Case 3:14-cv-03264-JD Document 1117 Filed 03/28/16 Page 1 of 4
`
`
`
`
`
`March 28, 2016
`
`VIA ECF
`Honorable James Donato
`U.S. District Court, Northern District of California
`San Francisco Courthouse, Courtroom 11, 19th Floor
`450 Golden Gate Avenue
`San Francisco, California 94102
`
`Re: In Re Capacitors Antitrust Litigation, Case No. 3:14-cv-03264-JD
`
`Dear Judge Donato:
`Plaintiffs seek inadmissible, uncertified translations of documents they already
`have. This Court denied their request at the Department of Justice’s representation
`in part because the production would “inhibit cooperation and the production of
`translations to the DOJ in future investigations.” Dkt. 631; Dkt. 678. This policy
`rationale remains regardless of DOJ’s current position. Taitsu asks this Court to
`deny Plaintiffs’ request to set aside its order or, in the alternative, rule that the
`translations at issue are protected from disclosure under the attorney work-product
`doctrine.
`1.
`This Court Denied this Request and its Order Should Stand
`DOJ closed the criminal investigation into Japanese film capacitor manufacturers
`without a single plea, prosecution, or penalty. Even though it has now withdrawn
`its objection, the risk of inhibiting cooperation in future investigations by requiring
`production to civil plaintiffs does not end with the closure of this criminal
`investigation.
`Plaintiffs call Taitsu’s resistance frivolous because of DOJ’s withdrawal, but this
`presumes this Court to blindly follow the lead of DOJ. DOJ argued two reasons why
`this Court should bar disclosure of these documents, and this Court cited both
`grounds in its decision to deny Plaintiffs’ request. See Dkt. 678. No matter DOJ’s
`position now, the rationale underlying this Court’s order remains.
`2.
`The Translations are Opinion Work Product
`The attorney work-product doctrine shields from disclosure materials that counsel
`and those under its instruction prepare in anticipation of litigation. See United
`States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1081 (N.D. Cal 2002).
`“Opinion” work product is that which reflects counsel’s mental impressions and
`opinions, See Sporck v. Peil, 759 F.2d 312, 315–16 (3d Cir. 1985), and is only
`
`
`Fax: 858-964-2301
`Tel.: 858-964-4589
`4275 Executive Square, Suite 200, La Jolla, CA 92037
`www.BusinessJustice.com
`aaron.gott@bonalawpc.com 
`
`

`

`Case 3:14-cv-03264-JD Document 1117 Filed 03/28/16 Page 2 of 4
`Hon. James Donato
`March 28, 2016
`Page 2
`
`discoverable “when mental impressions are at issue in a case and the need for the
`material is compelling.” Holmgren v. State Farm Mut. Auto Ins. Co., 976 F.2d 573,
`577 (9th Cir. 1992). “Ordinary” work product does not reveal the mental
`impressions of counsel, and is only discoverable where the party seeking disclosure
`shows a “substantial need for the materials to prepare its case and cannot, without
`undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ.
`P. 26(b)(3)(A)(ii); see also In re Grand Jury Subpoena (Mark Torf/Torf Envtl.
`Mgmt.), 357 F.3d 900, 906 (9th Cir. 2004). Even where such a showing is made, the
`court ordering the production must take care to ensure that it does not expose the
`mental impressions, conclusions, opinions, or legal theories of counsel. Fed. R. Civ.
`P. 26(b)(3)(B). See also In re San Juan DuPoint Plaza Hotel Fire Litig., 859 F.2d
`1007, 1014–15 (1st Cir. 1988).
`The translations Plaintiffs seek were identified, selected, and translated by and at
`the direction of Taitsu’s counsel in the course of a legal proceeding and are thus
`opinion work product. Counsel exercised its discretion in determining which
`documents to translate and produce after DOJ identified areas of specific focus to
`the investigation; they were not translated categorically or indiscriminately. They
`reflect counsel’s mental assessments of the significance of particular facts and
`communications. Production of these documents would thus force Taitsu to hand
`Plaintiffs a roadmap to its counsel’s strategies.
`Even if the court finds that these documents are ordinary work product, Plaintiffs
`cannot meet their burden to show a “substantial need for the materials to prepare
`[their] case” and, more importantly, that they “cannot, without undue hardship,
`obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
`Plaintiffs can just as easily have documents translated themselves. They will need
`to do so anyway as Taitsu’s non-certified translations are not admissible evidence.
`See, e.g., NLRB v. Doral Bldg. Servs., Inc., 666 F.2d 432, 435 (9th Cir. 1982)
`(unverified English translations not admissible).
`3.
`Taitsu Did Not Waive Its Work-Product Privilege by Disclosing the
`Translations to DOJ
`Plaintiffs cite Pacific Pictures v. U.S. District Court, 679 F.3d 1121, 1127 (9th Cir.
`2012) in support of waiver. Pacific Pictures is an inapposite attorney-client privilege
`waiver case. Unlike the attorney-client privilege, work-product privilege is not
`waived by a “mere showing of voluntary disclosure to a third person.” United States
`v. AT&T, 642 F.2d 1285, 1299 (D.C.Cir.1980). Work-product doctrine is not afforded
`solely to protect the confidentiality of communications. Indeed, “Rule 26 accords
`special protection to work product revealing the attorney’s mental processes.”
`Upjohn Co. v. United States, 449 U.S. 383, 400 (1981). Its purposes are “more
`complex, and [those purposes] are not inconsistent with selective disclosure—even
`in some circumstances to an adversary.” In re Sealed Case, 676 F.2d 793, 818
`(D.C.Cir.1982).
`
`

