Preview
Benjeman R. Beck (SBN 268617)
bbeck@slpattorney.com
Angela J. Dailey (SBN 278572)
adailey@slpattorney.com
STRATEGIC LEGAL PRACTICES, APC
1840 Century Park East, Suite 430
Los Angeles, CA 90067
Telephone: (310) 929-4900
Facsimile: (310) 943-3838
Attorneys for Plaintiff PACIFICO SOLIS
ELECTRONICALLY
FILED
Supertor Court of Cafffornia,
County of San Francisco
09/06/2016
Clerk of the Court
BY:GARY FELICIANO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PACIFICO SOLIS,
Plaintiff,
vs.
FORD MOTOR COMPANY; and DOES |
through 10, inclusive,
Defendants.
Case No.: CGC-16-551687
Case Initiated: April 27, 2016
PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR
PROTECTIVE ORDER
[Concurrently filed with Declaration of Angela
J. Dailey In Support of Evidentiary Objections
and Plaintiff's Request For Judicial Notice]
Date: September 19, 2016
Time: 9:30 a.m.
Dept: 302
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERTABLE OF CONTENTS
I. INTRODUCTION/FACTUAL AND PROCEDURAL BACKGROUND ......cescsecceees 1
Tl. LEGAL ANALYSIS wu. ccc cecsceseeseecssececaeseeeseecsssasseanaeeacacacseaesesesenssensasasasasansearis 5
A. Ford Has Not Met Its Heavy Burden Of Proof Of Showing That The Documents
Ordered Produced Contain “Trade Secrets” Or Are “Confidential”... SD
1. Ford Makes No Attempt To Establish That The Information Involved Is
Trade Secret Or Confidential ......c.cccceseseseseesesesseseseeseseseessenessseensseseeesssenses 6
2. Ford Has Failed To Show Good Cause For Any Protective Order
3. The Public’s Strong Interest In Open Access To Judicial Proceedings
Supersedes Ford’s Legitimate Interest, If Any, In Confidentiality 00.0000... 11
B. Ford’s Proposed Super Highly Confidential Protective Order Is Facially Improper
And Should Not Be Imposed By This Court ........0....c.ccccescseesseeeeeeeeeseeeseeeeeeeeeee 13
C. If The Court Finds, In General, That A Protective Order Is Appropriate, Any
Resulting Order Should Embody A Proper Balancing of the Relevant Interests ... 14
TH. CONCLUSION oo... ccccecccescecssesseesesssseseseececececaceeesseassessserseessecsssuseavacsessseeneveeeveeseanaane 14
1
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERTABLE OF AUTHORITIES
CASES
Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470 (9th Cir. 1992) wee 9
Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323 (10th Cir. 1981)... 6
Contratto v. Ethicon, Inc., 227 F.R.D. 304 (N.D. Cal. 2005) o..ceccceecececseseseseeeceeeeseeeeseseeeseee 2,9
Fairmont Ins. Co. v. Sup. Ct. (Stendell), 22 Cal. 4th 245 (2000) w..ccccccceeseeesseeeseseeetereteneeeees 9
Fireman’s Fund Ins. Co. v. Sup. Ct. (Paine Webber Real Estate Securities), 233 Cal. App. 3d
FSS eT traldedlelelabshdadadatulabaldedelelabebandadulatebsllededalabebancedatatebebebaedelstebsndadedate 8
Foltz v. State Farm Mutual Automobile Insurance Company, 331 F.3d 1122 (9th Cir. 2003)...9
Forro Precision, Inc. v. International Business Machines Corp., 673 F.2d 1045, 1057 (9th Cir.
10 ESE ttt le ae atartttadataly 6
Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) ...ceecsescseseceesereseesteeeeenenennneees 11
Goodman v. Citizens Life & Cas. Ins. Co., 253 Cal. App. 2d 807 (1967) ......c:::c:ceseceeeeceeeeeeee 9
Liberty Mut. Ins. Co. v. Super. Ct., 10 Cal. App. 4th 1282 (1992) ooo eceeseeeseeeeneeeeeeeneee 6
Nativi v. Deutsche Bank Nat. Trust Co., 223 Cal. App. 4th 261 (2014)..............4, 6,9, 10, 11
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.Ath 1178 (1999) occ 12
Norcal Mutual Ins. Co. vy. Newton (2000) 84 Cal. App. 4th 64.0.0... ceeeeeeee eee eeeeeeeeen ees 4
Phillips v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).
San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096 (9th Cir. 1999) ...10, 12
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) wo. ccecseseseees eee seessenessessseseeneteesseeeneneeees 13
Stadish v. Superior Court (Southern Calif. Gas Co.), 71 Cal. App. 4th 1130 (1999) ....7, 12, 13
Uribe v. Howie, 19 Cal. App. 3d 194 (1971)... ceececeeceeeeeeseeeeseeceeeceeeeeeseteeeeeecesececerseereeeeeeeeeeets 7,8
STATUTES
Cal. Civ. Code § 3426.1
Cal. Evid. Code § 1060
Cal. Evid. Code § 1061
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERCal. Rules of Court, rule 2.550(d) .
OTHER AUTHORITIES
3
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERI. INTRODUCTION/FACTUAL AND PROCEDURAL BACKGROUND
Ford considers this matter to be a “garden variety” lemon law case. (Defendant’s
Motion, 1:4). However, Ford fails to take into account that Plaintiffs in lemon law matters have
a burden to meet not dissimilar to that of Plaintiffs in class action matters. Ford likewise fails
to take into account that Plaintiff purchased a new car, which had to be taken to Ford’s
dealerships for repair no less than five (5) times in the first four (4) years of purchase.
Therefore, Ford’s attempt to minimize this matter should not be well taken by this Court.
Moreover, a party—even a powerful corporation like Ford—is not entitled to a
protective order upon demand. Rather, Ford must meet the well-established factual and legal
requirements for any such restriction on the public’s right to know about judicial proceedings,
and for any such restriction on the opposing party’s ability to present its case. Ford has fallen
far short of meeting its heavy burden.
As a threshold matter, under California law, a party responding to discovery must
“promptly” seek a protective order. Ford has failed to take prompt action here. Plaintiff
served discovery requests on May 6, 2016, to which Defendant responded on June 30, 2016
with boilerplate objections, and has not supplemented those requests as of yet. Ford did not
breach the topic of a protective order with Plaintiff until August 8, 2016 (not, as Defendant
asserts, April 2015), and Ford did not file its instant motion until August 22, 2016 — over three
(3) months after Plaintiff served discovery requests on Defendant.
In this matter, and numerous others, Plaintiff has offered to stipulate to a protective
order based on the standard Los Angeles Superior Court (*LASC”) model protective order.
And Ford has flatly refused. Instead, Ford continues to demand—as a matter of right (that is,
without demonstrating the necessity for the heightened protections Ford seeks or why the
standard LASC model protective order is not sufficient)—a Super Highly Confidential
protective order, which includes provisions even more restrictive than those in the “highly
confidential” LASC model protective order (Dailey Decl 413-15).
Hf
' (See Dailey Decl. 13-14.)
Page 1
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERIn its instant motion, Ford misrepresents to this Court the meet and confer process.
Ford simply informs this Court that Plaintiff responded to Defendant’s proposed Protective
order by stating that “Ford ‘has not made a showing that any of the documents are
confidential.’” (Defendant’s Motion, 2:23-24). While Plaintiff stands by that statement, Ford
fails to provide this Court with Plaintiff's full response. In an effort to avoid the need for court
intervention, and in the spirit of cooperation, Plaintiff offered to stipulate to an appropriate
protective order - namely the “standard” LASC Model Protective Order (which covers
“Confidential Materials”), which Ford has previously agreed to in other cases (Dailey Decl
413-14, Ex. 2).
Now that Ford has finally filed its Motion (after having months to support its claims),
the unreasonableness of Ford’s demands for a Super Highly Confidential protective order and
Ford’s intent to Obstruct & Delay have never been more apparent, as Ford comes nowhere
close to meeting its heavy burden of proof to show any of the documents at issue are entitled to
any level of protection whatsoever. Instead, Ford’s Motion for Protective Order is based on
the following:
° A protective “order” in a pending federal district court class action that was
entered only pursuant to stipulation. Contrary to Ford’s deliberately misleading arguments,
this stipulated federal protective “order” was not the product of any judicial review or analysis,
and is not based on any judicial finding or other determination that any of the documents
involved are “trade secret” or “confidential.” In fact, federal courts have repeatedly recognized
that “[a] party who has never made a ‘good cause’ showing under Rule 26(c) justifying initial
protection of disputed documents may not rely solely on the Protective Order to justify refusal
when there is a reasonable request for disclosure.” Contratto v. Ethicon, Inc., 227 F.R.D. 304,
308 (N.D. Cal. 2005).? Accordingly, this federal court protective “order” is no more
binding on this Court, and no more involves any judicial determination or analysis, than
any other stipulation between the parties in another case involving different issues.
e Declarations by Ford’s proponent witnesses, Matthew Fyie, which fail to
? A copy of Contratto is attached as Exhibit 3 to the Dailey Declaration.
