Free Motion for Protective Order - District Court of Delaware - Delaware

I Case 1 :05-cv-00023-JJF Document 128 Filed O2/13/2008 Page 1 of 3
UNITED STATES DISTRICT COURT I
FOR THE DISTRICT OF DELAWARE
DOW CHEMICAL CANADA, INC. §
on its own behalf and as assignee of §
THE DOW CHEMICAL COMPANY §
‘ Plaintiff, g
v. g C.A. No. 05-23 (JJF)
HRD CORPORATION (d/b/a g
_ Marcus Oil & Chemical) §
Defendant, Counterciaini Piaintiff g
HRD CORPORATION’S MOTION FOR PROTECTIVE ORDER
TO LIMIT SCOPE OF DEPOSITIONS AND REQUESTING EXPEDITED
CONSIDERATION
Pursuant to Fed. R. Civ. P. 26(c), Defendant HRD Corporation respectfully asks the
Court to grant a partial protective order to iirnit the scope of examination at depositions planned
to take place in Houston, Texas next Monday, February 18 and next Tuesday, February 19, 2008.
I Specifically, HRD asks that the Court limit Dow to examination regarding HRD’s damage claim
2 only, and prohibit Dow at this tirne from examining the witnesses regarding matters related to
settlement negotiations between the parties, and, in particular aileged "threats" that were the
subject of Dow’s Report To The Court Concerning Unlawful Activity and Emergency Motion to
Compel Discovery ("Dow’s Motion"). (DJ. H9). Further, HRD respectfully asks the Court to
R hear counsel on an expedited basis on the present motion.
During the time since the hearing conducted by the Court on January 23, 2008
(Transcript attached as Exhibit A), counsel have conferred extensively regarding the depositions
Q and associated written discovery that Dow seeks from I-IRD. (Copies ofthe correspondence
between counsel is attached in chronological order as Exhibits B through K).

; Case 1:05-cv-00023-JJF Document 128 Filed O2/13/2008 Page 2 of 3
( The parties have reached agreement on all points related to Dow’s discovery regarding
H damages. In particular, HRD has agreed to provide all ot the discovery regarding damages that
Dow has requested, including written discovery responses, document production, and
depositions of four HRD witnesses (Abbas Hassan., Aziz Hassan, Craig Cawley, and Greg
Borsinger).1 However, Dow has insisted on exarnining these witnesses not only regarding i
damages, but also regarding other matters related to Dow’s Motion. Therefore, the parties have
not reached closure regarding the permissible scope ofthe depositions.
HRD believes that the matters that Dow seeks to inject into the depositions are
inappropriate and countenproductive, at least at the present time, because (a) these issues are
L unrelated to damages, or more broadly to any of Dow’s claims or HRD’s counterclaims; (b)
these issues unnecessarily will raise, not lower, the "temperature” between the parties’
principals, and will require HRD to depose Dr. Swogger, Dow’s consultant, regarding threats
that he allegedly made to “banl issues were relevant (which HRD denies), Dow may inquire into them when it takes depositions
I of HRD witnesses on the merits.2 .
g HRD understood following the January 23, 2008 Hearing that the Court made it clear that
it wanted both parties to reduce any antagonism, and get back to addressing the legal issues. ("I
think the way to resolve the impasse that is in place [between the parties] is to get to the bottom
of what supports — whatever the damage claim of HRD is by way of its counterclaim .... And I
will allow both sides the freedom to negotiate with lawyers about what discovery is necessary to
1 HRD has advised Dow’s counsel that the volume of documents in l—lR.D’s possession regarding
the damage claim is small, and that Mr. Cawley has no infomation regarding the damage claim.
. 2 Dow’s has asserted that these issues are material "as they go to credibility, motive, and bias.”
(Exhibit J). As noted, HRD disagrees, but even if this assertion were true, these issues are best
_ left for another day, during depositions on the merits, when cooler heads may or may not rind
them worth pursuing.

1 Case 1:05-cv-00023-JJF Document 128 Filed O2/13/2008 Page 3 of 3
try and understand the assertion ofthe counterclaim amount andthe counterclaim in principal?)
(Ex. A: Transcript of January 23, 2008 Hearing, pp. 16-17) The Court also stated that the
parties “ought to get away from" any threatening conduct, “and get to work toward factual
I discovery that will allow people to rationally discuss the lawsnit[,} whether to settle or go to
trial." (Id. at. 1 8)
1 lf Dow ptursues the path it has said it will follow, HRD believes this can only be counter-
productive by increasing antagonism, leading to discovery regarding matters unrelated to
damages, and wasting valuable time that the parties can better spend addressing the real issues in
this litigation and deciding whether to settle or try the ease. Therefore HRD requests that the
Court enter a partial protective order in the form attached hereto limiting the scope ofthe
planned depositions to HR.D’s damage claim. 1 I
POTTER ANDERSON & CORROON LLP
Q OF COUNSEL:
William C. Ferebee By: /s/ W Harding Drone, Jr.
Michael Landrum W. Harding Drane, Ir. (#1023)
(TDONNELL FEREBEE MEDLEY & Richard L. Horwitz (#2246)
KEISER, PC Suzanne M. Hill (#4414)
450 Gears, Eighth Floor Hercules Plaza, 6m Floor
Houston, TX 77067-4512 1313 N. Market Street
(28l) 875-8200 (telephone) Wilmington, DE 19899-0951
(281) 875-4962 (facsimile) (302) 984-6000
[email protected]
[email protected]
[email protected]
Dated: February 13, 2008 Attorneys for HRD Corporation (db/o Marcus
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