Free Reply - District Court of California - California

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J. Daniel Holsenback, Esq. (SBN 145640) J. DANIEL HOLSENBACK, APC 625 Broadway, Suite 906 San Diego, California 92101 Telephone: (619) 269-4634 Facsimile: (619) 269-4635 Attorneys for Plaintiffs Theodore & Lois Koziol

5 6 7 8 9 10 11 12 Plaintiffs, 13 vs. 14 15 16 17 18 Defendants. 19 20 21 22 23 24 25 26 27 28
0 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA THEODORE AND LOIS KOZIOL 24 Seagoin Road Brick Town, NJ 08723 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08cv947-DMS (BLM) (E.D. Pa. No. 07-3432) PLAINTIFFS' REPLY IN FURTHER SUPPORT OF THEIR MOTION TO COMPEL AND FOR SANCTIONS AGAINST GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC. Hon. Courtroom: Date: Time: Barbara L. Major TBD August 13, 2008 1:30 p.m. [FRCP 45]

THE UNITED STATES OF AMERICA The Executive Office Office of the Legal Adviser Room 5519 United States Department of State 2201 C Street, NW Washington, DC 20520-6310

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. III. B. I. II.

TABLE OF CONTENTS Page Summary of the Negotiations................................................................1 GA-ASI's Factual Presentation Concentrates on Issues that are Irrelevant to the Court's Consideration of the Enforceability of the Pending Subpoena...................................................................4 A. The Fact that Subpoenaed Documents are Relevant to More than One Action is Not a Basis for Sustaining any of GA-ASI's Objections......................................................6 Plaintiffs' Subpoena is Not Unduly Burdensome..............................8

Plaintiffs have Made Every Effort to Accommodate GA-ASI and to Work in Good Faith to Resolve the Obstacles Necessitating Court Intervention, while GA-ASI has engaged in Unreasonable Behavior..................................................................9 Conclusion..................................................................................12

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TABLE OF AUTHORITIES

Page

CASES

Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975))..............................5 Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 91 (D. N.J. 1986)...........................7 Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992)....................................7 Federal Open Market Committee v. Merrill, 443 U.S. 340, 362, 99 S.Ct. 2800, 2813 (1979)........................................................................11 Houston Business Journal, Inc. v. Office of Comptroller of Currency, 86 F.3d 1208 (D.C. Cir. 1996).............................................................8 Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982).................................................11 Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 479 (S.D.N.Y. 1982)....................12 Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002)................................................................11 Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604 (C.D. Cal. 1995)....................5 Topol v. Trustees of Univ. of Pa., 160 F.R.D. 476, 477 (E.D. Pa. 1995)......................7 United States v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421, 425 (W.D.N.Y. 1981).....................................................................12 United States v. Kordel, 397 U.S. 1, 11-13 (1970)...............................................6 United States ex rel. O'Connell v. Chapman Univ., 245 F.R.D. 646, 648 (C.D. Cal. 2007)..............................................................................5

24 Waelde v. Merck, Sharpe, and Dohme, 94 F.R.D. 27, 28 (C.D.Mich. 1981)...............12 25 Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 26 866, 891 (E.D.Pa. 1981)...................................................................12 27 28
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STATUTES

Fed. R. Civ. P. 26..............................................................................Passim Fed. R. Civ. P. 45..............................................................................Passim

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Plaintiff's Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics Aeronautical Systems, Inc.

Plaintiffs have been extremely cooperative and made every attempt to facilitate GA-ASI's production of the requested documents. Plaintiffs rely on the extensive e-mail string which has been lodged as Exhibits to show that for months Plaintiffs' counsel has tried to get cooperation from GA-ASI and been unsuccessful only because GA-ASI made no serious effort to cooperate. Moreover, once Rotax got wind of the subpoena and contacted GA-ASI, GA-ASI started

