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SMS Demag Ag v. Xtek

May 10, 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 Emergency Motion to Compel Inspection of Documents Commencing on May 14, 2007 (Docket No. 145), Defendant's Motion to Compel (Docket No. 142), and a letter from Defendant requesting clarification of the Court's Order of May 3, 2007. Because of the urgency of the matters before the Court, it held a telephone conference regarding these issues on May 9, 2007, and allowed SMS the opportunity to orally respond to the pending motions.

I. Emergency Motion to Compel Inspection of Documents Commencing on May 14, 2007

On April 13, 2007, the Court ordered that the parties would simultaneously exchange the dates from May 14, 2007, to June 25, 2007, that all necessary parties will be available for document inspection in Germany. However, the Court also ordered that "Plaintiff shall have the documents requested in Defendant's final document requests available for inspection in a convenient and orderly manner" by May 14, 2007.

Xtek states that it has repeatedly informed SMS that it will be arriving at SMS's Dusseldorf facility at 9:00 a.m. Dusseldorf time on Monday, May 14, 2007 to commence document inspection. On May 7, 2007, SMS sent an e-mail to Xtek proposing Monday, June 18, 2007, through Friday, June 22, 2007, as the dates all necessary parties will be available for document inspection in Germany. Xtek replied rejecting the proposed dates, stating that it had already made its plane and hotel reservations and other travel arrangements, and that Xtek "will arrive at SMS's Dusseldorf facility at 9:00 a.m. Dusseldorf time on Monday, May 14."

On May 8, 2007, at 7:30 pm., SMS stated, in its response to Xtek's final document requests, that it "objects to the document inspection commencing on May 14, 2007." Plaintiff also stated that "All necessary parties are not available the week of May 14, 2007."

As stated in the telephone conference, Xtek's inspection shall occur beginning on May 21, 2007. The Court will address at a later date whether Xtek should be reimbursed by SMS for additional expenses, if any, incurred due to changing reservations. If Xtek wishes to pursue this matter, it should do so in a separate motion. The motion is granted in part and denied in part.

II. Defendant's Motion to Compel

Xtek moves this Court for an order requiring SMS to permit Matthias Pfister, Michael Fischer, Caecile von Teichman, and Dr. Meta Binder, as consultants and translators, to assist with the document inspection in Germany, including being exposed to SMS CONFIDENTIAL and HIGHLY CONFIDENTIAL information, all subject to the terms of the Protective Order.

Xtek submitted to the Court its "Notification of Anticipated Disclosure of Confidential and Highly Confidential Information" and SMS's letter informally objecting to the notification. During the telephone conference, SMS stated that it had no further objections, other than those contained in its letter objecting to the notification. The Court is not persuaded by any of the objections raised by SMS. Therefore, the Court grants the motion.

III. Clarification of May 3rd Order

On May 4, 2007, Xtek sent the Court a letter requesting clarification of the Court's Order dated May 3, 2007. First, in the Court's Order, it stated that SMS "will not have to produce the index or any portion thereof. However, . . . the index to SMS's archives and a person familiar with the archive will be available at the time of Defendant's inspection." Xtek seeks to clarify whether this should be interpreted to mean that the index must be available for Xtek's use during the document inspection. The Court clarifies that it did not intend Xtek to have access to the index during the document inspection. The index itself is not a document requested by Xtek, but is a tool used to locate such documents. SMS will be in control of the index, and at its option, may provide Xtek with relevant portions of the index.

The Court also stated in its previous Order that "SMS shall produce Requests Nos. 30, 37, 41, 43-45, 47-56, 60-63, 65, 70 and 71 and SMS's prior responses to these requests apply. The original general definitions and general instructions apply to these document requests. SMS shall produce Requests Nos. 1, 2, 4-7, 9, 10, 12-24, 27, 31-36, 38-40, 42, 46, 64, 66-69 and 72-74 as originally requested and SMS's prior responses apply." Xtek questions whether these requirements are to be interpreted to read "SMS shall produce documents responsive to Request Nos . . ." (additional language added." SMS has not objection to this clarification. Therefore, the Court clarifies that SMS shall produce documents responsive to the aforementioned requests, if there are documents responsive to those requests.

Xtek states that the Court's Order requires SMS to produce the documents governed by the original general definitions and general instructions, which included an Instruction stating, "If no documents are responsive to a ...


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