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PLAINTIFFS SUPP. BRIEF ISO MOTION TO DE-DESIGNATE DEFENDANTS DOCUMENTS
Adam R. Fox (State Bar No. 220584)
Adam.Fox@squiresanders.com
SQUIRE SANDERS (US) LLP
555 South Flower Street, 31st Floor
Los Angeles, CA 90071
Telephone: +1.213.624.2500
Facsimile: +1.213.623.4581
[Additional Counsel Identified On Signature Page]
Attorneys for Plaintiffs WESTERN SUGAR COOPERATIVE,
MICHIGAN SUGAR CO., C&HSUGAR CO., INC., UNITED
STATES SUGAR CORPORATION, AMERICAN SUGAR
REFINING, INC., THE AMALGAMATED SUGAR COMPANY
LLC, IMPERIAL SUGAR COMPANY, MINN-DAK FARMERS
COOPERATIVE, THE AMERICAN SUGAR CANE LEAGUE
U.S.A., INC., and Plaintiff and Counterclaim Defendant
THE SUGAR ASSOCIATION, INC.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN SUGAR
COOPERATIVE, et al.
Plaintiffs,
vs.
ARCHER-DANIELS-MIDLAND
COMPANY, et al.
Defendants.
And Related Counterclaim.
Case No. CV11-3473 CBM (MANx)
[Discovery Matter]
PLAINTIFFS SUPPLEMENTAL
BRIEF IN SUPPORT OF MOTION TO
COMPEL DE-DESIGNATION OF
DOCUMENTS THAT DEFENDANTS
HAVE PRODUCED AS
CONFIDENTIAL OR HIGHLY
CONFIDENTIAL ATTORNEYS
EYES ONLY
Hearing : January 21, 2014
Time: 10:00 a.m.
Place: Courtroom 580
Magistrate Judge Margaret A. Nagle
Discovery Cutoff: June 30, 2014
Pretrial Conference: November 14, 2014
Trial Date: None Set
Case 2:11-cv-03473-CBM-MAN Document 152 Filed 01/07/14 Page 1 of 7 Page ID #:3551
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PLAINTIFFS SUPP. BRIEF ISO MOTION TO DE-DESIGNATE DEFENDANTS DOCUMENTS
I. INTRODUCTORY STATEMENT
Defendants portion of the Joint Stipulation suggests their almost complete
capitulation to Plaintiffs Motion challenging Defendants excessive confidentiality
designations. They accordingly characterize the Motion as having little to do with
a legitimate discovery dispute and everything to do with disparaging HFCS and its
makers. (Dkt. 143-70 at 4:3-4). And yet the public record reveals that Defendants
are actively engaged in their own spin and smear publicity campaign.
(Supplemental Declaration of Adam R. Fox in Support of Motion to Compel De-
Designation [Supp. Fox Decl.], Ex. A.) Defendants contentionand their
argument about the merits of their Counterclaimare part of a transparent effort to
divert the Court from the real discovery dispute remaining before it, key aspects of
which remain unresolved.
In particular, Defendants continue to maintain that three exhibits that include
numerous documents undeserving of confidentiality protection should nonetheless
continue to be cloaked in secrecy.
1
Defendants stake out this position although they
fail to provide even one example of specific harm or prejudice that [they] expect[]
will arise from disclosure of theseor any otherparticular documents produced
in discovery. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th
Cir. 2003). Moreover, although Defendants have removed the designations for all
of the other exhibits specifically referenced in the Motion, Defendants promise to
re-evaluate the hundreds of thousands of other pages now designated confidential
offers no concrete relief, no change in procedure, and no time commitment.
At bottom, Court intervention remains necessary to ensure that Defendants
reevaluate their previously mass, indiscriminate and routinized designations with
clear standards, and that they do so by a date certain.
1
Defendants have also curiously maintained confidentiality over certain redacted
portions in the Joint Stipulation, even though the quotations are lifted from a
document which Defendants themselves admit is publically available. (Supp. Fox
Decl., Ex. B.)
Case 2:11-cv-03473-CBM-MAN Document 152 Filed 01/07/14 Page 2 of 7 Page ID #:3552
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PLAINTIFFS SUPP. BRIEF ISO MOTION TO DE-DESIGNATE DEFENDANTS DOCUMENTS
II. ARGUMENT
Plaintiffs appreciate that Defendants (1) no longer maintainas they once
didthat their confidentiality designations in the first instance were
appropriate (Fox Decl., Ex. 17), and (2) now agree they should be reviewing their
productions and . . . de-designate as appropriate. (Dkt. 143-70 at 6:14-
15.) Indeed, Defendants are de-designating all but three of those items
specifically called out by Plaintiffs in the joint stipulation.
