American Petroleum Institute, et al v. Roy A. Cooper, III, Attorney General of the State of North Carolina

Filing 154

ORDER denying 118 Motion in Limine and discussing 123 Motion to Seal; 128 Motion to Seal and 147 Final Joint Trial Report - Upon the parties' joint offering of exhibits sought to be admitted into evidence, this order memorializes the court's admission into evidence of the offered exhibits as listed in the attached order. The clerk is DIRECTED to maintain the following trial exhibit nos. under seal: 81-84,92,94, 104, 133, 137-38, 142-43, 145-52, 154-55, 157-66,232-33,279 , and 286. Moreover, of its own initiative, the court provisionally seals exhibit no. 116, the Chevron Report, and no. 181, Hick and Jenni Presentation. Good cause having been shown, the court SEALS responses of Pope (DE 126) and in this part, plain tiffs' motion (DE 128) is ALLOWED. Before ruling finally on remaining part of plaintiffs' motion to seal (DE 128) and defendants' motion (DE 123), a party may show cause within ten (10) days hereof, why the court should not now deny th ese motions as moot in whole or in any remaining part, as it is inclined so to do. Moreover, out of an abundance of caution, where in light of the pendency of the instant motions to seal, the court provisionally has ordered sealed exhibits nos. 116 and 181, within ten (10) days any party may show cause why this provisional seal should be continued and exhibit nos. 116 and 181 ordered to be sealed in accordance with the terms and conditions of this order. If no cause is offered, in accordance with the parties' joint report, the court will order unsealed these exhibits. Signed by District Judge Louise Wood Flanagan on 08/11/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:08-CV-396-FL

AMERICAN PETROLEUM
INSTITUTE, and AMERICAN FUEL
& PETROCHEMICAL
MANUFACTURERS ASSOCIATION,
Plaintiffs,
v.
ROY A. COOPER, III, ATTORNEY
GENERAL OF THE STATE OF
NORTH CAROLINA,
Defendant,
and
NORTH CAROLINA PETROLEUM
AND CONVENIENCE MARKETERS
ASSOCIATION,
Intervenor-Defendant.

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ORDER

This matter came before the court for bench trial in February 18-20, 2014, after which the
court issued directives and made rulings as summarized in order entered February 21, 2014. (DE
138). The matter comes now before the court on joint report filed by the parties seeking to admit
various trial exhibits into evidence and to have parts of the record sealed (DE 147). Also before the
court are separate requests to seal case materials (DE 123, 128). Too, there remains pending a
motion in limine wherein defendants seek to exclude the 2009 Chevron Report and testimony of Ted
Hick ("Hick") and Dr. Karen Jenni ("Jenni"). The issues raised are ripe for decision, as herein

• • •

I.
''

'

provided.
·!'

I.

Final Joint Trial Report (DE 147) _

I

I

l

·''·.

A.

Admission Into Evidence , -

Upon the parties' joint offering of exhibits sought to be admitted into evidence, this order
memorializes the court's admissi,on into evidence of the

No.
2

5
-6
8

10
11
16
17
18
19
20
21
22
23
24
25

exhibits:

Pro_p_onent ·
_ De~cription
Pltfs. (P)
CV of David Preston {20 10)_
p
Shell Presentation on Blending Economics (12/2009)
Both
Shell Presentation- "IncorrectAinoilnt ofEthanol in
Gasoiin~at Truck Rack'' (2010)
_
Both
PQ InCident Bulletin: Excess Ethanol in Gasoline
_ Leaving:'terminal/Depot(12/2009) _
D
Email chain from Layne Polocheck to Kevin Autin,
Laura Yellig; Paul Cannon, and David Preston re: One
arm at SOPUS Anacorte~, WA put out £10 gasoline at
greater than 10% ethanol (9/24/20 10)
D
Compilation of Shell Emails ( 10/8/2008)
D
Wholesale Marketer Agreement form (9/29/2008)
Both
Marathon Sample Branded Product Supply and
Trademark License Agreement
Both
Marathon Addendum to Branded Product Supply and
Trademark License Agreement [North Carolina]
Both
Marathon ALIRTS Report, Incident No. 1024-2010
(6/26/2010)
Both
Marathon ALIRTS Report, Incident No. 1334-2009
(1119/2009)
Both
Marathon ALIRTS Report, Incident No. 1347-2008
(8/30/2008)
Both
Marathon ALIRTS Report, Incident No. 1842-2008
(12/7/2008)
Both
Marathon ALIRTS Report, Incident No. 398-2010
(2116/2010)
Both
Marathon ALIRTS Report, Incident No. 493-2009
(4/25/2009)
Both
Marathon ALIRTS Report, Incident No. 705-2009
(6/13/2009)
Both
Marathon ALIRTS Report, Incident No. 714-2008
(4/8/2008)
'"

