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)

Schwabe
WILLIAMSON & WYAfT@
Joel A. Parker
Ad1niUed in Oregon and Washington

October 31, 2017

T: 503-796-2975
[e-mail]111
VIA E-MAIL ([e-mail] 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

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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.

schwabe.com

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

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Enclosure
cc:

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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

schwabe.com

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)

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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

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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

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WAREHOUSE STORAGE CONDITIONS
Temperature ? Ambient

Humidity ? Dry

RETAIL DISPLAY CONDITIONS
Temperature? Ambient
Special warehouse, shipping or display issues:

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ls regulatory compliance other than FDA required? No

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Dennis Lakin Region:1l Manager
SUBMITTER Customer Contact Name & Title):
Date Information Submitted:
Mailiug Address:·
Customer Phone: [phone]
Customer Fax:
----~--~
E-mail Address: [e-mail]

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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