Kim v. Coach, Inc, et al

Filing 12

DECLARATION of Patrick Eagan in Support of Defendant Coach, Inc.'s Motion for Protective Order filed by Defendant Coach, Inc. re 10 MOTION for Protective Order (Keehnel, Stellman)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I, Patrick Eagan, declare as follows: 1. v. JAY CARLSON, a Washington resident; CARLSON LEGAL, a Washington resident; CHRISTOPHER CARNEY, a Washington resident; CARNEY GILLESPIE & ISITT PLLC, a Washington PLLC, Counterclaim defendants.

THE HONORABLE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE GINA KIM, on behalf of a class consisting of herself and all other persons similarly situated, Plaintiffs, v. COACH, INC., a Maryland corporation, and COACH SERVICES, INC., a Maryland corporation, Defendants, and, as to Coach, Inc., counterclaim plaintiff, DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER No. 2:11-cv-00214-RSM

I am one of the attorneys for Coach, Inc. ("Coach") in this lawsuit. I am an

attorney in the Seattle office of DLA Piper LLP. I have personal knowledge of the facts set
DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER - 1 No. 2:11-cv-00214-RSM DLA Piper LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, WA 98104-7044 | Tel: [phone]

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forth in this declaration, and if called to do so, I can and would testify competently thereto. 2. This litigation centers on a letter received by plaintiff Gina Kim in connection

with her listing of a "NEW" Coach bag on eBay. The letter was written by Coach's law firm, Gibney Anthony & Flaherty LLP ("Gibney"), and is attached to Coach's Answer and Counterclaim (Dkt. No. 6). It is my understanding from representations by counsel for

Ms. Kim that Ms. Kim's eBay listing was also removed from the website for a short period of time. 3. The allegations in the Amended Complaint center around plaintiff's assertion

that there was no investigation into Ms. Kim's listing before Gibney sent the letter. See, e.g., Amended Complaint (Dkt. No. 4) at 1-6 (repeatedly alleging that Coach conducted no investigation, no reasonable investigation, or no thorough investigation). 4. Counsel for Ms. Kim has also asserted in the newsmedia that Coach conducted

no investigation, which assertion resulted in broad negative reaction toward Coach. 5. Coach's lawyers at Gibney did, in fact, conduct an investigation before Ms. Kim

received the letter. Details about that investigation are central to Coach's efforts to defend itself in this litigation. 6. In order to reveal details about the investigation into Ms. Kim's listing, Coach

must reveal information regarding its efforts to limit counterfeiting on websites such as eBay. This information includes the process that Gibney uses to identify listings of potentially counterfeit goods, and then to take action against potential counterfeiters. 7. The details of Coach's online anti-counterfeiting efforts are highly confidential.

Disclosure of that information would be enormously valuable to counterfeiters and potential counterfeiters, who would use such information as a blueprint for evading detection. 8. Counterfeiting is an enormous problem for Coach, and for consumers who

believe that they are purchasing genuine, high-quality Coach products and instead receive lower quality knockoffs.
DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER - 2 No. 2:11-cv-00214-RSM DLA Piper LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, WA 98104-7044 | Tel: [phone]

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9.

The interests of Coach and the public thus align in protecting the details of

Coach's online anti-counterfeiting efforts from wide disclosure. 10. On February 28, 2011 ­ after the filing of the lawsuit, but before the filing of

Coach's Answer and Counterclaim ­ my colleague, Stellman Keehnel, sent an email to counsel for plaintiff Gina Kim. In his email, Mr. Keehnel explained that Coach wants plaintiffs' counsel's assistance in agreeing to a confidentiality agreement in order to provide a complete response to the original Complaint. Mr. Keehnel attached a broad confidentiality agreement that addresses all potential confidentiality issues, and he requested a conference on the confidentiality agreement. Mr. Keehnel also indicated that Coach was not then prepared for a Rule 26(f) conference, in part because co-defendant Coach Services, Inc. had not even been served (and still has not be served, to my knowledge). A true and correct copy of

Mr. Keehnel's February 28, 2011 email and its attachment is attached to this declaration as Exhibit A. 11. On February 28, 2011, Jay Carlson one of the attorneys for Ms. Kim, sent an

email inquiring why Coach Services, Inc. needed to be served and suggesting that consideration of a confidentiality agreement should take place at a Rule 26(f) conference. A true and correct copy of that email is attached to this declaration as Exhibit B. 12. In response to Mr. Carlson's email, Mr. Keehnel and I called Mr. Carlson on

February 28, 2011 to confer regarding the confidentiality agreement and the possibility of a protective order. In our phone call, Mr. Carlson stated that he would not consider a broad confidentiality agreement before the Rule 26(f) conference. Mr. Keehnel stated Coach would strongly prefer to share detailed information about its online anti-counterfeiting efforts. Mr. Keehnel stated that such information would establish conclusively that counsel for Ms. Kim's statements in the Complaint that Coach failed to conduct any investigation into Ms. Kim's eBay listing were demonstrably false. Mr. Keehnel further stated that such

information could not be shared unless counsel for Ms. Kim would agree to keep confidential
DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER - 3 No. 2:11-cv-00214-RSM DLA Piper LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, WA 98104-7044 | Tel: [phone]

