Case Number: BC642163 Hearing Date: January 17, 2018 Dept: 61

Defendant Ford Motor Company’s Motion for a Protective Order is GRANTED, subject to the restrictions described in the court’s ruling.

EVIDENTIARY OBJECTIONS

Shirazi offers a number of objections to the declaration of Christopher Eikey filed in support of the present motion. Each objection is OVERRULED.

MOTION TO COMPEL FURTHER – PRODUCTION OF DOCUMENTS

CCP section 2031.060, subdivision (b) and (c) state that:

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

(2) That the time specified in Section 2030.260 to respond to the set of demands, or to a particular item or category in the set, be extended.

(3) That the place of production be other than that specified in the demand.

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.

(6) That the items produced be sealed and thereafter opened only on order of the court.

(c) The party or affected person who seeks a protective order regarding the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.

TIMELINESS

Shirazi argues as an initial matter that the Motion is untimely in its entirety because Ford waited until October 31, 2017, to file its Motion. (Opposition at p. 3.) However, a motion for a protective order may be timely where it is made after an order compelling further production. (See Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 317.) Here, the motion was filed before hearing on Shirazi’s motion to compel further production of the documents at issue. Accordingly, the present motion is not untimely.

TRADE SECRET

Courts must act to protect trade secrets by reasonable means including protective orders, in camera hearings, sealing records and restricting disclosure. (Civil Code § 3426.5; Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1555 n. 16.) A “trade secret” is “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) [d]erives independent economic value . . . from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Code Civ. Proc. § 3426.1, subd. (d).)

The party asserting trade-secret objections has the burden to establish their existence and operation. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1390.) “Some factors to be considered in determining whether given information is one’s trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” (Uribe v. Howie (1971) 19 Cal.App.3d 194, 208.)

Ford has met its burden to establish the existence of trade secrets in the discoverable material which Shirazi seeks. Christopher Eikey, a Design Analysis Engineer for Ford, states in his declaration that Ford’s SYNC and MyFord Touch (“MFT”) systems are standard across Ford’s vehicle lines continuing to the present day. (Eikey Decl. ¶ 8.) Eikey states that the requested documents exist in engineering methodology documents as well as in email communications, meeting minutes, or presentation materials within Ford and with its overall analyses and processes and how Ford approaches resolution of customer concerns and component, system, and vehicle manufacturing. (Eikey Decl. ¶ 10–11.) Eikey states that the automotive industry is highly competitive, and that Ford therefore works to protect this information from disclosure, including placing limits on its disclosure within Ford itself. (Eikey Decl. ¶¶ 12, 14.) Eikey states that disclosure of this information would cause Ford competitive harm. (Eikey Decl. ¶ 14.)

Shirazi’s argues to the contrary (Opposition at pp. 4–6), Eikey’s declaration provides sufficient basis for this court to find that the discovery sought is likely to include trade secret documents. Ford’s internal methodology for resolving engineering problems or customer complaints is proprietary information not generally known to the public or to competing car companies, and Ford undertakes efforts to maintain their secrecy. While much of the information may not be covered by a trade secret, a protective order would require Ford to identify which documents it claims are “confidential” or “highly confidential” and provide a procedure for obtaining judicial review if Shirazi disagrees with the designation. Moreover, under Code of Civil Procedure section 2031.060, subdivision (b)(5), the court can order limitations on disclosure, in addition to trade secret information, for “other confidential research, development, or commercial information.” Ford has shown that some of the requested documents would fall in this category of confidential commercial information that it would not want its competitors to have.

Ford is not required to make a showing as to all the factors described in Uribe. (Opposition at p. 6.) The court in Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141 did not, as argued by Shirazi, hold that a party seeking a protective order must submit each and every document for which it is seeking protection to the Court for an in camera review before the order is granted. (Opposition at p. 6.) The court merely held that the trial court in question abused its discretion in denying a motion for a protective order without first examining the documents in camera. (Fireman’s Fund Ins. Co., supra, 233 Cal.App.3d at p. 1141.)

GOOD CAUSE

After the party asserting confidentiality makes an initial showing of confidentiality, “[t]hereafter, the party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. It is then up to the holder of the privilege to demonstrate any claimed disadvantages of a protective order. Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is upon the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure.” (Bridgestone/Firestone, Inc. v. Superior Court, supra, 7 Cal.App.4th at p. 1393.)