Page 2
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERcomply with Rule of Court 3.1115 because they do not appear to be written specifically for
the motion that it supports; lack foundation; are vague and ambiguous; and are wholly
conclusory in terms of any claim that the documents at issue contain “trade secrets,” or are
otherwise confidential and entitled to the sort of protection Ford demands.*
° There is a reason for the lack of specificity in the Fyie Declaration: Ford
reportedly did not develop, design or manufacture the “dual clutch” DPS6 transmission at
issue, Instead, the DPS6 transmission was developed, designed and manufactured by a
German transmission manufacturer, GERTAG. GERTAG is the world’s largest manufacturer
of transmissions for autos and other vehicles, and is involved in joint ventures with two other
large auto companies to supply the same transmissions and the same dual clutch transmission
technologies to these competitors of Ford. Any “trade secrets” or “confidentiality” are
GERTAG’s, not Ford’s; but GERTAG has already shared any such information with
Ford’s competitors. GETRAG reportedly has also sold the same DPS6 Dual Clutch
Transmission — also known as the “Ford PowerShift Transmission” — to multiple other
automobile manufacturers, including Dodge and Volvo. (See DaileyDecl., {| 4-8, Ex. 1
(GETRAG documentation), p. 4-5). Further, GETRAG has sold various models of the Dual
Clutch transmission to multiple other manufacturers, both worldwide and in the United
States, including Renault, BMW (Mini Cooper), Buick, Chevrolet, Oldsmobile, Chrysler,
Saturn, Opel, Vauxhall, Peugeot and Citroen (among others). Id. Hence, Ford’s
competitors in the allegedly “highly competitive” automotive industry already know or have
ready access to these “trade secrets.”
e Unsupported arguments of Ford’s counsel, Jamie M. Cheng. Lawyers cannot
testify for their clients or authenticate purported documents of their client. Ford’s counsel
’ The Fyie Declaration is referenced in the Motion (at 6:11-7:11, 8:9-16, 19, 25-26). With this
Opposition, Plaintiff is filing evidentiary objections to the Fyie Declarations, which should be given no weight
by this Court
4 See Dailey Decl. {f 4-8, Ex. |
Page 3
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERcannot testify on behalf of her client; thus there is no admissible evidence of a trade secret.
Norcal Mutual Ins. Co. v. Newton 84 Cal. App. 4th 64, 72, fn. 6 (2000); Cullincini v. Deming
53 Cal. App. 3d 908, 914 (1975); Rodriguez v. County of LA 171 Cal. App. 3d 171, 175 (1985).
Also See Nativi v. Deutsche Bank Nat'l Trust Co., 223 Cal. App.4th 261, 318 (2014) (noting
that conclusory declarations lacking in factual specificity are insufficient to establish good
cause justifying a protective order).
This is exactly the same “evidence” that Ford offered, and exactly the same position
that Ford took, during the brief meet-and-confer process that Ford, as per above, misleadingly
describes in its Motion.> Throughout this process, Ford (1) demanded that Plaintiff agree to
the federal court stipulated protective order, as if this were binding or determinative, and (2)
offered no legitimate evidence that any of the documents at issue in fact were trade secret or
confidential to a degree that a protective order was necessary. Moreover, Ford improperly
attaches meet-and-confer correspondence from other cases to the Cheng Declaration that
are not relevant to the meet-and-confer efforts between the parties in the instant matter. This
self-serving selection of correspondence is misleading because it omits Plaintiff's response,
which identifies various provisions of Ford’s proposed protective order that are not compliant
with California law.
If this failure of proof were not bad enough: The level of protection that Ford demands
is not the “standard” LASC model protective order, or even the “highly confidential” LASC
model protective order. Instead, the proposed protective order that Ford attaches to its Motion
is a “Super Highly Confidential” protective order that Ford has cobbled together based on the
stipulated federal court class action protective “order.”
This Super Highly Confidential protective order contains provisions that are onerous,
unconstitutional, and which would prevent Plaintiff and his counsel from litigating this
case in the manner required. For example, Plaintiff would be unable to show the documents
at deposition, to technicians who worked on Plaintiff's vehicle (percipient witnesses) as they
are considered “third parties”. (Dailey Decl. 415). In addition, in a Lemon Law in Los Angeles
5 (See Mot, at 2:23-24)
Page 4
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERSuperior Court (“LASC”), Dept. 20, Tesolin v. Ford, LASC Case No. BC541583, Ford
refused to allow its own corporate PMQ witnesses to be questioned about any of the
allegedly Super Highly Confidential documents unless the PMQ witness either (1) authored
the document in question, or (2) already knows the contents of the documents. (Dailey Decl.
415).
Finally, as a practical matter, Ford’s insistence on a Super Highly Confidential
protective order is ultimately of no real significance, insofar as other Courts have entered much
less restrictive protective orders as to exactly the same set of Transmission Defect documents.°
Admittedly, these rulings are not “precedent” or otherwise binding on this Court. However,
these less-restrictive protective orders nonetheless are relevant. Even if this Court enters a
Super Highly Confidential protective order in this case, Plaintiff's counsel can handle the same
Transmission Defect documents produced in another case in any manner not precluded by a
less-restrictive order issued in that case.
In sum, Plaintiff repeatedly has offered to stipulate to the “standard” LASC model
protective order as a courtesy, and to mitigate Ford’s Obstruct & Delay tactics. Ford has
refused this offer, but fails to meet its burden of showing that the documents at issue are
entitled even to this level of protection. Rather, the “evidence” on which Ford relies—the
stipulated federal court protective “order”; the unsupported, and untested, Fyie Declarations;
the unsupported arguments of Ford’s counsel—on their face are insufficient to support any
claim of trade secret or confidentiality.?, Accordingly, the Court should deny Ford’s Motion.*
Il. LEGAL ANALYSIS
A. Ford Has Not Met Its Heavy Burden Of Proof To Show That The
Documents Contain “Trade Secrets” Or Are “Confidential”
As the moving party, Ford must show that (1) as a threshold matter, the information
sought to be protected constitutes trade secret or confidential information; (2) with respect to
6 (See Dailey Decl. Exs. 4-11.)
7 (See Dailey Decl. 17)
® Assuming arguendo the Court is inclined to find Ford has made such showing, the Court should not
enter the Super Highly Confidential protective order that Ford demands. Rather, any protective order should
reflect the weighing of the relative interests and should be appropriately tailored, consistent the standard LASC
Confidential Designation-only protective order.
Page 5
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDEReach and every document for which Ford seeks protection, particularized injury will result if
Ford’s Motion is not granted; and (3) Ford’s interests supersede the strong public interest in open
access to judicial proceedings. Ford comes nowhere near to meeting this burden of proof.
1. Ford Makes No Attempt To Establish That The Information
Involved Is Trade Secret Or Confidential
As a preliminary matter, Ford must, as the moving party, show that the information for
which it seeks protection constitutes trade secret or is confidential. See Nativi v. Deutsche Bank
Nat. Trust Co., 223 Cal. App. 4th 261, 318-19 (2014) (moving party made no factual showing
that the documents that it had been ordered to produce contained confidential commercial
information). See also Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325
(10th Cir. 1981) (“To resist discovery under Rule 26(c)(7), a person must first establish that the
information sought is a trade secret[{] and then demonstrate that its disclosure might be
harmful.”).°
California’s Uniform Trade Secrets Act is codified at Civil Code Section 3426.1, and
defines a “trade secret” as the following:
Information, including, without limitation, a formula, pattern, compilation,
program, device, method, technique, product, system, process, design,
prototype, procedure, computer programming instruction or code that:
(1) Derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by the
public or any other persons who can obtain commercial or economic value from
its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
Cal. Civ. Code § 3426.1. Under California law, and as recognized by the Ninth Circuit, a trade
secret must fall within the statutory definition to be protected. See Forro Precision, Inc. v.
International Business Machines Corp., 673 F.2d 1045, 1057 (9th Cir. 1982).
The proof required to show a trade secret must consist of admissible evidence of the
following elements:
° See Liberty Mut. Ins. Co. v. Super. Ct., 10 Cal. App. 4th 1282, 1288 (1992) (“Because of the similarity
of California and federal discovery law, federal decisions have historically been considered persuasive absent
contrary California decisions.”)
