Free Motion to Quash - District Court of California - California

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Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. UNITED STATES DISTRICT COURT

11 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 12 Case No.: 08-CV-947 DMS (BLM) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Date: Time: Judge: Courtroom: August 13, 2008 1:30 p.m. Hon. Barbara L. Major TBD v. UNITED STATES OF AMERICA, Defendant. THEODORE AND LOIS KOZIOL Plaintiffs, Civ. No. 07-3432 Eastern District of Pennsylvania NOTICE AND CROSS-MOTION TO QUASH OR ENTER A PROTECTIVE ORDER WITH RESPECT TO THE SUBPOENAS ISSUED TO NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.

[FRCP 26 and 45] TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on or about August 13, 2008 at 1:30 p.m. this matter may be heard in a Courtroom to be determined by the Court, located at 940 Front Street, San Diego, California, 92101, Non-Parties General Atomics ("GA") and General Atomics Aeronautical Systems, Inc. ("GA-ASI") will and hereby do cross-move this Court pursuant to Rules 45(c)(3) and 26(c) of the Federal Rules of Civil Procedure to quash the Subpoenas Duces Tecum issued by Theodore and Lois Koziol ("Plaintiffs") to GA and GA-ASI, or in the alternative
CASE NO. 08-cv-947 DMS (BLM) NOTICE AND CROSS-MOTION TO QUASH OR ENTER A PROTECTIVE ORDER WITH RESPECT TO THE SUBPOENAS ISSUED TO NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC. 1822820v.1

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enter a Protective Order governing the production of documents pursuant to the Subpoenas. This Cross-Motion is supported by a Memorandum of Points and Authorities, the Declarations of Daniel A. Lowenthal and Frank Pace, and the Notice of Lodgment, with attached exhibits, that have been filed separately with this Court. Before filing this Cross-Motion, counsel for GA and GA-ASI attempted to resolve the matters at issue with Plaintiffs in accordance with the meet and confer requirements of Local Rule 26.1 by requesting and participating in telephone calls with Plaintiffs' counsel. This Cross-Motion is made on the following grounds, as set out in greater detail in the supporting Memorandum of Points and Authorities: (1) The documents Subpoenaed are wholly irrelevant to the claims and defenses asserted by the parties to the underlying action, Koziol v. United States of America, Civ. No. 073432 (E.D. Pa.), and thus outside of the scope of discovery permitted by Rules 45 and 26(b)(1) of the Federal Rules of Civil Procedure; (2) The Subpoenas are unduly burdensome under Rule 45(c)(3) inasmuch as they seek documents irrelevant to the action underlying the Subpoenas and are an attempt to use the liberal discovery tools of the Federal Rules of Civil Procedure to obtain discovery for a State court action, Koziol v. Bombardier, Inc., No. OC-NL-2749-07 (N.J. Super. Ct. Ocean Cty.); (3) The Court lacks subject matter jurisdiction to compel production of documents irrelevant to any federal proceeding for use in a State court proceeding and the issuance of a federal subpoena seeking documents for a State court action is void; (4) The documents subject of the Subpoenas contain proprietary and confidential research, development, and proprietary information and warrant the entry of a Protective Order governing disclosure of their contents. Accordingly, Non-Parties GA and GA-ASI respectfully request that this Court grant this Cross-Motion and quash the Subpoenas, or in the alterative, enter a Protective Order to protect the confidentiality of the documents subject to the Subpoenas, and grant GA and GA-ASI such other and further relief as the Court deems just and proper.
CASE NO. 08-cv-947 DMS (BLM) NOTICE AND CROSS-MOTION TO QUASH OR IN THE ALTERNATIVE ENTER A PROTECTIVE ORDER WITH RESPECT TO THE SUBPOENAS ISSUED TO NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC. 1822820v.1

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Respectfully Submitted,

By: /s/ Daniel A. Lowenthal Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc.