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the information describing Coach's online anti-counterfeiting efforts. Mr. Keehnel stated that, if counsel for Ms. Kim would not consider either a broad confidentiality agreement or one limited to specific details about Coach's online anti-counterfeiting efforts, Coach would be forced to move for a protective order in order to prevent wide disclosure of highly confidential information. 13. In our February 28, 2011 telephone conference, Mr. Keehnel asked Mr. Carlson

if Coach had fulfilled its obligation to meet and confer prior to filing a motion for a protective order regarding the disclosure of Coach's online anti-counterfeiting efforts. Mr. Carlson stated that he did not believe that Coach had done so, but would not explain his reason or what more supposedly needed to be done. 14. On March 7, 2011, in further effort to satisfy our meet-and-confer obligation, I That

sent to counsel for Ms. Kim an email attaching a draft confidentiality agreement.

agreement is limited to the narrow subject matter discussed in our earlier telephone call ­ information and documents describing Coach and Coach's attorneys' online anti-counterfeiting efforts. I informed counsel for Ms. Kim that, assuming that a confidentiality agreement was not forthcoming, Coach was anticipating filing a motion for a protective order. I therefore requested counsel for Ms. Kim's agreement that Coach had fulfilled its meet-and-confer obligation as to its intent to seek a protective order so that information about its online anticounterfeiting efforts could be shared with counsel for Ms. Kim and with the Court. A true and correct copy of that email is attached to this declaration as Exhibit C. 15. On the afternoon of March 8, 2011, I placed another telephone call to plaintiffs'

counsel, Mr. Carlson. He did not answer. I left him a voice message that included my telephone number, and I requested that he call me back. 16. Also on the afternoon of March 8, 2011, I sent another email to counsel for

Ms. Kim. I requested that counsel inform me whether the parties could agree that Coach had fulfilled its meet-and-confer requirement as to its contemplated motion for a protective order,
DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER - 4 No. 2:11-cv-00214-RSM DLA Piper LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, WA 98104-7044 | Tel: [phone]

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and inquired as to whether counsel for Ms. Kim would oppose Coach's motion for a protective order. A true and correct copy of my March 8, 2011 email is attached to this declaration as Exhibit D. 17. On the evening of March 8, 2011, Mr. Carlson responded to my March 8, 2011

email. Mr. Carlson stated that he did not agree that Coach had fulfilled its meet-and-confer obligation. A true and correct copy of that email is attached to this declaration as Exhibit E. 18. Later on the evening of March 8, 2011, I responded to Mr. Carlson's email. I

explained that we had discussed this issue more than a week prior to this latest email exchange. I nevertheless indicated that I was available any time on March 9, 2011 to discuss our contemplated motion for a protective order. A true and correct copy of my second March 8, 2011 email is attached to this declaration as Exhibit F. 19. On March 9, 2011, Mr. Carlson responded to my email and asserted that he had

never considered the issues that he, Mr. Keehnel, and I had discussed at length in our earlier telephone call. Mr. Carlson identified some objections to the proposed agreement. In addition, Mr. Carlson again stated his belief that a confidentiality agreement should be the subject of an omnibus Rule 26(f) conference. A true and correct copy of that email is attached to this declaration as Exhibit G. 20. In response to Mr. Carlson's email, I emailed counsel for Ms. Kim to inform

them in writing the reasons that Coach strongly preferred that a confidentiality agreement be entered into. I reiterated Coach's belief that counsel for Ms. Kim would be under an obligation to drop all class allegations upon review of the information that Coach was proposing to share. I stated that Coach was prepared to file a motion to strike class allegations if counsel for Ms. Kim refused to drop the class allegations. Finally, I stated that Coach was prepared to file a motion for sanctions under Fed. R. Civ. P. 11 if counsel for Ms. Kim refused to file an amended complaint removing unsubstantiated allegations. For all of these reasons, I stated that, if counsel for Ms. Kim continued to refuse to consider a confidentiality agreement, Coach
DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER - 5 No. 2:11-cv-00214-RSM DLA Piper LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, WA 98104-7044 | Tel: [phone]

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would be forced to file a motion for a protective order in order to share the information contemplated. A true and correct copy of my March 9, 2011 email is attached to this

declaration as Exhibit H. 21. I have received no response to my March 9, 2011 email.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed at Seattle, Washington, this 10th day of March, 2011.

s/ Patrick Eagan Patrick Eagan, WSBA No. 42679

DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER - 6 No. 2:11-cv-00214-RSM

DLA Piper LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, WA 98104-7044 | Tel: [phone]

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WEST\223283531.1

CERTIFICATE OF SERVICE I hereby certify that on March 10, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to all counsel of record. Dated this 10th day of March, 2011. s/Stellman Keehnel Stellman Keehnel, WSBA No. 9309

DECLARATION OF PATRICK EAGAN IN SUPPORT OF DEFENDANT COACH, INC.'S MOTION FOR PROTECTIVE ORDER - 7 No. 2:11-cv-00214-RSM

DLA Piper LLP (US) 701 Fifth Avenue, Suite 7000 Seattle, WA 98104-7044 | Tel: [phone]

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