Page 6
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER(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, 19 Cal. App. 3d 194, 208 (1971).
Moreover, where a trade secret is allegedly involved, the party seeking a protective
order must provide an affidavit or declaration listing the declarant’s qualifications to give an
opinion, identifying the alleged trade secret, identifying the documents disclosing the trade
secret, and presenting evidence that the secret qualifies as a trade secret. Cal. Evid. Code §§
1060-1061; Stadish v. Superior Court (Southern Calif. Gas Co.), 71 Cal. App. 4th 1130, 1144-
45 (1999) (the procedures called for in Evidence Code section 1061 should be followed in civil
actions).
Rather than address these required elements, Ford simply assumes as a given that the
documents at issue contain trade secrets or are sufficiently confidential that a protective order is
required. The following excerpts from the Fyie Declarations are representative!?:
e “In this declaration, I discuss certain proprietary, trade secret, and
confidential information of Ford.” (Fyie Decl. § 4)
« “Tt is my understanding that Ford is filing a Motion for Entry of a Protective
Order to assign a confidential designation to certain categories of documents
that may be produced in the instant litigation, most of which contain
confidential trade secrets and commercially sensitive business information
0.” (Fyie Decl. § 9)
These are mere tautologies, and are insufficient to establish that any of the documents are
confidential or trade secret.
Next, Mr. Fyie simply lists the various categories of documents for which Ford seeks
protection, such as warranty data, root cause analyses, testing pertaining to the DPS6 system or
MFT System, and draft TSBs. (See Fyie Decl. § 10). Yet, merely listing various document
categories, without more, does not automatically grant them protected status or exempt Ford
!° The Fyie Declaration bears a date months before Ford filed its instant motion for protective order,
and, in fact, before Plaintiff filed the underlying complaint. Therefore, the Fyie Declaration could not have been
specifically prepared to support that motion.
Page 7
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERfrom establishing the various Uribe factors through admissible evidence.
More egregious, Ford proffers unsupported arguments under the guise of admissible
fact:
¢ “There can be no serious dispute that a protective order governing the
documents Plaintiff seeks is required to protect Ford’s proprietary and
commercially sensitive business information, particularly because the
documents sought pertain to a vehicle platform and components that are still
in production.” (See Mot. at 1:11-14.)
« “There can be no doubt that dissemination of these types of documents and
information would expose Ford to significant harm...A tremendous amount
of research and analysis that goes into each and every system contained in
Ford’s automobiles. (See Mot. at 8:17-24)
Defendant, however, cites no evidence to support these obviously self-serving
assertions. They are arguments masquerading as admissible fact, and the Court should give
them no weight. Even if they were admissible, they still would not satisfy Ford’s heavy
burden. For example, the fact that vehicle components are still in production, or that “a
tremendous amount of research and analysis [] goes into each and every system,” does not
talismanically transform the corresponding documents into trade secret.
At a minimum, Ford should have submitted each and every document for which it
is seeking protection to the Court for an in camera review. See Fireman’s Fund Ins. Co. v.
Sup. Ct. (Paine Webber Real Estate Securities), 233 Cal. App. 3d 1138, 1141 (1991) (if the
responding party claims the information sought is “commercially sensitive,” the trial court
must conduct an in camera review of the documents to determine whether they are of value to
plaintiff's case, and whether any sensitive matters should be excised before disclosure). Ford,
however, has not submitted even a single document to the Court.
Further, dual clutch transmission technology is covered by multiple US patents issued
by the United States Patent and Trademark Office (“USPTO”). For example, a patent search
of the USPTO website (patft.ustpo.gov) of the term “dual clutch transmission” discloses no
less than 727 patent filings incorporating this term. A search of the term “dual clutch
transmission” and “Ford” disclosed 87 patent filings using both terms. All of these patent
filings are public record, and available to Ford’s competitors, both in the United States
and abroad. Further, as a matter of fundamental patent law, such patent filings necessarily
Page 8
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERmust disclose specific, detailed technical and engineering information about the dual
clutch transmission technology for which patent protect is sought. But this specific,
detailed technical and engineering information is what Ford now claims is “trade secret” or
“confidential.” (See Dailey Decl. § 8).
2. Ford Has Failed To Show Good Cause For Any Protective Order
Even assuming that Ford had shown that the information at issue is a trade secret or
otherwise confidential and entitled to protection (and it has not), Ford would have to show
good cause for whatever protective order is sought. Fairmont Ins. Co. v. Superior Court, 22
Cal. 4th 245, 255 (2000) (where a party must resort to the courts, “the burden is on the party
seeking the protective order to show good cause for whatever order is sought. [Citation.]”);
Phillips v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002) (“For good cause to
exist, the party seeking protection bears the burden of showing specific prejudice or harm will
result if no protective order is granted. [Citations omitted.]”).
Good cause requires specific facts justifying the relief sought. Goodman v. Citizens
Life & Cas. Ins. Co., 253 Cal. App. 2d 807, 819 (1967). Broad allegations of harm,
unsubstantiated by specific examples or articulated reasoning, do not satisfy the good cause
requirement. Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
See also Nativi, 223 Cal. App. 4th at 318 (quoting with approval In re Roman Catholic
Archbishop of Portland in Oregon 661 F.3d 417, 424 (9th Cir.2011) [‘[b]road allegations of
harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule
26(c) test.’ [Citation]”]).
“Where a business is the party seeking protection, it will have to show that disclosure
would cause significant harm to its competitive and financial position. That showing requires
specific demonstration of fact, supported where possible by affidavits and concrete examples,
rather than broad, conclusory allegations of harm.” Contratto, 227 F.R.D. at 307-8.
In particular, “[a] party asserting good cause bears the burden, for each particular
document it seeks to protect, of showing that specific prejudice or harm will result if no
protective order is granted.” Foltz v. State Farm Mutual Automobile Insurance Company, 331
Page 9
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERF.3d 1122, 1130 (9th Cir. 2003) (emphasis added); and see Phillips, 307 F.3d at 1210-11 (to
gain a protective order the party must make particularized showing of good cause with respect
to any individual document) (citing with approval San Jose Mercury News, Inc. v. U.S. Dist.
Court--N. Dist. (San Jose), 187 F.3d 1096 (9th Cir. 1999)).
Nativi v. Deutsche Bank Nat. Trust Co., 223 Cal. App. 4th 261 (2014), presents facts
analogous to those here. In Nativi, the trial court granted in part the plaintiffs’ motion to
compel further discovery. Jd. at 314. The parties, however, could not agree to a stipulated
protective order. /d. at 315. The defendant filed an ex parte application for an order
shortening time for notice on a motion for protective order, in support of which defendant filed
a declaration, which stated in part, “There is absolutely no prejudice to Plaintiffs whatsoever
in keeping these documents from dissemination outside of this lawsuit, yet AHMSI is severely
prejudiced if these documents are not provided any protection at all.’”
This declaration, however, provided no factual basis or articulated reasoning for that
assertion. Nevertheless, along with the ex parte application, the defendant “submitted a
sweeping proposed order that provided procedures for designating material as confidential and
challenging confidentiality designations, extensive restrictions regarding the use of designated
materials in discovery and in court, and provisions for the return and destruction of materials
received at the conclusion of the litigation.[Footnote omitted] The proposed order broadly
stated: ‘All Confidential Information produced or exchanged in the course of this case (not
including information that is publicly available) shall be used by the Party or Parties to whom
the information is produced solely for the purpose of this case.”” Jd.'!
The court found that the defendant’s evidentiary showing was wholly inadequate:
[T]he declaration submitted in support of AHMSI's motion for such a protective
order was entirely conclusory and lacked any factual specificity. (See People v.
Superior Court (1967) 248 Cal.App.2d 276, 281-282, 56 Cal.Rptr.
393 [declaration containing mere conclusions insufficient to establish good
cause]; cf. Zn re Roman Catholic Archbishop of Portland in Oregon (9th
Cir.2011) 661 F.3d 417, 424 [* ‘[bJroad allegations of harm, unsubstantiated by
specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.’
[Citation.]”]; cf. also Fed. Rules of Court, rule 26(c), 28 U.S.C. [The court
"! Plaintiff notes that Ford’s protective order is even broader than the protective order that was being
sought in the Nativi matter.
Page 10
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERmay, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or more
of the following: ... [§]] (G) requiring that a trade secret or other confidential
research, development, or commercial information not be revealed or be
revealed only in a specified way....”].) AHMSI made no factual showing that (1)
the documents that it had been ordered to produce contained confidential
commercial information or information in which it had any protectable interest
or (2) dissemination of the documents to the public would result in injury.
