Haley Paint Company v. E.I. Dupont De Nemours and Company et al

Filing 551

MEMORANDUM AND ORDER DENYING w/out Prejudice 539 Motion to Intervene and for Reconsideration. Signed by Judge Richard D Bennett on 11/6/13. (hmls, Deputy Clerk)

IN THE IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IN RE TITANIUM DIOXIDE ANTITRUST
LITIGATION
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THIS DOCUMENT RELATES TO:
ALL ACTIONS
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CIVIL ACTION NO.: RDB-10-0318

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MEMORANDUM ORDER
Presently pending is the Motion to Intervene and for Reconsideration (ECF No. 539)
(“Motion”) filed in this matter by the plaintiffs in the case styled Los Gatos Mercantile, Inc., et
al. v. E.I. du Pont de Nemours and Company, et al., No. C-13-01180, in the United States District
Court for the Northern District of California (the “Indirect Purchaser Plaintiffs”). Having
considered the pleadings and other papers filed in these actions, including the Stipulated
Protective Order (ECF No. 198), and this Court’s August 27, 2013 Order Granting Motion
for a Protective Order Preventing Production of Plaintiffs’ Confidential Discovery Materials
and Work Product (ECF No. 512), the Indirect Purchaser Plaintiffs’ Motion to Intervene is
DENIED.
The Indirect Purchaser Plaintiffs previously requested documents from the
Defendants, including confidential discovery materials and attorney work product produced
by the Plaintiffs in this case (the “Direct Purchaser Plaintiffs”). The Defendants, pursuant to
the Stipulated Protective Order (ECF No. 198) gave notice to the Direct Purchaser Plaintiffs
of their intention to produce the requested documents absent objection.

The Direct

Purchaser Plaintiffs did object and filed an Emergency Motion for Protective Order

Preventing Production of Confidential Discovery Materials and Work Product and Stay
Pending Resolution (ECF No. 503), which this Court granted on August 27, 2013 (ECF No.
512). This Court ordered that the Defendants were not to produce any materials challenged
under the Stipulated Protective Order by the Direct Purchaser Plaintiffs. As this case was on
the eve of a scheduled month-long jury trial, this Court’s Protective Order of August 27,
2013 was entered without prejudice to either side to address its reconsideration no less than
sixty days from its entry. While this case is pending this Court’s approval of a settlement
agreement, the Indirect Purchaser Plaintiffs filed the instant Motion to Intervene and for
Reconsideration on September 30, 2013.
In the instant Motion, the Indirect Purchaser Plaintiffs request to intervene in this
case for the purpose of moving this Court to vacate the August 27, 2013 Protective Order
and to modify the September 21, 2011 Stipulated Protective Order to allow production of
the requested materials. Alternatively, the Indirect Purchaser Plaintiffs request the unsealing
of the following documents:
 Memorandum in Support of the Motion for Class Certification and
Appointment of Class Counsel (ECF No. 247), and response in opposition
thereto (ECF No. 293), reply (ECF No. 306), and all accompanying exhibits;
 Memorandum in Support of Defendants’ Motion to Amend the Class
Definition (ECF No. 352), the response in opposition thereto (ECF No. 360),
the reply (ECF No. 362), and all accompanying exhibits;
 Memorandum in Support of Defendants’ Joint Motion to Exclude Expert
Testimony (ECF No. 410), the response thereto (ECF No. 413), the reply
(ECF No. 415), and all accompanying exhibits;
 Memorandum in Support of Defendants’ Motion to Compel Arbitration
Motion (ECF No. 423-428, 485), the response thereto (ECF No. 497), and all
accompanying exhibits;
 Memoranda in Support of Defendants’ Motions for Summary Judgment (ECF
No. 430, 433-36, 438, 440-41, 443), the response in opposition thereto (ECF
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No. 451-52, 455), the reply (ECF No. 456-60), and all accompanying exhibits;
and
 Plaintiffs’ Motion in Limine (ECF No. 471), Defendants’ Motions in Limine
(ECF No. 473, 477-79), the responses in opposition thereto (ECF No. 48794), and all accompanying exhibits.
ECF No. 539.
The Motion to Intervene and for Reconsideration is premature. In the August 27,
2013 Order, this Court instituted a sixty-day stay to ensure that the trial of this case could
proceed without the interruption of document requests in a separate litigation. Although
there was no trial, the case has not yet been resolved. Now that all Defendants have settled,
the proceedings have been extended through at least the date of the final approval hearing
on November 25, 2013, and the appeal period that follows.1 The parties are actively engaged
in the process of providing notice and moving for final approval pursuant to Rule 23.
Moreover, if the settlements are not finally approved, the case will revert to the status quo,
which was the very eve of trial. Thus, in its discretion under Rule 24(b), this Court
concludes that the same reasons for entering the Protective Order on August 27, 2013 exist
now to warrant the denial of the Indirect Purchaser Plaintiffs’ requests to intervene, vacate
and/or modify the protective orders currently in place, and unseal documents. The ultimate
resolution of the requests of the Indirect Purchaser Plaintiffs must await the closure of this
case.
As stated in this Court’s August 27, 2013 Order, the Defendants are not precluded
from producing their own proprietary documents, analyses, or work product to the Indirect
Purchaser Plaintiffs.

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An appeal of the final approval order may be filed within thirty days of the entry of judgment. 28
U.S.C. § 2107; Fed. R. App. P. 4(a)(1)(A).

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For those reasons, IT IS HEREBY ORDERED this 6th day of November, 2013
that:
(1) The Indirect Purchaser Plaintiffs’ Motion to Intervene and for Reconsideration
(ECF No. 539) is DENIED without prejudice to either side to address its
reconsideration after the final approval hearing and the appeal period that follows.
(2) The Clerk of the Court transmit copies of this Memorandum Order to the parties.
/s/
Richard D. Bennett
United States District Judge

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