Koziol v. United States of America

RESPONSE in Opposition re Amended MOTION to Compel and Notice of Motion and for Sanctions

S.D. Cal.July 1, 2008

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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA THEODORE AND LOIS KOZIOL Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. Case No.: 08-CV-947 DMS (BLM) Civ. No.: 07-3432 Eastern District of Pennsylvania NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL Date: August 13, 2008 Time: 1:30 p.m. Judge: Hon. Barbara L. Major Courtroom: TBD Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 1 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 i TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT .............................................................................................. 1 II. BACKGROUND ...................................................................................................................... 1 A. The Subpoenas and GA and GA-ASI's Efforts to Resolve the Matter ......................... 1 B. The Documents Sought Are Not for the FOIA Action. ................................................ 2 C. GA-ASI Has Confidential Documents.......................................................................... 3 D. Plaintiffs Insist on Litigation, Not Resolution. ............................................................. 4 III. LEGAL ARGUMENT.............................................................................................................. 5 A. The Court Should Deny Plaintiffs' Motion to Compel on the Grounds that the Subpoena Requests Discovery Outside the Scope of Rules 26(b) and Rule 45 of the Federal Rules of Civil Procedure........................................................................ 5 B. The Court Lacks Subject Matter Jurisdiction to Compel the Production of Documents Solely Relevant to an Action Residing in New Jersey State Court, and Plaintiffs' use of the Tools Provided in the Federal Rules of Civil Procedure to Circumvent Proper Process Under State Law Should Not Be Permitted. ...................................................................................................................... 7 C. The Documents Requested by the Subpoenas Contain Confidential, Proprietary Information and Warrant the Entry of a Protective Order to Govern the Disclosure of their Contents....................................................................... 9 D. Plaintiffs Have Failed to Abide by Local Rule 26.1's Meet and Confer Gateway Requirement to Filing a Motion to Compel and Have Failed to Cooperate in Discovery Pursuant to Rule 45.............................................................. 10 E. There Are No Legal or Factual Grounds to Support an Award of Sanctions Against the Non-Parties. ............................................................................................. 11 IV. CONCLUSION....................................................................................................................... 12 Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 2 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 ii TABLE OF AUTHORITES Page CASES Anderson v. Abercrombie & Fitch Stores, Inc., Civ. No. 06CV991-WQH, 2007 WL 1994059 (S.D. Cal. July 2, 2007) ...................................5, 6 Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502 (1963) ............................8 Compaq Computer Corp. v. Packard Bell Elecs., Inc., 163 F.R.D. 329 (N.D. Cal. 1995) .................6 Dove v. Atlantic Capital Corp., 963 F.2d 15 (2d Cir. 1992) ...............................................................8 Exxon Corp. v. Crosby-Mississippi Resources, Ltd., 40 F.3d 1474 (5th Cir. 1995)............................7 Fairview Dev. Corp. v. Aztex Custom Homebuilders, LLC, No. CV-07-0337-PHX-SMM, 2008 WL 2113492 (D. Ariz. May 16, 2008) ........................10, 11 Houston Business Journal, Inc. v. Office of Comptroller of Currency, U.S. Department of Treasury, 86 F.3d 1208 (D.C. Cir. 1996) ..................................................7, 8 Rivera v. NIBCO, 364 F.3d 1057 (9th Cir. 2004) ................................................................................7 Schaffeld v. Scios, Inc., No. 07-121-S-EJLLMB, 2008 WL 1702065 (D. Idaho Apr. 10, 2008) ........7 Snap Lite Corp. v. Stewart Warner Corp., 40 F. Supp. 776 (S.D.N.Y. 1941).....................................8 Tiberi v. CIGNA Ins. Co., 40 F.3d 110 (5th Cir. 1994) .....................................................................11 United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 108 S.Ct. 2268 (1988)...............................................................................................7 United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357 (1950).............................................8, 9 Watson v. State of Montana, No. CV-04-16-H-CSO, 2006 WL 2095420 (D. Mont. July 27, 2006) ............................................................................................................................................11 STATUTES Fed. R. Civ. P. 26(b) ..................................................................................................................Passim Fed. R. Civ. P. 45.......................................................................................................................Passim Freedom of Information Act, 5 U.S.C. § 552 ..................................................................................2, 6 Unif. Interstate & Int'l Proc. Act § 3.02(a), 13 U.L.A. 355, 391-92....................................................8 Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 3 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 1 I. PRELIMINARY STATEMENT In February and April, Plaintiffs served subpoenas (the "Subpoenas") on both General Atomics ("GA") and General Atomics Aeronautical Systems, Inc., respectively. ("GA- ASI," and collectively with GA, the "Non-Parties,"). The Subpoenas were issued from the above- captioned action, a Freedom of Information Act case in Federal Court in Pennsylvania. But the documents sought in the Subpoenas are not relevant to that case. Instead, Plaintiffs want the subpoenaed documents for a State court case in New Jersey. Even so, the Non-Parties agreed to search for documents. GA-ASI, but not GA, has documents to produce, and many of the documents contain confidential information. In early April, GA-ASI asked Plaintiffs to agree to a protective order. Plaintiffs' counsel summarily rejected the protective order and