Nativi, 223 Cal. App. 4th at 318. Additionally, the court found the proposed protective “went
far beyond restricting disclosure of [the] documents in advance of trial.” Id.
As in Nativi, Ford’s instant Motion provides not one shred of evidence concerning
particularized harm. Instead, Ford’s “showing” of harm is limited to a single, unsupported
sentence: “This type of overall analysis and information is commercially sensitive business
information that is not made available to the general public, the disclosure of which would
irrefutably cause Ford competitive harm.” (See Fyie Decl. § 12.) This is utterly inadequate
to justify the Super Highly Confidential protective order that Ford demands. Ford’s failure
to show good cause is additional grounds to deny Ford’s Motion. '*
3. The Public’s Strong Interest In Open Access To Judicial
Proceedings Supersedes Ford’s Legitimate Interest, If Any, In
Confidentiality
If a court finds particularized harm will result from disclosure of information to the
public (and there is no basis for such a finding here), the court must balance the public and
private interests to decide whether a protective order is necessary. Phillips, 307 F.3d at
1211 (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing factors
considered)). The public is permitted “access to litigation documents and information
produced during discovery unless the party opposing disclosure shows ‘good cause’ why a
Protective Order is necessary.” Phillips, 307 F.3d at 1210. “It is well-established that the
fruits of pre-trial discovery are, in the absence of a court order to the contrary, presumptively
public” and a court may “override this presumption only where ‘good cause’ is shown.”
'2 In fact, the Fyie Declarations make clear that Ford’s Motion was not brought in good faith. Ford’s
demand that entire categories of documents be deemed confidential is predicated on the Fyie Declarations. (See
Fyie Decl. | 10). Mr. Fyie, however, admit that they have not reviewed all of the categories for which Ford is
seeking protection—let alone reviewed all of the documents within those categories. (See Fyie Decl. 4 10 [“L
have reviewed a sampling of the categories of Confidential Documents that may be produced...”] [emphases
added].)
Page I
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER(quoting San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1103 (9th Cir.
1999)).
Because Ford has not made any showing of particularized harm, this Court
necessarily cannot balance Ford’s interests against the public’s right of access to the
information at issue. But, even if Ford had made a sufficient evidentiary showing of
particularized harm, the public’s right to the information would outweigh whatever
confidentiality interests, if any, Ford possesses. This is particularly true given that the DPS6
transmission defect affecting Plaintiff's Lemon constitutes a widespread public safety
concern.
The Westinghouse court warned that protective orders “impair the public's
access to discovery records as well as the parties’ First Amendment right to
disseminate information to the public.” (Westinghouse, supra, 39 Cal.App.4th at
p. 1208, 46 Cal.Rptr.2d 151.) “Because the judicial process is frequently the
avenue by which the public and regulatory agencies learn of significant health
and safety hazards, blocking this avenue may prove detrimental to the public
well-being. For this reason, courts frequently consider the public interest when
determining whether good cause exists for a protective order.
[Citations.]” (Ibid.)
Stadish, 71 Cal. App. 4th at 1145. Permitting Ford to designate the information at issue as
confidential would deprive the public of important safety information, including, for
example, that the transmission defect can cause the vehicle to stall during operation, to
hesitate or lack power upon acceleration, and to lose power, and that Ford is unable to
repair the defect.
Ford contends that its proposed protective order “protects Ford at no cost to Plaintiff.”
(See Mot. At 9:3, 9:13-15.) Ford’s argument, however, ignores the rights of a critical “third
interested party”: the presumptive right of the public to information about judicial
proceedings. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 1209,
n.25 (1999) (“Numerous reviewing courts ... have found a First Amendment right of access to
civil litigation documents filed in court as a basis for adjudication. [Citations.]. [{]] By contrast,
decisions have held that the First Amendment does not compel public access to discovery
materials that are neither used at trial nor submitted as a basis for adjudication. [Citations.]”);
see also Cal. Rules of Court, rule 2.550(d) (court may not order record to be filed under seal if
Page 12
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERan overriding interest does not overcome the right of public access).
B. Ford’s Proposed Super Highly Confidential Protective Order Is Facially
Improper And Should Not Be Imposed By This Court
The Court of Appeal has held that the trial courts may not issue an “umbrella”
protective order that allows the parties to designate confidential documents produced in
discovery. See Stadish, 71 Cal. App. 4th at 1144 (trial court impermissibly “delegated to the
parties the responsibility of determining which items of discovery contained trade secrets”).
Yet, that is exactly what Ford demands here. Ford’s Super Highly Confidential protective
order permits Ford to unilaterally designate documents and information it deems highly
confidential. (See Mot. at Ex. D [Def.’s [“Super Highly Confidential” order] at § 2.)
Further, and contrary to Ford’s assertion that its proposed protective order “protects
Ford at no cost to Plaintiff,” the “protections” that Ford demands would expose Plaintiff and
his counsel to tactical charges of violations of the protective order that Ford could bring to
deter prosecution of Lemon Law claims against Ford. For example, Ford’s Super Highly
Confidential order would prohibit Plaintiff from even stating (to anyone who had not signed
the order) that he obtained protected documents. (See Super Highly Confidential order at §
9(b).) In other words, Plaintiff’s communication of the mere fact that he possessed
purportedly confidential documents would give rise to a violation of the order.
Such provisions would abridge Plaintiff's First Amendment rights. See Seattle
Times, 467 U.S. at 36 (to avoid offending the First Amendment, a protective order must be
entered on a showing of good cause). They are also wholly absent from the LASC model
Highly Confidential protective order, which gives the lie to Ford’s claim that its Super Highly
Confidential protective order is merely “a slightly modified version of the Los Angeles
Superior Court Highly Confidential form.”
Nor does Ford demonstrate what good cause exists for including such provisions—or
any of the other provisions—in its proposed protective order. Because the parties were not
able to reach an agreement on a protective order, it was incumbent on Ford to show “good
cause” for any requested protection. See Naviti at 318. Ford has failed to make such a
Page 13
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERshowing.
Additionally, the Super Highly Confidential order would prevent Plaintiff from
presenting protected materials to percipient witnesses at deposition or trial, unless those
witnesses were already previously familiar with the materials. (See Super Highly Confidential
order at § 8(c).; see also Dailey Decl. at 15.) This provision would effectively bar Plaintiff
from showing relevant materials to, for instance, the Ford dealer technicians who worked on
Plaintiff's vehicle or Defendant’s own Person Most Qualified.
Cc. If The Court Finds, In General, That A Protective Order Is Appropriate,
Any Resulting Order Should Embody A Proper Balancing of the Relevant
Interests
Ford has fallen far short of carrying its heavy burden of showing good cause for a
protective order. Even so, if the Court is inclined to enter a protective order, it should enter the
same protective order that other California courts have entered in other Lemon Law cases
involving Ford (as opposed to the Super Highly Confidential protective order that Ford urges
the Court to adopt). (See Dailey Decl. Exs. 4-11.)
These orders appropriately balance Ford’s confidentiality/privacy rights as against
Plaintiff's right to obtain relevant discovery and the public’s right to the free access to
information, in contrast with Ford’s proposed order, which would unduly prejudice the rights
of Plaintiff and the public.
Il. CONCLUSION
For the foregoing reasons, Ford’s motion for a protective order must be denied.
Dated: September 6, 2016 STRATEGIC LEGAL PRACTICES, APC
By: Ongar. Qh
Angela Dailey
Attorneys for Plaintiff
PACIFICO SOLIS
Page 14
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERPROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
Iam employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action. My business address is Strategic Legal Practices, 1840
Century Park East, Suite 430, Los Angeles, California 90067.
On September 6, 2016, I served the document(s) described as:
1) PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE
ORDER
2) PLAINTIFF’S EVIDENTIARY OBJECTIONS TO DECLARATIONS
SUBMITTED IN SUPPORT OF DEFENDANT’S MOTION FOR PROTECTIVE
ORDER
3) DECLARATION OF ANGELA J. DAILEY IN SUPPORT OF PLAINTIFF’S
OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER
4) PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE
ORDER
5) PLAINTIFF’S PROPOSED ORDER
on the interested parties in this action by sending [ ] the original [or] [“] a true copy thereof
[¥] to interested parties as follows [or] [ ] as stated on the attached service list:
H. Paul Efstratis
Jamie M. Cheng
LeClairRyan, LLP
44 Montgomery St., Suite 3100
San Francisco, CA 94014
[] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): | deposited the envelope(s)
for mailing in the ordinary course of business at Los Angeles, California. | am “readily
familiar” with this firm’s practice of collection and processing correspondence for
mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal
Service that same day in the ordinary course of business with postage thereon fully
prepaid at Los Angeles. California.
