Roadrunner Intermodal Services, LLC v. T.G.S. Transportation, Inc.

RESPONSE

E.D. Cal.March 8, 2019

Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S FEBRUARY 22, 2019 ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ROADRUNNER INTERMODAL SERVICES, LLC, a Delaware limited liability company, Plaintiff, v. T.G.S. TRANSPORTATION, INC., a California corporation, and DOES 1-10, Defendants. CASE NO. 1:17-cv-01056-DAD-BAM (Consolidated with Case No. Case No. 1:17-cv- 01207-DAD-BAM) ROADRUNNER INTERMODAL SERVICES LLC’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S FEBRUARY 22, 2019 ORDER (ECF No. 177) JEFFREY COX, Plaintiff, v. ROADRUNNER INTERMODAL SERVICES, LLC, et al., Defendant(s). ROADRUNNER INTERMODAL SERVICES, LLC, a Delaware limited liability company, Defendant and Counter- Plaintiff, v. JEFFREY COX, Plaintiff and Counter- Defendant. James M. Nelson – SBN 116442 Kurt A. Kappes – SBN 146384 Michael D. Lane – SBN 239517 Michelle L. DuCharme – SBN 285572 GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 Sacramento, CA 95814-3938 Telephone: (916) 442-1111 Facsimile: (916) 448-1709 nelsonj@gtlaw.com kappesk@gtlaw.com lanemd@gtlaw.com ducharmem@gtlaw.com Attorneys for ROADRUNNER INTERMODAL SERVICES, LLC and CENTRAL CAL TRANSPORTATION, LLC Case 1:17-cv-01056-DAD-BAM Document 186 Filed 03/08/19 Page 1 of 5 1 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S FEBRUARY 22, 2019 ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to this Court’s February 22, 2019 Order Requiring Further Briefing Regarding Request to Seal (“Order”), Defendant Roadrunner Intermodal Services, LLC (“Roadrunner”) hereby submits this supplemental brief and asks that the Court permit it to file certain exhibits with proprietary information redacted pursuant to Local Rule 140(b). I. BACKGROUND On February 18, 2019, Roadrunner submitted its motion for summary judgment (“MSJ”) and a motion to seal specific exhibits submitted in support of its MSJ (“Motion to Seal”). (ECF Nos. 175, 176.) Specifically, in the Motion to Seal Roadrunner sought to seal: four emails sent by Plaintiff Jeffrey Cox from his work email on the morning of May 31, 2017 (Exhibits J, K, L, and Q); an excerpt from the September 20, 2018 deposition of Jeff Hershey (Exhibit P); and an excerpt from the September 29, 2017 deposition of Jeffrey Cox (Exhibit D). On February 22, 2019, the Court ordered Roadrunner to provide compelling reasons as to why these documents should be sealed as opposed to merely redacting certain portions of these exhibits. (See ECF No. 177 at 4-5.) The Court explained that “compelling reasons sufficient to justify sealing court records exist when such court files might become a vehicle for improper purposes, such as . . . [to] release trade secrets.” (Id. at 4 (quoting Kamakana v. City & Cty. Of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal quotation marks, alterations, and citation omitted)).) Thus, to meet this standard, Roadrunner “must explain how disclosure of this information would unfairly harm its business operations.” (Id. at 5.) II. DISCUSSION As the Court notes in its Order, “[a]ll documents filed with the court are presumptively public.” (ECF No. 177 at 2 (citing San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999).) Upon further review, Roadrunner concedes that Exhibits P and D do not contain proprietary information, and therefore Roadrunner withdraws its request to seal these two documents.1 However, Roadrunner asks that the Court file the four exhibits evidencing Plaintiff’s May 31, 2017 emails with particular redactions of confidential information in place pursuant to Local Rule 140(b). As the Court notes, this rule permits counsel to request an order authorizing redaction when counsel seeks to submit protected information. Moreover, if the Court permits the filing of these exhibits with redactions of 1 These documents will be filed at a separate entry on the docket. Case 1:17-cv-01056-DAD-BAM Document 186 Filed 03/08/19 Page 2 of 5 2 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S FEBRUARY 22, 2019 ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specific proprietary information, Roadrunner will provide the Court with completely unredacted versions of Exhibits J, K, and L for its review so long as those exhibits are not shared with Plaintiff.2 A. Exhibit J This exhibit was provided to Plaintiff during the course of discovery with certain redactions already in place. These redactions included the removal of email addresses of Roadrunner clients, the subject matter line of the emails, and the business names for which those client representatives worked. Both of these individual representatives work for companies that are clients of Roadrunner. Because Roadrunner considers its client information to be confidential and proprietary, it requests that the information for these companies remain redacted. Moreover, it is well-established that compelling reasons to seal documents exist where records may be used “as sources of business information that might harm a litigant’s competitive standing” or otherwise constitutes “private financial information of competitive value.” In re Hydroxycut Mktg. & Sales Practices Litig., 2011 WL 3759632, at *1 (S.D. Cal. Aug. 25, 2011) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)) (internal quotation marks removed); see also SMD Software, Inc. v. EMove, Inc., 2013 WL 1091054, at *1-2 (E.D.N.C. Mar 15, 2013) (finding information plaintiffs said contained confidential financial information did in fact “contain confidential and proprietary information which could be harmful to plaintiffs if revealed to the marketplace.”). Roadrunner believes that disclosing its client’s