nearly two months later filed this Motion. On June 11, 2008, this Court held a conference call with the Plaintiffs' and Non- Parties' counsel and encouraged resolution of this dispute. The Non-Parties sent a revised protective order to Plaintiffs' counsel. This time, Plaintiffs' counsel considered the draft. After discussion, counsel for the parties resolved all but three issues, at least one of which required consent from GA-ASI. Rather than let GA-ASI's counsel consult with their client, Plaintiffs' counsel shut down the talks and insisted that the Non-Parties file their opposition to the Motion. Therefore, the Non-Parties are compelled to file this Opposition and brief the relevant legal issues. II. BACKGROUND A. The Subpoenas and GA and GA-ASI's Efforts to Resolve the Matter The Rule 45 Subpoenas issued to Non-Parties GA and GA-ASI seek documents containing confidential research and development, and proprietary information that is irrelevant to the action underlying the Subpoenas. Plaintiffs acknowledge the documents commanded through the federal subpoena power under the Pennsylvania action captioned above (the "Pennsylvania Federal Action") are not for that action, but rather for a State court case in New Jersey. (Declaration of Daniel A. Lowenthal at ¶¶ 9, 10 hereinafter "Lowenthal Decl.".) Despite Plaintiffs' circumvention of the New Jersey Court Rules governing State subpoenas, GA-ASI agreed to produce confidential documents pursuant to a protective order (GA does not have Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 4 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 2 responsive documents). (Lowenthal Decl. at ¶ 19.) The Non-Parties first proposed a protective order in early April, before this Motion was filed. Plaintiffs' counsel rejected it. (Lowenthal Decl. at ¶ 16.) After the Motion was filed, the Non-Parties proposed a second protective order. Id. at ¶ 21. This time, counsel for both sides negotiated the terms of the protective order through Friday night, June 27, 2008. Id. at ¶¶ 23-26. Just three issues remained unresolved by 9:00 p.m. that night: (1) Plaintiffs' lead counsel, Arthur Wolk, requested to insert a provision that excuses him and other parties from breach of the protective order if he or they use the information in a brief or in a filing without "trying" to breach the protective order. He explained that "sometimes people in [his] office screw things up." (2) Mr. Wolk requested to strike a provision that requires a party wishing to use confidential information in a courtroom to request that the courtroom be closed during such use (this provision provides that if the court refuses, that party may nevertheless proceed). (3) Mr. Wolk requested provisions that would enable the New Jersey State court to overrule or disregard the protective order. Non-Parties' counsel informed Plaintiffs' counsel that GA-ASI would need to consider the second request before an agreement could be finalized. Rather than wait for GA-ASI's response on Monday, June 30, 2008 (the day before Non-Parties' opposition to the Motion to Compel was due), Plaintiffs' counsel broke off further discussions, refused to jointly propose to adjourn the briefing schedule before this Court in order to come to a compromise, rejected further cooperation, and instead insisted that this Court do Plaintiffs' work to resolve this dispute. Id. at ¶¶ 25-27. B. The Documents Sought Are Not for the FOIA Action. The action underlying Plaintiffs' Subpoenas is brought under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). See Koziol v. United States of America, Civ. No. 07-3432 (E.D. Pa.) (Docket No. 1) (Lowenthal Decl. at ¶ 6.) Plaintiffs assert a single claim, that the Government did not timely respond to a FOIA request under 5 U.S.C. § 552(a)(6)(A) with respect to information about the Government's service of process on certain Austrian corporate entities. Id. (The Austrian corporations apparently manufacture engines. They are unaffiliated with either GA or GA-ASI, even though Plaintiffs' counsel mistakenly has asserted that they are subcontractors of GA and GA-ASI.) Plaintiffs seek an order requiring the Government to process Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 5 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 3 Plaintiffs' FOIA request and to permit service of a subpoena on the Embassy of Austria. Id. The Government has not yet asserted a defense to the FOIA claim; in the nearly 11 months since the Complaint was filed, Plaintiffs have adjourned the Government's time to answer four times. Id. at ¶ 7. The evident purpose of the Pennsylvania Federal Action is to serve as a platform for Plaintiffs to obtain discovery for a sealed New Jersey State case, Koziol v. Bombardier, Inc., No. OC-NL-2749-07 (N.J. Super. Ocean County). Plaintiffs' counsel, Mr. Wolk, has stated that the documents subpoenaed are demanded for that case. Before this Motion was filed, he refused to reveal more than vague details about the case to GA and GA-ASI's counsel. (Lowenthal Decl. at ¶ 10.) After the Motion was filed, GA and GA-ASI finally learned the name of the case, its docket number, and that the case is pending in State court in New Jersey. Attorney Wolk admitted during the June 11, 2008 conference call with this Court and in an e-mail to GA and GA-ASI's counsel that the documents he seeks are "useless" to the Pennsylvania Federal Action, and that he does not intend to file any of the requested documents in that Action. Id. at ¶ 9. C. GA-ASI Has Confidential Documents. Contrary to attorney Wolk's assertion (Pl.'s Mot. to Compel at p. 7), the Non-Parties did not at any time represent that there were no documents responsive to the Subpoenas. Instead, in an effort to facilitate production, counsel for GA and GA-ASI informed the Plaintiffs that the first Subpoena was served on the wrong entity, GA, and offered to accept service on behalf of GA-ASI to avoid undue expense. Id. at ¶ 4. Plaintiffs' counsel perhaps misreads the two sets of Objections and Responses served by the Non-Parties (or perhaps in an effort to bolster his thin argument for sanctions misconstrues such plain written statements), yet the Objections and Responses are straightforward: The set of Objections and Responses served by GA states that it has no responsive documents, and the set of Objections and Responses by GA- ASI makes no such representation. (Compare GA's Objections and Responses, Pl.'s Not. of Lodgment at Exhibit I, p. 4, lines 6-8 with GA-ASI's Objections and Responses, Pl.'s Not. of Lodgment