CASE NO. 08-cv-947 DMS (BLM) NOTICE AND CROSS-MOTION TO QUASH OR IN THE ALTERNATIVE ENTER A PROTECTIVE ORDER WITH RESPECT TO THE SUBPOENAS ISSUED TO NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC. 1822820v.1

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Case 3:08-cv-00947-DMS-BLM 1 2 3 4 5 6 7 8 9 10 11 12 THEODORE AND LOIS KOZIOL 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. v. UNITED STATES OF AMERICA, Defendant. Plaintiffs,

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Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Case No.: 08-CV-947 DMS (BLM) Civ. No.: 07-3432 Eastern District of Pennsylvania MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTIES' CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND FOR SANCTIONS Date: Time: Judge: Courtroom: August 13, 2008 1:30 p.m. Hon. Barbara L. Major TBD

[FRCP 26 and 45]

PRELIMINARY STATEMENT The Federal Rules of Civil Procedure and interpretive case law preclude a party

from serving a subpoena for documents with no relevance to the underlying action. The Rules and the law also invalidate federal subpoenas issued to command production of documents for use in a State court action because the federal court is without subject matter jurisdiction to issue such subpoenas. Plaintiffs have served Subpoenas on non-parties General Atomics ("GA") and General Atomics Aeronautical Systems, Inc. ("GA-ASI," and collectively with GA, the "NonCASE NO. 08-cv-947 DMS (BLM) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTIES' CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND FOR SANCTIONS 1822657v.1

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Parties"). The Subpoenas were issued from the above-captioned case in the United States District Court for the Eastern District of Pennsylvania (the "Pennsylvania Federal Action"). The Complaint in that case asserts a claim against the United States Government for allegedly failing to timely respond to a Freedom of Information Act ("FOIA") request. By Plaintiffs' counsel's own admission, the documents sought in the Subpoenas would be "useless" in that FOIA action. (Declaration of Daniel A. Lowenthal at ¶ 9, hereinafter "Lowenthal Decl.") Instead, Plaintiffs want to use the documents, and seek this Court's jurisdiction to compel production, in a State court case pending in New Jersey. This Court should enter an order quashing the Subpoenas at issue, on the grounds that (i) they are irrelevant to, and thus beyond the scope of discovery for the Pennsylvania Federal Action, and have therefore caused undue burden to the Non-Parties, and (ii) the Court does not have subject matter jurisdiction to order the production of documents for use in a State court action in New Jersey. (See Points II.A. and B., below.) In the alternative, the Court should approve and enter the protective order proposed by the Non-Parties' counsel to govern the production of documents by GA-ASI. (See Non-Parties' Notice of Lodgment, Exhibit P.) The protective order would prevent GA-ASI from harm to its competitive position that would result from the unlimited dissemination of confidential information contained in certain of GA-ASI's documents that are responsive to the Subpoena. (See Point II.C., below.) Finally, GA and GA-ASI respectfully request that the Court award as a sanction against Plaintiffs the amount of GA's and GA-ASI's attorneys' fees and costs incurred in responding to Plaintiffs' Motion to Compel and the present Cross-Motion to Quash. (See Point II.D., below.) II. LEGAL ARGUMENT A court must quash or modify a subpoena that subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). This Court has held that "a subpoena is unduly burdensome where it seeks to compel production of documents regarding topics unrelated to or beyond the scope of the litigation." Anderson v. Abercrombie & Fitch Stores, Inc., No. 06CV991-WQH (BLM), 2007
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WL 1994059, at *2 (S.D. Cal. July 2, 2007) (Major, J.) (citing Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813-14 (9th Cir. 2003)). See also Vol. 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2459 (3d ed. 2008) (citing Wood v. Vista Manor Nursing Center, No. C06-01682, JWPVJ, 2007 WL 832933 (N.D. Cal. Mar. 16, 2007)). A. Plaintiffs' Subpoenas Seek Documents By Admission Irrelevant To The Action Underlying Such Subpoenas And Must Be Quashed Pursuant To Rule 45(C)(3).