[ ] BY E-MAIL: [hereby certify that this document was served from Los Angeles,
California, by e-mail delivery on the parties listed herein at their most recent known e-
mail address or e-mail of record in this action.
[ ] BY FAX: [hereby certify that this document was served from Los Angeles, California,
by facsimile delivery on the parties listed herein at their most recent fax number of
record in this action.
[X] BY PERSONAL SERVICE: I caused the document(s), enclosed in a sealed envelope,
Page 15
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERto be delivered bv hand to the offices of the addressee(s) named herein.
[ ] BY OVERNIGHT DELIVERY: | am “readily familiar” with this firm’s practice of
collection and processing correspondence for overnight delivery. Under that practice,
overnight packages are enclosed in a sealed envelope with a packing slip attached
thereto fully prepaid. The packages are picked up by the carrier at our offices or
delivered bv our office to a designated collection site.
I declare under penalty of perjury under the laws of the State of California and the
United States that the foregoing is true and correct.
Executed this September 6, 2016, at Los Angeles, California.
Lilia Madrid
Type or Print Name
Arun Mads
OD
Signature
Page 16
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Preview
Benjeman R. Beck (SBN 268617) bbeck@slpattorney.com Angela J. Dailey (SBN 278572) adailey@slpattorney.com STRATEGIC LEGAL PRACTICES, APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 Attorneys for Plaintiff PACIFICO SOLIS ELECTRONICALLY FILED Supertor Court of Cafffornia, County of San Francisco 09/06/2016 Clerk of the Court BY:GARY FELICIANO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PACIFICO SOLIS, Plaintiff, vs. FORD MOTOR COMPANY; and DOES | through 10, inclusive, Defendants. Case No.: CGC-16-551687 Case Initiated: April 27, 2016 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER [Concurrently filed with Declaration of Angela J. Dailey In Support of Evidentiary Objections and Plaintiff's Request For Judicial Notice] Date: September 19, 2016 Time: 9:30 a.m. Dept: 302 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERTABLE OF CONTENTS I. INTRODUCTION/FACTUAL AND PROCEDURAL BACKGROUND ......cescsecceees 1 Tl. LEGAL ANALYSIS wu. ccc cecsceseeseecssececaeseeeseecsssasseanaeeacacacseaesesesenssensasasasasansearis 5 A. Ford Has Not Met Its Heavy Burden Of Proof Of Showing That The Documents Ordered Produced Contain “Trade Secrets” Or Are “Confidential”... SD 1. Ford Makes No Attempt To Establish That The Information Involved Is Trade Secret Or Confidential ......c.cccceseseseseesesesseseseeseseseessenessseensseseeesssenses 6 2. Ford Has Failed To Show Good Cause For Any Protective Order 3. The Public’s Strong Interest In Open Access To Judicial Proceedings Supersedes Ford’s Legitimate Interest, If Any, In Confidentiality 00.0000... 11 B. Ford’s Proposed Super Highly Confidential Protective Order Is Facially Improper And Should Not Be Imposed By This Court ........0....c.ccccescseesseeeeeeeeeseeeseeeeeeeeeee 13 C. If The Court Finds, In General, That A Protective Order Is Appropriate, Any Resulting Order Should Embody A Proper Balancing of the Relevant Interests ... 14 TH. CONCLUSION oo... ccccecccescecssesseesesssseseseececececaceeesseassessserseessecsssuseavacsessseeneveeeveeseanaane 14 1 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERTABLE OF AUTHORITIES CASES Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470 (9th Cir. 1992) wee 9 Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323 (10th Cir. 1981)... 6 Contratto v. Ethicon, Inc., 227 F.R.D. 304 (N.D. Cal. 2005) o..ceccceecececseseseseeeceeeeseeeeseseeeseee 2,9 Fairmont Ins. Co. v. Sup. Ct. (Stendell), 22 Cal. 4th 245 (2000) w..ccccccceeseeesseeeseseeetereteneeeees 9 Fireman’s Fund Ins. Co. v. Sup. Ct. (Paine Webber Real Estate Securities), 233 Cal. App. 3d FSS eT traldedlelelabshdadadatulabaldedelelabebandadulatebsllededalabebancedatatebebebaedelstebsndadedate 8 Foltz v. State Farm Mutual Automobile Insurance Company, 331 F.3d 1122 (9th Cir. 2003)...9 Forro Precision, Inc. v. International Business Machines Corp., 673 F.2d 1045, 1057 (9th Cir. 10 ESE ttt le ae atartttadataly 6 Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) ...ceecsescseseceesereseesteeeeenenennneees 11 Goodman v. Citizens Life & Cas. Ins. Co., 253 Cal. App. 2d 807 (1967) ......c:::c:ceseceeeeceeeeeeee 9 Liberty Mut. Ins. Co. v. Super. Ct., 10 Cal. App. 4th 1282 (1992) ooo eceeseeeseeeeneeeeeeeneee 6 Nativi v. Deutsche Bank Nat. Trust Co., 223 Cal. App. 4th 261 (2014)..............4, 6,9, 10, 11 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.Ath 1178 (1999) occ 12 Norcal Mutual Ins. Co. vy. Newton (2000) 84 Cal. App. 4th 64.0.0... ceeeeeeee eee eeeeeeeeen ees 4 Phillips v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096 (9th Cir. 1999) ...10, 12 Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) wo. ccecseseseees eee seessenessessseseeneteesseeeneneeees 13 Stadish v. Superior Court (Southern Calif. Gas Co.), 71 Cal. App. 4th 1130 (1999) ....7, 12, 13 Uribe v. Howie, 19 Cal. App. 3d 194 (1971)... ceececeeceeeeeeseeeeseeceeeceeeeeeseteeeeeecesececerseereeeeeeeeeeets 7,8 STATUTES Cal. Civ. Code § 3426.1 Cal. Evid. Code § 1060 Cal. Evid. Code § 1061 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERCal. Rules of Court, rule 2.550(d) . OTHER AUTHORITIES 3 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERI. INTRODUCTION/FACTUAL AND PROCEDURAL BACKGROUND Ford considers this matter to be a “garden variety” lemon law case. (Defendant’s Motion, 1:4). However, Ford fails to take into account that Plaintiffs in lemon law matters have a burden to meet not dissimilar to that of Plaintiffs in class action matters. Ford likewise fails to take into account that Plaintiff purchased a new car, which had to be taken to Ford’s dealerships for repair no less than five (5) times in the first four (4) years of purchase. Therefore, Ford’s attempt to minimize this matter should not be well taken by this Court. Moreover, a party—even a powerful corporation like Ford—is not entitled to a protective order upon demand. Rather, Ford must meet the well-established factual and legal requirements for any such restriction on the public’s right to know about judicial proceedings, and for any such restriction on the opposing party’s ability to present its case. Ford has fallen far short of meeting its heavy burden. As a threshold matter, under California law, a party responding to discovery must “promptly” seek a protective order. Ford has failed to take prompt action here. Plaintiff served discovery requests on May 6, 2016, to which Defendant responded on June 30, 2016 with boilerplate objections, and has not supplemented those requests as of yet. Ford did not breach the topic of a protective order with Plaintiff until August 8, 2016 (not, as Defendant asserts, April 2015), and Ford did not file its instant motion until August 22, 2016 — over three (3) months after Plaintiff served discovery requests on Defendant. In this matter, and numerous others, Plaintiff has offered to stipulate to a protective order based on the standard Los Angeles Superior Court (*LASC”) model protective order. And Ford has flatly refused. Instead, Ford continues to demand—as a matter of right (that is, without demonstrating the necessity for the heightened protections Ford seeks or why the standard LASC model protective order is not sufficient)—a Super Highly Confidential protective order, which includes provisions even more restrictive than those in the “highly confidential” LASC model protective order (Dailey Decl 413-15). Hf ' (See Dailey Decl. 13-14.) Page 1 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERIn its instant motion, Ford misrepresents to this Court the meet and confer process. Ford simply informs this Court that Plaintiff responded to Defendant’s proposed Protective order by stating that “Ford ‘has not made a showing that any of the documents are confidential.’” (Defendant’s Motion, 2:23-24). While Plaintiff stands by that statement, Ford fails to provide this Court with Plaintiff's full response. In an effort to avoid the need for court intervention, and in the spirit of cooperation, Plaintiff offered to stipulate to an appropriate protective order - namely the “standard” LASC Model Protective Order (which covers “Confidential Materials”), which Ford has previously agreed to in other cases (Dailey Decl 413-14, Ex. 2). Now that Ford has finally filed its Motion (after having months to support its claims), the unreasonableness of Ford’s demands for a Super Highly Confidential protective order and Ford’s intent to Obstruct & Delay have never been more apparent, as Ford comes nowhere close to meeting its heavy burden of proof to show any of the documents at issue are entitled to any level of protection whatsoever. Instead, Ford’s Motion for Protective Order is based on the following: ° A protective “order” in a pending federal district court class action that was entered only pursuant to stipulation. Contrary to Ford’s deliberately misleading arguments, this stipulated federal protective “order” was not the product of any judicial review or analysis, and is not based on any judicial finding or other determination that any of the documents involved are “trade secret” or “confidential.” In fact, federal courts have repeatedly recognized that “[a] party who has never made a ‘good cause’ showing under Rule 26(c) justifying initial protection of disputed documents may not rely solely on the Protective Order to justify refusal when there is a reasonable request for disclosure.” Contratto v. Ethicon, Inc., 227 F.R.D. 304, 308 (N.D. Cal. 2005).? Accordingly, this federal court protective “order” is no more binding on this Court, and no more involves any judicial determination or analysis, than any other stipulation between the parties in another case involving different issues. e Declarations by Ford’s proponent witnesses, Matthew Fyie, which fail to ? A copy of Contratto is attached as Exhibit 3 to the Dailey Declaration. Page 2 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERcomply with Rule of Court 3.1115 because they do not appear to be written specifically for the motion that it supports; lack foundation; are vague and ambiguous; and are wholly conclusory in terms of any claim that the documents at issue contain “trade secrets,” or are otherwise confidential and entitled to the sort of protection Ford demands.