at Exhibit J, p. 4, lines 12-26.) The two sets of Objections and Responses are consistent with what GA and GA-ASI's counsel has stated throughout, namely that the documents Plaintiffs Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 6 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 4 seek are in GA-ASI's possession, not GA's possession. The documents requested by the Subpoenas contain confidential research and development, and proprietary information. (Declaration of Frank Pace at ¶¶ 4-6, hereinafter "Pace Decl.".) At the onset of negotiations with Plaintiffs' counsel to narrow and refine the scope of the Subpoenas, Plaintiffs' counsel offered to stipulate to a protective order to maintain the confidentiality of the Non-Parties' documents. (Lowenthal Decl. at ¶ 13.) In early April, GA and GA-ASI's counsel drafted and sent Plaintiffs' counsel a proposed protective order. Id. at ¶ 14. But Plaintiffs' counsel summarily rejected it and broke off discussions with GA and GA-ASI's counsel. Nearly two months later, on May 29, 2008, Plaintiffs filed the Motion without even having a meet and confer. D. Plaintiffs Insist on Litigation, Not Resolution. Since the Motion was filed, counsel for GA and GA-ASI have still tried to reach agreement with Plaintiffs' counsel on the terms of production. In fact, counsel for GA and GA- ASI have drafted four versions of a protective order; each version added new provisions requested by Plaintiffs' counsel. (Lowenthal Decl. at ¶¶ 25, 26.) Confusingly, Plaintiffs' counsel somehow views this conciliatory behavior and Non-Parties' attempt to lawfully protect their data as an attempt to "sandbag" his efforts. Id. at ¶ 27. As noted above, Non-Parties' counsel worked late on Friday, June 27, 2008 to reach agreement on the terms of the protective order. The three issues identified above remained unresolved. Non-Parties' counsel informed Plaintiffs' counsel that they would consult with GA and GA-ASI about the updated draft and suggested that the discussions with Plaintiffs' counsel resume on Monday, June 29, 2008. After initially agreeing to do so, Plaintiffs' counsel sent Non-Parties' counsel an email at 12:46 a.m. on Saturday June 28, 2008, that said, "I think you need to brief the motion and we will do the same." Id. In light of these developments, and left with no reasonable alternative, Non-Parties respectfully request that the Court deny Plaintiffs' Motion to Compel on the following grounds: (1) the Subpoenas issued to GA and GA-ASI seek documents irrelevant to the underlying Pennsylvania Federal Action, and as such pose an undue burden on the Non-Parties; (2) the Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 7 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 5 Subpoenas are void, and the Court lacks subject matter jurisdiction to enforce the Subpoenas, because the Subpoenas were drawn to command documents for an underlying State court action and not the Pennsylvania Federal Action; and (3) that the Subpoenas seek documents that contain confidential research and development, and proprietary information, unlimited disclosure of which will cause harm to the Non-Parties. Non-Parties have simultaneously submitted a Cross-Motion to Quash or for a Protective Order, wherein the proposed protective order and legal grounds for entry of such an order are discussed in greater detail. III. LEGAL ARGUMENT A. The Court Should Deny Plaintiffs' Motion to Compel on the Grounds that the Subpoena Requests Discovery Outside the Scope of Rules 26(b) and 45 of the Federal Rules of Civil Procedure. Under Rule 45 of the Federal Rules of Civil Procedure, a party may serve a subpoena commanding a non-party "to produce and permit inspection [and] copying" of documents. Fed. R. Civ. P. 45(a)(1)(C). This Court has held that "[a]ny such subpoena is subject to the relevance requirements set forth in Rule 26(b)." Anderson v. Abercrombie and Fitch Stores, Inc., Civ. No. 06CV991-WQH, 2007 WL 1994059, at *2 (S.D. Cal. July 2, 2007) (Major, J.). Rule 26(b)(1) confines the scope of permissible discovery to any "nonprivileged matter that is relevant to any party's claim or defense," and only after a showing of "good cause" may the Court expand the scope of discovery to matters relevant to the "subject matter" of the action. Fed. R. Civ. P. 26(b)(1). According to the Advisory Committee Notes to Rule 26(b)(1), the 2000 Amendments to the Federal Rules of Civil Procedure abrogated the former entitlement to discovery related to any "subject matter" because "[t]he Committee intend[ed] that the parties and the court focus on the actual claims and defenses involved in the action." Advisory Committee Notes. See also WILLIAM W. SCHWARZER ET AL., RUTTER GROUP PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE BEFORE TRIAL, 11(III)-B (9th ed. 2008) at ¶ 11:610 (quoting Fed. R. Civ. P. 26(b)(1) ("A subpoena may command production only of documents and other things that are . . . 'relevant to the claim or defense of any party' (or if the court has broadened the scope of discovery, 'relevant to the subject matter involved in the action').") Further, parties have no entitlement to Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 8 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 6 discovery to develop new claims or defenses that are not identified in the pleadings. In re REMEC, Inc. Sec. Litig., Civ. No. 04CV1948, 2008 WL 2282647, at *2 (S.D. Cal. May 30, 2008) (citing Fed. R. Civ. P. 26(b)(1)). This Court has recognized that relevancy is a threshold standard and has found that "relevancy is not without 'ultimate and necessary boundaries.'" Anderson, 2007 WL 1994059, at *1 (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385 (1947)). Moreover, this Court held in Anderson, 2007 WL 1994059, at *2 (citing Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813-14 (9th Cir. 2003)), that "a subpoena is unduly burdensome where it seeks to compel production of documents regarding topics unrelated to or beyond the scope of the litigation." If the "sought-after documents are not relevant nor calculated to lead to the discovery of admissible evidence, then any burden whatsoever imposed upon [a non-party] would be by definition 'undue.'" Compaq Computer Corp. v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 335-336 (N.D. Cal. 1995). In the Pennsylvania Federal Action, Plaintiffs have asserted a single claim to enjoin the Government from failing to adhere to its obligation under FOIA, 5 U.S.C. § 552 (6)(A), to "determine within 20 days . . . after the