"

9

of~ered

2

Confidential

;

--'

''

No.
26

Proponent
Both

27

Both

35

p

38
39

Both
Both

40

Both

42

p

43

p

44

p

45

D

46

D

47

D

49

p

51

p

58
60

p
D

63

p

65

Both

Description
Marathon ALIRTS Report, Incident No. 868-2007
( 12/8/2007)
Marathon ALIRTS Report, Incident No. 873-2008
(5/7/2008)
BP Document re Ethanol Blends at Charlotte Terminal
.(2009)
BP Log re Blending Incidents (8/24/20 10)
Email from Jim Nicholas re: FW: BOLs RE:
Wilmington. Possible quality issue, high ethanol in
loads (12/5/2008)
Email from Betty Ross re: FW: Wilmington NC Hess
Terminal Issue- Potentially Too Much Ethanol in Fuel
( 12/8/2008)
Email from Heidi Huffre: High Ethanol Content in
Raleigh Station [2/6/2009)
Email from David Kovach re: High Ethanol Content
in Ultimate from Selma Terminal Representative
Station (2/4/2009)
Email from Heidi Huff re: High Ethanol Content in
Ultimate from Selma Terminal Representative Station
(2/6/2009)
Email chain from Bill Downes to John Steury re: High
Ethanol Content in Premium Sample from
Hendersonville, NC Station (3/25/20 10)
Email chain from John Steury to Jessica Goble re:
High Ethanol Content in Premium Sample from
Hendersonville, NC Station (3/24/20 10)
Email chain from Jim Nicholas to Irene Banas and
James Simnick re: BOLs, Wilmington - Possible
quality issue, high ethanol in loads (12/8/2008)
Letter from Liza Clechenko granting waiver to A.
Craig Stephenson from requirement to sell finished
products along with Temporary Splash Blending
Agreement (7/28/2008)
Collection of letters from Liza Clechenko revoking
splash blending waivers (2008)
List of Cruizers I Holmes Oil Sites
Invoice from P & F Environmental, Inc. to Holmes Oil
Company re: vacuuming out Premium tank bottom
and disposal (511 0/2008)
Bills of Lading for Fuel Delivery to Cruizers #30
(3/16/2008)
Bills of Lading for Fuel Delivery to Cruizers #44
(3116/2008)
3