* ° There is a reason for the lack of specificity in the Fyie Declaration: Ford reportedly did not develop, design or manufacture the “dual clutch” DPS6 transmission at issue, Instead, the DPS6 transmission was developed, designed and manufactured by a German transmission manufacturer, GERTAG. GERTAG is the world’s largest manufacturer of transmissions for autos and other vehicles, and is involved in joint ventures with two other large auto companies to supply the same transmissions and the same dual clutch transmission technologies to these competitors of Ford. Any “trade secrets” or “confidentiality” are GERTAG’s, not Ford’s; but GERTAG has already shared any such information with Ford’s competitors. GETRAG reportedly has also sold the same DPS6 Dual Clutch Transmission — also known as the “Ford PowerShift Transmission” — to multiple other automobile manufacturers, including Dodge and Volvo. (See DaileyDecl., {| 4-8, Ex. 1 (GETRAG documentation), p. 4-5). Further, GETRAG has sold various models of the Dual Clutch transmission to multiple other manufacturers, both worldwide and in the United States, including Renault, BMW (Mini Cooper), Buick, Chevrolet, Oldsmobile, Chrysler, Saturn, Opel, Vauxhall, Peugeot and Citroen (among others). Id. Hence, Ford’s competitors in the allegedly “highly competitive” automotive industry already know or have ready access to these “trade secrets.” e Unsupported arguments of Ford’s counsel, Jamie M. Cheng. Lawyers cannot testify for their clients or authenticate purported documents of their client. Ford’s counsel ’ The Fyie Declaration is referenced in the Motion (at 6:11-7:11, 8:9-16, 19, 25-26). With this Opposition, Plaintiff is filing evidentiary objections to the Fyie Declarations, which should be given no weight by this Court 4 See Dailey Decl. {f 4-8, Ex. | Page 3 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERcannot testify on behalf of her client; thus there is no admissible evidence of a trade secret. Norcal Mutual Ins. Co. v. Newton 84 Cal. App. 4th 64, 72, fn. 6 (2000); Cullincini v. Deming 53 Cal. App. 3d 908, 914 (1975); Rodriguez v. County of LA 171 Cal. App. 3d 171, 175 (1985). Also See Nativi v. Deutsche Bank Nat'l Trust Co., 223 Cal. App.4th 261, 318 (2014) (noting that conclusory declarations lacking in factual specificity are insufficient to establish good cause justifying a protective order). This is exactly the same “evidence” that Ford offered, and exactly the same position that Ford took, during the brief meet-and-confer process that Ford, as per above, misleadingly describes in its Motion.> Throughout this process, Ford (1) demanded that Plaintiff agree to the federal court stipulated protective order, as if this were binding or determinative, and (2) offered no legitimate evidence that any of the documents at issue in fact were trade secret or confidential to a degree that a protective order was necessary. Moreover, Ford improperly attaches meet-and-confer correspondence from other cases to the Cheng Declaration that are not relevant to the meet-and-confer efforts between the parties in the instant matter. This self-serving selection of correspondence is misleading because it omits Plaintiff's response, which identifies various provisions of Ford’s proposed protective order that are not compliant with California law. If this failure of proof were not bad enough: The level of protection that Ford demands is not the “standard” LASC model protective order, or even the “highly confidential” LASC model protective order. Instead, the proposed protective order that Ford attaches to its Motion is a “Super Highly Confidential” protective order that Ford has cobbled together based on the stipulated federal court class action protective “order.” This Super Highly Confidential protective order contains provisions that are onerous, unconstitutional, and which would prevent Plaintiff and his counsel from litigating this case in the manner required. For example, Plaintiff would be unable to show the documents at deposition, to technicians who worked on Plaintiff's vehicle (percipient witnesses) as they are considered “third parties”. (Dailey Decl. 415). In addition, in a Lemon Law in Los Angeles 5 (See Mot, at 2:23-24) Page 4 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERSuperior Court (“LASC”), Dept. 20, Tesolin v. Ford, LASC Case No. BC541583, Ford refused to allow its own corporate PMQ witnesses to be questioned about any of the allegedly Super Highly Confidential documents unless the PMQ witness either (1) authored the document in question, or (2) already knows the contents of the documents. (Dailey Decl. 415). Finally, as a practical matter, Ford’s insistence on a Super Highly Confidential protective order is ultimately of no real significance, insofar as other Courts have entered much less restrictive protective orders as to exactly the same set of Transmission Defect documents.° Admittedly, these rulings are not “precedent” or otherwise binding on this Court. However, these less-restrictive protective orders nonetheless are relevant. Even if this Court enters a Super Highly Confidential protective order in this case, Plaintiff's counsel can handle the same Transmission Defect documents produced in another case in any manner not precluded by a less-restrictive order issued in that case. In sum, Plaintiff repeatedly has offered to stipulate to the “standard” LASC model protective order as a courtesy, and to mitigate Ford’s Obstruct & Delay tactics. Ford has refused this offer, but fails to meet its burden of showing that the documents at issue are entitled even to this level of protection. Rather, the “evidence” on which Ford relies—the stipulated federal court protective “order”; the unsupported, and untested, Fyie Declarations; the unsupported arguments of Ford’s counsel—on their face are insufficient to support any claim of trade secret or confidentiality.?, Accordingly, the Court should deny Ford’s Motion.* Il. LEGAL ANALYSIS A. Ford Has Not Met Its Heavy Burden Of Proof To Show That The Documents Contain “Trade Secrets” Or Are “Confidential” As the moving party, Ford must show that (1) as a threshold matter, the information sought to be protected constitutes trade secret or confidential information; (2) with respect to 6 (See Dailey Decl. Exs. 4-11.) 7 (See Dailey Decl. 17) ® Assuming arguendo the Court is inclined to find Ford has made such showing, the Court should not enter the Super Highly Confidential protective order that Ford demands. Rather, any protective order should reflect the weighing of the relative interests and should be appropriately tailored, consistent the standard LASC Confidential Designation-only protective order. Page 5 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDEReach and every document for which Ford seeks protection, particularized injury will result if Ford’s Motion is not granted; and (3) Ford’s interests supersede the strong public interest in open access to judicial proceedings. Ford comes nowhere near to meeting this burden of proof. 1. Ford Makes No Attempt To Establish That The Information Involved Is Trade Secret Or Confidential As a preliminary matter, Ford must, as the moving party, show that the information for which it seeks protection constitutes trade secret or is confidential. See Nativi v. Deutsche Bank Nat. Trust Co., 223 Cal. App. 4th 261, 318-19 (2014) (moving party made no factual showing that the documents that it had been ordered to produce contained confidential commercial information). See also Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325 (10th Cir. 1981) (“To resist discovery under Rule 26(c)(7), a person must first establish that the information sought is a trade secret[{] and then demonstrate that its disclosure might be harmful.”).° California’s Uniform Trade Secrets Act is codified at Civil Code Section 3426.1, and defines a “trade secret” as the following: Information, including, without limitation, a formula, pattern, compilation, program, device, method, technique, product, system, process, design, prototype, procedure, computer programming instruction or code that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by the public or any other persons who can obtain commercial or economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Cal. Civ. Code § 3426.1. Under California law, and as recognized by the Ninth Circuit, a trade secret must fall within the statutory definition to be protected. See Forro Precision, Inc. v. International Business Machines Corp., 673 F.2d 1045, 1057 (9th Cir. 1982). The proof required to show a trade secret must consist of admissible evidence of the following elements: ° See Liberty Mut. Ins. Co. v. Super. Ct., 10 Cal. App. 4th 1282, 1288 (1992) (“Because of the similarity of California and federal discovery law, federal decisions have historically been considered persuasive absent contrary California decisions.”) Page 6 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER(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, 19 Cal. App. 3d 194, 208 (1971). Moreover, where a trade secret is allegedly involved, the party seeking a protective order must provide an affidavit or declaration listing the declarant’s qualifications to give an opinion, identifying the alleged trade secret, identifying the documents disclosing the trade secret, and presenting evidence that the secret qualifies as a trade secret. Cal. Evid. Code §§ 1060-1061; Stadish v. Superior Court (Southern Calif. Gas Co.), 71 Cal. App. 4th 1130, 1144- 45 (1999) (the procedures called for in Evidence Code section 1061 should be followed in civil actions). Rather than address these required elements, Ford simply assumes as a given that the documents at issue contain trade secrets or are sufficiently confidential that a protective order is required. The following excerpts from the Fyie Declarations are representative!?: e “In this declaration, I discuss certain proprietary, trade secret, and confidential information of Ford.” (Fyie Decl. § 4) « “Tt is my understanding that Ford is filing a Motion for Entry of a Protective Order to assign a confidential designation to certain categories of documents that may be produced in the instant litigation, most of which contain confidential trade secrets and commercially sensitive business information 0.” (Fyie Decl. § 9) These are mere tautologies, and are insufficient to establish that any of the documents are confidential or trade secret. Next, Mr. Fyie simply lists the various categories of documents for which Ford seeks protection, such as warranty data, root cause analyses, testing pertaining to the DPS6 system or MFT System, and draft TSBs. (See Fyie Decl. § 10). Yet, merely listing various document categories, without more, does not automatically grant them protected status or exempt Ford !