receipt of [a FOIA request] whether to comply with such request." To prevail on such a claim, Plaintiffs would presumably set forth proof of a FOIA request, and proof that the Government did not respond, or did not respond sufficiently to such a request. The documents Plaintiffs seek relate to the maintenance and repair of Rotax engines, accident investigations, Rotax engine fires, and the purchase of Rotax engines, and would not lead to the discovery of evidence relevant to support or defend against the FOIA claim. (See Subpoena Issued to GA-ASI, Pl.'s Not. of Lodgment at Exhibit G.) Plantiffs want the documents for the New Jersey State action. Plaintiffs have set forth no "good cause" to expand the subject matter of their FOIA claims to engulf the RICO and tort claims in the New Jersey State court. There is no need to contort Rule 26(b)(1) to such extremes. The sovereign subpoena power of the State of New Jersey is available to provide access to information that Plaintiffs may need. That Plaintiffs' counsel has been deeply involved in the pursuit of Bombardier Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 9 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 7 and/or Rotax does not mean that Non-Parties should bear the expense of his pursuit. The Ninth Circuit Court of Appeals has held that "[d]istrict courts need not condone the use of discovery to engage in 'fishing expeditions," Rivera v. NIBCO, 364 F.3d 1057, 1072 (9th Cir. 2004) (citing Exxon Corp. v. Crosby-Mississippi Res., Ltd., 40 F.3d 1474, 1487 (5th Cir. 1995)). Requesting documents wholly irrelevant to a federal action, as Plaintiffs have done here, is such an expedition, and courts in this Circuit "will not compel discovery that is wholly speculative." Schaffeld v. Scios, Inc., No. 07-121-S-EJLLMB, 2008 WL 1702065, at *3 (D. Idaho Apr. 10, 2008). The Court should deny Plaintiffs' attempt to compel production of documents that are admittedly irrelevant to the Pennsylvania Federal Action, and thus outside the scope of permissible discovery under Rule 26(b)(1), and which production causes an undue burden on the Non-Parties under Rule 45. B. The Court Lacks Subject Matter Jurisdiction to Compel the Production of Documents Solely Relevant to an Action Residing in New Jersey State Court, and Plaintiffs' use of the Tools Provided in the Federal Rules of Civil Procedure to Circumvent Proper Process Under State Law Should Not Be Permitted. It is well-settled that a non-party served with a subpoena duces tecum can defend an action for non-compliance with the subpoena by challenging the federal court's subject-matter jurisdiction to issue the subpoena. Houston Business Journal, Inc. v. Office of Comptroller of Currency, U.S. Dept. of Treasury, 86 F.3d 1208, 1213 (D.C. Cir. 1996) (citing United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 108 S.Ct. 2268 (1988)). The Pennsylvania Federal Action may be the action in form underlying the Subpoenas, but in substance, it is a transparent disguise for the actual case underlying the Subpoenas, Plaintiffs' New Jersey State case. In Houston, 86 F.3d at 1213, the court considered the "novel question": "[w]hen the underlying litigation is in state court, can a litigant eager to avoid the limitations on the state court's subpoena power obtain a federal-court subpoena instead?" The court held that in such circumstances the federal court lacks subject-matter jurisdiction to issue a subpoena, because "the subpoena power of a court cannot be more extensive than its jurisdiction." Id. For this reason, service of the subpoena was void and the court refused to compel compliance with a subpoena in aid of the movant's action in Texas State court. Id. Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 10 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 8 Plaintiffs' effort to use a FOIA action against the Government to obtain discovery from the Non-Parties for an unrelated state case must fail due to the obvious jurisdictional defect. (It is even questionable whether a case or controversy exists in the Pennsylvania Federal Action because no answer to the complaint has been filed in nearly a year.) (Lowenthal Decl. at ¶ 7.) As the court in Houston, 86 F.3d at 1213, observed, a "state-court litigant seeking to compel a non- party to produce documents must use the state court's subpoena power or, if the non-party is beyond the jurisdiction of such court, use whatever procedures another state may provide." (citing Unif. Interstate & Int'l Proc. Act § 3.02(a), 13 U.L.A. 355, 391-92 (1986)). In Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992), the court held that where a party seeks documents in bad faith under the caption of a particular litigation, but intends not to use the documents within that case, it is proper for a court to issue a protective order restricting the use of the documents to the case under which they were requested. The court reasoned that such use of a federal caption in an effort to avoid the mandates of the Federal Rules would exploit the "liberal discovery devices available in federal civil actions" and is impermissible. THE RUTTER GUIDE 11(III)-C ¶11:1125 (quoting Dove, 963 F.2d at 19). See also, e.g., Campbell v. Eastland, 307 F.2d 478, 480, 483 (5th Cir. 1962) (discovery not permitted where federal civil action was initiated as tactic to enable plaintiff to gain otherwise unavailable information on criminal case), cert. denied, 371 U.S. 955, 83 S.Ct. 502 (1963); Snap Lite Corp. v. Stewart Warner Corp., 40 F. Supp. 776, 776 (S.D.N.Y. 1941) (discovery not permitted for federal action initiated to obtain discovery for use in state court). Moreover, as the court in Houston, 86 F.3d 1213, recognized, "federal courts are not free-standing investigative bodies whose coercive power may be brought to bear at will in demanding documents from others. Rather, the discovery devices in federal court stand available to facilitate the resolution of actions cognizable in federal court." Plaintiffs have issued the Subpoenas to obtain documents for their New Jersey State action. (Lowenthal Decl. at ¶¶ 9, 10.) As the Supreme Court held in United States v. Morton Salt Co., 338 U.S. 632, 642, 70 S.Ct. 357, 363 (1950), "[t]he judicial subpoena power not only is subject to specific constitutional limitations, . . . but also is subject to those limitations Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 11 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 9 inherent in the body that issues them because of the provisions of the Judiciary