Trailblazer Food Products, Inc. v. Silgan White Cap LLC

Filing 32

ORDER and OPINION - Trailblazer's motion 23 to compel is DENIED. Trailblazer's oral motion that Silgan produce the objecting customer's PSR is GRANTED. IT IS SO ORDERED. DATED this 30th day of November, 2017, by United States Magistrate Judge John V. Acosta. (Attachments: (1) Attachment, (2) Attachment, (3) Attachment, (4) Attachment) (peg)

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Schwabe WILLIAMSON & WYAfT@ Joel A. Parker Ad1niUed in Oregon and Washington October 31, 2017 T: 503-796-2975 jparker@schwabe.co111 VIA E-MAIL (.IOHN_ACOSTA@ORD.USCO URTS.GOV) Honorable Magistrate Judge John V. Acosta United States Courthouse 1000 SW Third Ave, Room 1127 Portland, OR 97204-2941 RE: Trailblazer Food Products, Inc. v. Silgan White Cap LLC United States District Court (Oregon) Case No. 3: 17-cv-00417-AC Our File No.: 119960-219810 Dear Judge Acosta: This letter is plaintiff Trailblazer Food Products, Inc.'s ("TBF") response to the October 30, 2017 letter from defendant Silgan 's customer ("Customer"). The documents thal TBF seeks arc both relevant and necessary for TBF to fully prepare its case and refute the defenses put forward by Silgan. Silgan has produced the requested documents in umedacted form for every other Silgan customer. For the reasons set forth below, TBF asserts that it is also appropriate for Silgan to produce Customer's documents in unredacted form, although ultimately TBF is proposing an alternative to doing so in an effort to address Customer's concern. To help the Court evaluate the issue, 1 have enclosed the package specification review (lhe "PSR") for TBF. The enclosed PSR is the one at issue in this case. Customer's PSRs will be a similar form. As you will sec, the PSR itself does not have any of Customer's formulas or recipes. Ralher, !he form identifies the type of product being manufactured, in this case jams/jellies, and is then used to determine the specifications for the closure (a lid) Silgan will manufacture. Most importantly for this case, this form is used to determine the type of coating that will be applied to the underside of the closure at issue. Pages 2 and 3 of the l'SR are the information Lhat Silgan solicits from its customers to provide Silgan with the necessary information to determine the necessary specifications for the closure. The form asks for, amongst other things, issues such as acidity level (pH), whelher the product is a beverage, whether alcohol is present, whether vinegar is present, and whether sodium bisulfate is present. With this information, Silgan determines what type of coating to apply to the underside of the closure and how many coats should be applied. The Silgan closures at issue in this case suffered corrosion after !hey were used to package TBF's organic fruit spread. One of the issues to be decided in this case is whether Silgan * -- P•cwest Center I 1211 SW 5th Avenue I Suite 1900 I Portland, OR I 97204 I M 503-222-9981 I F 603-796-2900 I ~ ~ ~* sohwabe.oom. ~ I Honorable Magistrate Judge John V. Acosta October 31, 2017 Page 2 properly specified the closure by applying only one layer of coating to the underside of the closure, as opposed to two layers. TBF has sought discovery of other Silgan customer PSRs to determine ifthe specification applied to TBF's closure is consistent with Silgan's practices and procedures. It is important to note that Silgan does not object to production of the documents at issue on the grounds of relevance, or otherwise. Nor could it do so because the documents are relevant to show whether Silgan improperly specified the TBF closures. Rather, Silgan has thus far refused to produce the documents because it is concerned that production may constitute a violation of a non-disclosure agreement it has with Customer. But again, Silgan has produced all other Customer PSRs in unredacted form and no other customer has claimed that the PSR information is confidential. The