`

`Case 3:14-cv-03264-JD Document 1117 Filed 03/28/16 Page 3 of 4
`Hon. James Donato
`March 28, 2016
`Page 3
`
`Taitsu disclosed these translations to DOJ with the understanding that they would
`be protected from disclosure to adversaries in the civil case; parties whose interests
`are not based in a truth-seeking function. DOJ has a practice of objecting to
`discovery of such translations in other cases for the same two reasons cited in its
`objection in this case. See, e.g., United States’ Opposition Regarding Translations,
`In re TFT-LCD (Flat Panel) Antitrust Litigation, Case No. M:07-cv-01827-SI (Dkt.
`1461) (N.D. Cal. Jan. 7, 2010). The public interest rationale does not fall flat simply
`because DOJ no longer objects. If disclosure to government investigators constitutes
`waiver, then innocent foreign companies will no longer cooperate with DOJ
`investigations in the manner that Taitsu did.
`Some circuits have found that the production of work-product documents to the
`government waives privilege under some circumstances. See, e.g., In re
`Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 314 (6th Cir.
`2002). But those cases did not concern subsequent requests by private plaintiffs in
`civil cases where a stay order had previously precluded their discovery. See Upjohn
`Co., 449 U.S. at 396 (rules relating to privilege in matters of governmental
`investigations must be crafted on a case-by-case basis).
`4.
`Burden is Only Part of the Inquiry
`Taitsu’s burden must be considered relative to the benefit of producing these
`documents. Plaintiffs fail to address any other relevant factor: “the importance of
`the issues at stake in the action, the amount in controversy, the parties’ relative
`access to relevant information, the parties’ resources, the importance of the
`discovery in resolving the issues, and whether the burden or expense of the
`proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
`Plaintiffs already have access to the information they contain and in a form that is
`admissible as evidence. The discovery would thus play no role in resolving the
`issues. Moreover, Taitsu is a small company with more limited resources than class
`counsel, who have willingly chosen to undertake a significant antitrust class action
`against many Japanese companies.
`5.
`Conclusion
`Plaintiffs seek discovery of documents that were not made in the ordinary course of
`business and that could not be used as evidence to support their claims. These
`documents are opinion work product that, if disclosed, would reveal the mental
`impressions of Taitsu’s counsel. Plaintiffs’ request is not reasonably calculated to
`lead to the discovery of admissible evidence because they already have the original
`documents. This isn’t a dispute about “highly relevant discovery,” it’s an attempt by
`Plaintiffs to advantage themselves on Taitsu’s dime.
`
`
`

`

`Case 3:14-cv-03264-JD Document 1117 Filed 03/28/16 Page 4 of 4
`Hon. James Donato
`March 28, 2016
`Page 4
`
`
`
`Respectfully Submitted,
`
`
`
`
`
`Aaron R. Gott
`Bona Law PC
`
`Attorney for Taitsu Corporation and
`Taitsu America, Inc.
`
`