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 GA-ASI, rather than addressing the merits, has accused Plaintiffs of bad faith. Plaintiffs' subpoena 24 25 26 27 28
1 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

stonewalling any meet and confer efforts. (Ex. 11, 6/27/08 8:48PM email) Not only did Plaintiffs re-serve the subpoena at GA-ASI's request when it served the proper party in the first instance, but Plaintiffs narrowed the scope of the subpoena, reduced the years of documents requested, reduced the numbers of documents requested, reduced the categories of documents requested, extended the response time twice, offered a confidentiality agreement when one was not required and then tried to negotiate a demanded Protective Order for hours to no avail. GA-ASI believes meet and confer means capitulate and that is a far cry from what Plaintiffs are required or willing to do. I. Summary of the Negotiations Despite the fact that the initial subpoena was served in February 2008, GA-ASI has produced no documents. Instead, GA-ASI refused to produce documents and insisted on an

onerous, unreasonable protective order which they knew no lawyer could reasonably agree to. Now

was a simple task made complicated and expensive for no good reason by GA-ASI. As the e-mail string shows, Plaintiffs tried to do everything to make this inexpensive and simple. General Atomics chose to make it difficult and cumbersome.

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When GA-ASI asked Plaintiffs to incur the expense of a new subpoena on an affiliated company, Plaintiffs complied. (Ex. 2, 3/13/08 12:05PM email; Ex. 4, 4/2/08 4:49PM email; Wolk Declaration ¶ 7-9). However, there was no need to re-serve the subpoena because General Atomics ASI holds itself out as General Atomics. (Ex. 14, General Atomics website). When GA-ASI asked for the scope of subpoena to be narrowed, Plaintiffs complied by reducing the timeframe the subpoena covered to four years and the number of categories of information requested. (Ex. 1; Wolk Declaration ¶ 7). However, there was no need to reduce the number of years because a review of a correspondence file should have taken minutes. There was also no need to reduce the

categories because most were overlapping and could have been responded to with the same document. Additionally, Plaintiff proposed giving GA-ASI protection of its confidential documents

13 14 15 16 17 18 19 20 proposed a fair protective order, GA-ASI refused to sign it and insisted on using its own overly 21 22 23 24 25 26 27 28
2 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

even though none of the documents were the types that are generally subject to a protective order. (Ex. 1, 3/10/08 6:42PM, 3/8/08 5:06PM emails; Ex. 3 3/19/2008 8:45PM email). The documents at issue mean nothing to GA-ASI and are relevant only to Rotax's doing continuous business in the United States. The protective order GA-ASI ultimately proposed included two unconscionable provisions which were non-negotiable. (Ex. 11, 6/27/08 9:44PM email; Ex. 12, June 27, 2008 Draft Protective Order; Wolk Declaration ¶¶ 13-14). Although Plaintiffs, on their own initiative,

burdensome, unfair agreement. (Ex. 3, 3/19/2008 8:45PM email; Wolk Declaration ¶¶ 15-16). Plaintiffs' counsel has agreed to almost all of GA-ASI's demands. (Wolk Declaration ¶ 13). GAASI's protective order initially sought to prevent Plaintiffs from using the documents in the New Jersey state action, even though they had previously agreed to such a use. (Ex. 4, 4/4/2008 1:20PM email; Wolk Declaration ¶ 10). After hours of frustrating negotiations, the only two provisions Plaintiffs contest are so patently unreasonable that no attorney, keeping his clients' and colleagues'

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best interest in mind would bind himself to such a lopsided agreement.1 (Wolk Declaration ¶ 10, 1314). Finally, each time GA-ASI asked for an extension of time, Plaintiffs granted it. (Ex. 1, 3/10/2008 6:14PM, 3/10/2008 5:06PM emails; Wolk Declaration ¶¶ 6-7). GA-ASI asserted a

series to frivolous objections. There is no justification for GA-ASI's claim of attorney-client or litigation privilege because none of the documents sought or intended to be produced could possibly fall into those categories. Moreover, there should never have been a claim of non-relevancy because that was never asserted in any negotiations and GA-ASI agreed that the documents were relevant. In short, this is a paper chase, started and perpetuated by GA-ASI. GA-ASI's Response only diverts the Court's attention away from the important issue as to whether the documents, which if received may negate the entire federal FOIA action, are relevant to

13 14 15 16 17 18 19 20 GA-ASI's allegation that the meet and confer pre-requisites have not been met. The record proves 21 22 23 24 25 26 27 28
1

that action.

