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

RESPONSE

E.D. Cal.March 21, 2019

Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S MARCH 7, 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 MARCH 7, 2019 ORDER (ECF No. 183) 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 196 Filed 03/21/19 Page 1 of 5 1 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S MARCH 7, 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 March 7, 2019 Order Requiring Further Briefing Regarding Plaintiff Cox’s Request to Seal (“Order”) (ECF No. 183), Defendant Roadrunner Intermodal Services, LLC (“Roadrunner”) hereby submits this supplemental brief and asks that the Court allow certain exhibits to be filed publicly but with particular redactions in place, as is consistent with 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.) Roadrunner supplied the requisite brief on March 8, 2019, conceding that the exhibits could be filed publicly albeit with four of the six having certain redactions in place to conceal confidential and proprietary information. (ECF Nos. 186, 186-1, 186-2, 186-3, 186-4, 187, 187-1, 187-2.) On March 5, several hours before intending to file his opposition (ECF No. 181), Cox’s counsel emailed counsel for Roadrunner, asking that counsel provide a response by 5:00 p.m. as to whether Cox could publicly file seven exhibits in support of his opposition that were designated confidential or attorneys’ eyes only under the protective order. These exhibits included five emails (JAC1 Exs. C, D, E, and F and CMR2 Ex. D) and excerpts from the September 29, 2017 deposition of Cox (CMR Ex. M) and the September 20, 2018 deposition of Jeff Hershey (CMR Ex. N). Many of these exhibits overlap with those already addressed by Roadrunner in its supplemental brief. Nonetheless, Roadrunner will address each of Cox’s sealed exhibits in turn. II. DISCUSSION A. CMR Exhibit M CMR Exhibit M includes pages 16 and 17 of the September 29, 2018 deposition of Cox. 1 “JAC” refers to exhibits attached to the declaration of Plaintiff Jeffrey A. Cox. 2 “CMR” refers to exhibits attached to the declaration of attorney Christopher M. Rusca. Case 1:17-cv-01056-DAD-BAM Document 196 Filed 03/21/19 Page 2 of 5 2 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S MARCH 7, 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 Roadrunner produced the same pages of this deposition in support of its motion for summary judgment in Exhibit D. Because Roadrunner has conceded that there are no compelling reasons to seal this exhibit, it filed the document publicly. (ECF No. 187-1.) Therefore, Roadrunner does not object to the public filing of CMR Exhibit M. B. CMR Exhibit N CMR Exhibit N includes pages 127 through 129 and pages 135 through 137 of the September 20, 2018 deposition of Jeff Hershey. Roadrunner produced pages 135 and 136 of this deposition in its Exhibit P and filed the entirety of Exhibit P publicly. (ECF No. 187-2.) After a review of the additional pages produced by Cox from Hershey’s deposition, Roadrunner concedes that there is no compelling reason to seal CMR Exhibit N and does not object to it being filed publicly. C. CMR Exhibit D CMR Exhibit D is an email thread between Ben Kirkland and Judy Vijums entitled “Jeff Cox – No Compete letter.” While Roadrunner does not take issue with the public filing of this exhibit, it believes there are compelling reasons to redact the name of a client, the identification of a specific industry for which Roadrunner provides services, and the profits for particular Roadrunner terminals. Because Roadrunner considers its client information and sales revenue to be confidential and proprietary, it requests that this information be 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 identities and its sales revenues 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. Therefore, Roadrunner concurrently files CMR Exhibit D with this brief with the additional Case 1:17-cv-01056-DAD-BAM Document 196 Filed 03/21/19 Page 3 of 5 3 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S MARCH 7, 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 redactions it requests and will email the completely unredacted email thread for the Court’s review. D. JAC Exhibit D JAC Exhibit D is an email Cox sent on the morning of May 31, 2017. Roadrunner produced this email with specific, additional redactions3 in place at its Exhibit K. (ECF No. 186-2.) Based on its March 8 supplemental brief, Roadrunner does not object to the filing of JAC Exhibit D so long as it has the additional redactions in place as noted in Roadrunner’s brief (and as demonstrated at ECF No. 186- 2). Furthermore, if the Court requests, it will produce a completely unredacted version of this exhibit so long as it is for an ex parte, in camera review. E. JAC Exhibit F JAC Exhibit F is an email Cox sent on the morning of May 31, 2017. Roadrunner produced this email to Cox during the course of discovery with specific, additional redactions in place at its Exhibit L. (ECF No. 186-3). As stated in the previous section and its prior brief, Roadrunner does not object to the public filing of this exhibit so long as the additional redactions are in place. Roadrunner is also willing to produce a completely unredacted JAC Exhibit F to the Court so long as it is for an ex parte, in camera review. F. JAC Exhibit E Exhibit E is an email Cox sent on the morning of May 31, 2017. Roadrunner produced this email in support of its motion for summary judgment with specific, additional redactions in place at its Exhibit J. (ECF No. 186-1). Roadrunner does not object to the public filing of this exhibit so long as the additional redactions are made and is also willing to produce a completely unredacted version of JAC Exhibit E to the Court so long as it is for an ex parte, in camera review. G. JAC Exhibit C Exhibit C is an email Cox sent to Mark Avila the morning of May 31, 2017. Roadrunner produced this email thread in the original version of Exhibit K with specific redactions that had already been added in discovery and presented this version of the exhibit only by email to the Court. Then, upon further review, Roadrunner produced only the first page of Exhibit K with additional redactions of the client contact’s name. (ECF No. 186-2.) Roadrunner does not object to the public filing of JAC Exhibit 3 During the course of discovery, this email was produced to Cox but with specific redactions already in place. Roadrunner added several more redactions before publicly filing Exhibit K. Case 1:17-cv-01056-DAD-BAM Document 196 Filed 03/21/19 Page 4 of 5 4 Case No. 1:17-cv-01056-DAD-BAM ROADRUNNER’S SUPPLEMENTAL BRIEF IN RESPONSE TO THE COURT’S MARCH 7, 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 C so long as the client contact’s name is redacted. Therefore, Roadrunner files a redacted version of JAC Exhibit C concurrently with this brief. Furthermore, Roadrunner is willing to provide a completely unredacted version of its original Exhibit K to the Court for ex parte, in camera review so that it may confirm that the redacted information is confidential. III. CONCLUSION In sum, Roadrunner does not object to the public filing of these exhibits so long as confidential information is redacted from CMR Exhibit D and JAC Exhibits C, D, E, and F. Dated: March 21, 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 196 Filed 03/21/19 Page 5 of 5