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China Agriculture Tries to Depose Investigators

China Agriculture Tries to Depose Investigators

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Published by abatevents
Shows how difficult it is to depose "investigators" in China and how defense wants there to be fair play.
Shows how difficult it is to depose "investigators" in China and how defense wants there to be fair play.

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Published by: abatevents on Sep 23, 2012
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CAGC’S SUPPLEMENTAL BRIEFCV11-01331 RGK (PJWx)
SETH ARONSON (S.B. #100153)saronson@omm.comWILLIAM K. PAO (S.B. #252637)wpao@omm.comNATALIE SCHACHNER (S.B. #266438)nschachner@omm.comCOURTNEY GOULD (S.B. #274417)cgould@omm.comO’MELVENY & MYERS LLP400 South Hope StreetLos Angeles, CA 90071-2899Telephone: (213) 430-6000Facsimile: (213) 430-6407Attorneys for DefendantCHINA AGRITECH, INC.
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIAWESTERN DIVISION
THEODORE E. DEAN, SLAVAVANOUS, CLAIR HARPSTER, andRANDOLPH DANIELS-KOLINIndividually, and on Behalf of All OthersSimilarly Situated,Plaintiffs,v.CHINA AGRITECH, INC., YU CHANG,YAU-SING TANG, GENE MICHAELBENNETT, XIAO RONG TENG, MINGFANG ZHU, ZHENG “ANNE” WANG,CHARLES LAW, LUN ZHANG DAI,and HAI LIN ZHANG,Defendants.Case No. CV11-01331 RGK (PJWx)DISCOVERY MATTER
SUPPLEMENTAL BRIEF INSUPPORT OF MOTION BYDEFENDANT CHINAAGRITECH, INC., TO COMPELDEPOSITION OF PLAINTIFFS’INVESTIGATORS
Judge: Hon. Patrick J. WalshHearing Date: May 30, 2012Time: 11:00 a.m.Dept: 23Discovery Cutoff Date: Sept. 5, 2012Pretrial Cf. Date: November 19, 2012Trial Date: November 27, 2012
Case 2:11-cv-01331-RGK-PJW Document 150 Filed 05/16/12 Page 1 of 6 Page ID #:5304
 
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CAGC’S SUPPLEMENTAL BRIEFCV11-01331 RGK (PJWx)
Defendant China Agritech, Inc. (“China Ag”) has served a 30(b)(6) subpoenaon Plaintiff Counsel to obtain information about a purported investigationsupporting Plaintiffs’ case because Defendant cannot subpoena Plaintiffs’investigators. That is because the investigators are in mainland China, which doesnot permit depositions. Plaintiff Counsel know this well, and yet chose to includein Plaintiffs’ complaint allegations about an investigation with no apparentcommitment from the investigators to appear at a deposition (in Hong Kong, wheredepositions are permitted). Plaintiffs should not be able to allege—and survive amotion to dismiss based on—an investigation and then avoid discovery on thatinvestigation. Plaintiffs need to produce the investigators for deposition or providecounsel’s 30(b)(6) deposition about the investigation. Otherwise, fair play requiresthat Plaintiffs abandon their investigation-related allegations and agree not tointroduce at summary judgment or trial any evidence about the investigation.
1
 
I. China Ag has done everything in its power to depose Plaintiffs’investigators in their individual capacities.
Plaintiff Counsel make the unhelpful suggestion that China Ag shouldsubpoena the investigators directly and accuse China Ag of not even trying thatroute. (
See
D.E. 142 at 34.) But the record puts the lie to this contention, showingthat China Ag has been trying for months to depose the investigators. (
See id.
at19-20.) China Ag cannot subpoena Plaintiffs’ investigators because they live inmainland China, where China Ag’s subpoena power does not reach. (
 Id.
at 20.)Thus the only way China Ag can depose Plaintiffs’ investigators is with Plaintiff Counsel’s cooperation, and the record shows that China Ag has sought thatassistance for five months. (
 Id.
at 19-20.)
2
Plaintiffs have refused.
1
In light of this Court’s May 14, 2012 order, China Ag will meet and confer againwith Plaintiff Counsel on this motion and Plaintiff Counsel’s motion to quash.China Ag will notify the Court of any updates in its two-page status report.
2
Plaintiff Counsel also note that they gave China Ag the investigators’ contactinformation. But that information only establishes that the investigators are inmainland China, beyond China Ag’s subpoena power.
Case 2:11-cv-01331-RGK-PJW Document 150 Filed 05/16/12 Page 2 of 6 Page ID #:5305
 
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CAGC’S SUPPLEMENTAL BRIEFCV11-01331 RGK (PJWx)
II. The few investigation-related documents Plaintiffs produced thusfar do not substitute for deposition testimony.
Plaintiff Counsel’s contention that their meager document production makesa deposition unnecessary falls flat. Parties are entitled to
 all 
forms of discovery.
See Richlin v. Sigma Design West, Ltd.
, 88 F.R.D. 634, 637 (E.D. Cal. 1980)(“[T]he various methods of discovery as provided for in the Rules are clearlyintended to be cumulative, as opposed to alternative or mutually exclusive.”). Anddocuments cannot replace depositions.
See, e.g.
,
Kaplan v. City of Chicago
, 2009WL 1940789, at *4 (N.D. Ill. July 6, 2009) (“[T]he production of documents is nosubstitute for the live deposition of Plaintiff so that the City could examine herrecollection and view of the facts.”);
 Brown v. Carr 
, 253 F.R.D. 410, 412 (S.D.Tex. 2008) (“Production of documents is no substitute for a deposition.”) (internalquotation marks omitted). Indeed, courts have permitted exactly what China Agrequests here: a 30(b)(6) deposition of plaintiff’s investigator, even after theplaintiff turned over its investigation file. In
 EEOC v. Albertson’s LLC 
, thedefendant sought to depose the EEOC’s investigator on the investigation that ledthe EEOC to file suit.
See
2007 WL 1299194, at **2-5 (D. Colo. May 1, 2007).The court denied the EEOC’s motion for a protective order, because “answers to[relevant/critical] questions may or may not be in the investigation file.”
 Id.
at **1,7.
 Accord EEOC v. Cal. Psychiatric Transitions
, 258 F.R.D. 391, 397 (E.D. Cal.2009) (“[P]roviding an investigative file does not relieve the EEOC of its obligationunder Rule 30(b)(6) to provide a witness to answer questions about thosedocuments for purposes of clarification and interpretation.”) (internal quotationmarks and citations omitted).Here, that rationale applies with even greater force because Plaintiffs havenot produced their entire investigation file. Instead, Plaintiffs have produced only18 documents about the investigation, withholding the rest on alleged privilegegrounds—for which they have not yet provided a privilege log. (
See
Supp.
Case 2:11-cv-01331-RGK-PJW Document 150 Filed 05/16/12 Page 3 of 6 Page ID #:5306

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