Confidential

No. Proponent
Descri~>_tion
p
67
NCDA&CS Inspection Report 441789, Exxon 13
70

Both

71

p

74

p

80

p

81

p

82

p

83

p

84

Both

85

p

86

p

87
88

D
p

89

p

91

D

92

p

93

Both

94

Both

95

p

96

p

{5/29/2008)
ExxonMobil Oil Corp.-Holmes Oil Branded
Wholesaler PMPA Franchise Agreement (1 0/13/201 0)
Response and Objections by Intervenor to Plaintiffs'
First Set of Interrogatories (4/25/2011)
Email from Scott Driscoll Re: HM Ethanol
(3/27/2009)
Defendant-Intervenor's Response to Plaintiffs' First
and Second Sets of Document Requests to E.J. Pope &
Son, Inc. (4/25/2011)
Bills of Lading for Fuel Deliveries Driven by Curtis
Cox (3115/2008)
Bills of Lading for Fuel Deliveries Driven by T
Gilbert (3/15/2008)
Bills of Lading for Fuel Delivery to Circle K #6139
(7/1/2008)
Pope Transport Bills of Lading and Trip Sheet for
Fuel Delivery to Eno BP (7/4/2008)
Bills of Lading for Fuel Deliveries Driven by W
McKinnon (3/15/2008)
U.S. Environmental Protection Agency, Guide on
Federal and State Summer RVP Standards for
Conventional Gasoline Only (3/20 I 0)
Expert Report ofRobert E. Reynolds (10/18/2013)
Robert Reynolds, The Current Fuel Ethanol Industry
Transportation, Marketing, Distribution and Technical
Considerations (5/15/2000)
Robert Reynolds, Changes in Gasoline & the Classic
Auto Report (5/19961
Email with attachment from Alison Chassin to
multiple recipients re: SOPUS Seattle Over-Injection
of ethanol: Final Holding Statement (7/29/2009)
Bills of Lading for Fuel Deliveries to Various Sites
(7/2013)
Email from John Steury re: High Ethanol Content in
Premium Sample from Hendersonville, NC Station
(3/24/20 10)
Bills of Lading for Fuel Delivery to Abercrombie Oil
_(9/28/2013)
Reynolds Presentation on Ethanol Industry Technical
Agenda (1 0118/2006)
National Renewable Energy Lab., Technical Report,
Issues Associated with the Use of Higher Ethanol
Blends (10/2002)
4

Confidential

y
y
y
y

y

y

No.
97
104
106
107
108
109
110
111
112
113

115
116
117
118
119
120
121
122
123
124
125
126
127
128

Proponent
Description
Both
Pope Transport, Ethanol Blend Chart (4/16/2007)
Both
Bills of Lading for Fuel Deliveries to Various Sites
(7 /18/2013)
D
NCDOA & CS, Standards Division Analytical Record
of Sample Taken, Yadkin County (5/29/2012)
D
NCDOA & CS, Standards Division Analytical Record
of Sample Taken, Harnett County (6/27/2012)
D
NCDOA & CS, Standards Division Analytical Record
of Sample Taken, Pitt County (8/17/20 12)
D
NCDOA & CS, Standards Division Analytical Record
of Sample Taken, Wayne County (9/18/2012)
D
NCDOA & CS, Standards Division Analytical Record
of Sample Taken, Burke County (10/1112012)
D
NCDOA & CS, Standards Division Analytical Record
of Sample Taken, Greene County (11130/2012)
D
NCDOA & CS, Standards Division Analytical Record
of Sample Taken, Onslow County (1/1112008)
ASTM International, D4815-09, Standard Test
Both
Method for Determination of MTBE, ETBE, TAME,
DIPE, tertiary-Amyl Alcohol and C 1 to C4 Alcohols
in Gasoline by Gas Chromatography (10/16/2013)
p
Southern Weight and Measures Association
Newsletter (1 0/2008)
p
Chevron, Analysis of Alternative Methods for Ethanol
Blending (4/30/2009)
Email from Dave Roche to Erv Pickell (1 0/20/2005)
Both
Letter from Don Gistrap to Duong Trinh ( 12/19/20 13)
D
Letter from Don Gilstrap to Dickman Lum
D
(1 0/25/20 12)
Letter from Don Gilstrap to Dickman Lum
D
(10/5/2012)
Letter from Don Gilstrap to Dickman Lum
D
(9/26/2012)
D
Letter from Karen Means to Dickman Lum
(8115/2011)
Letter from Karen Means to Dickman Lum (9/4/2009)
D
Email from Robert Anderson to Don Gilstrap re:
D
Chevron -Martinez Terminal (4/211201 0)
Email from Mark Apman to Brian Taniguchi
Both
(12/2/2009)
Chevron Chart of Blending Incidents
D
p
Defendant's Responses to Plaintiffs' First Set of
Interrogatories to Defendant Roy Cooper (4/25/2011)
p
Marathon Trademark Registrations

