IceMOS Technology Corporation v. Omron Corporation

Opinion

1 WO 2 3 4 5

9 IceMOS Technology Corporation, No. CV-17-02575-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Omron Corporation,

13 Defendant. 14 15 This case is subject to General Order No. 17-08. (Doc. 4). “The discovery 16 obligations addressed in [General Order No. 17-08] supersede the disclosures required by 17 Rule [of Civil Procedure] 26(a)(1) and are framed as court-ordered mandatory initial 18 discovery.” Gen. Order No. 17-08, at 1 (D. Ariz. Nov. 1, 2018). The parties have been 19 relying on Rule 26(a)(1) rather than General Order No. 17-08 in their disputes regarding 20 their mandatory initial discovery obligations. Going forward, the parties should look to 21 General Order No. 17-08 and frame their arguments around its requirements. 22 That being said, General Order No. 17-08 requires that the parties “provide the 23 requested information as to facts that are relevant to the claims and defenses in the case.” 24 Gen. Order No. 17-08, at 2. That information includes “all persons who [the party] 25 believe[s] are likely to have discoverable information relevant to any party’s claims or 26 defenses” and “the documents, electronically stored information (‘ESI’), tangible things, 27 land, or other property known by [the party] to exist . . . that [the party] believe[s] may be 28 relevant to any party’s claims or defenses.” Id. at 4–5. General Order No. 17-08 omits Rule 1 26(a)(1)(A)’s language that exempts disclosure of individuals, documents, electronically 2 stored information, and tangible things that would be used “solely for impeachment.”1 Fed. 3 R. Civ. P. 26(a)(1)(A)(i)–(ii). Much ink has been spilled in this case on the issue of 4 witnesses who will be used “solely for impeachment.” Accordingly, for the sake of 5 fairness, consistency, and efficiency, the Court will now discuss whether General Order 6 No. 17-08 requires disclosure of individuals and information that would be offered “solely 7 for impeachment” as that term is used in Rule 26(a)(1)(A). 9 The Court has “broad discretion in interpreting, applying, and determining the 10 requirements of [its] own . . . general orders.” United States v. Gray, 876 F.2d 1411, 1414 11 (9th Cir. 1989). The Court finds that General Order No. 17-08 purports to replace Federal 12 Rule of Civil Procedure 26(a)(1). See Gen. Order No. 17-08, at 1 (“The discovery 13 obligations addressed in this General Order supersede the disclosures required by Rule 14 26(a)(1) . . . .”). As such, it will interpret General Order No. 17-08 like it would interpret 15 one of the Federal Rules of Civil Procedure. 16 Courts “employ the ‘traditional tools of statutory construction’ to interpret the 17 Federal Rules of Civil Procedure.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1125 18 (9th Cir. 2017) (citation omitted). The rule’s text is the starting point for divining its 19 meaning. Id. Whenever possible, a rule should be construed based on the plain meaning of 20 its text. Id. Applying a rule’s plain meaning requires that the court read each of the rule’s 21 provisions in context with the other provisions in the rule. See id. at 1125–26. In fact, 22 provisions relating to discovery must be read in light of other discovery provisions as 23 discovery is an “integrated mechanism.” 9A Charles Alan Wright, Arthur R. Miller, Mary 24 Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice and Procedure 25 § 2452 (3d ed. 2019) (collecting cases) [hereinafter Wright & Miller]; see United States v. 26 Lopez-Cavasos, 915 F.2d 474, 478–79 (9th Cir. 1990). 27 1 The Court will use quotation marks around the term solely for impeachment when it is 28 referring to the language used by Rule 26(a)(1)(A) but will not when it is using the term generically. 2 As noted above, the requirements under General Order No. 17-08 ostensibly replace 3 and supersede the initial disclosures required by Rule 26(a)(1). Gen. Order No. 17-08, at 4 1. The key question then is whether General Order No. 17-08 exempts disclosure of 5 individuals and information that would be used solely for impeachment just as Rule 6 26(a)(1)(A) does. The Court is inclined to rule that General Order No. 17-08 does not 7 require disclosure of individuals or information that would be used “solely for 8 impeachment” as that term is used in Rule 26(a)(1)(A). The Court leans this way for several 9 reasons. 