Status Discovery Dispute Conference Order

MARK R. ABEL, Magistrate Judge.

On September 3, 2013, counsel for the parties participated in a status and discovery dispute conference with the Magistrate Judge.

Discovery. Written discovery has been exchanged. Some disputes remain. Counsel are in the process of scheduling depositions. Plaintiffs will start by noticing approximately six depositions of Duke Energy's current and former employees. Plaintiffs counsel estimate there will be a total of about 12 depositions of Duke Energy's current and former employees. Defendants will depose representatives of plaintiffs.

Discovery disputes. Plaintiffs presented two discovery disputes. Defendants presented one. The disputes will be briefly discussed separately below.

Duke Energy's claims of privilege. Defendants have asserted attorney-client privilege and/or work product protection as to approximately 491 documents. Plaintiffs' counsel argues the information in defendants' privilege log is insufficient to determine whether the documents are privileged. That information includes recipients, author, date and subject; however, plaintiffs' counsel believe the subject information is often too scanty to determine whether the document is arguably privileged. Further, plaintiffs may argue the crime-fraud or other exception to the attorney-client privilege. Plaintiffs assert that the Sixth Circuit held that giving a rebate to a customer is a felony.

Defendants' counsel said that most of the claims of privilege were for documents responsive to plaintiffs' request for all documents related to the option/rebate agreements. Defendants' counsel maintain that many of the documents don't include any information that plaintiffs' really need. For example, an email might communicate a draft with substantially similar language to a document that was later filed with PUCO or a court. Defendants also vigorously assert that the crime-fraud exception does not apply.

It is ORDERED that on or before September 10, plaintiffs' counsel send defendants' counsel a letter with an Excel spread sheet with the subject matter lines for which they need additional information highlighted. Similarly, they should send a spread sheet with senders/recipients for which they need additional information highlighted. The letter should briefly summarize the types of information plaintiffs seek and explain why it is necessary for them to determine whether to challenge defendants' claims of privilege.

On or before September 20, defendants' counsel will respond, providing information supporting their clients' claims of privilege. They will also provide information to assist plaintiffs' counsel in determining whether they really need all the documents. On or before September 27, 2013, counsel will email a proposed briefing schedule for plaintiffs' anticipated motion to compel.

Option/rebate agreements after June 30, 2009. Plaintiffs seek production of any side agreements after June 30, 2009 that would result in large customers getting monies back from Duke Energy. Plaintiffs have an injunctive claim, and they believe Duke Energy has continued violating the law. Defendants' counsel responded that they didn't believe there are any option/rebate agreements after the agreements at issue expired December 31, 2008. There were payments made under another agreement settling a litigated matter, and documents reflecting those payments have been provided to plaintiffs.

It is ORDERED that plaintiffs' counsel will respond to defendants' counsel's latest letter regarding this dispute. Defendants will provide a formal response to plaintiffs' document request.

Plaintiffs' financial statements. Defendants' document requests seek plaintiffs' financial statements they rely on in briefing their motion to certify to support their claims of competitive injury. Plaintiffs maintain they did not rely on any financial documents to support their motion for class certification. However, they do assert in their reply brief that they have suffered competitive injury. It is ORDERED that plaintiffs produce the responsive documents on or before October 1, 2013.

Plaintiffs' experts' Rule 26(a)(2) disclosures deadline. Plaintiffs' counsel said they needed a ruling on their motion to certify a class before their experts make their Rule 26(a)(2) disclosures. They believe their experts would need about 90 days after that decision to finalize their opinions.

I expect plaintiffs' experts to be formulating their opinions now. The court will give a priority to ruling on the motion to certify. Plaintiff's counsel should consult with their experts and advise opposing counsel and me of the time they believe they will need to finalized their opinions after the court rules on the motion to certify.