Customer's identity is an impmiant part ofTBF's discovery and investigation for two reasons. First, we believe that what Silgan considers and defines as "jams/jellies" is inconsistent and overly broad. Accordingly, when a Silgan PSR identifies the product as a Jam and Jelly, that might not actually be the case. Or at the very least, the product might be significantly different than the one at issue in this case (i.e., a pepper spiced jelly is different than strawberry jam). By disclosing the identity of the Customer, TBF can investigate what is actually being manufactured and packaged using publicly available information, such as store shelves. Second, and more importantly, once TBF is able to determine if the product being packaged is similar to the TBF product, TBF can then evaluate whether the Customer's product received the same specification as the TBF product. There is presently a protective order in place that allows documents to be designated, which prevents TBF from using these documents for any purpose other than this litigation. For this reason, and because no formulas or recipes are being disclosed, it is TBF's position that the documents should be produced in unredacted form. Nevertheless, TBF appreciates Customer's concern and it is willing to take reasonable steps to address those concerns. Accordingly, TBF proposes that the Court issue an order providing as follows: (I) that the documents be produced in a manner that redacts Customer's identity so as to avoid them being mistakenly circulated in a manner inconsistent with this Order; (2) that the documents be produced under the designation "Confidential" as set forth in the parties' Stipulated Protective Order; (3) that Customer's identity be disclosed to TBF's attorney under the same "Confidential" designation but with the further restriction that the identity may be shared with only Q!!Q TBF representative; and (4) that the TBF designated representative not disclose Customer's identity to any other individual. Honorable Magistrate Judge John V. Acosta October 31, 2017 Page 3 TBF is already bound by the "confidential" designation of this Court's order that it not use the materials for any purpose other than this litigation. The above proposal provides an extra layer of protection to Customer and allows TBF access lo lhe relevant and important information. It also provides TBF's counsel with the ability to fully prepare its case by obtaining assistance from a representative at TBF, whom has significantly more knowledge and experience in the industry. We are happy to have a phone call with the Court to discuss these issues if that would be helpful. i ,;' /' l.__.- .lfrl'':asc Enclosure cc: l Paul R. Xochilma (via e-mail) Christopher M. Parker (via e-mail) Dave Andel'son (via e-mail) PDX\l l 9960\219810\JAP\21760255.1 Package Specification Review - Rev 23 No. 14-096-M Metal (Steel) CASTO COMPLETE THIS SECTION (ALL GREEN SHADED CELLS) Kelli Miller SUBMITTED BY (CAS/Sales Rep): CUSTOMER: DATE: 08/07/14 805-453-8798 CASEXT.#: Rickes Packaging CUSTOMER CONTACT: CUSTOMER PHONE: Dennis Lakin 503-313-9874 -------- BUSINESS INFORMATION New Product/Current Customer First Time Order Closure Material: Metal (Steel) Type: RSB 82 Size: Silgan COC#: Product End Use Code: CUSTOMER INFORMATION Customer: Riekes Packaging Portland, OR Location: jams~jellies Product: ------ -------- ---4 million Estimated Annual Volume: -------- Initial Order Quantity: Date Closures Nceded: Special Issues: THIS SECTION TO BE COMPLETED BY PSR ADMINISTRATOR (ALL YELLOW SHADED CELLS) PSR No.: 14-096-M STATUS: APPROVED DATE: 8/21/2014 INITIALS: _L_,Q~- COMMENTS: CONFIDENTIAL Page1 of5 SWC000090 Package Specification Review - Rev 23 Metal (Steel) No. 14-096-M CUSTOMER SECTION- PLEASE COMPLETE ALL BLUE CELLS ON PAGES 2& 3 CLICK ON EACH BLUE CELL FOR DESCRIPTION OF WHAT IS REQUIRED CLICK ON DOWN ARROW (T) FOR LIST OF CHOICES CUSTOMER: TrailBlazer Foods DATE: 8/7/14 CLOSURE INFORMATION Customel' Pl'oject Name: Organic Reel print Size/Type: 82RSB Cap Shell Color: white Is there a design on the face? Ycs Type: Pl'intecl Are there prints on the reverse(UTC)? No Special Instructions: Reel on White negative print - "organic" on skirt. Design services has the a CONTAINER INFORMATION Container Type: Glass ----Finish Number: Gl'l 2040 (P 1case include copy of finish drawing if not a GPI or Silgan White Cap number) ------- ------ Manufacturer: China Comments: Capacity (volume): 1 liter -------------------------------~ PRODUCT INFORMATION (Click Yes/No for each item and fill in blank.