10 a. General Order No. 17-08’s Text 11 First, the Court begins with General Order No. 17-08’s text, as it must. General 12 Order No. 17-08 requires that the parties “provide the requested information as to facts that 13 are relevant to the claims and defenses in the case.” Gen. Order No. 17-08, at 2 (emphasis 14 added). That information includes all individuals that a party “believe[s] are likely to have 15 discoverable information relevant to any party’s claims or defenses” and “documents, 16 electronically stored information (‘ESI’), tangible things, land, or other property . . . that 17 [the party] believe[s] may be relevant to any party’s claims or defenses.” Id. at 4–5 18 (emphasis added). General Order No. 17-08’s text reveals that, to determine the scope of 19 General Order No. 17-08’s requirements, the Court must analyze what is relevant to the 20 parties’ claims or defenses. 21 Evidence offered solely for impeachment purposes is not evidence that is relevant 22 to a claim or defense. See Evidence, Black’s Law Dictionary (11th ed. 2019) (defining 23 “substantive evidence” as “[e]vidence offered to help establish a fact in issue, as opposed 24 to evidence directed to impeach or to support a witness’s credibility”). Under Rule 25 26(a)(1)(A), a party need not disclose an individual or information that the party will use 26 “solely for impeachment,” that is, solely to attack a witness’s credibility. Fed. R. Civ. P. 27 26(a)(1)(A)(i)–(ii); Newsome v. Penske Truck Leasing Corp., 437 F. Supp. 2d 431, 434– 28 36 (D. Md. 2006); see also Norwood v. Children & Youth Servs. Inc., No. 1 CV107944GAFMANX, 2013 WL 12133879, at *3–5 (C.D. Cal. Dec. 3, 2013); 2 Valiavicharska v. Tinney, CV 10-4847 JSC, 2012 U.S. Dist. LEXIS 11334, at *5 (N.D. 3 Cal. Jan. 31, 2012). In contrast, individuals or information that a party may use to supply 4 evidence on a substantive issue, one that is relevant to a claim or defense, in support of its 5 case must be disclosed under Rule 26(a)(1)(A) as that use would not be “solely for 6 impeachment.” See Newsome, 437 F. Supp. 2d at 434–36; see also Norwood, 2013 WL 7 12133879, at *3–5; Valiavicharska, 2012 U.S. Dist. LEXIS 11334, at *5. At bottom, 8 evidence is not relevant to the parties’ claims or defenses when it is offered solely for 9 impeachment purposes, and thus, individuals or information used to supply that evidence 10 need not be disclosed under Rule 26(a)(1)(A). 11 The impeachment exception under Rule 26(a)(1)(A) sheds light on General Order 12 No. 17-08’s requirements. Parties are required to disclose certain “information as to facts 13 that are relevant to the claims and defenses in the case.” Gen. Order No. 17-08, at 2. But, 14 as discussed, individuals or information that would be used at trial solely for impeachment 15 purposes are not “relevant to the claims and defenses in the case.” Id. General Order No. 16 17-08 does omit Rule 26(a)(1)(A)’s “solely for impeachment” language, however. See 17 Briseno, 844 F.3d at 1125–26 (noting that omission of a term can be “meaningful”). 18 Nonetheless, this omission does not illustrate that the General Order requires disclosure of 19 impeachment evidence as Rule 26(b)(1) provides further support as to why General Order 20 No. 17-08’s requirements do not extend to individuals or information that will be offered 21 solely for impeachment. 22 Rule 26(b)(1), which governs the scope of discovery, uses the same operative 23 language as General Order No. 17-08: “Parties may obtain discovery regarding any 24 nonprivileged matter that is relevant to any party’s claim or defense and proportional to 25 the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). But, at one time, Rule 26 26(b)(1) read: “Parties may obtain discovery regarding any matter, not privileged, that is 27 relevant to the claim or defense of any party . . . . For good cause, the court may order 28 1 discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. 2 P. 26(b)(1) (as amended Apr. 17, 2000). 3 The rationale behind the 2000 amendment to Rule 26(b)(1) was that it would 4 “focus” the parties and the court “on the actual claims and defenses involved in the action.” 