Likewise, “[a] protective order may include the direction that ‘a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 316.)

“The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties. [Citation.] “The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. [Citation.] The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of ‘good cause.’ [Citations.]” [Citation.] The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. [Citation.]’ [Citation.] A trial court must balance the various interests in deciding “whether dissemination of the documents should be restricted.” [Citation.] Further, even where a motion for a protective order is denied in whole or in part, the trial court may still impose ‘terms and conditions that are just.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 317.)

As an initial matter, the court has already taken Shirazi’s motion to compel further production of documents under submission, and the court finds that Shirazi has shown good cause for requesting the documents which would be subject to the protective order considered here.

Shirazi’s argument, that a party asserting good cause for a protective order must, for each document it seeks to protect, show specific prejudice or harm will result if no protective order is granted, is unpersuasive. (Opposition at p. 7.) The fact that Eikey has only reviewed a “sampling” of the documents that would be produced is sufficient to support his statement that the documents contain trade secrets and that there is good cause to issue the protective order, especially considering the large volume of documents requested by Shirazi. (Eikey Decl. ¶ 10.) Further, while Shirazi argues that a protective order would not protect the public’s right to important safety information (Opposition at pp. 9–10), this is not the purpose of discovery in litigation. The court needs to decide whether a protective order is warranted based on the merits of the arguments as to Shirazi’s need for the information in this litigation and the extent to which a protective order would inhibit Shirazi’s litigation of this case.

The Eikey Declaration shows that Ford would suffer competitive harm if the documents were produced without a protective order. This same harm is sufficient to make a showing of good cause for the issuance of a protective order. Indeed, Shirazi admits that he would stipulate to a “standard” protective order in this case. (Knafo Decl. ¶ 6.)

Because Ford has met its burden to show that the discoverable documents contain trade secrets and that there is good cause for the issuance of a protective order, the court now turns to the form of the protective order sought.

THE PROTECTIVE ORDER

Shirazi first objects to the provision of the proposed order that would make the order applicable to evidence presented at trial. (Opposition at p. 11; Hanson Decl. Exh. D, Proposed Order § 4(c).) Ford states that this provision gives Ford “the right to request that the room . . . be closed for that portion of the trial and to request that confidential documents be sealed.” (Motion at p. 3.) The court agrees with Shirazi that, as yet, Ford has not made any showing as to the necessity of this provision. Closing proceedings and sealing documents generally raises First Amendment concerns, which a litigant may overcome by showing “that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1279.) Ford here has not made the requisite showing in the face of Shirazi’s objections. Ford’s request for this provision will be denied.

Shirazi next objects to section 9(b) of the proposed order, which states that people with access to confidential documents “shall not under any circumstance sell, offer for sale, advertise or publicize either the Confidential Materials or the information contained therein or the fact that such persons have obtained the Confidential Materials.” (Hanson Decl. Exh. D, Order § 9(b).) This provision does not appear in either of the LASC model orders; Ford does not defend it in its Reply, and court agrees that this provision preventing “publicizing” the fact that one has obtained certain documents reaches too far. Ford’s request for this provision will be denied.

Shirazi next argues that the protective order would prevent him from presenting materials to percipient witnesses at deposition or trial. (Opposition at p. 12; Hanson Decl. Exh. D, Order § 8(e).) The court notes that the order allows the presentation of documents to those familiar with them, as well as to the parties’ outside experts. (Order § 8(e), (g).) The court does not regard it as material that Shirazi, under the order, may not show confidential material to the technician who worked on his vehicle. (Opposition at p. 12.) This provision may remain in the protective order.

Shirazi finally argues that the protective order would require his counsel to destroy its work product or deposition transcripts. (Opposition at p. 12.) Section 22 of the proposed order states that at the conclusion of the case, counsel for the party who has received protected documents shall either return them to the designating party or destroy them. (Hanson Decl. Exh. D, Order § 22.) Ford states that the order would require Shirazi to retain only a redacted deposition transcript. (Motion at p. 3.) The court does not regard this provision of the order as necessary, as the order itself allows the court to enforce its provisions in the event of a violation, even after the proceeding terminates. (Hanson Decl. Exh. D, Order § 21.) The court will deny Ford’s request for this provision to be included in the protective order.

CONCLUSION

Subject to the restrictions described above, the court GRANTS Ford’s motion for a protective order.