heavy Industries, Ltd. and Mitsubishi Power Systems Americas, Inc. Thomas W. Winland (pro hac vice) Tyler M. Akagi(pro hac vice) Finnegan Henderson Farabow Garrett and Dunner, LLP 901 New York Avenue NW Washington, DC 20001 (202) 408-4085 William C. Hahesy (Bar No. 105743) Law Offices of William C. Hahesy 225 West Shaw Avenue Suite 105 Fresno, CA 93704 (559) 579-1230 Attorneys for Defendant Thomas A. Wilkins


Plaintiffs General Electric Company and GE Wind Energy, Inc. (collectively, GE), Defendant Thomas A. Wilkins (Mr. Wilkins), and Intervenors Mitsubishi Heavy 3 Industries, Ltd. and Mitsubishi Power Systems Americas, Inc. (collectively, Mitsubishi), 4 through their counsel, hereby stipulate as follows: 5

1. On February 1, 2012, the Court held a hearing to address the schedule for briefing 6 a motion Mitsubishi noticed after GE clawed back four documents during a deposition on 7 January 31, 2012. The Court also addressed whether certain depositions should be 8 postponed pending a ruling on Mitsubishi's motion. 9

2. On February 2, 2012, Mr. Wilkins filed a motion to submit additional GE documents under seal for consideration in support of Mitsubishi's motion, and on February 9, 2012, Mitsubishi and Mr. Wilkins provided their portions of a Joint Statement to GE.

3. Over the course of the next twelve days, the parties negotiated resolution of the motion, with GE agreeing to waive privilege over a significant number of documents. This waiver extends to documents beyond the ones that Mitsubishi and Mr. Wilkins filed under seal in connection with the motion. The parties' agreement provides that GE will produce documents quickly enough so as to give Mitsubishi and Mr. Wilkins a reasonable opportunity to review them before further depositions.

4. The parties reached agreement, in part, to spare the Court from examining a substantial number of documents in camera, and from inevitable delays to the schedule that would have resulted from that process.

5. In the midst of those negotiations, on February 17, 2012, the parties approached the Court with a stipulation regarding the postponement of eight depositions, which the Court granted. (Dkt.#310.)

6. Since reaching agreement on February 21, 2012, GE has been working to insure that all documents covered by the agreement are produced to Mitsubishi and Mr. Wilkins. GE produced approximately two hundred documents on February 27, 2012 and nearly 300 more on March 5, 2012. GE represents that it completed production on March 5, 2012 except for a handful of documents that are in the process of being translated from 2 German and may be produced. Mitsubishi and Mr. Wilkins have been reviewing GE's 3 production. 4

7. Given the breadth of the documents at issue, twelve depositions must be taken or 5 re-opened. GE, MHI, and Mr. Wilkins have been able to reschedule eight of them to 6 occur before March 23, 2012. The parties have been unable to re-schedule four 7 depositions before March 23rd and seek leave of the Court to schedule them as follows: 8

 Till Hoffman, a named inventor of the '985 Patent, is traveling over from

Germany for his deposition. He is available to be deposed in the United States on March 28, 2012.  Craig Christenson is a third party located in California. When his original deposition, scheduled for February 16, 2012, was removed from the calendar, his in-house counsel represented that Mr. Christenson would be available before March 23, 2012. Two days ago, Mr. Christenson's in-house counsel indicated that Mr. Christenson will be represented by outside counsel who is unavailable before March 23, 2012. Mr. Christenson will be available to be deposed on or about April 3, 2012 in California.  Ralph Blakemore is another third party located in California. He is available to be deposed on or about March 30, 2012 in California.  James Fogarty is a current GE employee. Mr. Fogarty's documents were the ones that sparked Mitsubishi's motion and, once the scope of the documents at issue was clear, it was apparent that his deposition had to be removed from the calendar and rescheduled only after GE produced all of its privileged documents. Mr. Fogarty has to travel to a work site for an installation in Colorado for two weeks in March. The parties propose to schedule his deposition for March 27, 2012.

8. Thus, the parties seek leave to schedule four depositions after March 23rd: one to accommodate travel from Germany, two 3 to address third party scheduling issues (including the request of new counsel for one of them), and the fourth, due to on-site 2 work that cannot be re-scheduled. 3

9. The parties seek this leave from the Court well-aware of the Court's intention to 4 keep this case on schedule, and sharing that goal. Indeed, resolution of the motion that 5 had been noticed to the Court was motivated, ...

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