In the interest of judicial economy, the Non-Parties incorporate by reference the legal and factual argument on this point set forth at pages 6 to 8 of their Opposition to Plaintiffs' Motion to Compel. The Pennsylvania Federal Action involves a claim under the FOIA, 5 U.S.C. § 552. Plaintiffs' counsel admitted in an e-mail to Non-Parties' counsel and conceded on a call with this Court that the Non-Parties' documents responsive to the Subpoenas would be "useless" to that action. (Lowenthal Decl. at ¶ 9.) The Non-Parties submit that the undue burden placed on them by Plaintiffs' request for information with no relevance to the underlying action is sufficient grounds to quash the Subpoenas. See, e.g., Anderson, 2007 WL 1994059, at *2. B. The Subpoenas Command Production Of Documents For An Underlying State Court Action, And Are Thus Invalidly Issued Without The Subject Matter Jurisdiction Of This Court.

Further in the interest of judicial economy, the Non-Parties incorporate by reference the legal and factual argument on this point set forth at pages 8 to 9 of their Opposition to Plaintiffs' Motion to Compel. Plaintiffs seek documents from the Non-Parties to use in an action pending in State court in New Jersey, Koziol v. Bombardier, Inc, No. OC-NL-2749-07 (N.J. Super. Ocean Cty.). However, the Subpoenas were issued in the Pennsylvania Federal Action. Plaintiffs' effort to secure documents in that FOIA action where, as Plaintiffs admit, the documents would be "useless," for use in a New Jersey State case is jurisdictionally defective. This Court should quash the Subpoenas in these circumstances. C. The Documents Commanded For Production By The Subpoena Contain Confidential And Proprietary Information And Warrant The Entry Of A Protective Order To Limit Their Disclosure.

If, however, the Court concludes that documents requested pursuant to Plaintiffs'
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Subpoenas should be produced, then the confidential information contained in the documents warrants protection by order of court under the Federal Rules of Civil Procedure. Under Federal Rules 26(c)(1)(G) and 45(c)(3), the Court may grant a protective order upon a showing of good cause by "requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specific way." Fed. R. Civ. P. 26(c)(1)(G). In Phillips ex rel. v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2003), the Ninth Circuit Court of Appeals held that "the law . . . gives district courts broad latitude to grant protective orders to prevent disclosure of materials for many types of information, including but not limited to, trade secrets or other confidential research, development, or commercial information." (emphasis in original). Further, it is now well-settled that it is for "the trial court to decide when a protective order is appropriate and what degree of protection is required." American Heavy Moving & Rigging Co. v. Robb Techs., L.L.C., No. 2:04-CV-00933-JDM (GWF), 2006 WL 2085407, at *3 (D. Nev. July 25, 2006). As the court found in Wood v. Vista Manor Nursing Center, 2007 WL 832933, at *3 (N.D. Cal. Mar. 16, 2007) (citing Compaq Computer Corp. v. Packard Bell Electronics, Inc., 163 F.R.D. 329, 335 (N.D. Cal. 1995)), consideration of the confidential nature of the information within Non-Parties' documents is counseled by the "relevance of the subpoenaed information," which "has an important bearing upon the determination of a claim that a subpoena duces tecum is unreasonable or oppressive, as well as to a claim of confidentiality for the material sought to be produced . . . ." A protective order restricting the use of any discovery to the underlying lawsuit is also appropriate if "the federal action had been brought chiefly for the purpose of exploiting liberal discovery devices available in federal civil actions." WILLIAM M. SCHWARZER, ET AL., RUTTER GROUP PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE BEFORE TRIAL, 11(III)-C (9th ed. 2008) at ¶ 11:1125 (citing Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992)). A protective order should be issued before GA-ASI produces documents to Plaintiffs. GA-ASI is a leading manufacturer of unmanned aircraft systems and high resolution surveillance and radar imaging systems. (Declaration of Frank Pace at ¶2, hereinafter "Pace Decl.".) The company provides comprehensive solutions for military and commercial applications
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worldwide. Id. Plaintiffs have subpoenaed documents relating to malfunctions, reports of accident investigations, and repair of the Rotax engines within certain of GA-ASI's aircraft. (Pl.'s Not. of Lodgment at Exhibits A and G.) These documents contain non-conformity and variation reports, engineering schematics, and source control drawings related to redesign and reengineering of aircraft engines and other components, and test designs and results data relating to hypotheses for repair and redesign of the aircraft. (Pace Decl. at ¶ 5.) This is confidential research and development and proprietary data. Id. at ¶ 4. These documents, like manufacturing processes, see, e.g., DDS, Inc. v. Lucas Aerospace Power Transmission Corp., 182 F.R.D. 1, 5 (N.D.N.Y. 1998) (manufacturing process for production of pivoting device for mechanical assemblies was a trade secret for discovery purposes), source codes (see, e.g., Dynamic Microprocessor Assoc. v. EKD Computer Sales, 919 F. Supp. 101, 106 (E.D.N.Y. 1996), and practice manuals detailing operations procedures (see e.g., Gohler v. Wood, 162 F.R.D. 691 (D. Utah 1995)), enable GA-ASI to position itself in the marketplace. (Pace Decl. at ¶ 6.) GA-ASI has invested significant resources in order to develop the processes and designs contained in the documents, and unlimited disclosure of such information would offer competitors a free window into the heart of GA-ASI's technological and mechanical capabilities. Id. For this reason, GAASI operates a secured facility where only employees and authorized visitors are admitted, stores confidential documents in a locked file, and includes a "Proprietary" legend on many of its documents. (Pace Decl. at ¶ 7.) Having shown good cause for protection, under Rule 26(c)(1)(G), the Court should enter a protective order that limits the dissemination of GA-ASI's confidential information, as proposed by GA-ASI, to disclosure solely for the purposes of the Pennsylvania Federal Action and the New Jersey State action. A copy of the most recent version of the Protective Order discussed by counsel for the parties is annexed to Non-Parties' Notice of Lodgment as Exhibit P. The NonParties respectfully request that the Court approve and enter that Protective Order before the NonParties are to produce documents to plaintiffs. D. Non-Parties Are Entitled To Sanctions For Plaintiffs' Blatant Imposition Of Undue Burden On The Non-Parties, And The Court Is Empowered By Federal Rule 45(C)(1) To Award Such Sanctions.