GA-ASI's opposition to Plaintiffs' legally enforceable subpoena is based on its

misguided belief that the documents pertain solely to the non-federal New Jersey state court litigation. GA-ASI's misperception was created because the parties have contemplated the potential use of responsive documents in non-federal litigation. (See Ex. 5, 4/4/2008 1:20PM email) In addition, GA-ASI's counsel's characterization of the extensive communications exchanged between the parties while negotiating a mutually acceptable protective order undermines

that extensive negotiations took place but they were unsuccessful. 6/27/2008 9:44PM, 6/27/2008 5:550PM emails).

(E.g., Ex. 3; Ex. 5; Ex. 11,

The two provisions still at issue will be discussed later in this Reply. By way of background, GA-ASI is insisting on the following provisions: (1) Plaintiffs make a motion to close the courtroom before disclosing any of GA-ASI's documents; and (2) Plaintiffs will be subject to automatic sanctions with no ability to cure if there is an inadvertent disclosure of any of the documents. (Ex. 12, June 27, 2008 Draft Protective Order; Wolk Declaration ¶¶ 13-14).
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II.

GA-ASI's Factual Presentation Concentrates on Issues that are Irrelevant to the Court's Consideration of the Enforceability of the Pending Subpoena GA-ASI's factual presentation concentrates on the relevancy that the requested documents

may have on state court litigation separate from the underlying federal FOIA action which gives rise to the authority to exercise Rule 45's subpoena privileges. To this end, GA-ASI misconstrues the facts and issues in order to support its argument that the requested documents are not relevant. By doing so, GA-ASI completely overlooks the relevancy of the documents to the FOIA action. Most importantly, GA-ASI makes the misleading argument that Plaintiffs admitted that "the subpoenaed documents are `useless' to the Pennsylvania Federal Action." Lowenthal Dec. ¶ 9.

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4 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

However, GA-ASI only cites a portion of the referenced communication, which when read as a whole exposes the falsity of its argument: Dear Sarah, This was not the deal and the information was also to be used in the New Jersey litigation. Kindly respond to the subpoena so we can litigate how this non trade secret information should be handled. Sorry but I am not going to be in a position that what is produced is useless. This is misleading a court by a company that makes billions in this country and claims it does no business here. This was a simple task. Kindly respond by Monday so I can file a motion next week. Thank you, Arthur Wolk

(Ex. 5, 4/4/08 1:20PM email). This communication clearly references all uses to which the documents could be produced, including the federal FOIA Action and indicates that Plaintiffs made no such admission. (Id.; Wolk Declaration ¶ 17). Absent this imagined judicial admission, GA-ASI has no basis to allege that the documents sought are irrelevant. Federal Rule of Civil Procedure 45 permits a party to serve a nonparty with a subpoena commanding the nonparty to produce documents. All Rule 45 subpoenas are subject to relevancy

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requirements set forth in Federal Rule of Civil Procedure 26(b)(1). Federal Rule 26(b)(1) allows a party to discover "any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Discovery may be expanded to include "any matter relevant to the subject matter involved in the action" if good cause is shown. Id. Relevant information includes not only evidence admissible at trial, but all information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The federal discovery rules are designed to allow parties to discover all of the necessary evidence to assess and resolve their dispute and, therefore, must be construed broadly. E.g., United States ex rel. O'Connell v. Chapman Univ., 245 F.R.D. 646, 648 (C.D. Cal. 2007). Materials are

13 14 15 16 17 18 19 20 F.2d 418, 429 (9th Cir.1975)). 21 22 23 24 25 26 27 28
5 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

only exempt from discovery if the party can show that: (1) the discovery sought is unreasonably cumulative or can be obtained from a more convenient, less expensive source; (2) the party seeking discovery already had the opportunity to obtain the information by discovery in the action; or (3) it is overly burdensome. Fed. R. Civ. P. 26(b)(2)(C). The person seeking to limit discovery bears the "burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." O'Connell, 245 F.R.D. at 648 (citing Blankenship v. Hearst Corp., 519 In order to meet its burden the person seeking to limit disclosure

must prove that there is no possibility that the materials sought will have any bearing on the subject matter of the action. See Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604 (C.D. Cal. 1995). GA-ASI has failed to meet its burden in the instant case. By way of background, the FOIA action was brought to obtain documents that may exist in connection with the foreign service of process of an Austrian defendant, Rotax. (Wolk Declaration ¶¶ 3-4). Rotax, a manufacturer of ultralight engines, was sued in litigation arising from the