5

Confidential
y

No.
129
130
133

Proponent
Descri~tion
p
BP Trademark Registrations
p

p

134

p

135

p

136

p

137

p

138

p

139

p

140

p

141

p

142

p

143

p

144

p

145

p

148

p

149

p

150

p

151

p

152

p

153

p

154

p

155

p

Shell Trademark Registrations
Bills of Lading for Fuel Delivery to Circle K
#2705144{3/15/2008)
Bills of Lading for Fuel Delivery to Cruizers #31
(3/1 7/2008)
Bills of Lading for Fuel Delivery to Snackers #265
(311 7/2008)
Bills of Lading for Fuel Delivery to Chocowinity
Handy Mart (3/17/20081
Bills of Lading for Fuel Delivery to Circle K #6264
(3/17/2008)
Bills of Lading for Fuel Delivery to Circle K #8221
(3117/2008)
Bills of Lading for Wilson Mills HandyMart
(3117/2008)
Bills of Lading for Fuel Delivery to Cruizers #30
(3/19/2008)
Bills of Lading for Fuel Delivery to Cruizers #44
(3/19/2008)
Bills of Lading for Fuel Deliveries to Garrett Rd BP
and Westside BP (7/1/2008)
Bills of Lading for Fuel Deliveries to Circle K #8620
and #8627 {_7/112008)_
Bills of Lading for Fuel Deliveries to HandyMart 36
and HandyMart 65 (7/1/2008)
Bills of Lading for All Fuel Deliveries Driven by Joe
King (711 /2008)
Bills of Lading for Fuel Deliveries to Circle K #6330
and #6312 (7/2/2008)
Bills of Lading for Fuel Delivery to Circle K # 1819
(7/2/2008)
Bills of Lading for Fuel Delivery to Glennlennon BP
(7/2/2008)
Bills of Lading for Fuel Delivery to Circle K #6329
(7/2/2008)
Bills of Lading for Fuel Delivery to Circle K #6119
.(7/2/2008)
Bills of Lading for Fuel Delivery to HandyMart 60
(7/2/2008)
Bills of Lading for Fuel Deliveries to Knightdale BP
and Zebulon BP (7/3/2008)
Bills of Lading for Fuel Delivery to West Campus BP
(7/3/2008)
6

Confidential

y

y
y

y
y

y
y
y
y
y

y

y
y

No.
156

Proponent

157

p

158

p

159

p

160

p

161

p

163

p

166

p

168

p

169

p

170

p

171

p

172

p

173

Both

179

p

180

p

181

p

182

p

p

Description
Bills of Lading for Fuel Delivery to HandyMart 68
(7/3/2008)
Bills of Lading for Fuel Deliveries to Knightdale BP
and Zebulon BP (7/4/2008)
Bills of Lading for Fuel Deliveries to Circle K #6139
and #6264 {7/4/2008)
Bills of Lading for Fuel Deliveries to Circle K #6119
(7/4/2008)
Bills of Lading for Fuel Deliveries to Circle K #8620
and #8627 (7/5/2008)
Bills of Lading for Fuel Deliveries to Brayton BP and
Forest Hills (7/6/2008)
Bills of Lading for Fuel Deliver to Circle K #8610
(717/2008)
Bills of Lading for Fuel Deliveries to Lake Boone 66
and Spring Forest 66 (7/8/2008)
NCDA&CS Standards Division Inspection Reports for
E.J. Pope (Handy Mart) Locations (1/11/2008 through
12119/2008)
NCDA&CS Standards Division Inspection Reports for
E.J. Pope (Handy Mart) Locations (1/22/2009 through
12/11/2009)
NCDA&CS Standards Division Inspection Reports for
Holmes Oil Locations (217/2008 through 11/4/2008_)
NCDA&CS Standards Division Inspection Reports for
Holmes Oil Locations (1/8/2009 through 12/3/2009)
ASTM International, D4814-0 1a, Standard
Specification for Automotive Spark-Ignition Engine
Fuel (11/10/2001)
API Recommended Practice 1626, Storing and
Handling Ethanol and Gasoline-ethanol Blends at
Distribution Terminals and Filling Stations (8/20 10)
U.S. Environmental Protection Agency, Regulation to
Mitigate the Misfueling of Vehicles and Engines with
Gasoline Containing Greater Than Ten Volume
Percent Ethanol and Modifications to the
Reformulated and Conventional Gasoline Programs,
76 Fed. Reg. 44406 (7/25/2011)
Email from Steve Benjamin to Rick Thomas [without
attachment] (4/23/2010)
Ted Hick and Karen Jenni, Presentation, Analysis of
Alternative Methods for Ethanol Blending (4/2009)
Chevron In-Terminal Blending Error Data (June-Nov.
2013)