2
(Id. at 6:15.) Although
this about-face effectively narrows the issues left for the Court to resolve, it does
not dispose of the Motion. The propriety of the confidentiality designations of
certain exhibits remain, and the Courts resolution of those designations will
provide needed guidance as Defendants reevaluate their over-designations in prior
productions. Moreover, setting a date certain for completion of this taskas
Plaintiffs request in the Motionwill give needed teeth to an otherwise paper tiger.
Defendants maintain that three exhibits, comprised of a number of
documents, remain worthy of confidentiality designations because they contain
internal financial information for the Corn Refiners Association[] (CRA). (Joint
Stip. at 23:20.) Defendants assert that this information is sensitive and
proprietary, (id. at 23:22), but as this Court previously found based on arguments
CRA itself advanced, CRA, as a trade organization, is not in the business of
selling or leasing any goods or services, and has not endorsed a particular brand or
engaged in similar conduct. (Dkt. 47 at 5:14-15.)
The Protective Order in this case and the two District Court opinions cited by
Defendants address the protection of financial documents of active, commercial
enterprises whose competition with like entities would cause the disclosure of
such documents [to] pose a serious risk of competitive harm. (Dkt. 100 2.4.) A
trade association is itself comprised of a group of competitors. See, e.g., Stephanie
2
The three exhibits on which Defendants continue to maintain confidentiality
consist of multiple documents, so more than only three documents are at issue.
Case 2:11-cv-03473-CBM-MAN Document 152 Filed 01/07/14 Page 3 of 7 Page ID #:3553
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PLAINTIFFS SUPP. BRIEF ISO MOTION TO DE-DESIGNATE DEFENDANTS DOCUMENTS
W. Kanwit, FTC Enforcement Efforts Involving Trade and Professional
Associations, 46 Antitrust L.J. 640, 640 (1977) ([T]rade associations are, by
definition, organizations of competitors . . . .). This recognition places CRAs
financial information on very different footing than that of its member companies.
Moreover, certain of the purportedly sensitive financial information
Defendants seek to keep secret has already been laid bare to the public by this
Court. When The Sugar Association filed its Answer to the Corn Processors
Counterclaim, Plaintiffs counsel were constrained to redact portions of that
Answer based uponand in some instances quotingdocuments that had been
designated confidential by Defendants and the other Respondents to the
motion. (Dkt. 136.) Although The Sugar Association disputed the propriety of
those designations, it also lodged an unredacted version of the Answer with an
application to keep it under seal, which the Court denied. (Dkt. 138.) The Court
then caused the unredacted Answer to be filed publically, and thus disclosed some
of the exact same financial details about Defendants arrangements with their paid
advocates over which Defendants still seek to maintain confidentiality. (Compare,
e.g., Dkt. 139 46, with Joint Stip. at 19:7-13.)
Even more shocking than Defendants argument being premised upon a
willful disregard for this Courts prior Order is their lashing out at The Sugar
Association for purportedly having secretly funded a consumer advocacy
group. (Dkt. 143-70 at 28:3.) This effort to superficially place The Sugar
Association on equal footing with Defendants does not cancel out the impropriety
of their own misconduct. Like the notion that two wrongs make a right,
Defendants stratagem is fallacious, embarrassingly childish, and contrary to the
law governing discovery in federal court. Cf. Fed. R. Civ. P. 26, advisory
committee notes to 1993 amendments (A party is not relieved from its obligation
of disclosure merely because another party has not made its disclosures or has made
an inadequate disclosure.).
Case 2:11-cv-03473-CBM-MAN Document 152 Filed 01/07/14 Page 4 of 7 Page ID #:3554
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PLAINTIFFS SUPP. BRIEF ISO MOTION TO DE-DESIGNATE DEFENDANTS DOCUMENTS
Moreover, there are not even two wrongs that can be compared on
equivalent terms. There is notand never wasanything secret about The
Sugar Associations donation to Citizens for Health to spend as it sees fit, subject
to the basic conditions that its campaign be based on the truth, with the goal of
protecting the public; it will neither be a mud slinging campaign nor will it merely
promote the products of any commercial interest that provides financial
support. (Dahlin Decl., Ex. 17). This is markedly different from Defendants
efforts to conceal their money trail. (Fox Decl., Ex. 6.)
Defendants apparently maintain their confidentiality designations of
documents disclosing their own funding of hired guns,
3
while they simultaneously
accuse The Sugar Association of secretly funding an independent group that had
itself requested a six figure donation due to its aligned opposition to Defendants
questionable tactics. This is a curious accusation given The Sugar Association
produced the letter agreement in this litigation stating the funding without any
confidentiality designation at all. (Dahlin Decl., Ex. 17.)