< with details) Oil or Fat on Surface? No Beverage? No ----- Dietetic or Low Calorie? No pH? Vinegar Pl'esent? """N""'o_ _ __ Sodium Bisulfite (S02J Pl'esent? _N_o_ __ Alcohol Present? No ----Shelf Life of Packed Product? 2 yrs ~--FDA FOOD CATEGORIES ------- ------ Actual pH if known: ----- Type I: Non-Acid Aqueous Products; May Contain Salt m· Sugar or Both (pH Above 5.0) FDA CONDITIONS OF USE C. Hot filled 01• pasteurized above 150 deg. F CONFIDENTIAL Page 2 of 5 SWC000091 Package Specification Review - Rev No. 23 14-096-M Metal (Steel) ON CELL FOR INSRUCTIONS AN]) ON DOWN ARROW (T) FOR CHOICES SEALING INFORMATION Packer Name and Address Per Cent of Headspacc (not in inches): 6.00% Trail Blazer Foods Product Fill Temperature: 185 ----- How Applied? Cap11e1· With Steam Type of Capper Straight_Line Out of Capper Vacuum (in-Hg): 4-6 in PACKAGING PROCESS (Pick Only One From Drop-Down Box Below) 02- Hot Fill (For Acid Products)- B. Hold & Force Cool Finished Package Vacuum (in-Hg): 12-14 in Are Packages Tmy Packed? Yes How many packages per tray? Layers per pallet? 6 Trays per pallet: 48 How many pallets high? Trays per layer? 8 Weight per Pallet of Product (Lbs.): 2,160 ----- --'--- WAREHOUSE STORAGE CONDITIONS Temperature ? Ambient Humidity ? Dry RETAIL DISPLAY CONDITIONS Temperature? Ambient Special warehouse, shipping or display issues: -------'----'--'--------~ ls regulatory compliance other than FDA required? No ----- Dennis Lakin Region:1l Manager SUBMITTER Customer Contact Name & Title): Date Information Submitted: Mailiug Address:· Customer Phone: 503-313-987 4 Customer Fax: ----~--~ E-mail Address: ----------- ----------' -------- CONFIDENTIAL Page 3 of 5 SWC000092 Package Specification Review • Rev 23 No. 14-096-M Metal (Steel) When completed PSR Administrator will place on PSR "Share Point" site in PENDING folder CONFIDENTIAL Page 4 of 5 SWC000093 Package Specification Review - Rev 23 No. 14-096-M Metal (Steel) SILGAN WHITE CAP LLC SUMMARY THIS SECTION TO BE COMPLETED BY PSR TEAM AND REVIEWED BY PSR REVIEW COMMITTEE FILL IN ALL TAN COLORED CELLS PSRTeam Approved W.Hohl A1·t Hurley Cathy Brndy WJKapolas Wayne Hohl Art Hurley Cathy Brady Bill Kapolas Date 08/14/14 08/13/14 08/15/14 08/21/14 CLOSURE INFORMATION Size/Type: Customer: Riekes Packaging 82RSB COC#: -------~ Product: jams/jellies End Use Code: Face/ Reverse Design Requirements: #NAME? Sp eci aI Instructions: Red on White negative print - "organic" on skirt. I Packing Process: 02- Hot Fill (For Acid Products)- B. Hold & Force Cool --------~------~-----------Compound: 772 ---- ------- ------- ----- Cap Shell Color: white Steel Coat: .20/.20# Tin Steel Weight.: 65# DR Face System: Face Coatings: W .43. 7 0.93.5 Reverse System: Reverse Coatings: B.31. 7 Button? Yes Down Flip (In. Hg): 8 CONTAINER INFORMATION ----- ------ ----- Container Type: Glass Finish Number: GPI 2040 Manufacturer: China Capacity (volume): 1 liter Comments: -----,,,,..,----------------------------~ SEALING INFORMATION Per Cent of Headspace ( not in inches): 6.00% Product Fill Temperature: 185 ----- ------- ------------ ------- ----- How Applied? Cnpper With Steam Type of Capper Strnight Line --~~----------- Out of Capper Vaccum(In-Hg): 4-6 in Finished Paclrnge Vaccum(Tn-Hg): 12-14 in Comments: Steel changed due to the closure been made in Evansville. CONFIDENTIAL Pages of5 SWC000094

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