7

Confidential

y
y
y
y
y
y
y

No.
184

Proponent
Description
p
Robert Reynolds, Expert Report for In re MTBE

185

p

188
189

p
p

190

p

195
198

p
p

210

p

211

p

212

p

213

p

214

p

215

p

216

p

217

p

218

p

219

p

220

p

221

p

222

p

223

p

Prods. Liab. Litig. (County of Suffolk v. Amerada
Hess) (3/22/2007)
Robert Reynolds, The Challenge of Expanding the
Ethanol Distribution System (I 0/17/2000)
Supplemental Report of John O'Brien ( l 0/17/20131
Terminology & Routes to Conventional Clear,
Conventional E10, and RFG (5/28/2010)
Typical Tank Truck In-Line Blending System
(5/28/20 10)
How Splash Blendin_g T_ypically Occurs (10/17/2013)
Yoram (Jerry) Wind, A Study to Analyze Whether
Consumers of Major Brand Gasoline in North
Carolina Are Likely to Be Deceived by the Fact That
the Major Brand Gasoline They Purchase Is Blended
with Ethanol by a Process That Is Not Approved by
the Major Brand Companies (10/2013)
Wind Study, Appendix A: North Carolina Screening
Results ( 10/20 13)
Wind Study, Appendix B: Original Survey
Questionnaires (Green and Yellow) (10/2013)
Wind Study, Appendix C: Revised Survey
Questionnaires (Blue and Re<!) (1 0/201 n_
Wind Study, Appendix D: Field Instructions
(10/2013)
Wind Study, Appendix E: Verification Questionnaire
(10/2013)
Wind Study, Appendix E: Verification Certification
(10/2013)
Wind Study, Appendix F: Computer Tabulation
(10/2013)
Wind Study, Appendix Gl: Verbatim ResponsesGreen Version (10/2013)
Wind Study, Appendix G2: Verbatim ResponsesYellow Version (10/2013)
Wind Study, Appendix G3: Verbatim ResponsesBlue Version (10/20131
Wind Study, Appendix G4: Verbatim ResponsesRed Version (10/2013)
Wind Study, Appendix H: Excluded Control Group
Verbatim Responses to Q3 and Q5 (10/2013)
Wind Study, Appendix 1: Statistical Analysis
(10/2013)
Wind Study, Appendix J, Supporting Data Table 1
(10/2013)

Confidential

No.

Proponent

224

p

225

D

226

D

227

D

228

D

229

D

230

D

231

D

232

D

233

D

234

D

235

D

236

D

237

D

238

D

239

D

Description
Wind Study, Appendix J, Supporting Data Table 2
(10/2013)
Email chain with attachments from Susan Nettleton to
Jene Goll re: splash blend option I IN & OH
(6/30/2005)
Email with attachment from David Tew to Judson
Pope and Kaye Thompson re: link for the MSDS for
Ethanol (12/20/2007)
Ethanol Retail Tank Conversion Checklist from
Marathon Petroleum Company LLC (2/14/2008)
Memo from BP to BP Jobbers with BP retail sites in
North Carolina and South Carolina re: splash blending
(3/12/2008) .
Temporary Splash Blending Waiver Agreement
between BP Products North America, Inc. and E J
Pope & Son Inc. (3/12/2008)
Temporary Splash Blending Waiver Agreement
between BP Products North America, Inc. and Holmes
Oil Co Inc. (3/12/2008)
Email chain with attachments from Steve Sefter to
multiple recipients re: last ethanol training call before
RVP Changeover- Memphis Makeup and North
Carolina Splash Blending (4/8/2008)
Pope Transport Bills of Lading and Trip Sheet- BOL
0157611 and related documents (711/2008)
Pope Transport Bills of Lading and Trip Sheet- BOL
0157824 and related documents (7/3/2008)
Email chain with attachment from Craig Payne to
Delmer Wood re: report of Port Tampa verification
samples (10/8/20081
Email from David Preston to Delmer Wood re: Tampa
ethanol issue (1 0/9/2008)
Email chain with attachment from Craig Payne to
Delmer Wood re: balance of results for the sampled
g_as stations in Tampa, FL (10/9/200~
Email chain from Anne Peebles to Karen LeonardiCattolica, Delmer Wood, and David Press re: DOE:
Initial Study Shows Few Problems with El5 and E20
Ethanol Blends (1 0/1 0/2008)
Email with attachment from Jenny Powers to multiple
recipients re: Tampa Ethanol Holding Statement Final ( 10/1 0/2008)
Email chain from Delmer Wood to Richard Kimsey
re: Discussion follow-up (1 0/13/2008)