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Rule 45(c)(1) states that an attorney responsible for issuing and serving a subpoena has a "duty" to take reasonable steps to avoid imposing undue burden on a non-party. The Rule provides that an "issuing court must enforce this duty and impose an appropriate sanction. . . " for its violation. Fed. R. Civ. P. 45(c)(1). In Watson v. State of Montana, No. CV-04-16-H-CSO, 2006 WL 2095420, at *2 (D. Mont. July 26, 2006) (citing Productos Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 228 (D.P.R. 1992)); Highland Tank & Mfg. Co. v. PS Int'l, Inc., 227 F.R.D. 374, 380 n. 9 (W.D. Pa. 2005)), the Court recognized that because an attorney is authorized to issue a subpoena without court intervention, "an attorney also has an 'increased responsibility and liability for the misuse of this power.'" Plaintiffs' attorneys have misused this power. They: 1. Issued Subpoenas in a case where the requested documents would be, by their own admission, "useless." (Lowenthal Decl. at ¶ 9.) Invoked the jurisdiction of two Federal courts ­ this Court and the United States District Court for the Eastern District of Pennsylvania ­ to obtain documents for a case in State court in New Jersey. Id. at ¶ 10. Rejected a reasonably-tailored protective order proposed by the Non-Parties following service of the Subpoenas and thus forced the Non-Parties to spend significant time and money responding to a Motion to Compel that never should have been filed. Id. at ¶¶ 25, 27. After the Motion to Compel was filed, agreed to use a protective order and negotiated its terms with the Non-Parties' counsel through Friday night, June 27, 2008 close to 9:00 p.m., and then, with just three issues unresolved and the Non-Parties' counsel needing to review one of those issues with GA-ASI, informed the Non-Parties' counsel by email at 12:46 a.m. on June 28, 2008, that the Non-Parties would have to file a brief opposing the Motion to Compel. Id. The conduct by Plaintiffs' attorneys has been counterproductive to their own ends, and has caused the Non-Parties significant expense. Therefore, the Non-Parties respectfully
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request that, pursuant to Rule 45(c)(1), the Court grant an award of attorneys' fees generated in connection with this Cross-Motion and the Opposition to Plaintiffs' Motion to Compel, as well as an award of costs. III. CONCLUSION The right to discovery by virtue of Rule 45 is not unlimited. The requirement of the Federal Rules that a subpoena seek evidence relevant to claims and defenses is a clear counterbalance to the rights of access provided to litigants, and it is critical to protect the exploitation of the property of persons having no involvement in an underlying litigation.