Article of the Constitution." This Court should not condone Plaintiffs' request for it to be complicit in evading the rules and sovereignty of the State of New Jersey, and without subject matter jurisdiction, compel production of documents into the New Jersey State courts. C. The Documents Requested by the Subpoenas Contain Confidential, Proprietary Information and Warrant the Entry of a Protective Order to Govern the Disclosure of their Contents. In the interest of judicial economy, the Non-Parties incorporate by reference the legal and factual argument on this point set forth at pages 4 to 6 of their Memorandum of Points and Authorities in Support of the Motion to Quash or for a Protective Order, and respectfully submit that the nature of the information in the documents – engineering schematics, non- conformity reports, test designs and test data, detailed descriptions on custom variations to company aircraft and aircraft parts – constitutes confidential research and development and proprietary information under Federal Rules 26(c) and 45 that warrants entry of a protective order to limit disclosure. Should the Court require GA-ASI to produce documents, then GA-ASI respectfully requests entry of the proposed protective order annexed to the Non-Parties' Notice of Lodgment at Exhibit P. D. Plaintiffs Have Failed to Abide by Local Rule 26.1's Meet and Confer Gateway Requirement to Filing a Motion to Compel and Have Failed to Cooperate in Discovery Pursuant to Rule 45. Non-Parties GA and GA-ASI worked hard to reach agreement with Plaintiffs' counsel on the scope and timing of production as well the terms of a protective order, even though, as the legal analysis above demonstrates, GA and GA-ASI have no obligation to produce documents because the documents sought are not relevant to the Pennsylvania Federal Action. In early April, GA and GA-ASI drafted a protective order to govern the production of documents. However, Plaintiffs' counsel summarily rejected that draft and subsequently filed this Motion without even complying with Local Rule 26.1's requirement to meet and confer. The actions of Plaintiffs' counsel are particularly puzzling since Non-Party GA-ASI has been, and remains ready, to produce the confidential documents Plaintiffs requested, subject to a standard protective order. Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 12 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 10 Without expounding upon the history of interactions among counsel, a prime example of Plaintiffs' counsel's uncooperative conduct occurred on Friday, June 27, 2008. Upon the insistence of Non-Parties' counsel that Plaintiffs' counsel continue to negotiate, counsel for the Non-Parties spent three hours on Friday night fielding Plaintiffs' requested changes to the protective order, and drafting and redrafting the order. (Lowenthal Decl. at ¶ 25.) The Non- Parties complied with all but three of Attorney Wolk's requests (for one of which client approval was required), and the end of the evening it appeared as if a compromise was near. Id. at ¶ 26. Nevertheless, in response to the last draft protective order containing Mr. Wolk's requested changes, Mr. Wolk sent an e-mail that contained the following statement that had no relevance to the two unresolved issues: None of the documents in the categories I reduced the scope to can prejudice anyone but Rotax thus much of what you are requesting is curiously for its benefit only. I am becoming increasingly concerned and am appropriately suspicious. How could a communication or confirmation of appointment with Rotax reps. for example in this country have any bearing on the business of General Atomics? So what's the concern about Dan? What's confidential here Dan? Is it because Rotax and its lawyers took affidavits and gave depositions of Rotax and Bombardier witnesses in courts all over the country saying they didn't do business in the States? Why should General Atomics be concerned about that especially since even the Air Force makes no bones about its displeasure with the Rotax engine and the fires, accidents and investigations that led to that request to General Atomics that it provide another engine choice. Id. at ¶ 27. Later that night, Attorney Wolk closed down further discussions, and told Non-Parties' counsel to brief its response to this Motion, rendering the night's work to be worthless. Id. E. There Are No Legal or Factual Grounds to Support an Award of Sanctions Against the Non-Parties. Plaintiffs request attorneys' fees in connection with its Motion to Compel. The law does not permit such an award. The court in Fairview Dev. Corp. v. Aztex Custom Homebuilders, LLC, No. CV-07-0337-PHX-SMM, 2008 WL 2113492, at *2 (D. Ariz. May 16, 2008), recognized that "the only authority in the Federal Rules of Civil Procedure for the imposition of sanctions against a nonparty for failure to comply with a subpoena duces tecum is Rule 45(e)." Once a non- party objects to production, it is not obligated to produce the subpoenaed documents pursuant to a Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 13 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 11 subpoena until the Court issues an order directing compliance. Id. (citing Fed. R. Civ. P. 45(c)(2)(B)). GA and GA-ASI have objected to Plaintiffs' subpoena, and the Court has not entered such an order compelling production. Thus, unless and until the Court enters an order requiring production and GA-ASI does not comply with such order, there is no basis for GA-ASI to be sanctioned. (As noted above, GA has no documents to produce.) Moreover, courts have found that the provision for sanctions apparent in other Rules should not be interposed on Rule 45 disputes because Rule 45 has adequate enforcement provisions. See e.g., Watson v. State of Montana, No. CV-04-16-H-CSO, 2006 WL 2095420, at *2 (D. Mont. July 27, 2006) (citing Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir.1994)), in which the Fifth Circuit Court of Appeals held that "there is neither warrant nor need to strain the express language of [Rules 26 and 37] given the ready applicability of another rule. Rule 45(c)(1) specifically provides for sanctions, including 'lost earnings and reasonable attorneys' fees against one issuing a vexatiously overbroad subpoena." Even if there were some legal authority to support the award of fees, which there is not, there are no facts to warrant such sanctions. The Non-Parties have made every effort to cooperate with the Plaintiffs and facilitate production: from the very