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SETH ARONSON (S.B. #100153) saronson@omm.com WILLIAM K. PAO (S.B. #252637) wpao@omm.com NATALIE SCHACHNER (S.B. #266438) nschachner@omm.com COURTNEY GOULD (S.B. #274417) cgould@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendant CHINA AGRITECH, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION THEODORE E. DEAN, SLAVA VANOUS, CLAIR HARPSTER, and RANDOLPH DANIELS-KOLIN Individually, and on Behalf of All Others Similarly Situated, Plaintiffs, v. CHINA AGRITECH, INC., YU CHANG, YAU-SING TANG, GENE MICHAEL BENNETT, XIAO RONG TENG, MING FANG ZHU, ZHENG “ANNE” WANG, CHARLES LAW, LUN ZHANG DAI, and HAI LIN ZHANG, Defendants. Case No. CV11-01331 RGK (PJWx) DISCOVERY MATTER SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION BY DEFENDANT CHINA AGRITECH, INC., TO COMPEL DEPOSITION OF PLAINTIFFS’ INVESTIGATORS Judge: Hon. Patrick J. Walsh Hearing Date: May 30, 2012 Time: 11:00 a.m. Dept: 23 Discovery Cutoff Date: Sept. 5, 2012 Pretrial Cf. Date: November 19, 2012 Trial Date: November 27, 2012

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Defendant China Agritech, Inc. (“China Ag”) has served a 30(b)(6) subpoena on Plaintiff Counsel to obtain information about a purported investigation supporting Plaintiffs’ case because Defendant cannot subpoena Plaintiffs’ investigators. That is because the investigators are in mainland China, which does not permit depositions. Plaintiff Counsel know this well, and yet chose to include in Plaintiffs’ complaint allegations about an investigation with no apparent commitment from the investigators to appear at a deposition (in Hong Kong, where depositions are permitted). Plaintiffs should not be able to allege—and survive a motion to dismiss based on—an investigation and then avoid discovery on that investigation. Plaintiffs need to produce the investigators for deposition or provide counsel’s 30(b)(6) deposition about the investigation. Otherwise, fair play requires that Plaintiffs abandon their investigation-related allegations and agree not to introduce 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 should subpoena the investigators directly and accuse China Ag of not even trying that route. (See D.E. 142 at 34.) But the record puts the lie to this contention, showing that China Ag has been trying for months to depose the investigators. (See id. at 19-20.) China Ag cannot subpoena Plaintiffs’ investigators because they live in mainland 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 that assistance for five months. (Id. at 19-20.)2 Plaintiffs have refused. In light of this Court’s May 14, 2012 order, China Ag will meet and confer again with 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’ contact information. But that information only establishes that the investigators are in mainland China, beyond China Ag’s subpoena power. 1
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II.

The few investigation-related documents Plaintiffs produced thus far do not substitute for deposition testimony.

Plaintiff Counsel’s contention that their meager document production makes a 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 clearly intended to be cumulative, as opposed to alternative or mutually exclusive.”). And documents cannot replace depositions. See, e.g., Kaplan v. City of Chicago, 2009 WL 1940789, at *4 (N.D. Ill. July 6, 2009) (“[T]he production of documents is no substitute for the live deposition of Plaintiff so that the City could examine her recollection 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.”) (internal quotation marks omitted). Indeed, courts have permitted exactly what China Ag requests here: a 30(b)(6) deposition of plaintiff’s investigator, even after the plaintiff turned over its investigation file. In EEOC v. Albertson’s LLC, the defendant sought to depose the EEOC’s investigator on the investigation that led the 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 obligation under Rule 30(b)(6) to provide a witness to answer questions about those documents for purposes of clarification and interpretation.”) (internal quotation marks and citations omitted). Here, that rationale applies with even greater force because Plaintiffs have not produced their entire investigation file. Instead, Plaintiffs have produced only 18 documents about the investigation, withholding the rest on alleged privilege grounds—for which they have not yet provided a privilege log. (See Supp. 2
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Schachner Decl. ¶ 2.)3 It is therefore clear that the only way China Ag can obtain information about the investigation is through a deposition. III. Plaintiff Counsel can designate their investigators to testify.

