PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable Robert L. Barton, Jr.
`Administrative Law Judge
`
`%
`
`(-7
`
`In the Matter of
`
`CERTAIN HYDRAULIC EXCAVATORS AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-582
`
`ORDER NO. 10: DENYING IN PART AND GRANTING IN PART COMPLAINANT’S
`MOTION TO COMPEL AUCTION HOUSE RESPONDENTS TO PRODUCE
`RELEVANT DOCUMENTS
`(December 8,2006)
`
`I.
`
`SUMMARY
`
`For the following reasons, Complainant Caterpillar, Inc.’s (“Caterpillar”) motion to compel
`
`Auction House Respondents to produce relevant documents is granted as to Request Nos. 2,5,11,
`
`12, 14, 18,22,23,25,27,31,34, and 35 of Caterpillar’s first set of document requests but denied
`
`as to Request Nos. 45,48 and 50-63 of Caterpillar’s second set of document requests and Request
`
`Nos. 9, 10, 21, and 29 of Caterpillar’s first set of document requests.
`
`11.
`
`BACKGROUND
`
`On November 20, 2006 Complainant Caterpillar, Inc. (“Caterpillar”) moved to compel
`
`Respondents Ritchie Bros. Auctioneers, Inc., Ritchie Bros. Auctioneers (America) Inc., Alex Lyon
`
`& Son Sales Managers and Auctioneers, Inc., Deanco Auction Company of Mississippi, Inc.,
`
`Petrowsky Auctioneers, Inc., and Yoder & Frey Auctioneers, Inc. (hereinafter “Auction House
`
`Respondents”) to produce certain documents in response to discovery requests and pursuant to an
`
`agreement between the parties [Motion Docket No. 582-0041. Specifically, Caterpillar is seeking
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable Robert L. Barton, Jr.
`Administrative Law Judge
`
`%
`
`(-7
`
`In the Matter of
`
`CERTAIN HYDRAULIC EXCAVATORS AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-582
`
`ORDER NO. 10: DENYING IN PART AND GRANTING IN PART COMPLAINANT’S
`MOTION TO COMPEL AUCTION HOUSE RESPONDENTS TO PRODUCE
`RELEVANT DOCUMENTS
`(December 8,2006)
`
`I.
`
`SUMMARY
`
`For the following reasons, Complainant Caterpillar, Inc.’s (“Caterpillar”) motion to compel
`
`Auction House Respondents to produce relevant documents is granted as to Request Nos. 2,5,11,
`
`12, 14, 18,22,23,25,27,31,34, and 35 of Caterpillar’s first set of document requests but denied
`
`as to Request Nos. 45,48 and 50-63 of Caterpillar’s second set of document requests and Request
`
`Nos. 9, 10, 21, and 29 of Caterpillar’s first set of document requests.
`
`11.
`
`BACKGROUND
`
`On November 20, 2006 Complainant Caterpillar, Inc. (“Caterpillar”) moved to compel
`
`Respondents Ritchie Bros. Auctioneers, Inc., Ritchie Bros. Auctioneers (America) Inc., Alex Lyon
`
`& Son Sales Managers and Auctioneers, Inc., Deanco Auction Company of Mississippi, Inc.,
`
`Petrowsky Auctioneers, Inc., and Yoder & Frey Auctioneers, Inc. (hereinafter “Auction House
`
`Respondents”) to produce certain documents in response to discovery requests and pursuant to an
`
`agreement between the parties [Motion Docket No. 582-0041. Specifically, Caterpillar is seeking
`
`
`
`to compel the Auction House Respondents to:
`
`2
`
`1. promptly search for all documents within their possession, custody, or control for material
`
`responsible to Request Nos. 2, 5, 11, 12, 14, 18, 22, 23, 25, 27, 31, 34, and 35 of
`
`Caterpillar’s first set and Request Nos. 45,48 and 50-63 of caterpillar’s second set;
`
`2. search for documents responsive to Request Nos. 9,10,21 and 29, notwithstanding their
`
`objections;
`
`3. scan all documents located in the above two categories and sent them to counsel on CDs
`
`no later than one week from the date of this order.
`
`Respondents Deanco Auction Co. of Mississippi, Inc., Petrowsky Auctioneers, Inc., Ritchie
`
`Bros. Auctioneers (America), Inc. and Ritchie Bros. Auctioneers, Inc. (hereinafter “Blank Rome
`
`Respondents”) are represented by the law firm of Blank Rome LLP. Respondents Yoder & Frey
`
`Auctioneers, Inc. and Alex Lyon & Son Sales Managers and Auctioneers, Inc. (hereinafter “Bryan
`
`Cave Respondents”) are represented by the law firm of Bryan Cave LLP. On November 30,2006
`
`the Blank Rome Respondents and the Bryan Cave Respondents each filed an opposition to the
`
`motion. Commission Investigative Staff did not file a response to the motion.