first interaction with Plaintiffs, Non-Parties' counsel informed Plaintiffs' counsel that they had served their initial Subpoena on the wrong company and then offered to accept service of a new subpoena to GA-ASI; GA-ASI scoped the document request and collected documents without a concrete understanding of the New Jersey action for which its documents are allegedly relevant and without a legal requirement to take these efforts; Non-Parties' counsel drafted four versions of a protective order to confine the use and disclosure of GA-ASI's confidential information (which protection Mr. Wolk had agreed he would support) and attempted to resolve the matter through 9:00 p.m., Friday, June 27, even though the Non-Parties conceded to (and accordingly revised the protective order to reflect) all but three of Plaintiffs' counsel's demands (which Non-Parties' counsel did not reject, but needed time to review one of those issues with the Non-Parties). For the foregoing reasons, the Non-Parties respectfully submit that Plaintiffs' requests for sanctions is invalid and unfounded and must be denied. Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 14 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 12 IV. CONCLUSION The Subpoenas issued to the Non-Parties are an invalid. Plaintiffs cannot employ the federal courts to gather documents on their behalf only to enter them through a back door into a State court action. The document requests have no relevance to the Pennsylvania Federal Action, and as such they impose an undue burden on the Non-Parties pursuant to Federal Rule 45 and are not subjects for which this Court has jurisdiction to enforce. Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 15 of 16 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 1823108v.1 13 Should the Court find that production of documents is warranted, which the Non- Parties respectfully submit that it is not, the Non-Parties request that pursuant to the Federal Rule 45(c)(2), the Court order Plaintiffs to pay all of the legal fees and expenses of production incurred by the Non-Parties. As set forth in greater detail within the Cross-Motion to Quash and Enter a Protective Order accompanying submission of this Opposition, Non-Parties cross-move for sanctions under Federal Rule 45(c)(1) for causing undue burden, abuse, and harassment of the Non-Parties and for failing to cooperate in discovery. Dated: July 1, 2008 Respectfully Submitted, By: /s/ Daniel A. Lowenthal Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. Case 3:08-cv-00947-DMS-BLM Document 10 Filed 07/01/2008 Page 16 of 16 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 CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF THE CROSS- MOTION TO QUASH 1822617v.1 1 Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA THEODORE AND LOIS KOZIOL Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. Case No.: 08-CV-947 DMS (BLM) Civ. No.: 07-3432 Eastern District of Pennsylvania DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF THE CROSS-MOTION TO QUASH Date: August 13, 2008 Time: 1:30 p.m. Judge: Hon. Barbara L. Major Courtroom: TBD I, Daniel A. Lowenthal, declare: 1. I am an attorney licensed to practice in the State of New York and before the United States District Court for the Southern District of New York, and a partner in the law firm Patterson Belknap Webb & Tyler LLP. 2. I am counsel pro hac vice representing Non-Parties General Atomics ("GA") and General Atomics Aeronautical Systems, Inc. ("GA-ASI"), in this action. 3. Plaintiffs' attorney, Arthur Alan Wolk, issued a subpoena to GA, dated February 21, 2008, under the action captioned Koziol v. United States of America, (Civ. No. 07-3432) (the "Pennsylvania Federal Action"). Case 3:08-cv-00947-DMS-BLM Document 10-2 Filed 07/01/2008 Page 1 of 6 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 CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1 2 4. On March 5, 2008, I contacted Mr. Wolk to begin discussions about the scope of the Subpoena and the timing for response. During this telephone call, I volunteered to Mr. Wolk that he had subpoenaed to the incorrect company. I told him that General Atomics Aeronautical Systems, Inc. ("GA-ASI") was the entity to which he should direct his Subpoena, and subsequently, I, and my associate, Sarah Goodstine, offered to accept service on behalf of GA-ASI in order to save Plaintiffs time and expense. (See Non-Parties' Notice of Lodgment at Exhibit A.) 5. Plaintiffs declined my offer to accept service of a subpoena addressed to GA-ASI, and instead Plaintiffs served a Subpoena, dated April 3, 2008, directly on GA-ASI. 6. Plaintiffs initiated the Pennsylvania Federal Action on August 17, 2007. The Complaint is made under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Plaintiffs allege that the United States Government failed to timely respond to Plaintiffs' FOIA request, and seek an order directing the Government to respond to the FOIA request. (See Non-Parties' Notice of Lodgment at Exhibit B.) 7. Upon information and belief, Plaintiffs have adjourned the Government's deadline to answer the Complaint in the Pennsylvania Federal Action four times. To date, no answer has been filed. (See Non-Parties' Notice of Lodgment at Exhibit C.) 8. At no time has Plaintiffs' counsel explained to me or to Ms. Goodstine how the documents requested under the Subpoena are relevant to the Pennsylvania Federal Action. 9. During a June 11, 2008 call with this Court and in an e-mail, Plaintiffs' counsel has stated that the subpoenaed documents are "useless" to the Pennsylvania Federal Action. (See Non-Parties' Notice of Lodgment at Exhibit D.) 10. Plaintiffs' counsel has stated that the subpoenaed documents are important to a sealed action in New Jersey State court. Until Plaintiffs identified the docket number of the New Jersey action in their present Motion papers, namely Koziol v. Bombardier, Inc., No. OC-NL-2749- 07 (N.J. Super. Court Ocean County), the Non-Parties were not aware of the name of the case, the index number, or that the action is pending in State court in New Jersey. 11. A member of the Patterson Belknap Webb & Tyler managing clerk's office contacted the New Jersey Superior Court to obtain further information about the New Jersey State Case 3:08-cv-00947-DMS-BLM Document 10-2 Filed 07/01/2008 Page 2 of 6 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 CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1 3 action. The Non-Parties were not able to discover further information about the New Jersey State action because it is sealed. 