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malfunction of a Rotax 582 engine. In that litigation, Rotax challenged service of process and personal jurisdiction in the forum state and ultimately obtained a dismissal. Subsequently, the plaintiffs from the first action (the Koziol's) sued Rotax and others in New Jersey state court. In the New Jersey state litigation, the Koziols are investigating service of process issues. Therefore, they filed the FOIA action. Plaintiffs have been extremely candid about the possibility that documents produced in response to the subpoena may be used in both the federal FOIA action and the New Jersey state court action. (Ex. 5, 4/4/2008 1:20PM email). This disclosure was presented so GA-ASI would have full knowledge of potential uses to which their documents may be subject, not to intimate that the documents were unrelated to the federal FOIA action. However, the documents sought in the subpoena are reasonably calculated to establish a systematic and continuous connection between

13 14 15 16 17 18 19 20 21 admission that some of the documents sought might be relevant to their New Jersey state court 22 23 24 25 26 27 28
6 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

Rotax and the United States. If the documents establish a basis for effectuating service on Rotex in the United States, they may render the entire FOIA action moot. Accordingly, the requested documents go to the heart of the FOIA action. A. The Fact that Subpoenaed Documents are Relevant to More than One Action is Not a Basis for Sustaining any of GA-ASI's Objections

GA-ASI presents no case law or insightful argument to support its argument that the documents requested are not relevant to the FOIA action. Instead, GA-ASI references Plaintiffs

action and argues that Plaintiffs' subpoena is unwarranted. There is no prohibition on using discovery obtained in one case in a subsequent case. E.g., United States v. Kordel, 397 U.S. 1, 11-13 (1970) (refusing to overturn defendants' convictions and reasoning that it was permissible to use information obtained from discovery in civil case in subsequent criminal proceeding). Moreover, there is no per se rule that documents sought in one

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case are undiscoverable purely because they may also be relevant to a different case. E.g., Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) ("[W]here the discovery sought is relevant to a good faith defense in the federal case, the mere fact that it may be used in other litigation does not mandate a protective order."); Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 91 (D. N.J. 1986). Rather, the materials are considered discoverable unless there is evidence that the action was not filed in bad faith or solely for the purpose of obtaining evidence for a different case. Cipollone, 113 F.R.D. at 91 ("So long as the initial litigation has not itself been instituted in bad faith for the purpose of obtaining documents for other actions, and so long as the interests of those represented in the initial litigation are being fully and ethically prosecuted, the Federal Rules do not foreclose the collaborative use of discovery."). Plaintiffs have not engaged in bad faith or unethical tactics which could render the

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7 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

documents undiscoverable. The FOIA action was filed for the purpose of obtaining evidence the State Department effectuated foreign service on Rotax. (Wolk Declaration ¶¶ 3-4). Plaintiffs have diligently prosecuted their FOIA case in good faith as evidenced by Plaintiffs willingness to extend time for the State Department to locate relevant records and efforts to obtain proof of service directly from the Austrian government. Accordingly, Plaintiffs' potential use of the documents in the New Jersey state case does not automatically render them undiscoverable in the instant action.

involved the litigation." Topol v. Trustees of Univ. of Pa., 160 F.R.D. 476, 477 (E.D. Pa. 1995). The documents at issue are clearly relevant to Plaintiffs' claim in the FOIA case because they have the potential to undermine the need for Plaintiffs continued prosecution of the FOIA case. In the FOIA case, the State Department has admitted that it cannot locate the records Plaintiffs need to prove that foreign service occurred. (Wolk Declaration ¶ 5). The documents requested in the