° The Fyie Declaration bears a date months before Ford filed its instant motion for protective order, and, in fact, before Plaintiff filed the underlying complaint. Therefore, the Fyie Declaration could not have been specifically prepared to support that motion. Page 7 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERfrom establishing the various Uribe factors through admissible evidence. More egregious, Ford proffers unsupported arguments under the guise of admissible fact: ¢ “There can be no serious dispute that a protective order governing the documents Plaintiff seeks is required to protect Ford’s proprietary and commercially sensitive business information, particularly because the documents sought pertain to a vehicle platform and components that are still in production.” (See Mot. at 1:11-14.) « “There can be no doubt that dissemination of these types of documents and information would expose Ford to significant harm...A tremendous amount of research and analysis that goes into each and every system contained in Ford’s automobiles. (See Mot. at 8:17-24) Defendant, however, cites no evidence to support these obviously self-serving assertions. They are arguments masquerading as admissible fact, and the Court should give them no weight. Even if they were admissible, they still would not satisfy Ford’s heavy burden. For example, the fact that vehicle components are still in production, or that “a tremendous amount of research and analysis [] goes into each and every system,” does not talismanically transform the corresponding documents into trade secret. At a minimum, Ford should have submitted each and every document for which it is seeking protection to the Court for an in camera review. See Fireman’s Fund Ins. Co. v. Sup. Ct. (Paine Webber Real Estate Securities), 233 Cal. App. 3d 1138, 1141 (1991) (if the responding party claims the information sought is “commercially sensitive,” the trial court must conduct an in camera review of the documents to determine whether they are of value to plaintiff's case, and whether any sensitive matters should be excised before disclosure). Ford, however, has not submitted even a single document to the Court. Further, dual clutch transmission technology is covered by multiple US patents issued by the United States Patent and Trademark Office (“USPTO”). For example, a patent search of the USPTO website (patft.ustpo.gov) of the term “dual clutch transmission” discloses no less than 727 patent filings incorporating this term. A search of the term “dual clutch transmission” and “Ford” disclosed 87 patent filings using both terms. All of these patent filings are public record, and available to Ford’s competitors, both in the United States and abroad. Further, as a matter of fundamental patent law, such patent filings necessarily Page 8 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERmust disclose specific, detailed technical and engineering information about the dual clutch transmission technology for which patent protect is sought. But this specific, detailed technical and engineering information is what Ford now claims is “trade secret” or “confidential.” (See Dailey Decl. § 8). 2. Ford Has Failed To Show Good Cause For Any Protective Order Even assuming that Ford had shown that the information at issue is a trade secret or otherwise confidential and entitled to protection (and it has not), Ford would have to show good cause for whatever protective order is sought. Fairmont Ins. Co. v. Superior Court, 22 Cal. 4th 245, 255 (2000) (where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought. [Citation.]”); Phillips v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002) (“For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted. [Citations omitted.]”). Good cause requires specific facts justifying the relief sought. Goodman v. Citizens Life & Cas. Ins. Co., 253 Cal. App. 2d 807, 819 (1967). Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the good cause requirement. Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). See also Nativi, 223 Cal. App. 4th at 318 (quoting with approval In re Roman Catholic Archbishop of Portland in Oregon 661 F.3d 417, 424 (9th Cir.2011) [‘[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.’ [Citation]”]). “Where a business is the party seeking protection, it will have to show that disclosure would cause significant harm to its competitive and financial position. That showing requires specific demonstration of fact, supported where possible by affidavits and concrete examples, rather than broad, conclusory allegations of harm.” Contratto, 227 F.R.D. at 307-8. In particular, “[a] party asserting good cause bears the burden, for each particular document it seeks to protect, of showing that specific prejudice or harm will result if no protective order is granted.” Foltz v. State Farm Mutual Automobile Insurance Company, 331 Page 9 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERF.3d 1122, 1130 (9th Cir. 2003) (emphasis added); and see Phillips, 307 F.3d at 1210-11 (to gain a protective order the party must make particularized showing of good cause with respect to any individual document) (citing with approval San Jose Mercury News, Inc. v. U.S. Dist. Court--N. Dist. (San Jose), 187 F.3d 1096 (9th Cir. 1999)). Nativi v. Deutsche Bank Nat. Trust Co., 223 Cal. App. 4th 261 (2014), presents facts analogous to those here. In Nativi, the trial court granted in part the plaintiffs’ motion to compel further discovery. Jd. at 314. The parties, however, could not agree to a stipulated protective order. /d. at 315. The defendant filed an ex parte application for an order shortening time for notice on a motion for protective order, in support of which defendant filed a declaration, which stated in part, “There is absolutely no prejudice to Plaintiffs whatsoever in keeping these documents from dissemination outside of this lawsuit, yet AHMSI is severely prejudiced if these documents are not provided any protection at all.’” This declaration, however, provided no factual basis or articulated reasoning for that assertion. Nevertheless, along with the ex parte application, the defendant “submitted a sweeping proposed order that provided procedures for designating material as confidential and challenging confidentiality designations, extensive restrictions regarding the use of designated materials in discovery and in court, and provisions for the return and destruction of materials received at the conclusion of the litigation.[Footnote omitted] The proposed order broadly stated: ‘All Confidential Information produced or exchanged in the course of this case (not including information that is publicly available) shall be used by the Party or Parties to whom the information is produced solely for the purpose of this case.”” Jd.'! The court found that the defendant’s evidentiary showing was wholly inadequate: [T]he declaration submitted in support of AHMSI's motion for such a protective order was entirely conclusory and lacked any factual specificity. (See People v. Superior Court (1967) 248 Cal.App.2d 276, 281-282, 56 Cal.Rptr. 393 [declaration containing mere conclusions insufficient to establish good cause]; cf. Zn re Roman Catholic Archbishop of Portland in Oregon (9th Cir.2011) 661 F.3d 417, 424 [* ‘[bJroad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.’ [Citation.]”]; cf. also Fed. Rules of Court, rule 26(c), 28 U.S.C. [The court "! Plaintiff notes that Ford’s protective order is even broader than the protective order that was being sought in the Nativi matter. Page 10 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERmay, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ... [§]] (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way....”].) AHMSI made no factual showing that (1) the documents that it had been ordered to produce contained confidential commercial information or information in which it had any protectable interest or (2) dissemination of the documents to the public would result in injury. Nativi, 223 Cal. App. 4th at 318. Additionally, the court found the proposed protective “went far beyond restricting disclosure of [the] documents in advance of trial.” Id. As in Nativi, Ford’s instant Motion provides not one shred of evidence concerning particularized harm. Instead, Ford’s “showing” of harm is limited to a single, unsupported sentence: “This type of overall analysis and information is commercially sensitive business information that is not made available to the general public, the disclosure of which would irrefutably cause Ford competitive harm.” (See Fyie Decl. § 12.) This is utterly inadequate to justify the Super Highly Confidential protective order that Ford demands. Ford’s failure to show good cause is additional grounds to deny Ford’s Motion. '* 3. The Public’s Strong Interest In Open Access To Judicial Proceedings Supersedes Ford’s