5 See Fed. R. Civ. P. 26, Committee Notes on Rules—2000 Amendment. Even so, the parties 6 could still discover information beyond the scope of those issues solely relevant to the 7 “actual claims and defenses” to matters “relevant to the subject matter involved in the 8 action,” upon a showing of good cause. See id. Therefore, under the 2000 version of Rule 9 26(b)(1), a party could seek discovery of impeachment material either because it had 10 substantive value as evidence relevant to the parties’ claims and defenses or because the 11 material was relevant to the subject matter of the action as it reflected on a witness’s 12 credibility. See Dzanis v. JPMorgan Chase & Co., No. 10 CIV. 3384 BSJ JLC, 2011 WL 13 5979650, at *6 (S.D.N.Y. Nov. 30, 2011); Thornton v. Crazy Horse, Inc., No. 3:06-CV- 14 00251TMB, 2010 WL 3718945, at *1–2 (D. Alaska Sept. 14, 2010). 15 In 2015, Rule 26(b)(1) was amended, and the provision “authorizing the court, for 16 good cause, to order discovery of any matter relevant to the subject matter involved in the 17 action” was deleted. Fed. R. Civ. P. 26, Committee Notes on Rules—2015 Amendment. 18 Broadly, current Rule 26(b)(1) limits discovery to information that is relevant to the 19 parties’ claims and defenses. See In re Williams-Sonoma, Inc., 947 F.3d 535, 539 (9th Cir. 20 2020) (noting that removal of the subject matter language from Rule 26(b)(1) was 21 “intended to restrict, not broaden, the scope of discovery” (citations omitted)); Pizzella v. 22 Smugglers’ Wharf, Inc., No. 1:19-CV-248, 2020 WL 1061666, at *1 & n.1 (W.D. Pa. Mar. 23 5, 2020). Indeed, “[t]he standing committee acknowledged that its proposed 2015 24 amendments deleted the sentence authorizing court-controlled discovery of any matter 25 relevant to the subject matter involved in the action, and, that under the proposed rule, 26 ‘[d]iscovery should be limited to the parties’ claims or defenses.’” Cole’s Wexford Hotel, 27 Inc. v. Highmark Inc., 209 F. Supp. 3d 810, 822–23 (W.D. Pa. 2016) (quoting Comm. on 28 Rules of Practice & Procedure of the Judicial Conf. of the U.S., Preliminary Draft of 1 Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure 265–66 2 (2013)). Thus, “information that could be used to impeach a likely witness” is still 3 discoverable pursuant to Rule 26(b)(1) if “suitably focused,” that is, that the information 4 sought is relevant to the parties’ claims and defenses. See Fed. R. Civ. P. 26, Committee 5 Notes on Rules—2015 Amendment; Cole’s Wexford Hotel, Inc., 209 F. Supp. 3d at 822– 6 23. 7 In sum, before the 2015 amendment, under Rule 26(b)(1), a court could order 8 discovery, upon good cause shown, into a matter solely relevant to impeachment as that 9 discovery was relevant to the subject matter of the action. See Thornton, 2010 WL 10 3718945, at *1. But now, Rule 26(b)(1)’s plain language limits discovery to matters 11 relevant to the parties’ claims and defenses. The 2015 amendment illustrates then that 12 impeachment material is discoverable when it is relevant to the parties’ claims and defenses 13 while evidence that will be offered solely for impeachment purposes is not discoverable. 14 General Order No. 17-08’s disclosure requirement is nearly identical to Rule 15 26(b)(1)—parties must disclose “information as to facts that are relevant to the claims and 16 defenses in the case.” Gen. Order No. 17-08, at 2 (emphasis added). General Order No. 17- 17 08’s mandatory initial discovery requests are therefore limited to the same scope of 18 information as Rule 26(b)(1). See In re Grantham Bros., 922 F.2d 1438, 1441 (9th Cir. 19 1991). Accordingly, just as with Rule 26(b)(1), individuals or information that would be 20 offered to supply evidence solely for impeachment purposes need not be disclosed under 21 the General Order because such evidence is not relevant to the parties’ claims and defenses. 22 In short, the plain meaning of General Order No. 17-08’s text requires that parties 23 only disclose “information as to facts that are relevant to the claims and defenses in the 24 case.” Gen. Order No. 17-08, at 2. That requirement does not include disclosure of 25 individuals or information who will be used to supply evidence “solely for 26 impeachment”—as that term is used in Rule 26(a)(1)(A)—as that evidence is not relevant 27 to any claim or defense. 