Plaintiff Counsel are wrong that “Opposing Counsel is not permitted to testify in an action in which it is litigation counsel.” (D.E. at 5.) As explained in the Joint Stipulation, numerous courts have held otherwise. (See id. at 28.) Indeed, even in a case Plaintiff Counsel cite—Pastrana v. Local 9509, Communications Workers of America, AFL-CIO—the court granted a motion to compel opposing counsel to submit to deposition on “facts supporting the allegations contained in the complaint.” 2007 WL 2900477, at *5 (S.D. Cal. Sept. 28, 2007). Plaintiff Counsel’s claim that the deposition notice is unduly burdensome because they do not control the investigators is unsupported by the record. As explained in the Joint Stipulation, “control” turns on whether the party has the practical ability to produce the witnesses. (See D.E. at 23-24.) Plaintiff Counsel hired the investigators and directed their work; they should be able to compel the investigators to appear for a deposition. Indeed, Plaintiff Counsel have never asserted that they have even asked Plaintiffs’ investigators to appear at deposition—let alone that the investigators refused. In any event, as explained in the Joint Stipulation, “control” is not the relevant inquiry for a 30(b)(6) deposition. (See D.E. 142 at 22-23.) Plaintiff Counsel are obligated to produce a witness educated about the topics in the 30(b)(6) notice. Nothing precludes Plaintiff Counsel from designating the investigators as 30(b)(6) deponents, even if they are not employees. Plaintiff Counsel’s contention that an investigator would not be an appropriate designee for the 30(b)(6) deposition because he lacks knowledge of all the topics in the 30(b)(6) notice (see id. at 42) is a red herring. The Federal Rules do not require that Plaintiff Counsel For this reason, China Ag has no sense of whether the 18 documents constitute most of the investigative file or only a very small percentage of its contents. 3
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designate only one witness for every single topic. As China Ag has repeatedly made clear, it seeks information on the investigation that Plaintiffs’ investigators purportedly conducted at Plaintiff Counsel’s direction. That is a topic on which Plaintiff Counsel should easily be able to produce a witness. Moreover, Plaintiff Counsel’s contention that every answer in the 30(b)(6) deposition would be privileged (see, e.g., id. at 39-40) is both incorrect and premature. Facts are not privileged. See, e.g., United Phosphorus, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245, 249-50 (D. Kan. 1995) (permitting deposition of opposing counsel because counsel “played a role in the underlying facts” and so “possesses relevant, nonprivileged information crucial to the preparation of [the] case”). Thus China Ag is surely permitted to ask Plaintiff Counsel or the investigators about, for example, the “site visits” the Complaint alleges the investigators undertook, the “gatekeepers” the investigators allegedly spoke to, the “interview” of a Chinese government official the investigators allegedly conducted, and the “extensive government database searches” the investigators are claimed to have run on China Ag’s largest supplier. (See Am. Compl. ¶¶ 58, 59, 81.)4 If Plaintiff Counsel have privilege concerns over specific questions, they can make those objections during the deposition. (See D.E. at 26.)5 And while Plaintiff Counsel cite to cases where courts have quashed 30(b)(6) deposition notices served on opposing counsel, the court in those cases did so because (i) the deposition would necessarily intrude on attorney work product,6 or Plaintiffs have not produced a single document supporting the claim of database searches. (See Schachner Decl. ¶ 3.) 5 See also Bryant v. Mattel, Inc., 2007 WL 5430885, at *3 (C.D. Cal. July 2, 2007) (finding that if 30(b)(6) deposition “has the potential to encroach upon information protected by the work-product privilege, then that objection must be made on a question-by-question basis”); 3M Co. v. Kanbar, 2007 WL 1794936, at *1 (N.D. Cal. June 19, 2007) (finding plaintiff “should have to make a specific objection or showing of privilege at the deposition on a question-by-question basis”). 6 See SEC v. Buntrock, 217 F.R.D. 441, 446 (N.D. Ill. 2003) (defendant sought “to discover the SEC’s theories as to the underlying facts, how it intends to marshal 4
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(ii) the propounding parties can obtain the sought information through other forms of discovery.7 Neither applies here. First, China Ag seeks nonprivileged facts about Plaintiffs’ purported investigation, and Plaintiffs waived any privilege concerning the investigation by relying on it to support their case. (See D.E. at 2426.) Second, Plaintiffs have not provided the information through other means, producing only 18 documents concerning the investigation and refusing to answer basic interrogatories about it. (Supp. Schachner Decl. ¶ 2; Id. Ex. 1.) As explained in the Joint Stipulation, whether this Court applies the Shelton test or the Central District’s Younger factors, China Ag is entitled to the 30(b)(6) deposition to learn about the investigation. (See D.E. 142 at 30.) Plaintiffs’ investigation is crucial to their case, and China Ag cannot obtain information about it elsewhere. Plaintiffs should be required to either produce a 30(b)(6) witness to testify about the investigation or abandon their allegations about it and agree not to introduce at summary judgment or trial any evidence relating to the investigation.

DATED: May 16, 2012

O’MELVENY & MYERS LLP

By: /s/Seth Aronson Seth Aronson Attorneys for Defendant CHINA AGRITECH, INC.

those facts, and its belief as to the inferences that may be drawn from those facts”); SEC v. Rosenfeld, 1997 WL 576021, at *3 (S.D.N.Y. Sept. 16, 1997) (defendant sought “ nature of the SEC’s attorney work product”); EEOC v. McCormick & Schmick’s Seafood Rest., Inc., 2010 WL 2572809, at *5 (D. Md. June 22, 2010) (“Defendants’ Notice . . . does not ask for the underlying facts, but EEOC’s counsel’s interpretation of the facts and how they have chosen to proceed in preparing their case.”). 7 See Buntrock, 217 F.R.D. at 445 (noting “staggering amount of evidence the SEC has already turned over”); Rosenfeld, 1997 WL 576021, at *3 (defendant failed to explain why information not sought through interrogatories or document requests). 5
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