12. Before the Motion to Compel was filed, Mr. Wolk told me that the New Jersey State action involved "RICO" claims against a company called Rotax for conspiring to hide business activities in the United States in order to avoid jurisdiction. Mr. Holsenback also recently informed me that the case also included products liability claims and that Bombardier and certain lawyers are defendants in the case. (See Non-Parties' Notice of Lodgment at Exhibit E.) 13. On March 19, 2008, Ms. Goodstine requested that Mr. Wolk provide us with a draft protective order. Mr. Wolk agreed both to draft such an order, and that any production of documents by Non-Parties GA and GA-ASI would be made pursuant to a blanket protective order. (See Non-Parties' Notice of Lodgment at Exhibit F.) 14. At 8:45 p.m. on March 19, 2008, Mr. Wolk sent Ms. Goodstine a draft blanket confidentiality agreement, not an order to be approved by the Court. (See Non-Parties' Notice of Lodgment at Exhibit G.) 15. Plaintiffs' local counsel, J. Daniel Holsenback, attached to Plaintiffs' Notice of Lodgment as Exhibit E an e-mail supposedly sent by attorney Wolk to Ms. Goodstine at 10:16 p.m. on March 19, 2008, explaining his reasons for sending a confidentiality agreement rather than a protective order. Upon close examination, it is apparent from the header of that e-mail that Mr. Wolk sent this e-mail to himself and not to Ms. Goodstine. Neither Ms. Goodstine nor I received the e-mail attached as Exhibit E to Plaintiffs' Notice of Lodgment. 16. In response to the confidentiality agreement, Non-Parties drafted a proposed protective order. The first draft of the protective order restricted use of produced documents to the action under which the documents were subpoenaed, the Pennsylvania Federal Action. (See Non-Parties' Notice of Lodgment at Exhibit H.) 17. Attorney Wolk responded that the proposed protective order was unacceptable because he required the documents for the New Jersey State case. Attorney Wolk declined to make a counterproposal, and unilaterally cut off negotiations. (See Non-Parties' Notice of Lodgment at Exhibit D.) Case 3:08-cv-00947-DMS-BLM Document 10-2 Filed 07/01/2008 Page 3 of 6 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 CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1 4 18. Almost two months after unilaterally ending discussions, Plaintiffs counsel filed the present Motion to Compel without requesting to meet and confer. 19. Throughout the negotiation process, Ms. Goodstine and I worked with GA and GA-ASI to search for and collect responsive documents to the Subpoenas. GA has informed us that it has no responsive documents. GA-ASI has provided us with three boxes of documents. 20. On June 24, 2008, Mr. Holsenback sent me an e-mail asking whether the Non- Parties would agree to permit Plaintiffs to use the subpoenaed documents just in the Pennsylvania Federal Action and in the New Jersey State case. (See Non-Parties' Notice of Lodgment at Exhibit I.) 21. After communicating with my clients, on June 25, 2008, I telephoned Mr. Holsenback and told him that GA-ASI would agree to permit Plaintiffs to use the documents in the New Jersey State case. Ms. Goodstine and I revised the draft protective order to permit such use, and on June 26, 2008, we e-mailed the new draft to Attorneys Holsenback and Wolk. (See Non- Parties' Notice of Lodgment at Exhibit J.) 22. Mr. Holsenback informed us that Mr. Wolk still rejected the draft protective order because it contained a one-page confidentiality undertaking to be signed by recipients of confidential information. According to Mr. Holsenback, Mr. Wolk believed he could not ask his opponents in the New Jersey State case to sign such an undertaking. (See Non-Parties' Notice of Lodgment at Exhibit K.) 23. On June 27, 2008, GA-ASI agreed to remove the requirement for a confidentiality undertaking from the draft protective order, and I e-mailed an updated draft of the order to Mr. Wolk. I telephoned Mr. Wolk shortly thereafter to confirm that we had addressed his concerns in full. I informed him I thought we could reach agreement and produce documents to him following the entry of a protective order and the normal Bates stamping and production procedures. (See Non-Parties' Notice of Lodgment at Exhibit L.) 24. At the outset of the telephone call Mr. Wolk characterized the protective order as "onerous" and said we would have to litigate. I remained steadfastly fixed on finding a resolution to the dispute and insisted that Mr. Wolk walk through the draft protective order with Ms. Goodstine Case 3:08-cv-00947-DMS-BLM Document 10-2 Filed 07/01/2008 Page 4 of 6 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 CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1 5 and me paragraph by paragraph. (See Non-Parties' Notice of Lodgment at Exhibit M.) 25. Between 5:30 p.m. and almost 9:00 p.m. on Friday, June 27, 2008, Ms. Goodstine and I walked through each paragraph of the draft protective order with Mr. Wolk and edited the order according to Mr. Wolk's requests. As of 9:00 p.m., three issues remained: (1) Mr. Wolk requested to insert a provision that excuses him and other parties from breach of the protective order if he or they use the information in a brief or in a filing without "trying" to breach the protective order. He explained that "sometimes people in [his] office screw things up." (2) Mr. Wolk requested to strike a provision that requires a party wishing to use confidential information in a courtroom to request that the courtroom be closed during such use (this provision provides that if the court refuses, that party may nevertheless proceed). (3) Mr. Wolk requested provisions that would enable the New Jersey State Court to overrule or disregard the protective order. 