`
`111. DISCUSSION
`
`A.
`
`THE SECOND SET OF DOCUMENT REQUESTS
`
`The Bryan Cave Respondents claim that Caterpillar’s motion should be denied as it pertains
`
`to the second set of document requests, because Caterpillar failed to comply with the “meet and
`
`confer” requirements of Ground Rule 3.3. Having reviewed Caterpillar’s certification pursuant to
`
`Ground Rule 3.3 and the exhibits referenced therein, I agree with the Bryan Cave Respondents.
`
`Caterpillar’s motion to compel pertaining to the second set of document requests is hereby DENIED
`
`
`
`3
`for failure to comply with the meet and confer requirements of Ground Rule 3.3. See Order No. 9
`
`(December 4,2006).
`
`B.
`
`THE DOCUMENT REQUEST NOS. 2,5,11,12,14,18,22,23,25,27,31,34,
`
`and 35
`
`The Auction House Respondents have taken the position that they will not search for and
`
`produce hard copies of certain documents responsive to Request Nos. 2,5, 11, 12, 14,18,22,23,
`
`25, 27, 31, 34, and 35 of the first set of document requests but will instead allow Caterpillar’s
`
`counsel to inspect and copy the documents as they are kept in the ordinary course of business
`pursuant to Commission Rule 210.30(b)(2). See Blank Rome Response at 1 ; Bryan Cave Response
`
`at 2-4. The Auction House Respondents also assert that they have produced in electronic format the
`
`information that Caterpillar seeks. Bryan Cave Response at 1; Blank Rome Response at 2-4.
`
`Caterpillar contends that the parties agreed to search for and scan documents responsive to
`
`discovery requests at the beginning of this investigation. Motion Memo. at 1. The agreement that
`
`Caterpillar relies upon was initiated by a letter from Mark L. Whitaker (counsel for Caterpillar) to
`
`Kenneth Bressler of Blank Rome and Lyle Vander Schaaf of Bryan Cave dated September 21,2006.
`Motion Ex. A. The letter states in pertinent part
`
`With respect to the production of documents, Caterpillar proposes
`that the parties agree to use computer, electronic, magnetic or optical
`media (e.g., CD, DVD, and e-mail with attached documents in
`Tagged Image File Format (“.tiff”) with load files) to the greatest
`extent possible. Production should be effectuated by hand delivery
`to counsel located in the District of Columbia.
`
`Ex. A. at 1-2 (emphasis added). In response to this letter, Mr. Bressler replied on behalf of the Blank
`
`Rome Respondents, “We agree with the protocols proposed by Mark in his letter of September 21,
`
`
`
`4
`2006” and then listed one exception which is not pertinent here. Ex. B to Motion, p.1. Mr. Vander
`
`Schaaf replied on behalf of the Bryan Cave Respondents, “We agree with the protocols proposed by
`
`Mark . . .” Ex. C. to Motion, p. 1. The Auction House Respondents made an agreement with
`
`Caterpillar that they would produce documents by hand delivery to counsel located in the District
`
`of Columbia. Respondents cannot now renege on that agreement because producing the documents
`
`has become more difficult than anticipated. Therefore, I am granting Complainant’s motion to
`
`compel responsive documents to Request Nos. 2,5, 11, 12, 14, 18,22,23,25,27,31,34, and 35
`
`of the first set of document requests in “tiff’ format.
`RESPONDENTS’ OBJECTIONS TO REQUEST NOS. 9’10’21 AND 29
`
`C.
`
`The Blank Rome Respondents re-urge their objections to Request Nos. 9, 10,21, and 29.
`
`Blank Rome Response at 13-16. The Blank Rome Respondents object to the document requests
`because inter alia they seek information that is not relevant to this investigation. Id. Complainant
`
`claims that these requests are clearly relevant to “market issues.” Motion Memo. at 3. Having
`
`reviewed the requests, I am denying Complainant’s motion to compel as to these requests because
`
`they seek information not relevant to this investigation.
`
`IV. CONCLUSION
`
`The Auction House Respondents are ordered to produce responsive documents to Request
`
`Nos. 2,5, 11, 12,14, 18,22,23,25,27,31,34, and 35 of the first set of document requests in “tiff’
`
`format by hand delivery to counsel located in the District of Columbia within one week of the date
`
`of this order.
`
`Within seven days of the date of this document, each party shall submit to the Office of the
`
`Administrative Law Judges a statement as to whether or not it seeks to have any portion of this
`
`
`
`5
`
`document deleted from the public version. The parties’ submissions may be made by facsimile
`
`and/or hard copy by the aforementioned date.