Legitimate Interest, If Any, In Confidentiality If a court finds particularized harm will result from disclosure of information to the public (and there is no basis for such a finding here), the court must balance the public and private interests to decide whether a protective order is necessary. Phillips, 307 F.3d at 1211 (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing factors considered)). The public is permitted “access to litigation documents and information produced during discovery unless the party opposing disclosure shows ‘good cause’ why a Protective Order is necessary.” Phillips, 307 F.3d at 1210. “It is well-established that the fruits of pre-trial discovery are, in the absence of a court order to the contrary, presumptively public” and a court may “override this presumption only where ‘good cause’ is shown.” '2 In fact, the Fyie Declarations make clear that Ford’s Motion was not brought in good faith. Ford’s demand that entire categories of documents be deemed confidential is predicated on the Fyie Declarations. (See Fyie Decl. | 10). Mr. Fyie, however, admit that they have not reviewed all of the categories for which Ford is seeking protection—let alone reviewed all of the documents within those categories. (See Fyie Decl. 4 10 [“L have reviewed a sampling of the categories of Confidential Documents that may be produced...”] [emphases added].) Page I PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER(quoting San Jose Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999)). Because Ford has not made any showing of particularized harm, this Court necessarily cannot balance Ford’s interests against the public’s right of access to the information at issue. But, even if Ford had made a sufficient evidentiary showing of particularized harm, the public’s right to the information would outweigh whatever confidentiality interests, if any, Ford possesses. This is particularly true given that the DPS6 transmission defect affecting Plaintiff's Lemon constitutes a widespread public safety concern. The Westinghouse court warned that protective orders “impair the public's access to discovery records as well as the parties’ First Amendment right to disseminate information to the public.” (Westinghouse, supra, 39 Cal.App.4th at p. 1208, 46 Cal.Rptr.2d 151.) “Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being. For this reason, courts frequently consider the public interest when determining whether good cause exists for a protective order. [Citations.]” (Ibid.) Stadish, 71 Cal. App. 4th at 1145. Permitting Ford to designate the information at issue as confidential would deprive the public of important safety information, including, for example, that the transmission defect can cause the vehicle to stall during operation, to hesitate or lack power upon acceleration, and to lose power, and that Ford is unable to repair the defect. Ford contends that its proposed protective order “protects Ford at no cost to Plaintiff.” (See Mot. At 9:3, 9:13-15.) Ford’s argument, however, ignores the rights of a critical “third interested party”: the presumptive right of the public to information about judicial proceedings. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 1209, n.25 (1999) (“Numerous reviewing courts ... have found a First Amendment right of access to civil litigation documents filed in court as a basis for adjudication. [Citations.]. [{]] By contrast, decisions have held that the First Amendment does not compel public access to discovery materials that are neither used at trial nor submitted as a basis for adjudication. [Citations.]”); see also Cal. Rules of Court, rule 2.550(d) (court may not order record to be filed under seal if Page 12 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERan overriding interest does not overcome the right of public access). B. Ford’s Proposed Super Highly Confidential Protective Order Is Facially Improper And Should Not Be Imposed By This Court The Court of Appeal has held that the trial courts may not issue an “umbrella” protective order that allows the parties to designate confidential documents produced in discovery. See Stadish, 71 Cal. App. 4th at 1144 (trial court impermissibly “delegated to the parties the responsibility of determining which items of discovery contained trade secrets”). Yet, that is exactly what Ford demands here. Ford’s Super Highly Confidential protective order permits Ford to unilaterally designate documents and information it deems highly confidential. (See Mot. at Ex. D [Def.’s [“Super Highly Confidential” order] at § 2.) Further, and contrary to Ford’s assertion that its proposed protective order “protects Ford at no cost to Plaintiff,” the “protections” that Ford demands would expose Plaintiff and his counsel to tactical charges of violations of the protective order that Ford could bring to deter prosecution of Lemon Law claims against Ford. For example, Ford’s Super Highly Confidential order would prohibit Plaintiff from even stating (to anyone who had not signed the order) that he obtained protected documents. (See Super Highly Confidential order at § 9(b).) In other words, Plaintiff’s communication of the mere fact that he possessed purportedly confidential documents would give rise to a violation of the order. Such provisions would abridge Plaintiff's First Amendment rights. See Seattle Times, 467 U.S. at 36 (to avoid offending the First Amendment, a protective order must be entered on a showing of good cause). They are also wholly absent from the LASC model Highly Confidential protective order, which gives the lie to Ford’s claim that its Super Highly Confidential protective order is merely “a slightly modified version of the Los Angeles Superior Court Highly Confidential form.” Nor does Ford demonstrate what good cause exists for including such provisions—or any of the other provisions—in its proposed protective order. Because the parties were not able to reach an agreement on a protective order, it was incumbent on Ford to show “good cause” for any requested protection. See Naviti at 318. Ford has failed to make such a Page 13 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERshowing. Additionally, the Super Highly Confidential order would prevent Plaintiff from presenting protected materials to percipient witnesses at deposition or trial, unless those witnesses were already previously familiar with the materials. (See Super Highly Confidential order at § 8(c).; see also Dailey Decl. at 15.) This provision would effectively bar Plaintiff from showing relevant materials to, for instance, the Ford dealer technicians who worked on Plaintiff's vehicle or Defendant’s own Person Most Qualified. Cc. If The Court Finds, In General, That A Protective Order Is Appropriate, Any Resulting Order Should Embody A Proper Balancing of the Relevant Interests Ford has fallen far short of carrying its heavy burden of showing good cause for a protective order. Even so, if the Court is inclined to enter a protective order, it should enter the same protective order that other California courts have entered in other Lemon Law cases involving Ford (as opposed to the Super Highly Confidential protective order that Ford urges the Court to adopt). (See Dailey Decl. Exs. 4-11.) These orders appropriately balance Ford’s confidentiality/privacy rights as against Plaintiff's right to obtain relevant discovery and the public’s right to the free access to information, in contrast with Ford’s proposed order, which would unduly prejudice the rights of Plaintiff and the public. Il. CONCLUSION For the foregoing reasons, Ford’s motion for a protective order must be denied. Dated: September 6, 2016 STRATEGIC LEGAL PRACTICES, APC By: Ongar. Qh Angela Dailey Attorneys for Plaintiff PACIFICO SOLIS Page 14 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERPROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Iam employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Strategic Legal Practices, 1840 Century Park East, Suite 430, Los Angeles, California 90067. On September 6, 2016, I served the document(s) described as: 1) PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER 2) PLAINTIFF’S EVIDENTIARY OBJECTIONS TO DECLARATIONS SUBMITTED IN SUPPORT OF DEFENDANT’S MOTION FOR PROTECTIVE ORDER 3) DECLARATION OF ANGELA J. DAILEY IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER 4) PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER 5) PLAINTIFF’S PROPOSED ORDER on the interested parties in this action by sending [ ] the original [or] [“] a true copy thereof [¥] to interested parties as follows [or] [ ] as stated on the attached service list: H. Paul Efstratis Jamie M. Cheng LeClairRyan, LLP 44 Montgomery St., Suite 3100 San Francisco, CA 94014 [] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): | deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. | am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles. California. [ ] BY E-MAIL: [hereby certify that this document was served from Los Angeles, California, by e-mail delivery on the parties listed herein at their most recent known e- mail address or e-mail of record in this action. [ ] BY FAX: [hereby certify that this document was served from Los Angeles, California, by facsimile delivery on the parties listed herein at their most recent fax number of record in this action. [X] BY PERSONAL SERVICE: I caused the document(s), enclosed in a sealed envelope, Page 15 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDERto be delivered bv hand to the offices of the addressee(s) named herein. [ ] BY OVERNIGHT DELIVERY: | am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Under that practice, overnight packages are enclosed in a sealed envelope with a packing slip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or delivered bv our office to a designated collection site. I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct. Executed this September 6, 2016, at Los Angeles, California. Lilia Madrid Type or Print Name Arun Mads OD Signature Page 16 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER