Solidda Group, S.A. a Colombian corporation and Crisma Comercializadora, S.A.S., a Colombian corporation, Plaintiffs, v. Sharp Electronics Corporation, a New York corporation, Defendant. Sharp Electronics Corporation, Counterclaim-Plaintiff, v. Solidda Group, S.A., et al., Counterclaim-Defendants CASE NO. 12-21411-CIV-DIMITROULEAS/Snow United States District Court, S.D. Florida Filed February 10, 2014 Signed February 07, 2014 Counsel Kevin Crow Kaplan, Fernando Latour Tamayo, Coffey Burlington, Armando Rosquete, Boies, Schiller & Flexner LLP, Silvia Beatriz Pinera-Vazquez, Silvia B. Pinera-Vazquez PA, Paul Aiello, Bennett Aiello, Alexander Dombrowsky, Robert Allen Law, Miami, FL, Susy Elena Ribero-Ayala, Susy Ribero-Ayala, P.A., Arnaldo Velez, Coral Gables, FL, for Plaintiffs/Counterclaim-Defendants. Antonio M. Pozos, Cleary, Gottlieb, Steen & Hamilton, LLP, Juan Pablo Morillo, Quinn Emanuel, Washington, DC, Evan A. Davis, Jared Gerber, Lawrence B. Friedman, Scott B. Reents, Cleary, Gottlieb, Steen & Hamilton, LLP, New York, NY, Gerald Edward Greenberg, Gelber Schachter & Greenberg, P.A., Jonathan Charles Vair, Kelly R. Melchiondo, Ana Hirfield Barnett, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL, for Defendant/Counterclaim-Plaintiff. Snow, Lurana S., United States Magistrate Judge OMNIBUS ORDER *1 THIS CAUSE is before the Court on Sharp Electronics Corporation's Motion to Compel Solidda and Crisma to Comply with this Court's October 15, 2013 Omnibus Order (ECF No. 495), Solidda Group, S.A.'s Motion to Compel Production of Documents from Edward Fuller (ECF No. 509), and Sharp Electronics Corporation's Motion for Expedited Hearing and Protective Order (ECF No. 522) which were referred to Lurana S. Snow, United States Magistrate Judge. The motions are ripe for consideration and hearing was held before the undersigned on February 6, 2014, during which the Court also conducted a status conference on the orderly completion of deposition discovery. This Order memorializes the Court's rulings from the bench. This case arises out of the resolution of a 2010 Colombian action, as well as a lawsuit filed in this district the same year. Solidda, a Sharp distributor in Colombia, sought damages ($89,000,000.00) in Colombia for an alleged breach of a distribution agreement, and Sharp sued Solidda in this district also for breach of the distribution agreement. The parties agreed to settle both actions for $21,000,000.00 to Solidda including the execution of a new distribution agreement under which Solidda's subsidiary Crisma Comercializadora would distribute Sharp's Products in Colombia. The Amended Complaint alleges that the individuals employed by Sharp who negotiated the agreement knew that Sharp would not be able to perform under the agreement. Sharp filed Counterclaims against Solidda, Crisma, and another distributor Electrocenter (in Chile), as well as against individual Sharp employees at its Miami based Latin America Group. Sharp claimed that these parties engaged in a conspiracy to defraud Sharp by creating false documents supporting Solidda, Crisma, and Electrocenter's allegations that Sharp failed to deliver goods as promised, which led Sharp to settle the claims against it in the Colombian and Miami cases. On November 4, 2013, Sharp filed its Third Answer to the Amended Complaint with Counterclaims against numerous new counterclaim-defendants. 1. Sharp's Motion to Compel (ECF No. 495) On October 15, 2014, the undersigned entered an Order which required the Plaintiff's to: 1) search the Google third party cloud system and their bank and accounting records for documents and ESI responsive to Sharp's Requests for Production[1]; 2) within thirty days, produce all documents and ESI responsive to Sharp's Requests for Production; and 3) within thirty days, provide a written report to the Court, certified by a competent representative of Solidda and Crisma; a) attesting that Solidda and Crisma have produced all documents and ESI in their possession, custody and control that are responsive to Sharp's Requests for Production, and b) detailing what steps were taken to preserve documents and ESI. *2 Sharp contends that the report provided by the Plaintiffs (ECF No. 443-1) is deficient, and that the Plaintiffs failed to search for responsive documents relating to Counterclaim-Defendants, Ian Arzuaga and his company De Jure Mitigation Advisors, LLC, Julio Erazo Fuerra and his company Electrocenter, Jorge Migliaccio and his companies Blue Star Consulting, Ltd., and Blue Star Holdings Corp., and Agrasun and Agrasun Holdings, Inc. The Court finds that the report provided by the Plaintiffs is sufficiently detailed and therefore complies with the October 15, 2013 Order. Because the Plaintiffs concede that they did not separately search for Electrocenter and Julio Erazo documents, they are directed to ascertain whether the document production with respect to Electrocenter and Julio Erazo is complete and turn over any documents which have not already been produced. Because neither the First nor the Second Request for Production of Documents seek documents pertaining to the remaining counterclaim defendants[2], the Plaintiffs were not required by the October 15, 2013 Order to search for them. 2. Solidda's Motion to Compel Production of Documents from Edward Fuller (ECF No. 509) Edward Fuller is a former Sharp employee and Counterclaim-Defendant. He was hospitalized in September of 2012, and remains unconscious and unable to communicate or defend himself in this action. According to his attorney, Mr. Fuller is not expected to recover. His wife is his full time care-giver and appointed guardian. Owing to his condition, Mr. Fuller was severed from the rest of the Counterclaim-Defendants, and for a time, the action against him was stayed. However, the stay expired, and he has filed an Answer to Sharp's Third Amended Counterclaim. (Case No. 12-24469, ECF No. 267) Shortly before he fell ill, Mr. Fuller revealed in his