The opinion of the court was delivered by: Present: The Honorable David O. Carter, Judge
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS): ORDER VACATING COURT'S
PLAINTIFF'S EX PARTE APPLICATION PURSUANT TO LOCAL RULE 79.5-1 FOR LEAVE TO FILE PRIVILEGED INFORMATION AND DOCUMENTS IN OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
Before the Court are briefs filed in opposition to Shared Medical Resources, LLC's Ex ParteApplication Pursuant to Local Rule 79.5-1 For Leave to File Privileged Information and Documents in Opposition to Defendant's Motion for Sanctions filed by Defendant Histologics, LLC ("Defendant") (Dkts. 58, 60). After reviewing the Ex ParteApplication (Dkt. 61), Defendant's Response (Dkt. 58), Shared Medical Resources, LLC's Reply (Dkt. 59), Defendant's Sur-Reply (Dkt. 60) and other filings, the Court VACATES its previous order granting Plaintiff Shared Medical Resources, LLC's Ex ParteApplication For Leave to File Privileged Information and Documents in Opposition to Defendant's Motion for Sanctions in Camera (Dkt. 62).*fn1
The Court also ORDERS Shared Medical Resources, LLC to re-file its Opposition to the Motion for Sanctions by November 26, 2012. Defendant's Reply shall be due on December 3, 2012.
On October 12, 2012 Defendant filed a Motion for Sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and the "Court's Inherent Authority" ("Motion for Sanctions") (Dkt. 50). On October 29, 2012 Plaintiff Shared Medical Resources, LLC ("Plaintiff") filed a redacted version of its Opposition (Dkt. 55) and on October 30, 2012, filed an Ex Parte Application Pursuant to Local Rule 79.5-1 for Leave to File Privileged Information and Documents in Opposition to Defendant's Motion for Sanctions in Camera ("Ex Parte Application") (Dkt. 61). Plaintiff sought to file in camera because its "Opposition and supporting papers contain confidential, attorney-client privilege, and work product information." Pl.'s App. (Dkt. 61) at 1. Plaintiff argues it is "critical for [it] to present this confidential and privileged information to the Court in connection with its Opposition because it shows that [it] did not engage in conduct that violates Rule 11 or any other conduct that would justify sanctions." Id. On October 31, 2012 this Court granted Plaintiff's request (Dkt. 62).
Prior to this Court granting Plaintiff's request however, Defendant filed a Response in Opposition to the Ex Parte Application (Dkt. 58) arguing that (1) Plaintiff "is attempting to block [Defendant] from evaluating the full opposition papers and supporting evidence" which is "improper and does not comport with the Local Rules" and (2) "[o]nce [Plaintiff] voluntarily filed privileged materials with the Court with the intent to rely on the materials to support its opposition arguments, [Plaintiff] waived its privilege." Def.'s Resp. (Dkt. 58) at 3. Plaintiff then filed its Reply (Dkt. 59) and Defendant filed its Sur-Reply (Dkt. 60). After the filings, this Court took the Motion for Sanctions under submission in order to review this issue (Dkt. 63).
Given that Defendant argues that Plaintiff impliedly waived any privilege that might have attached to the documents it submitted to the Court for in camera review, Defendant seeks an order requiring Plaintiff to provide full versions of its briefing, supporting declarations and evidence to it and its attorneys, or alternatively, an order requiring Plaintiff to file its privileged material ...