9

Confidential

y
y

No.
240
241
242

243

244

246

247
250
251

252
253
254
255

256

257

259

Proponent
Description
D
Email chain from Jerry LeBus to Kirk Brammer re:
Tampa PU (1 0/14/2008)
D
Email chain from Mark Bryan to Justin Pope re: HM
59 Product, Exxon billing (1 0/21/2008)
D
Email chain with attachment from Jim Nicholas to
James McGetrick, Kelley Lane, and John Steury re:
Wilmington NC Hess Ethanol issue (12/5/2008)
D
Email chain from Jim Nicholas to Kenneth Cobbs re:
Wilmington NC Hess Terminal Issue- Potentially Too
Much Ethanol in Fuel (12/5/2008)
D
Email chain from Jim Nicholas to John Steury, James
Bergeron, Petra Steinmetz, and Barbara Bibbs re:
cause of Wilmington Hess Terminal Issue (12/6/2008)
D
Letter from Motiva Enterprises to Richard Kimsey, FL
Dept. of Agriculture and Consumer Services re:
operational issues with blending of Premium and midgrade gas (12/8/2008)
D
Email chain from David Bunch re: issues loading
products at Wilmington Hess terminal (1/7/2009)
D
Talking Points from BP re: Ethanol Splash Blending
in North Carolina (4/27/2009)
Email with attachment from Kent Daigre to Peter
D
Robison, Daniel Porras, Joy Davis, and Mary
Whitaker re: Incident report from Tampa Ethanol
investigation (5/28/2009)
D
Branded Jobber Contract between BP and E.J. Pope &
Son, Inc. (6/1/2009)
D
Branded Jobber Contract between BP and Holmes Oil
Co. (7/21/2009)
D
Email chain from David Preston to multiple recipients
re: Seattle ElO Mitigation_(7/29/2009)
D
Email chain from Layne Polocheck to Larry Burch,
Kevin Autin, and Laura Yellig re: SOP US Seattle
Over-injection of ethanol (7/30/2009)_
D
Quality Control Procedures for Gasolines and Diesel
Fuel, Branded Wholesaler, by ExxonMobil
(11112010)
D
Email without attachment from Mary Beth Kinman to
Steve Majid, Rich Russo, John Bates, and Aisha
Albimani re: Motiva Fairfax Incident InvestigationTerms ofReference_(2/16/2010)
D
Email chain with attachment from John Steury to
William Zudic re: High Ethanol Content in Premium
Sample from Henderson, NC Station (3/23/2010)

10

Confidential

No. Proponent
Description
260
D
Email chain with attachment from Mary Beth Kinman
to Chad Ewing and Delmer Wood re: Nashville State
Sample Data (6/3/2010)
261
D
Email from Delmer Wood to multiple recipients re:
Nashville Update_(6/6/2010)
262
D
Email from Karyn Leonardi-Cattolica to multiple
recipients re: Approved: Nashville PQ Holding
Statement and Q&A (6/7/2010)
263
D
Email from Delmer Wood to Randy Jennings re:
Motiva Nashville Terminal Incident Summary
(7 /3 0/201 0)
264
D
Branded Wholesaler PMPA Franchise Agreement
between ExxonMobil and E.J. Pope & Son Inc.
(8/20/20 10)
265
D
Holmes Oil Company documents re: Cruizers 265
pump out (9/30/20 10}
267
D
Plaintiff American Petroleum Institute's Objections
and Responses to Defendants' First Set of Requests
for Admission, Interrogatories, and Requests for
Production of Documents (12/13/2010)
269
D
Article from Department of Commerce, Weights and
Measures re: Commissioner reassures consumers in
areas affected by bad gasoline (10/13/2011)
D
276
QA Log Database Search: API Discovery NC
(Supplemental) (11/20/2013)
278
D
Ethanol Blending Addendum to Distributor PMP A
Franchise Agreement (Branded) between ExxonMobil
and Holmes Oil Co Inc.
279
D
Bill of Lading for Fuel Delivery to MM Fowler
(7/8/2008)
280
D
Demonstrative Exhibit of In-line Misblends
p
281
Demonstrative Exhibits for Testimony of John
O'Brien
p
282
Demonstrative Exhibits for Testimony of Karen Jenni
p
283
Demonstrative Exhibits for Testimony of Dr. Yoram
(Jerry) Wind
p
284
Demonstrative Exhibit of Shell/Motiva In-line
Blending Errors (2008-2010)
p
285
Demonstrative Exhibit of Marathon In-Line Blending
Errors
p
286
Demonstrative Exhibit of Joint Exhibit 81 (Bills of
Lading for Fuel Deliveries Driven by Curtis Cox
(3/15/2008))