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GA and GA-ASI respectfully request that the Court quash the Subpoenas on the grounds that their issuance is null and void due to the defect in subject matter jurisdiction and that the subject of the Subpoenas is irrelevant to the underlying action, or in the alternative, that the Court order that the protections negotiated almost in full and memorialized in the proposed Protective Order be instated, and in both alternatives, that the Court award sanctions against Plaintiffs under Rule 45(c)(1). Respectfully Submitted,

8 Dated: July 1, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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By: /s/ Daniel A. Lowenthal Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc.

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Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Case No.: 08-CV-947 DMS (BLM) Civ. No.: 07-3432 Eastern District of Pennsylvania DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF THE CROSS-MOTION TO QUASH Date: Time: Judge: Courtroom: I, Daniel A. Lowenthal, declare: August 13, 2008 1:30 p.m. Hon. Barbara L. Major TBD

21 1. 22 United States District Court for the Southern District of New York, and a partner in the law firm 23 Patterson Belknap Webb & Tyler LLP. 24 2. 25 and General Atomics Aeronautical Systems, Inc. ("GA-ASI"), in this action. 26 3. 27 February 21, 2008, under the action captioned Koziol v. United States of America, (Civ. No. 28 07-3432) (the "Pennsylvania Federal Action").
CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF THE CROSS- MOTION TO QUASH 1822617v.1

I am an attorney licensed to practice in the State of New York and before the

I am counsel pro hac vice representing Non-Parties General Atomics ("GA")

Plaintiffs' attorney, Arthur Alan Wolk, issued a subpoena to GA, dated

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On March 5, 2008, I contacted Mr. Wolk to begin discussions about the scope

of the Subpoena and the timing for response. During this telephone call, I volunteered to Mr. Wolk that he had subpoenaed to the incorrect company. I told him that General Atomics Aeronautical Systems, Inc. ("GA-ASI") was the entity to which he should direct his Subpoena, and subsequently, I, and my associate, Sarah Goodstine, offered to accept service on behalf of GA-ASI in order to save Plaintiffs time and expense. (See Non-Parties' Notice of Lodgment at Exhibit A.) 5. Plaintiffs declined my offer to accept service of a subpoena addressed to

GA-ASI, and instead Plaintiffs served a Subpoena, dated April 3, 2008, directly on GA-ASI. 6. Plaintiffs initiated the Pennsylvania Federal Action on August 17, 2007. The

Complaint is made under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Plaintiffs allege that the United States Government failed to timely respond to Plaintiffs' FOIA request, and seek an order directing the Government to respond to the FOIA request. (See Non-Parties' Notice of Lodgment at Exhibit B.) 7. Upon information and belief, Plaintiffs have adjourned the Government's

deadline to answer the Complaint in the Pennsylvania Federal Action four times. To date, no answer has been filed. (See Non-Parties' Notice of Lodgment at Exhibit C.) 8. At no time has Plaintiffs' counsel explained to me or to Ms. Goodstine how

the documents requested under the Subpoena are relevant to the Pennsylvania Federal Action. 9. During a June 11, 2008 call with this Court and in an e-mail, Plaintiffs'

counsel has stated that the subpoenaed documents are "useless" to the Pennsylvania Federal Action. (See Non-Parties' Notice of Lodgment at Exhibit D.) 10. Plaintiffs' counsel has stated that the subpoenaed documents are important to a

sealed action in New Jersey State court. Until Plaintiffs identified the docket number of the New Jersey action in their present Motion papers, namely Koziol v. Bombardier, Inc., No. OC-NL-274907 (N.J. Super. Court Ocean County), the Non-Parties were not aware of the name of the case, the index number, or that the action is pending in State court in New Jersey. 11. A member of the Patterson Belknap Webb & Tyler managing clerk's office

contacted the New Jersey Superior Court to obtain further information about the New Jersey State
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action. The Non-Parties were not able to discover further information about the New Jersey State action because it is sealed. 12. Before the Motion to Compel was filed, Mr. Wolk told me that the New