28 1 b. Discovery Scheme 2 Second, the Court considers General Order No. 17-08 in context with the rest of 3 Rule 26. As noted, General Order No. 17-08 can be viewed as replacing Rule 26(a)(1). See 4 Gen. Order No. 17-08, at 1. As such, there are many other provisions under Rule 26 that 5 General Order No. 17-08 must be read in conjunction with. See Wright & Miller, supra, 6 § 2452. 7 For example, Rule 26(a)(3) deals with pretrial disclosures. Rule 26(a)(3)(A) 8 requires that each party “provide to the other parties and promptly file [certain] information 9 about the evidence that it may present at trial other than solely for impeachment.” That 10 information includes the witnesses and exhibits it expects to offer at trial. Fed. R. Civ. P. 11 26(a)(3)(A)(i), (iii). If General Order No. 17-08 is read to include disclosure of individuals 12 or information that would be offered solely for impeachment purposes, then it would lead 13 to the anomalous result that the General Order’s early disclosures—so early that it is before 14 the time when the parties can even propound discovery, Gen. Order No. 17-08, at 2, would 15 have a more expansive reach than Rule 26(a)(3)’s pretrial disclosures that are due shortly 16 before trial, after discovery is complete, Fed. R. Civ. P. 26(a)(3)(B). There is no apparent 17 reason for this inconsistency. As such, construing General Order No. 17-08 to require 18 disclosure of individuals or information that would be used solely for impeachment 19 purposes would not make sense in light of Rule 26(a)(3)(A)’s exemption of that same 20 evidence. Consequently, the Court is reluctant to give General Order that construction. 21 Briseno, 844 F.3d at 1125–26; Lopez-Cavasos, 915 F.2d at 479; Wright & Miller, supra, 22 § 2452. 23 Similarly, without the impeachment exception, General Order No. 17-08 would 24 have broader reach than Rule 26(b)(1)’s nearly-identical language. See supra pp. 4–6 25 (discussing Rule 26(b)(1)’s scope). That result would be inconsistent with the overall 26 discovery scheme, a result the Court should avoid, if possible.2 See Lopez-Cavasos, 915 27 2 In fact, General Order No. 17-08 indicates that the disclosures it requires are to be viewed 28 as “court-ordered mandatory initial discovery.” See Gen. Order No. 17-08, at 1. In other 1 F.2d at 479; Wright & Miller, supra, § 2452. And, the Court should construe the same 2 language in the same way. See In re Grantham Bros., 922 F.2d at 1441. Therefore, viewing 3 General Order No. 17-08 in light of Rule 26(b)(1)’s plain language illustrates that reading 4 the General Order in a way that would require disclosure of individuals and information 5 that would be used solely for impeachment purposes is inconsistent with the overall 6 discovery scheme. 7 The discovery regime established by Rule 26 supports the conclusion that General 8 Order No. 17-08 does not require disclosure of individuals or information that would be 9 used solely for impeachment. 10 c. Scheduling Order (Doc. 35) 11 Finally, on a case-specific note, even if the Court determined that General Order 12 No. 17-08’s requirements pertain to individuals or information that will be used solely for 13 impeachment purposes, the Court is not inclined to order exclusion of any such evidence 14 at trial. Federal Rule of Civil Procedure 37(b)(2) applies to any failure to abide by the 15 requirements set by General Order No. 17-08. Gen. Order No. 17-08, at 4. Under Rule 16 37(b)(2), the Court “may issue further just orders” for a violation of any provision under 17 General Order No. 17-08. See Fed. R. Civ. P. 37(b)(2)(A). An order sanctioning a party 18 under Rule 37(b)(2) must be “just.” Id.; Navellier v. Sletten, 262 F.3d 923, 947 (9th Cir. 19 2001). And, the court is not required to order sanctions even where the court has the 20 authority to do so under Rule 37(b)(2). See Fed. R. Civ. P. 37(b)(2)(A) (providing that the 21 court “may” issue a sanction for failure to obey a discovery order); Fontana Prods. Inc. v. 22 Spartech Plastics Corp., 6 F. App’x 591, 594 (9th Cir. 2001) (stating that Rule 37(b)(2) 23 grants district courts “broad discretion” on whether to order sanctions and how to shape 24 them). 