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SMS Demag AG v. Xtek

May 3, 2007

SMS DEMAG AG PLAINTIFF
v.
XTEK, INC. DEFENDANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER

Presently before the Court are Defendant's Motion to Compel (Docket No. 123), Defendant's Motion for Protective Order (Docket No. 124), Defendant's Second Motion to Compel (Docket No. 131), and Defendant's Supplement to Defendant's Second Motion to Compel (Docket No. 135).

I. Defendant's Motion to Compel (Docket No. 123)

On April 24, 2007, Defendant filed its Motion to Compel. The Court will address each of Defendant's requests, highlighted below, in turn:

i. Confirm that the documents responsive to Xtek's final document requests will be made available for inspection in a convenient and orderly manner in Düsseldorf and Hilchenbach commencing on May 14, 2007, and provide the exact location where the documents will be made available;

The Court has already ordered that the documents requested in Xtek's final document requests shall be made available for inspection in a convenient and orderly manner by May 14, 2007. However, the Court clarifies that this directive applies to the documents in both the Düsseldorf and Hilchenbach facilities. The Court further orders Plaintiff to provide Xtek with the exact location where the documents will be made available on or before May 7, 2007. While the documents in both locations are to be ready for inspection by May 14, 2007, it appears that the parties agree that simultaneous inspection at both facilities will not occur. Therefore, Xtek is directed to select the first facility at which it will inspect the documents, and inform SMS of their decision on or before May 8, 2007.

ii. Identify which of Xtek's document requests SMS will be responding to with "business documents" at the Düsseldorf facility, and which of Xtek's document requests SMS will be responding to with "technical documents" at its Hilchenbach facility;

iii. State the approximate number of responsive documents to be produced at each of the German facilities;

SMS asserts that it does not have the information necessary to comply with these requests. SMS states that SMS previously advised Xtek that approximately 80% of the responsive documents are located in Hilchenbach, with the remainder in Düsseldorf. The Court determines that no further response to the stated requests is required by SMS.

iv. Confirm that SMS will produce the already-copied documents for inspection, and where those documents will be produced; and The Court directs SMS to produce the already-copied documents for inspection in Germany in accordance with this Order. The Court further directs SMS to communicate to Xtek the location at which the already-copied documents will be produced for inspection on or before May 7, 2007.

SMS states, "query whether Xtek should be provided any access to documents already copied by SMS prior to Xtek paying the costs incurred by SMS in copying those documents. SMS had no right to inspect Xtek's documents prior to having paid for them." On April 4, 2007, the Court found that "Xtek is liable for the reasonable copying costs incurred by SMS in producing the estimated ten percent of the original document requests." The Court directed SMS to submit a summary of expenses to Xtek, with a courtesy copy to the Court, which it did by letter dated April 17, 2007. SMS suggested, as one option, the following with regard to the already-copied documents: "Xtek now pays $65,812.18 for the costs incurred to date" and "Xtek inspects the Copied Documents in Germany, selects which of the Copied Documents Xtek would like finalized, SMS finalizes the selected documents, Xtek pays SMS the Finalization Costs for only the selected documents, and SMS ships the selected documents." Xtek states that it has agreed to this procedure, except for the condition that Xtek now pay $65,812.18 because the reasonable costs of copying the documents is in dispute.

Xtek objected to SMS's summary of expenses by letter dated April 19, 2007. In a letter to the Court dated April 25, 2007, SMS informed the Court of these events and stated that SMS was working to address the objections outlined in Xtek's letter, and "will respond promptly to that letter, with a copy to the Court." SMS is directed to respond, with a copy to the Court, on or before May 7, 2007. If the issue of these costs cannot be resolved on or before May 11, 2007, SMS is directed to file a formal motion to recover these costs. SMS is directed not to delay access to these already copied documents pending resolution of the cost reimbursement issue.

v. Produce the index of documents responsive to Xtek's final document requests sufficiently in advance of the document inspection so that Xtek may reasonably prepare for the inspection.

Plaintiff states that it has the responsibility of producing relevant files for Xtek's inspection in accordance with Xtek's final document requests, and that the index to SMS's archives and a person familiar with the archives will be available at Xtek's inspection. Defendant states that it will greatly reduce the time and expense associated with the document inspection if Xtek has the relevant parts of the index well in advance of the inspection. Additionally, Defendant notes that the index is "most likely" in German and will need to be translated beforehand. Defendant also requests that the Court specifically order that "the person familiar with SMS's archives be continually available during the inspection and that this person immediately provide Xtek with whatever help it requires."

The Court rules that Plaintiff's response is adequate. It will not have to produce the index or any portion thereof. However, as discussed below, the index to SMS's archives and a person familiar with the archive will be available at the time of Defendant's inspection. The Court assumes that Defendant will have a list of the documents it seeks. Plaintiff will produce those documents.

II. Defendant's Motion for Protective Order (Docket No. 124)

Defendant requests the entry of a Protective Order stating that "Xtek's document inspection take place with no one present except those persons designated by Xtek; and that SMS be prohibited from having anyone present in the room where the document inspection is to take place, or videotaping or otherwise observing, monitoring or supervising Xtek's document inspection."

SMS responds with its own request for a Protective Order. Xtek replies with proposed alternative and more specific conditions on the document inspection than that stated in its motion. The Court has attempted to group the related requests. SMS's proposed conditions are labeled (a), while Xtek's proposed conditions are labeled (b). The Court will address each in turn.

(1) (a) Only outside counsel for Xtek should be permitted to inspect SMS documents (b) Xtek may have at the inspection anyone permitted under the Protective Order to see the documents being inspected SMS has no objection to outside counsel having access to the information to be produced, but objects to other persons, specifically Xtek's in-house personnel, having "such unrestricted and unrecorded access to SMS highly confidential business and technical information." SMS claims that the ...


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