Jersey State action involved "RICO" claims against a company called Rotax for conspiring to hide business activities in the United States in order to avoid jurisdiction. Mr. Holsenback also recently informed me that the case also included products liability claims and that Bombardier and certain lawyers are defendants in the case. (See Non-Parties' Notice of Lodgment at Exhibit E.) 13. On March 19, 2008, Ms. Goodstine requested that Mr. Wolk provide us with a

draft protective order. Mr. Wolk agreed both to draft such an order, and that any production of documents by Non-Parties GA and GA-ASI would be made pursuant to a blanket protective order. (See Non-Parties' Notice of Lodgment at Exhibit F.) 14. At 8:45 p.m. on March 19, 2008, Mr. Wolk sent Ms. Goodstine a draft blanket

confidentiality agreement, not an order to be approved by the Court. (See Non-Parties' Notice of Lodgment at Exhibit G.) 15. Plaintiffs' local counsel, J. Daniel Holsenback, attached to Plaintiffs' Notice of

Lodgment as Exhibit E an e-mail supposedly sent by attorney Wolk to Ms. Goodstine at 10:16 p.m. on March 19, 2008, explaining his reasons for sending a confidentiality agreement rather than a protective order. Upon close examination, it is apparent from the header of that e-mail that Mr. Wolk sent this e-mail to himself and not to Ms. Goodstine. Neither Ms. Goodstine nor I received the e-mail attached as Exhibit E to Plaintiffs' Notice of Lodgment. 16. In response to the confidentiality agreement, Non-Parties drafted a proposed

protective order. The first draft of the protective order restricted use of produced documents to the action under which the documents were subpoenaed, the Pennsylvania Federal Action. (See Non-Parties' Notice of Lodgment at Exhibit H.) 17. Attorney Wolk responded that the proposed protective order was unacceptable

because he required the documents for the New Jersey State case. Attorney Wolk declined to make a counterproposal, and unilaterally cut off negotiations. (See Non-Parties' Notice of Lodgment at Exhibit D.)
CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1

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Almost two months after unilaterally ending discussions, Plaintiffs counsel

filed the present Motion to Compel without requesting to meet and confer. 19. Throughout the negotiation process, Ms. Goodstine and I worked with GA

and GA-ASI to search for and collect responsive documents to the Subpoenas. GA has informed us that it has no responsive documents. GA-ASI has provided us with three boxes of documents. 20. On June 24, 2008, Mr. Holsenback sent me an e-mail asking whether the Non-

Parties would agree to permit Plaintiffs to use the subpoenaed documents just in the Pennsylvania Federal Action and in the New Jersey State case. (See Non-Parties' Notice of Lodgment at Exhibit I.) 21. After communicating with my clients, on June 25, 2008, I telephoned Mr.

Holsenback and told him that GA-ASI would agree to permit Plaintiffs to use the documents in the New Jersey State case. Ms. Goodstine and I revised the draft protective order to permit such use, and on June 26, 2008, we e-mailed the new draft to Attorneys Holsenback and Wolk. (See NonParties' Notice of Lodgment at Exhibit J.) 22. Mr. Holsenback informed us that Mr. Wolk still rejected the draft protective

order because it contained a one-page confidentiality undertaking to be signed by recipients of confidential information. According to Mr. Holsenback, Mr. Wolk believed he could not ask his opponents in the New Jersey State case to sign such an undertaking. (See Non-Parties' Notice of Lodgment at Exhibit K.) 23. On June 27, 2008, GA-ASI agreed to remove the requirement for a

confidentiality undertaking from the draft protective order, and I e-mailed an updated draft of the order to Mr. Wolk. I telephoned Mr. Wolk shortly thereafter to confirm that we had addressed his concerns in full. I informed him I thought we could reach agreement and produce documents to him following the entry of a protective order and the normal Bates stamping and production procedures. (See Non-Parties' Notice of Lodgment at Exhibit L.) 24. At the outset of the telephone call Mr. Wolk characterized the protective order

as "onerous" and said we would have to litigate. I remained steadfastly fixed on finding a resolution to the dispute and insisted that Mr. Wolk walk through the draft protective order with Ms. Goodstine
CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1