11

Confidential

y

y

B.

Request to Seal

In the joint report, the parties have noted certain exhibits that are deemed confidential (as
referred to above). Consented-to request is made that the court seal designated exhibits for a period
of one year after this action has closed and the time for all appeals has run. Good cause having been
shown, the request to seal is GRANTED.
In accordance herewith, the clerk is DIRECTED to maintain the following trial exhibit nos.
under seal: 81-84,92,94, 104, 133, 137-38, 142-43, 145-52, 154-55, 157-66,232-33,279, and 286.
Moreover, of its own initiative, the court provisionally seals exhibit no. 116, the Chevron Report,
and no. 181, Hick and Jenni Presentation, for reasons discussed below.
II.

Motion in Limine (DE 118)
Where the court heard the testimony of Hick and Jenni at trial, and reference was made to

the Chevron Report, introduced at trial, it is noted here that the court overruled defendants'
objections thereto. Moreover, the parties' joint report makes reference to the Chevron Report at
exhibit nos. 116 and 181. Accordingly, where this motion was DENIED, the clerk shall conform
the record to reflect this.
III.

Motions to Seal (DE 123, 128)
In the motion made by defendants (DE 123), defendants seek to seal the cover sheet of the

Chevron Report (DE 120), Hick's deposition testimony discussing how the Chevron Report was
prepared (DE 121 ), and J enni' s testimony discussing her qualifications and how the Chevron Report
was prepared (DE 122). In the motion made by plaintiffs (DE 128), they seek to seal certain
responses of E. J. Pope & Sons, Inc. ("Pope") (DE 126) as well as the Chevron Report (DE 127).
The proposed sealed materials have remained provisionally sealed pending final determination by
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the court.
Only one part of one of these motions is able now to be decided. Good cause having been
shown, the court SEALS responses of Pope (DE 126) and in this part, plaintiffs' motion (DE 128)
is ALLOWED.
As to remaining part of plaintiffs' motion, and defendants' motion to seal, in the parties' later
filed joint report (DE 14 7), neither side requested that the Chevron Report be marked as confidential
and sealed in connection with its admission at trial. If this report is not to be sealed, it would seem
to obviate any need to seal DE 120, the Chevron Report, and likely obviate need to seal
corresponding testimony of Hicks and Jenni at DE 121 and DE 122. As such, defendants' motion
would be denied as moot and these items unsealed on the record. Similarly, as to remaining part of
plaintiffs' motion, where the Chevron Report at DE 127 is sought to be sealed, this sealing action,
too, would seem now unnecessary.
Before ruling finally on remaining part of plaintiffs' motion to seal (DE 128) and defendants'
motion (DE 123 ), a party may show cause within ten ( 10) days hereof, why the court should not now
deny these motions as moot in whole or in any remaining part, as it is inclined so to do.
Moreover, out of an abundance of caution, where in light of the pendency of the instant
motions to seal, the court provisionally has ordered sealed exhibits nos. 116 and 181, within ten ( 10)
days any party may show cause why this provisional seal should be continued and exhibit nos. 116
and 181 ordered to be sealed in accordance with the terms and conditions ofthis order. If no cause
is offered, in accordance with the parties' joint report, the court will order unsealed these exhibits.

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SO ORDERED, this the//J-day of August, 2014.

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UE
w. FLANAGAN
United States District Judge

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