business email addresses, the business names, and the subject matter of the email exchange between Roadrunner and the client jeopardizes its competitive advantage in the freight industry. This is consistent with Roadrunner’s position in the related case that client information is confidential and proprietary. In that vein, Roadrunner requests that the names of the individual representatives for the clients be additionally redacted to ensure that these individuals may not be connected back to Roadrunner’s clients. See Pyro Spectaculars North, Inc. v. Souza, Case No. 2:12-cv-00299-GGH at ECF No. 43 (filed March 8, 2012), page 3, lines 9-14 (“These documents contain the names of customers[] [and] contact persons, . . . that are related to the parties’ proprietary business operations and potential trade secrets”). Finally, because the purpose of this exhibit is to demonstrate that Plaintiff provided de minimus, off-the- 2 A completely unredacted version of Exhibit Q was sent to the Court on February 18, 2019. Roadrunner can send completely unredacted versions of Exhibits J, K, and L for in camera, ex parte review if the Court requires. Case 1:17-cv-01056-DAD-BAM Document 186 Filed 03/08/19 Page 3 of 5 3 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S FEBRUARY 22, 2019 ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 clock work on the morning of May 31, 2017, when he sent an email, Roadrunner concurrently files only the first page of this exhibit with these specific redactions in place (Bates Stamped DEFS_FR000331). B. Exhibit K Similarly, Roadrunner presented Exhibit K in support of its MSJ to demonstrate that Plaintiff performed de minimus work for Roadrunner on the morning of May 31, 2017, and that there are no wages owed to Plaintiff for that date. This exhibit was produced during discovery and Plaintiff did not object to the redactions of client company names, client representative names, client representative email addresses, or fees for Roadrunner’s service. Given the limited purpose of this email in support of the MSJ, Roadrunner submits only the first page of this exhibit (Bates Stamped DEFS_FR000108), which shows that Plaintiff sent an email the morning of May 31, 2017, on behalf of Roadrunner. Furthermore, Roadrunner requests that the subject line of this email be redacted, as it references the company name of one of Roadrunner’s clients. As discussed in the previous section, Roadrunner considers the identity of its clients to be confidential and proprietary, and disclosure of a client’s identity would impair its business interests and competitive advantage in the freight industry. C. Exhibit L Exhibit L was produced during the course of discovery with certain redactions already in place. Specifically, the redactions included the work email addresses of two individual representatives for one of Roadrunner’s clients. Plaintiff did not object to these redactions. Roadrunner then provided this email in support of its MSJ to again demonstrate that Plaintiff provided only de minimus, off-the-clock work on the morning of May 31, 2017, and is thus not entitled to wages for that day. Because Roadrunner’s position is that the identity of clients is confidential and proprietary, and because of the possibility of connecting these individuals to the companies they represent, Roadrunner requests that it be permitted to file this exhibit publicly with redactions of the names and email addresses of the individual representatives of the particular client company. Further, because only the first page of this exhibit is relevant to Roadrunner’s argument in the MSJ concerning de minimus work Plaintiff performed on May 31, 2017, Roadrunner submits only the first page of the exhibit with these redactions in place (Bates Stamped DEFS_FR000342). /// Case 1:17-cv-01056-DAD-BAM Document 186 Filed 03/08/19 Page 4 of 5 4 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S FEBRUARY 22, 2019 ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Exhibit Q Exhibit Q is comprised of two pages of emails and was provided without any redactions to Plaintiff during the course of discovery. Roadrunner is willing to file this exhibit publicly but requests that the exhibit be filed with the name of one of Roadrunner’s clients redacted (identified on Bates Stamped DEFS_FR000731). While the name of this client was provided to Plaintiff, it has not been disclosed to the general public. Given the tortious interference and unfair competition allegations Roadrunner raised against Plaintiff’s current employer in the related action, and Roadrunner’s personal knowledge that Plaintiff solicited customers, employees, and contractors for business with Roadrunner’s competitor, Roadrunner believes that the companies Plaintiff communicated with during his employment with Roadrunner should be redacted to protect Roadrunner’s business interests and competitive advantage in the freight industry. Moreover, the purpose of this exhibit is to demonstrate that Roadrunner had a legitimate business reason for terminating Plaintiff’s employment, and the identity of the client is not germane to disposing of this issue in the MSJ. III. CONCLUSION In sum, Roadrunner will submit Exhibits P and D without any redactions and not under seal but requests that the Court permit it to file the specified pages of Exhibits J, K, L and Q with particular redactions of confidential proprietary information. Dated: March 8, 2019 GREENBERG TRAURIG, LLP By: /s/James M. Nelson James M. Nelson Kurt A. Kappes Michael D. Lane Michelle L. DuCharme Attorneys for Roadrunner Intermodal Services, LLC and Central Cal Transportation, LLC Case 1:17-cv-01056-DAD-BAM Document 186 Filed 03/08/19 Page 5 of 5