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and me paragraph by paragraph. (See Non-Parties' Notice of Lodgment at Exhibit M.) 25. Between 5:30 p.m. and almost 9:00 p.m. on Friday, June 27, 2008,

Ms. Goodstine and I walked through each paragraph of the draft protective order with Mr. Wolk and edited the order according to Mr. Wolk's requests. As of 9:00 p.m., three issues remained: (1) Mr. Wolk requested to insert a provision that excuses him and other parties from breach of the protective order if he or they use the information in a brief or in a filing without "trying" to breach the protective order. He explained that "sometimes people in [his] office screw things up." (2) Mr. Wolk requested to strike a provision that requires a party wishing to use confidential information in a courtroom to request that the courtroom be closed during such use (this provision provides that if the court refuses, that party may nevertheless proceed). (3) Mr. Wolk requested provisions that would enable the New Jersey State Court to overrule or disregard the protective order. 26. With respect to the second request, I told Mr. Wolk that I would have to speak

to my clients. However, I suggested to Mr. Wolk that we were almost at resolution, and that we jointly call the Court to adjourn the briefing schedule, to avoid further expense and delay. After more than three long hours of work to find a resolution, I sent Mr. Wolk another revised draft of the protective order. I noted in an e-mail that the parties almost had an agreement and that we could continue our discussion on Monday, June 30. (See Non-Parties' Notice of Lodgment at Exhibit N.) 27. In response, Mr. Wolk sent me e-mails that contained, among other things,

unfounded accusations that I and the Non-Parties were attempting to "sandbag" Plaintiffs, and claimed he was "suspicious" about my clients' relationship with the defendants in the New Jersey State case. With respect to the provision that required a party to request to seal a courtroom before using GA-ASI confidential information, Mr. Wolk explained that "if I ask the Court to do that he is going to look at me like I have two heads. . . ." In an e-mail received at 12:46 a.m. on June 28, 2008, Mr. Wolk discontinued negotiations and told us to "brief the Motion". (See Non-Parties' Notice of Lodgment at Exhibit O.) 28. During the telephone call described in paragraphs 23-27 above, Mr. Wolk

asked me if I had provided any documents responsive to his Subpoenas to defense counsel in the
CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1

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New Jersey State case. I informed him that I had not done so. 29. On June 12, 2008, William Gibson, counsel for Rotax in the New Jersey

action, telephoned Ms. Goodstine. Ms. Goodstine and I spoke to Mr. Gibson on June 16, 2008. During that conversation, Mr. Gibson informed us that his client's in-house counsel had come across Plaintiffs' Motion in this Court on PACER. Mr. Gibson did not ask for documents, and we did not give GA-ASI documents to him or anyone else involved in the New Jersey State action. We have not spoken with Mr. Gibson again. I informed Mr. Holsenback of this conversation on June 25, 2008. 30. I certify that in accordance with Local Rule 26.1, on behalf of GA and GA-

ASI, I called Plaintiffs' counsel several times during the week of June 22, 2008 to meet and confer come to a resolution of the issues in dispute without resorting to filing an Opposition to the Motion to Compel and a Cross-Motion to Quash or Enter a Protective Order. As noted above, on Saturday morning, June 28, 2008, Plaintiffs counsel said we would have to brief the issues. Even so, I again called Plaintiffs' counsel today to meet and confer and left messages, but have not heard back from Plaintiffs' counsel.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

By:

/s/ Daniel A. Lowenthal Daniel A. Lowenthal

CASE NO. 08-cv-947 DMS (BLM) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT OF THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH 1822617v.1

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Case 3:08-cv-00947-DMS-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 THEODORE AND LOIS KOZIOL 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. UNITED STATES OF AMERICA, Defendant. Plaintiffs,

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Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Case No.: 08-CV-947 DMS (BLM) Civ. No.: 07-3432 Eastern District of Pennsylvania NON-PARTIES' NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OF THE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS Date: Time: Judge: Courtroom: August 13, 2008 1:30 p.m. Hon. Barbara L. Major TBD