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instant case will show Rotax is subject to service in the United States, thereby eliminating the need for showing foreign service. Furthermore, good cause exists to enforce the subpoena. The documents requested are relevant to the subject matter of the FOIA case because the issue in the FOIA case is Rotax's amenability to service of process. The documents at issue will prove that Rotax is subject to service of process in the United States. The State Department has admitted that it cannot find the records that substantiate foreign service. (Wolk Declaration ¶ 5). Additionally, the Austrian government has refused to cooperate with Plaintiffs attempts to prove service. Therefore, good cause exists to expand discovery to all materials relevant to the subject matter of the FOIA action and require GAASI to comply with Plaintiffs' subpoena. No where can the factual error in GA-ASI's argument be more apparent then in its allegation

13 14 15 16 17 18 19 20 where a federal court issued a subpoena in a state court action. 86 F.3d at 1212. Whereas, this case 21 22 23 24 25 26 27 28
8 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

that this Court has no jurisdiction to enforce the subpoena. In order to make its suspect argument, GA-ASI misleadingly argues that the subpoena was issued out of the state court litigation and cites Houston Business Journal, Inc. v. Office of Comptroller of Currency, 86 F.3d 1208 (D.C. Cir. 1996) for the proposition that a federal court is without subject matter jurisdiction to issue a subpoena duces tecum for a state court action and argues that this Court is without subject matter jurisdiction to issue the subpoena. Opposition to Motion to Compel, pp. 7-9. Houston dealt with a situation

deals with a subpoena in connection with litigation pending in a sister federal court. Under Federal Rule of Civil Procedure 45(a)(2)(C) a subpoena duces tecum must be issued by the district court located where the production is to be made. Therefore, GA-ASI's jurisdictional argument is founded on a misapprehension of facts that renders it entirely without merit. B. Plaintiffs' Subpoena is Not Unduly Burdensome

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GA-ASI's burdensomeness argument is undermined by the fact that its documents are already retrieved, boxed and presumably categorized so that they are ready for production. (Wolk Declaration ¶ 19). In order to deny Plaintiff's request as overly burdensome, GA-ASI must establish that the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(iii). Courts must consider "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues" in deciding whether discovery is proper. Id. The documents sought are extremely important to Plaintiffs' FOIA action. The purpose of the FOIA action was to obtain evidence that the State Department served Rotax. (Wolk Declaration ¶¶ 3-4). Plaintiffs have already expended significant resources attempting to prove that Rotax was served. The State Department has admitted that it cannot locate proof of service. (Wolk Declaration

13 14 15 16 17 18 19 20 established another means of effectuating service on Rotax. Without the documents, Plaintiffs will 21 22 23 24 25 Counsel for plaintiffs and GA-ASI have discussed the scope and terms of this subpoena for 26 27 28 hours. (E.g., Ex. 3, Ex. 5; Ex. 6, Ex. 9, Ex. 11, 6/27/2008 9:44PM, 6/27/2008 5:50PM emails). Based on these discussions, Plaintiffs significantly narrowed the subpoena, which in turn allowed
9 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

¶ 5). The Austrian government has refused to aid Plaintiffs by producing proof of service. Accordingly, Plaintiffs are without recourse in the FOIA case. Ordering production of GA-ASI's documents would make future efforts to effectuate foreign service unnecessary because such documents will prove that Rotax is subject to service in the United States. If Plaintiffs can show Rotax is subject to service in the United States, then there is no need for Plaintiffs to continue their FOIA action, or initiate others, because they will have

be prejudiced and could be placed out of court. III. Plaintiffs have Made Every Effort to Accommodate GA-ASI and to Work in Good Faith to Resolve the Obstacles Necessitating Court Intervention, while GA-ASI has engaged in Unreasonable Behavior

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GA-ASI's counsel to compile the sampling of documents they claimed were forthcoming. (Ex. 1; Ex. 3 3/19/2008 6:27PM email; Wolk Declaration ¶ 7). following documents: 1. Any notes, memos or letters that confirm the presence of Rotax personnel in The subpoena, as amended seeks the

the U.S. 2. Any documents that confirm the presence of Rotax personnel at the General

