Free Motion to Strike - District Court of Delaware - Delaware

Case 1 :05-cv-00300-JJF Document 86 Filed 05/17/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Creedon Controls, Inc., a Delaware corporation, ) I
) C. A. No. 05CV300 (JJF)
Plaintiff, )
)
V- )
)
Banc One Building Corporation, an Illinois )
corporation; and Forest Electric Corporation, a )
New York corporation, )
) .
Defendants. )
PLAINTIFF CREEDON CONTROLS, INC.’S
MOTION TO STRIKE FOREST ELECTRIC CORPORATION’S
DESIGNATION OF "HIGHLY CONFIDENTIAL" DOCUMENTS;
OR, IN THE ALTERNATIVE, TO COMPEL FOREST ELECTRIC
CORPORATION TO PROVIDE DISCOVERY
COMES NOW, Plaintiff, Creedon Controls, Inc. ("CCI"), by and through its undersigned
attorneys, and respectfully moves this Court for an order, striking the designation by Forest
Electric Corporation ("Forest") of "bid drawings, or any other document, as "Highly
Confidential;" or, in the alternative, compelling Forest to produce bid drawings to CCI. The
basis of this motion is as follows:
1. After consideration of all of the relevant issues, counsel for CCI, and counsel for
I Forest [who also represented Banc One Building Corporation ("BOBC") at that time], entered
into a Stipulation regarding the appropriate governance of any confidential information or
documentation to be disclosed as part of this litigation. Such Stipulation was entered as an Order »
of this Court on December 6, 2005 (hereinafter "Confidentiality Order"). A copy of the
gg "Confidentiality_Order’T (D.E. 27) is attached hereto as Exhibit "1."

Case 1 :05-cv-00300-JJF Document 86 Filed 05/17/2006 Page 2 of 3
2. Paragraph 4(e) of that Confidentiality Order provides: "directors, officers,
employees of Plaintiff and Defendants or any subsidiary or affiliate thereof, who are assisting the
parties in this litigation, or who appear as witnesses. . ." may receive and review the doctunents.
3. On the eve of scheduling depositions in this matter, Forest, by its letter of May
16, 2006, now joins the BOBC strategy, and notifies CCI that previously-withheld bid drawings
are now suddenly available for review, and that such documents were now to be treated as
"highly confidential" under a different version of a confidentiality order, proposed by BOBC. A
copy of the letter of counsel for Forest, and dated May 16, 2006, is attached hereto as Exhibit
H2-79
4. It is respectfully submitted that the Court should not permit any party, and
specifically Forest, to engage in the BOBC type of strategic maneuvering, to unnecessarily
expand the breadth and cost of this litigation.
5. The proposed confidentiality order that BOBC proposed, and which Forest now
espouses, is an attachment to BOBC’s response to CCI’s similar motion to strike, which was
directed to BOBC. (D.E. 84). A copy of the proposed confidentiality order that BOBC, and now
Forest, propose, is attached hereto as Exhibit “3."
6. Paragraph 12 ofthe proposed confidentiality order limits the ability to view the
I documents marked "highly confidential" to counsel and their staff, and experts retained by the
parties. It does not permit the documents to be reviewed by the principals of another party or its
key employees. Obviously, Forest now joins the BOBC strategy; and, despite earlier entry into
C the existing order, Forest now, on the eve of depositions, seeks to strategically withhold
g gg drawings it should have produced long ago.
-7. Since Forest has not offered reasons of its own, presumably, Forest will follow
O C theltune BOBC, which has contended documents are (l) related to pricing by other

Case 1:05-cv-00300-JJF Document 86 Filed 05/17/2006 Page 3 of 3
contractors; and (2) may contain information which would create a security risk at the facility.
Both of these arguments are fallacious. First, the drawings do not relate to pricing. Second,
Forest is now withholding "bid drawings" — at least a part of which were made available
previously to CCI, prior to this litigation, together with every other contractor who bid on the
project, or was invited to bid on the project. Such drawings are not necessarily now in CCI’s
possession; and, if they are, the designation is totally useless. Third, any argument for security
seems to be a little late. If that was a real concern of Forest and/or BOBC, they would not have
previously shown the documents to literally dozens of individuals and entities, including CCI
and the same key employees CCI now wishes to be permitted to examine the documents.
8. It is noteworthy that, af`ter withholding "bid drawings" in this litigation for eight
months, to now prohibit the president of CCI or all of its key employees involved in the project,
from reviewing these bid drawings as a part of this litigation, is simply in bad faith.
9. CCI and its employees agree to be bound by any limitation for confidential
documents as described in the existing "Confidentia1ity Order."
WHEREFORE, Plaintiff Creedon Controls, Inc. prays that the Court enter an Order
striking the demarcation of "bid drawings," or other documents, by Forest Electric Corporation,
as "highly confidential;" or, in the alternative, that the Court enter an Order mandating that
Forest Electric Corporation produce these documents for availability to Creedon Controls, Inc., it
principal shareholder, president, and its principal employees.
COHEN, SEGLIAS, PALLAS, GREEN HALL
&
{ S} »··-s~sss
Edward Seglias, Esq. (I.D. No. 2822)
Robert K. Beste, Jr., Esq. (I.D. No. 154)
1007 Orange Street, Nemours Bldg., Suite 1130
V Wilmington, DE 19801
SS,/ S _ SS S SSSS Phone: (302) 425-5089 S SS S
Date: 2* I V-I I Uk Attorneys for Plaintiff, Creedon Controls, Inc;