initial disclosures that he is in possession of a copy of the hard drive from his work computer as it existed before his resignation from Sharp, and documents he acquired during his 17 year employment with Sharp. Some of the documents contain Mr. Fuller's handwritten notes either intended for his current counsel, or for Sharp attorneys. Mr. Fuller's counsel also has disclosed that she has a forensic image of Mr. Fuller's personal computer which she had made when Mr. Fuller hired her. Although Solidda seeks both the hard copy documents and the copy of Mr. Fuller's hard drive in the instant motion, at the hearing counsel stated that he really is only interested in the two and one half boxes of documents which are in Mr. Fuller's counsel's possession. Sharp contends that the documents and whatever is contained on the hard drive belong to Sharp and both should be turned over to it before any production is made to Solidda. Sharp suggests that a forensic examination of Mr. Fuller's personal computer is appropriate and it too should be turned over to Sharp for that purpose, if Mr. Fuller is unwilling to undergo the expense. *3 Because Solidda has abandoned its request for the computer(s), and Mr. Fuller's counsel has represented that her law firm is willing to retain the mirror images without disclosing what is contained within them to anyone else, Sharp's demand that they be turned over to it is denied. The hard copy documents shall be turned over to Sharp by Fuller's counsel after redacting privileged communications between Fuller and his counsel. Sharp may then review the documents for privilege, redacting as necessary, and turn over everything else to Solidda on or before February 12, 2014. Sharp shall produce a privilege log in connection with the production on or before February 20, 2014. 3. Sharp's Motion for Protective Order (ECF No. 522) Sharp moves for an Order: 1) vacating dates for which the depositions of four Sharp employees are presently noticed[3], 2) protecting the deponents from successive depositions, and 3) requiring the Counterclaim-Defendants to serve a comprehensive witness list and list of Rule 30(b)(6) topics by a date certain. Sharp complains that Solidda unilaterally noticed the four depositions, nevertheless it has proposed dates for three of them, as well as for a former employee, who is willing to voluntarily appear.[4] Sharp is trying to obtain a date for Mr. Zinicola's deposition. At the hearing, it became clear that Sharp's primary concern is that the number of Rule 30(b)(6) topics submitted by the parties have “spiraled out of control,” and that the depositions of its witnesses may not be capable of being completed in a reasonable amount of time unless the Counterclaim-Defendants are directed to coordinate with each to narrow the topics, and unless all of the Counterclaim-Defendants are forced to participate in the depositions prior to the resolution of any dispositive motions. The Court will not force the Counterclaim-Defendants, many of whom have represented to the Court that they lack the resources to fund litigation, to participate in discovery prior to the resolution of their pending dispositive motions, although they are free to do so if they so choose. Nor will the Court direct the Counterclaim-Defendants to narrow the list of 30(b)(6) topics, however, it encourages the parties to continue to confer on this issue and to coordinate the scheduling of depositions. Being fully advised, it is hereby ORDERED AND ADJUDGED as follows: 1. Sharp Electronics Corporation's Motion to Compel Solidda and Crisma to Comply with this Court's October 15, 2013 Omnibus Order (ECF No. 495) is DENIED. However, the Plaintiffs shall ascertain whether their document production with respect to Electrocenter and Julio Erazo is complete, and, on or before February 20, 2014, turn over any responsive documents, if they have not done so already. 2. Solidda Group, S.A.'s Motion to Compel Production of Documents from Edward Fuller (ECF No. 509) is GRANTED IN PART and DENIED IN PART. Mr. Fuller's counsel shall turn over the hard copy documents in her possession to Sharp, after first redacting privileged communications. Sharp may then review the documents for privilege, redacting as necessary, and on or before February 12, 2014, turn over the remaining documents to Solidda. Sharp shall produce a privilege log in connection with the production on or before February 20, 2014. *4 3. Sharp Electronics Corporation's Motion for Protective Order (ECF No. 522) is DENIED. DONE AND ORDERED at Fort Lauderdale, Florida, this 7th day of February, 2014. Footnotes [1] Sharp's First and Second Requests for Production of Documents were subject to the Order. Although Sharp had propounded a Third Request for Production of Documents prior to the October 15, 2013 Order, those document requests were not addressed in the Order. [2] The parties agree that Request 11 from the First Request for Production of Documents which sought documents pertaining to any gift, payment, gratuity, loan, loan forgiveness, advantage, benefit or other thing of any value transferred, delivered, promised, given or paid, directly or indirectly, to any current or former employee of Sharp, to their family or to any person (other than Sharp) at their direction, request or suggestion, or for their benefit by you or anyone acting for you, would encompass records of any payments made to any of the Counterclaim Defendants, but not necessarily other documents relating to them. Counsel for the Plaintiffs represented that it has produced all documents responsive to Request 11. [3] The employees are Mario Zinicola, Fred Guerra, William Flynn and Sharp's corporate representative. At the hearing, Sharp revealed that it intends to designate Mr. Flynn, who is Sharp's CFO as its Rule 30(b)(6) witness. [4] Solidda responds that the depositions were unilaterally noticed because it was unsuccessful in getting Sharp to provide any proposed dates for the witnesses.