Atomics facilities in the U.S. 3. States. 4. Any documents that confirm or relate to Rotax's involvement in accident Any documents that relate to the shipment of Rotax engines into the United

investigations involving Rotax engines. 5. 6. Any reports of accident investigations involving failures of Rotax engines. Any document that concerns or relates to Rotax's business activities in the

United States with General Atomics during the time period. 7. These request include any company acting as agent for or representative of

Rotax including but not limited to Bombardier Rotax (including all suffixes), Rotax (including all suffixes) Kodiak (Including all suffixes like Kodiak Research, Rotech etc.) and any other company that serves as the agent, importer, alleged independent shipper of Rotax engines. 8. Correspondence relating to the sale, purchase or malfunctions of Rotax

engines with any of those entities described in par. 7. 9. Any document that concerns or relates to business activities of Rotax or

Bombardier Rotax in the State of New Jersey including but not limited to contacts with the U.S. Army Communications, Electronics Command in Fort Monmouth, New Jersey. 10. Any document that concerns or relates to business activities of Rotax or

Bombardier Rotax in the State of New Jersey including but not limited to contacts

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with the United States Navy and/ or the United States Navy Air Warfare Center, Aircraft Division, Lakehurst New Jersey.

(Ex. 1, 3/10/2008, 6:42 PM email; 3/8/2008, 5:06PM email). On its face, it does not appear that the subpoena seeks the type of trade secrets, product research and development, or financial records generally afforded protection. However, Plaintiffs accepted GA-ASI's representation that the documents at issue consist of confidential research and development and proprietary information and attempted to negotiate a confidentiality agreement

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Although the good cause standard leaves room for discretion, unsubstantiated allegations of 24 25 26 27 28 harm are insufficient to establish good cause for a protective order. See, e.g., Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982) (rejecting defendant's argument that certain documents were confidential and should be placed under seal because "a naked conclusory statement that publication of the Report will injure the bank in the industry and local community falls woefully short of the kind of
11 Plaintiffs' Reply in Further Support of Their Motion to Compel and for Sanctions Against General Atomics

suitable to both Plaintiffs and GA-ASI. Despite their good intentions to make this process painless for GA-ASI, Plaintiffs were met with insistence on provisions that are overly burdensome and transcend the level of protection needed here. There is no outright privilege covering confidential information or trade secrets. Federal Open Market Committee v. Merrill, 443 U.S. 340, 362, 99 S.Ct. 2800, 2813 (1979). Confidential protective orders are not issued freely. Rather, a party seeking to prevent the disclosure of discovery documents must file for a protective order by establishing good cause. Fed. R. Civ. P. 26(c)(1); Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). Good cause exists when the moving party proves that "specific prejudice or harm will result if no protective order is granted." Id. at 1210-11. The Federal Rules of Civil Procedure give a federal judge discretion to weigh the interests of protecting the information against the need for disclosure. See Fed. R. Civ. P. 26(c)(1),(2).

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showing which raises even an arguable issue as to whether it may be kept under seal."), cert. denied, 460 U.S. 1051 (1983); Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 479 (S.D.N.Y. 1982), Waelde v. Merck, Sharpe, and Dohme, 94 F.R.D. 27, 28 (C.D.Mich. 1981); United States v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421, 425 (W.D.N.Y. 1981); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866, 891 (E.D.Pa. 1981). The information produced from this subpoena will be solely used for purposes of litigation. However, the proposed confidentiality order is too harsh with respect to inadvertent disclosure which would otherwise result in automatic sanctions and no room for cure. (Wolk Declaration ¶ 14). The threat of enforcement of GA-ASI's inadvertent disclosure proposal will restrict Plaintiffs' and their counsel's use of the documents and ultimately restrict the Court's use of the information contained in the documents. In addition, the order demands that Plaintiffs request the court to close

13 14 15 16 17 18 19 20 justification for GA-ASI or GA to put Plaintiffs through this experience when every reasonable 21 22 23 24 25 26 27 28
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the courtroom before any information may be disclosed. This provision is onerous because the documents are on their face not worthy of protection so a court is likely to consider such a request as evidence of bad faith. (Wolk Declaration ¶ 13). IV. Conclusion Plaintiffs rest on the email string as evidence of their extensive efforts to make a nonparty's compliance with a lawfully issued subpoena simple, inexpensive and expeditious. There was no

request made was granted instantaneously. The Court should grant Plaintiffs' Motion to Compel because the documents subpoenaed are relevant to the federal FOIA case and compliance is not unduly burdensome on anyone.