26. With respect to the second request, I told Mr. Wolk that I would have to speak to my clients. However, I suggested to Mr. Wolk that we were almost at resolution, and that we jointly call the Court to adjourn the briefing schedule, to avoid further expense and delay. After more than three long hours of work to find a resolution, I sent Mr. Wolk another revised draft of the protective order. I noted in an e-mail that the parties almost had an agreement and that we could continue our discussion on Monday, June 30. (See Non-Parties' Notice of Lodgment at Exhibit N.) 27. In response, Mr. Wolk sent me e-mails that contained, among other things, unfounded accusations that I and the Non-Parties were attempting to "sandbag" Plaintiffs, and claimed he was "suspicious" about my clients' relationship with the defendants in the New Jersey State case. With respect to the provision that required a party to request to seal a courtroom before using GA-ASI confidential information, Mr. Wolk explained that "if I ask the Court to do that he is going to look at me like I have two heads. . . ." In an e-mail received at 12:46 a.m. on June 28, 2008, Mr. Wolk discontinued negotiations and told us to "brief the Motion". (See Non-Parties' Notice of Lodgment at Exhibit O.) 28. During the telephone call described in paragraphs 23-27 above, Mr. Wolk asked me if I had provided any documents responsive to his Subpoenas to defense counsel in the Case 3:08-cv-00947-DMS-BLM Document 10-2 Filed 07/01/2008 Page 5 of 6 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 CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1 6 New Jersey State case. I informed him that I had not done so. 29. On June 12, 2008, William Gibson, counsel for Rotax in the New Jersey action, telephoned Ms. Goodstine. Ms. Goodstine and I spoke to Mr. Gibson on June 16, 2008. During that conversation, Mr. Gibson informed us that his client's in-house counsel had come across Plaintiffs' Motion in this Court on PACER. Mr. Gibson did not ask for documents, and we did not give GA-ASI documents to him or anyone else involved in the New Jersey State action. We have not spoken with Mr. Gibson again. I informed Mr. Holsenback of this conversation on June 25, 2008. 30. I certify that in accordance with Local Rule 26.1, on behalf of GA and GA- ASI, I called Plaintiffs' counsel several times during the week of June 22, 2008 to meet and confer come to a resolution of the issues in dispute without resorting to filing an Opposition to the Motion to Compel and a Cross-Motion to Quash or Enter a Protective Order. As noted above, on Saturday morning, June 28, 2008, Plaintiffs counsel said we would have to brief the issues. Even so, I again called Plaintiffs' counsel today to meet and confer and left messages, but have not heard back from Plaintiffs' counsel. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. New York, New York Dated: July 1, 2008 By: /s/ Daniel A. Lowenthal Daniel A. Lowenthal Case 3:08-cv-00947-DMS-BLM Document 10-2 Filed 07/01/2008 Page 6 of 6 Case 3:08-cv-00947-DMS-BLM Document 10-3 Filed 07/01/2008 Page 1 of 3 Case 3:08-cv-00947-DMS-BLM Document 10-3 Filed 07/01/2008 Page 2 of 3 Case 3:08-cv-00947-DMS-BLM Document 10-3 Filed 07/01/2008 Page 3 of 3 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS 1822624v.1 1 Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA THEODORE AND LOIS KOZIOL Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. Case No.: 08-CV-947 DMS (BLM) Civ. No.: 07-3432 Eastern District of Pennsylvania NON-PARTIES' NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OF THE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS Date: August 13, 2008 Time: 1:30 p.m. Judge: Hon. Barbara L. Major Courtroom: TBD TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. have lodged true and correct copies of the following exhibits in support of both their Opposition to Plaintiffs' Motion to Compel and their Cross-Motion to Quash or For a Protective Order and Sanctions: Case 3:08-cv-00947-DMS-BLM Document 10-4 Filed 07/01/2008 Page 1 of 3 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS 1822624v.1 2 A. E-Mail from Sarah Goodstine to Arthur Wolk, dated April 2, 2008 B. Complaint filed in Koziol v. United States of America, Civ. No. 07-3432 (E.D. Pa.) C. Docket Report for Koziol v. United States of America, Civ. No. 07-3432 (E.D. Pa.) D. E-Mail from Arthur Wolk to Sarah Goodstine, dated April 4, 2008 E. E-Mail from J. Daniel Holsenback to Daniel Lowenthal dated June 25, 2008 F. E-Mail from Arthur Wolk to Sarah Goodstine, dated March 19, 2008 G. E-Mail from Arthur Wolk to Sarah Goodstine, dated March 19, 2008 H. E-Mail from Sarah Goodstine to Arthur Wolk, dated April 4, 2008 I. E-Mail from J. Daniel Holsenback, to Daniel Lowenthal, dated June 24, 2008 J. E-Mail from Daniel Lowenthal to J. Daniel Holsenback and Arthur Wolk, dated June 26, 2008 K. E-Mail from J. Daniel Holsenback to Daniel Lowenthal, dated June 26, 2008 L. E-Mail from Daniel Lowenthal to Arthur Wolk, dated June 27, 2008 M. E-Mail from Daniel Lowenthal to Arthur Wolk, dated June 26, 2008 N. E-Mail from Daniel Lowenthal to Arthur Wolk, dated June 27, 2008 Case 3:08-cv-00947-DMS-BLM Document 10-4 Filed 07/01/2008 Page 2 of 3 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 CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS 1822624v.1 3 O. E-Mails from Arthur Wolk, dated June 27, 2008 and June 28, 2008 P. [Proposed] Protective Order Dated: July 1, 2008 Respectfully Submitted, By: /s/ Daniel A. Lowenthal Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. 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18 19 20 21 22 23 24 25 26 27 28 Koziol v. United States of America, et al. USDC, Southern District of California, Case No. 3:08-cv-00947-DMS-BLM - 1 - 114388/000000/938001.01 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is PROCOPIO, CORY, HARGREAVES & SAVITCH LLP, 530 “B” Street, Suite 2100, San Diego, California 92101. On July 1, 2008, I caused to be electronically filed the within documents: (1) NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL; (2) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF THE CROSS-MOTION TO QUASH; (3) DECLARATION OF FRANK PACE IN SUPPORT OF BOTH THE OPPOSITION TO MOTION TO COMPEL AND THE CROSS MOTION TO QUASH; AND (4) NON-PARTIES' NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OF THE CROSS- MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS with the Clerk of the United States District Court for the Southern District of California, using the CM/ECF System. The Court’s CM/ECF System will send an e-mail notification of the foregoing filing to the following parties and counsel of record who are registered with the Court’s CM/ECF System: J. Daniel Holsenback, dan@holsenbackapc.com United States Attorneys’ Office, efile.dkt.civ@usdoj.gov Daniel A. Lowenthal, dalowenthal@pbwt.com Sarah Goodstine, sgoodstine@pbwt.com Pursuant to the CM/ECF System, registration as a CM/ECF user constitutes consent to electronic service through the Court’s transmission facilities. I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I executed this Certificate of Service on July 1, 2008 at San Diego, California. /s/ Marsha Amin Marsha Amin Case 3:08-cv-00947-DMS-BLM Document 10-21 Filed 07/01/2008 Page 1 of 1