Defendants repeat this tactical mistake when they complain about
documents that Plaintiffs themselves designated as confidentialwhich are not
even a subject of the motionwhen those documents actually never bore any
confidentiality designation. (Joint Stip. at 4:23-27, citing Dahlin Exs 3 &
4.) Defendants likewise mischaracterize Plaintiffs documents, which (again) have
nothing whatsoever to do with this Motion. By way of example only:
An internal review (not designated confidential) criticized a 2010 soft drink
study because its specific analytical method was not identified and certain
data were not reported, and maybe were possibly not measured. (Dahlin
Decl., Ex. 1.) But it did not reject the conclusions as wrong.
3
Defendants strategy in this regard precludes Plaintiffs from publicly revealing the
content of those documents. The Court will recall that The Sugar Associations
Answer avers on information and belief that Defendants spent in excess of
$10,000,000. (Dkt. 139 46.)
Case 2:11-cv-03473-CBM-MAN Document 152 Filed 01/07/14 Page 5 of 7 Page ID #:3555
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PLAINTIFFS SUPP. BRIEF ISO MOTION TO DE-DESIGNATE DEFENDANTS DOCUMENTS
The concern (also not designated confidential) about the rigor of another
study examining the differences in weight gains observed with sugar and
HFCS did not impact the conclusion that the data reported . . . affirm our
internal analysis of [other] scientific articles that greater caloric intakes are
observed with HFCS than sugar. (Id., Ex. 9.)
The Sugar Associations interest in 2004, in exploring a research
hypothesis about potential differences between HFCS and sugar was
expressly not . . . to denigrate HFCS. (Id., Ex. 4, emphasis supplied.)
Moreover, it provided only a secondary funding source to the National
Institute of Health, USDA, International Life Sciences Institute, as well as
the Dairy Council . . . and the Salt Institute (Id.)
Plaintiffs documents repeatedly emphasize the need for integrity and
honesty (id., Ex. 6), flatly contradicting Defendants characterization that
Plaintiffs spoke truth only behind closed doors (Dkt. 143-70 at 5:6.)
The hypothesis supposedly recanted by its own authors (Dkt. 143-70 at
5:27-28), was restated and re-embraced by both of them as recently as this
summer. (Supp. Fox Decl., Ex. C [See in particular page 246].)
In short, Defendants phony argument that Plaintiffs did it first, and their
attempt to argue the merits of the case rather than the discovery issue at hand,
should not distract the Court. Defendants admit their confidentiality designations
have been so mass, indiscriminate, or routinized that they must now go back and
reevaluate all of them. Defendants should now be ordered to do so by a date
certain. Moreover, they should not be permitted to retain confidentiality over
financial information the disclosure of which presents no competitive threat. The
cavalier manner in which Defendants needlessly dragged out this dispute when they
should have taken it seriously in the first instance warrants sanctions.
Case 2:11-cv-03473-CBM-MAN Document 152 Filed 01/07/14 Page 6 of 7 Page ID #:3556
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- 6 -
PLAINTIFFS SUPP. BRIEF ISO MOTION TO DE-DESIGNATE DEFENDANTS DOCUMENTS
Dated: January 7, 2014 Respectfully submitted,
SQUIRE SANDERS (US) LLP
By:/s/ Adam R. Fox
Adam R. Fox
David S. Elkins
Attorneys for Plaintiffs WESTERN SUGAR
COOPERATIVE, MICHIGAN SUGAR CO.,
C & H SUGAR CO., INC., UNITED STATES
SUGAR CORPORATION, AMERICAN
SUGAR REFINING, INC., THE
AMALGAMATED SUGAR COMPANY
LLC, IMPERIAL SUGAR COMPANY,
MINN-DAK FARMERS COOPERATIVE,
THE AMERICAN SUGAR CANE LEAGUE
U.S.A., INC., and Plaintiff and Counterclaim
Defendant THE SUGAR ASSOCIATION,
INC.
Additional Counsel for Plaintiffs:
David S. Elkins (State Bar No. 148077)
David.Elkins@squiresanders.com
SQUIRE SANDERS (US) LLP
600 Hansen Way
Palo Alto, CA 94304
Telephone: +1.650.856.6500
Facsimile: +1.650.843.8777
John A. Burlingame (Admitted Pro Hac Vice)
John.Burlingame@squiresanders.com
SQUIRE SANDERS (US) LLP
1200 19th Street, N.W., Ste. 300
Washington, DC 20036
Telephone: +1.202.626.6600
Facsimile: +1.202.626.6780
W. Mark Lanier (Admitted Pro Hac Vice)
wml@lanierlawfirm.com
THE LANIER LAW FIRM, P.C.
6810 FM 1960 West
Houston, Texas 77069
Telephone: + (713) 659-5200
Facsimile: + (713) 659-2204
Case 2:11-cv-03473-CBM-MAN Document 152 Filed 01/07/14 Page 7 of 7 Page ID #:3557