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June 10, 2008

J. DANIEL HOLSENBACK, APC

By:

/s/ J. Daniel Holsenback J. Daniel Holsenback Attorney for Plaintiffs Theodore & Lois Koziol

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J. Daniel Holsenback, Esq. (SBN 145640) J. DANIEL HOLSENBACK, APC 625 Broadway, Suite 906 San Diego, California 92101 Telephone: (619) 269-4634 Facsimile: (619) 269-4635 Attorneys for Plaintiffs Theodore & Lois Koziol

5 6 7 8 9 10 11 12 Plaintiffs, 13 vs. 14 15 16 17 18 Defendants. 19 20 21 22 1. 23 24 25 26 27 28 1
08cv0947 DMS (BLM) Wolk Declaration Further Supporting Motion to Compel & for Sanctions

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA THEODORE AND LOIS KOZIOL 24 Seagoin Road Brick Town, NJ 08723 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08cv0947-DMS (BLM) (E.D. Pa. No. 07-3432) DECLARATION OF ARTHUR ALAN WOLK IN FURTHER SUPPORT OF THEIR MOTION TO COMPEL AND MOTION FOR SANCTIONS AGAINST GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC. Hon. Barbara L. Major Courtroom: TBD Date: July 15, 2008 Time: 1:30 p.m. [FRCP 45]

THE UNITED STATES OF AMERICA The Executive Office Office of the Legal Adviser Room 5519 United States Department of State 2201 C Street, NW Washington, DC 20520-6310

I, Arthur Alan Wolk, declare: I am the attorney for the plaintiffs Dr. Theodore Koziol and his wife Lois. Nothing in this declaration should be construed as criticism against counsel for General

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Atomics. 3. I filed the FOIA action because I could get no response from the United States State

Department concerning service of process against Rotax, a defendant in Austria.

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4.

Rotax was an Austrian corporation owned by Bombardier but since Austria is not a

signatory to the Hague Convention service has to take a cumbersome process where our State Department must ask the Austrian Government to make service. 5. Since the State Department destroys documents after two years and has stated that the

documents in question do not exist, I served a subpoena on General Atomics as they refer to themselves at their California address. 6. Once the subpoena was served I was contacted by Mr. Lowenthal and his associate Ms.

Goodstine requesting an extension to respond which I freely gave provided there was an intention in good faith to provide documents which assurances were given. 7. That was the beginning of a litany of requests by General Atomics which included requests

to limit the years of document search to which I agreed, limit the scope of the subpoena to which I 13 14 15 16 17 18 19 20 9. 21 22 23 24 25 26 27 28 2
08cv0947 DMS (BLM) Wolk Declaration Further Supporting Motion to Compel & for Sanctions

agreed, limit the number of documents produced to which I agreed, extend the time to respond again to which I agreed, provide just a sampling of the categories of documents to which I agreed, send another subpoena directed to the affiliated company to which I agreed. 8. I served the second subpoena because by that time it was painfully apparent that General

Atomics was treating this as a paper chase game never intending to produce documents or to negotiate in good faith. I served the second subpoena though I still believed the first one was more than adequate. I cut off negotiations when I received a Protective Order that precluded the use of the

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documents in the New Jersey RICO action, something we agreed I could do at the outset of discussions, and other provisions that no lawyer could agree to. 11. 12. I looked for and found competent California counsel to file this Motion. The Objections to the subpoena was ample evidence in my mind were legally unfounded. It

not only claimed as to General Atomics that no documents existed when I was told they had already

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been collected but claimed every privilege and objection known to man when none had been asserted in any prior discussion and just by the nature of the documents none could exist. The Objections were entirely frivolous in my opinion and demonstrated that I had wasted hours of time negotiating in good faith without that being requited. 13. After this Motion was filed further discussions were attempted to work out a Protective

