TACIT SOLUTIONS, INC. et al v. KIA et al, No. 3:2009cv00142 - Document 45 (S.D. Ind. 2010)
Court Description: ORDER granting 38 Motion for Clarification; granting 38 Motion for Reconsideration. See Order for specifics. Signed by Magistrate Judge William G. Hussmann, Jr., on 1/8/2010. (NRN) Modified on 1/8/2010 (NRN).
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TACIT SOLUTIONS, INC. et al v. KIA et al Doc. 45 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION ULTIMATE TIMING, L.L.C., a Washington limited liability company, and ARASH KIA, an individual, ) ) ) ) Plaintiffs, ) ) v. ) ) DAVID SIMMS, an individual, SA ) INNOVATIONS, LLC, d/b/a SAI TIMING ) & TRACKING, a Michigan limited liability ) company, ) ) Defendants. ) ________________________________________________) ) TACIT SOLUTIONS, INC., an Indiana ) Corporation; and CHRONOTRACK SYSTEMS, ) INC., an Indiana Corporation, ) ) Plaintiffs, ) ) v. ) ) ARASH KIA, an individual; and ) ULTIMATE TIMING, L.L.C., ) a Washington Limited Liability Company, ) ) Defendants. ) 3:09-mc-6-RLY-WGH 3:09-cv-142-SEB-WGH ORDER ON MOTION TO QUASH AND FOR A PROTECTIVE ORDER, MOTIONS TO CLARIFY AND/OR TO RECONSIDER, AND INITIAL PRETRIAL CONFERENCE This matter is before the Honorable William G. Hussmann, Jr., United States Magistrate Judge, on a Motion to Quash and for a Protective Order and a Dockets.Justia.com FRCP 16 Conference with Magistrate filed December 2, 2009 (Docket No. 21) and a Motion to Clarify and/or to Reconsider and Motion for an FRCP 16 Conference with Magistrate filed December 4, 2009 (Docket No. 23) in Cause No. 3:09-mc-6RLY-WGH, and a Motion to Clarify and/or to Reconsider and Motion for an FRCP 16 Conference with Magistrate filed December 4, 2009 (Docket No. 38) in Cause No. 3:09-cv-142-SEB-WGH. The Magistrate Judge conducted a telephonic hearing on the record on December 24, 2009, at 11:00 a.m., and continued to December 29, 2009, at 3:00 p.m. The parties were represented by counsel. Thereupon the following ORDERS are entered: 1. The Subpoenas issues under Cause No. 2:08-cv-1632-MJP in the United States District Court for the Western District of Washington at Seattle (“Washington case”) will be enforced to the following extent: (a) The depositions shall be scheduled for January 11 and 12, 2010. (b) By agreement of the parties, all documents produced in the Washington case shall be reviewed and reviewable by Ms. Blanton and Mr. Casey. (c) By agreement of the parties, Mr. Fisher will produce copies of all materials not previously produced in the Washington case at the expense of Chronotrack Systems, Inc. (“Chronotrack”). It is anticipated that these materials are stored electronically and that a disk can be produced and returned to Chronotrack in the very early days of the week of December 28, 2009. 2. With respect to the materials to be produced responsive to the Request for Production of Documents and prior Subpoenas served upon Chronotrack, the -2- Magistrate Judge concludes that race results are not protected for attorneys’ eyes only or highly confidential materials. Counsel for Chronotrack will address the approximately 1,000 emails produced and will advise counsel for Arash Kia (“Kia”) whether those emails should be considered to be non-confidential, confidential, or highly confidential as defined in the Protective Order already in place in the Washington case. He will advise and make these elections by December 31, 2009. 3. With respect to the Subpoena Duces Tecum issued to Tacit Solutions, Inc., the time period for production will be limited to July 1, 2007, to the current date, and the subject matters will be limited only to race-based technology. The Magistrate Judge has indicated that the definition of race-based technology should be construed quite narrowly when reviewing information to be produced at this stage of the litigation. 4. With respect to Cause No. 3:09-cv-142-SEB-WGH, this conference will be construed to be the initial pretrial conference required by the parties to establish discovery deadlines. The parties are directed to confer concerning an appropriate protective order in this case and shall file a joint case management plan within fifteen (15) days of the date of this entry. 5. With respect to the Subpoena Duces Tecum directed to Chronotrack, the Motion for Protective Order is GRANTED, in part, and DENIED, in part. Chronotrack shall respond to the Subpoena, but the documents to be produced are as follows: -3- (a) The documents requested in paragraph 1 are to be produced. (b) The documents to be produced under paragraph 2 shall be related only to those showing to the ownership, investment, and/or funding of Chronotrack by David Simms. (c) The documents requested in paragraph 3 are to be produced. (d) The Motion for Protective Order is granted as to paragraphs 4, 8, 9, 10, and 12. (e) As to paragraph 5, the documents produced shall be limited to show David Simms or Germaine Simms’ contributions to Chronotrack’s capital. (f) The Motion for Protective Order is denied as to paragraphs 6 and 7. (g) The Motion for Protective Order is denied as to paragraph 11 (as to documents or emails specifically naming Kia, Ultimate Timing, L.L.C. (“Ultimate Timing”), or Athlete’s Lounge). (h) With respect to paragraphs 13 and 14, the documents produced will be redacted to protect the identity of any customers or vendors. (i) As to paragraph 15, research and development documents shall be produced to the extent that those documents show communication to David Simms. With respect to any other research and development documents which do not bear an indication that David Simms has received copies or participated in the preparation of the documents, the documents shall be limited to any such documents that were produced prior to April 1, 2008, but not thereafter. Chronotrack may redact from these documents information which they in good faith believe to be independent developments not involving David Simms. Any redaction from these items shall leave sufficient unredacted data on the items not produced to allow Ultimate Timing to file an appropriate challenge to the designation and redaction. -4- You are hereby notified that the District Judge may reconsider any pretrial matter assigned to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) where it is shown that the order is clearly erroneous or contrary to law. SO ORDERED. __________________________ William G. Hussmann, Jr. United States Magistrate Judge Southern District of Indiana Dated: January 8, 2010 Copies to counsel in 3:09-mc-6-RLY-WGH: Carter M. Mann FOSTER PEPPER LLP 601 SW Second Avenue Suite 1800 Portland, OR 97204-3171 Jason Alan Wright ROBERTS KAPLAN LLP jwright@robertskaplan.com William D. Fisher PERKINS COIE LLP WFisher@perkinscoie.com Andrew Scott Ward KECK & FOLZ award@evansville.net Copies to counsel in 3:09-cv-142-SEB-WGH: Jeffrey W. Ahlers KAHN DEES DONOVAN & KAHN ahlers@kddk.com -5- Richard L. Baum ROBERTS KAPLAN LLP rbaum@robertskaplan.com Jean Marie Blanton ZIEMER STAYMAN WEITZEL & SHOULDERS jblanton@zsws.com James P. Casey ZIEMER STAYMAN WEITZEL & SHOULDERS JCasey@zsws.com William D. Fisher PERKINS COIE LLP WFisher@perkinscoie.com Andrew Scott Ward KECK & FOLZ award@evansville.net Jason Alan Wright Roberts Kaplan LLP jwright@robertskaplan.com -6-
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