`
`Any party seeking to have any portion of this document deleted from the public version
`
`thereof must submit to this office a copy of this document with red brackets indicating any portion
`
`asserted to contain confidential business information. The parties’ submissions concerning the public
`
`version of this documeht need not be filed with the Commission Secretary.
`SO ORDERED.
`__ _.,. - --..
`
`-,,_
`
`Robert L. Barton, Jr.
`Administrative Law Judge
`
`
`
`CERTAIN HYDRAULIC EXCAVATORS AND COMPONENTS THEREOF
`
`Inv. No. 337-TA-582
`
`CERTIFICATE OF SERVICE
`
`I, Marilyn R. Abbott, hereby certify that the attached ORDER was served upon, Rett
`Snotherly, Esq., Commission Investigative Attorney, and the following parties via first class
`mail and air mail where necessary on December 26
`,2006.
`
`p. /464%-77-
`
`arilyn R. hbott, Secretary
`U.S. International Trade Cokission
`500 E Street, S.W., Room 112A
`Washington, D.C. 20436
`
`FOR COMPLAINANT CATERPILLAR, INC.:
`
`Cecilia H. Gonzalez, Esq.
`Thomas Burns, Esq.
`Mark L. Whitaker, Esq.
`Margaret D. Macdonald, Esq.
`HOWREY LLP
`1299 Pennsylvania Ave., N.W.
`Washington, D.C. 20004
`
`FOR RESPONDENTS MUSSELMAN CONSTRUCTION CO., dba, MUSSELMAN
`RENTALS AND SALES, DEANCO AUCTION CO., OF MISSISSIPPI, INC.,
`TRACTORLAND EQUIPMENT CO., INC., PACIFIC RIM MACHINERY, INC.,
`PETROWSKY AUCTIONEERS, INC., RITCHIE BROS. AUCTIONEERS INC., AND
`RITCHIE BROS. AUCTIONEERS (AMERICA) INC.:
`
`Jennifer K. Gershberg, Esq.
`Jonathan Silverman, Esq.
`Victor M. Wigman, Esq.
`Leslie J. Polt, Esq.
`Susan B. Flohr, Esq.
`Michael D. White, Esq.
`Denise C. Lane-White, Esq.
`Michael R. Strand, Esq.
`Jason W. Staib, Esq.
`BLANK ROME LLP
`600 New Hampshire Ave., N W
`Washington, D.C. 20037
`
`
`
`CERTAIN HYDRAULIC EXCAVATORS AND COMPONENTS THEREOF
`
`Inv. No. 337-TA-582
`
`Kenneth L. Bressler, Esq.
`BLANK ROME LLP
`The Chrysler Building
`405 Lexington Ave.
`New York, NY 10174-0208
`
`FOR RESPONDENTS ALEX LYON & SON SALES MANAGERS, DOM-EX LLC,
`HOSS EQUIPMENT CO., KUHN EQUIPMENT SALES, MMS EQUIPMENT SALES
`LLC, PRIMA INTERNATIONAL TRADING, SOUTHWESTERN MACHINERY OF
`FLORIDA, UNITED EQUIPMENT COMPANY, WORLD TRACTOR & EQUIPMENT
`COMPANY, LLC, WORLDWIDE MACHINERY, INC., AND YODER & FREY
`AUCTIONEERS:
`
`Lyle B. Vander Schaaf, Esq.
`Joseph H. Heckendorn, Esq.
`Corey L. Norton, Esq.
`Kelly A. Slater, Esq.
`BRYAN CAVE LLP
`700 Thirteenth Street, N W
`Washington, D.C. 20005
`
`FOR RESPONDENT KEY EQUIPMENT, LLC.:
`
`John F. Gaebler, Esq.
`GODFREY & KAHN, S.C.
`780 North Water Street
`Milwaukee, WI 53202
`
`RESPONDENTS:
`
`Barkley Industries, LLC
`13309 West Palo Verde Dr.
`P.O. Box 579
`Litchfield Park, AR 85340
`
`Frontera Equipment Sales
`2300 East Expressway 83 N
`Donna, TX 78537
`
`
`
`CERTAIN HYDRAULIC EXCAVATORS AND COMPONENTS THEREOF
`
`Inv. No. 337-TA-582
`
`PUBLIC MALING LIST
`
`Sherry Robinson
`LEXIS - NEXIS
`889 1 Gander Creek Drive
`Miamisburg, OH 45342
`
`Ronnita Green
`Thomson West
`1100 - 13* Street N W
`Suite 200
`Washington, D.C. 20005
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