Order. I spent hours on the phone with Mr. Lowenthal and his Associate but the negotiations were just like the first ones. I gave in on most of the demands but I wasn't about to ask a judge to clear his courtroom over documents that had nothing to do with the secrets or processes or what would be proprietary information when none of the documents intended to be produced could possibly even meet the definition of proprietary, secret or otherwise be protected. 14. I also wanted to protect against inadvertent disclosure because things do happen innocently

13 14 15 16 17 18 19 20 anything like any I have ever seen. 21 22 23 24 25 26 27 28 3
08cv0947 DMS (BLM) Wolk Declaration Further Supporting Motion to Compel & for Sanctions

and I saw the proposed draft was asking for automatic sanctions. Instead of blaming what could be others disclosing documents I told Mr. Lowenthal that if my staff "screwed up" and innocently disclosed a document I wanted to be protected from the retaliation he threatened. He took that comment entirely out of context in his Declaration here. 15. I have negotiated hundreds of Protective Orders and Confidentiality Agreements in my

career litigating air crash cases. The one demanded by General Atomics is neither standard nor

16. 17.

I offered a Protective Agreement fair to all concerned. Mr. Lowenthal also claimed I told him that these documents would be useless in the FOIA

litigation. That too is taken out of context as I explained there would not be a trial in the FOIA litigation so to that extent while relevant documents were necessary to be produced bearing on the issues sought to be discovered through this litigation, there would be no trial in this litigation which is why they were also necessary in the New Jersey RICO action.

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18.

This has been a terrible experience and extremely difficult when there are really no issues

that should be in litigation. 19. There are apparently three boxes of documents ready to be produced and none are attorney

client or litigation privileged so the objections filed of record are purely unfounded. 20. Lodged are true and correct copies of the following: A. Exhibits 1-11: Email correspondence between Plaintiffs' counsel and GA-ASI's

counsel occurring between March 10, 2008 and June 28, 2008 with respect to the subpoena at issue. B. Exhibit 12: Draft Joint Motion for Protective Order and Proposed Protective order

from June 27, 2008. C. Exhibit 14: Copy of page from General Atomics Website downloaded July 8, 2008.

I declare under penalty of perjury that the foregoing is true and correct. Executed at San Diego, California this 8th day of July 2008. Respectfully submitted,

/s/ Arthur Alan Wolk_____________ Arthur Alan Wolk

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Exhibit 1

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Exhibit 2

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Exhibit 3

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Exhibit 4

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Exhibit 5

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Exhibit 6

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Exhibit 7

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Exhibit 8

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Exhibit 9

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Exhibit 10

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Exhibit 11

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Exhibit 12

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Exhibit 13
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Exhibit 14

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Kozoil v. United States of America USDC, Southern District of California, Case No. 3:08-cv-00947-DMS-BLM PROOF OF SERVICE

3 4 5 On July 8, 2008, I caused to be electronically filed the foregoing document(s), described as: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Patrick Todd Patrick Todd Executed on July 8, 2008, at San Diego, California. Pursuant to the CM/ECF System, registration as a CM/ECF user constitutes consent to electronic service through the Court's transmission facilities. I declare penalty of perjury under the laws of the State of California, that the above is true and correct. PLAINTIFFS' REPLY IN FURTHER SUPPORT OF THEIR MOTION TO COMPEL AND FOR SANCTIONS AGAINST GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.; DECLARATION OF ARTHUR ALAN WOLK IN FURTHER SUPPORT OF THEIR MOTION TO COMPEL AND MOTION FOR SANCTIONS AGAINST GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC. (AND EXHIBITS); with the Clerk of the United States District Court for the Southern District of California, using the CM/ECF System. The Court's CM/ECF System will send an e-mail notification of the foregoing filing to the following parties and counsel of record who are registered with the Court's Cm/ECF System: Paul A. Tyrell, [email protected] United States Attorneys' Office, [email protected] Daniel A. Lowenthal, [email protected] Sarah Goodstine, [email protected] I am a resident of the State of California, over the age of 18 years and not a party to the within action. My business address is HOLSENBACK APC, 625 Broadway, Suite 906, San Diego, California 92101.

PROOF OF SERVICE