25 26 words, the parties are to respond to the General Order’s discovery requests just as they 27 would respond to a party’s request for discovery. See id. at 4 (listing the required disclosures after the heading “Mandatory Initial Discovery Requests”). As such, the 28 General Order’s requirements should be viewed in light of the scope of discovery that Rule 26(b)(1) sets. 1 If General Order No. 17-08 applies to individuals or information that would be used 2 solely for impeachment purposes, the Court would have the authority to sanction the 3 offending party under Rule 37(b)(2). In that event, the Court is not inclined to issue any 4 order sanctioning the party under Rule 37(b)(2) as the Court finds that the Court’s 5 scheduling order (Doc. 35) gave the impression that the parties were not required to 6 disclose impeachment evidence (that is, individuals or exhibits that would be used to 7 supply evidence solely for impeachment). 8 The Court’s scheduling order reads, in relevant part: 9 The Court requires that all evidence to be offered at trial (other than impeachment evidence) be contained in the Joint Proposed Final Pretrial 10 Order. Therefore all exhibits and witnesses that may be offered at trial must 11 be disclosed before the discovery deadline and sufficiently in advance of the deadline that meaningful discovery necessitated by such disclosures can 12 reasonably be completed before the discovery deadline. This Order therefore 13 supersedes the “thirty-day before trial” disclosure deadline contained in Rule 26(a)(3) and the “by the fact discovery” default deadline contained in Gen. 14 Ord. No. 17-08 (D. Ariz. Apr. 14, 2017). 15 16 (Doc. 35 at 3 (emphasis added)). The parties were justified in relying on this language— 17 particularly given the fact that the Court indicated that impeachment evidence did not need 18 to be disclosed in the Joint Proposed Final Pretrial Order (which relates to Rule 26(a)(3)’s 19 pretrial disclosure requirements). It does not take a great leap for one to assume that the 20 exception for impeachment evidence under the scheduling order (Doc. 35) included 21 disclosures mandated by General Order No. 17-08, especially in light of the fact that the 22 Court’s scheduling order (Doc. 35) altered the deadline for disclosures under both General 23 Order No. 17-08 and Rule 26(a)(3). (Doc. 35 at 3–4). At this time, it appears that an order 24 excluding individuals or information that would be used to supply evidence solely for 25 impeachment purposes would be unjust as the parties were entitled to rely on this Court’s 26 scheduling order (Doc. 35). 27 28 OL. CONCLUSION 2 Accordingly, the Court is prepared to conclude that General Order No. 17-08 does 3 || not require disclosure of individuals or information that will be used to supply evidence 4|| solely for impeachment purposes. The Court welcomes the parties’ views on this matter.° 5 || Despite whether the parties offer a view on this issue, the Court will rule, prior to trial, 6|| whether undisclosed evidence—both testimonial and nontestimonial—that will be used 7\| solely for impeachment at trial will be excluded upon an appropriate objection. 8 IT IS ORDERED that the parties may file a memorandum, not to exceed ten pages, || that discusses whether individuals or information that will be offered to supply evidence “solely for impeachment,” as that term is used in Federal Rule of Civil Procedure 11 || 26(a)(1)(A)G@)Ha1), must be disclosed pursuant to General Order No. 17-08. The parties must file this memorandum by Friday, May 1, 2020. 13 IT IS FURTHER ORDERED that each party may file a response to the 14|| memorandum filed by the opposing party. The response may not exceed five pages and 15 || will be due by Friday, May 8, 2020. 16 Dated this 17th day of April, 2020. 17 18 19 James A. Teilborg 20 Senior United States District Judge 21 22 23 24) 3 “Gamesmanship” will not be tolerated. (See Doc. 474 at 5). The Court is only interested in the meaning of General Order No. 17-08’s provisions. The Court’s determination on 25 | whether there is an impeachment exception to General Order No. 17-08’s requirements will not affect the Court’s rulings as to Richard Williams (Doc. 462) or Tetsuya Yoda (Doc. 474). Both rulings turned on whether the witness was adequately disclosed. Williams was not adequately disclosed, and because he could not qualt y under the impeachment 27 exception, he is still subject to exclusion. (Doc. 462 at 9). Yoda was adequately disclosed, and thus, the existence of an impeachment exception under General Order No. 17-08 is 28]| irrelevant. (Doc. 474). The parties shall not raise either issue in the memorandum the Court requests. -10-