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc. have lodged true and correct copies of the following exhibits in support of both their Opposition to Plaintiffs' Motion to Compel and their Cross-Motion to Quash or For a Protective Order and Sanctions:

CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS 1822624v.1

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E-Mail from Sarah Goodstine to Arthur Wolk, dated April 2, 2008 Complaint filed in Koziol v. United States of America, Civ. No. 07-3432

Docket Report for Koziol v. United States of America, Civ. No. 07-3432

E-Mail from Arthur Wolk to Sarah Goodstine, dated April 4, 2008 E-Mail from J. Daniel Holsenback to Daniel Lowenthal dated June 25, 2008 E-Mail from Arthur Wolk to Sarah Goodstine, dated March 19, 2008 E-Mail from Arthur Wolk to Sarah Goodstine, dated March 19, 2008 E-Mail from Sarah Goodstine to Arthur Wolk, dated April 4, 2008 E-Mail from J. Daniel Holsenback, to Daniel Lowenthal, dated June 24, 2008 E-Mail from Daniel Lowenthal to J. Daniel Holsenback and Arthur Wolk, dated June 26, 2008 E-Mail from J. Daniel Holsenback to Daniel Lowenthal, dated June 26, 2008 E-Mail from Daniel Lowenthal to Arthur Wolk, dated June 27, 2008 E-Mail from Daniel Lowenthal to Arthur Wolk, dated June 26, 2008 E-Mail from Daniel Lowenthal to Arthur Wolk, dated June 27, 2008

CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS 1822624v.1

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E-Mails from Arthur Wolk, dated June 27, 2008 and June 28, 2008 [Proposed] Protective Order Respectfully Submitted, By: /s/ Daniel A. Lowenthal Daniel A. Lowenthal (Admitted Pro Hac Vice) Sarah E. Goodstine (Admitted Pro Hac Vice) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2720 Facsimile: (212) 336-2222 Paul A. Tyrell (CA Bar No. 193798) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 530 B Street, Suite 2100 San Diego, CA 92101 Telephone: (619) 238-1999 Facsimile: (619) 235-0398 Attorneys for Non-Parties General Atomics and General Atomics Aeronautical Systems, Inc.

CASE NO. 08-cv-947 DMS (BLM) NON-PARTIES NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OFTHE CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS 1822624v.1

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Koziol v. United States of America, et al. USDC, Southern District of California, Case No. 3:08-cv-00947-DMS-BLM

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PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is PROCOPIO, CORY, HARGREAVES & SAVITCH LLP, 530 "B" Street, Suite 2100, San Diego, California 92101. On July 1, 2008, I caused to be electronically filed the within documents: (1) NOTICE AND CROSS-MOTION TO QUASH OR ENTER A PROTECTIVE ORDER WITH RESPECT TO THE SUBPOENAS ISSUED TO NON-PARTIES GENERAL ATOMICS AND GENERAL ATOMICS AERONAUTICAL SYSTEMS, INC.; (2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTIES' CROSS-MOTION TO QUASH OR FOR A PROTECTIVE ORDER AND FOR SANCTIONS; (3) DECLARATION OF DANIEL A. LOWENTHAL IN SUPPORT THE OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF THE CROSS-MOTION TO QUASH; (4) DECLARATION OF FRANK PACE IN SUPPORT OF BOTH THE OPPOSITION TO MOTION TO COMPEL AND THE CROSS MOTION TO QUASH; AND (5) NON-PARTIES' NOTICE OF LODGMENT IN SUPPORT OF THE OPPOSITION TO THE MOTION TO COMPEL AND IN SUPPORT OF THE CROSSMOTION TO QUASH OR FOR A PROTECTIVE ORDER AND SANCTIONS 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: J. Daniel Holsenback, [email protected] United States Attorneys' Office, [email protected] Daniel A. Lowenthal, [email protected] Sarah Goodstine, [email protected] 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 under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I executed this Certificate of Service on July 1, 2008 at San Diego, California.

/s/ Marsha Amin Marsha Amin

-1114388/000000/938001.01