United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S MOTION TO DE-DESIGNATE DOCUMENTS FOR USE IN FOREIGN PROCEEDINGS [DOC. NO. 335]
WILLIAM V. GALLO, Magistrate Judge.
Plaintiff seeks an Order from this Court requiring Defendants to de-designate documents that Defendants have designated as "Confidential" or "Highly Confidential" pursuant to the Protective Order (Doc. Nos. 62-63) in this case. (Doc. No. 335 at 2.) On July 24, 2014, Plaintiff submitted a letter brief to the Court and noted that it seeks to have these documents de-designated for use in an appellate proceeding pending in Canada. On August 5, 2014, Defendants submitted a responsive letter brief to the Court. Defendants argued that the dispute is not properly before this Court, as it involves the same parties in a Canadian proceeding, and each party is represented by different counsel than in the current proceeding.
On August 29, 2014, the Court issued a Minute Order, noting that it agreed with Defendants that this dispute was not properly before this Court, as Plaintiff sought de-designation of the documents for use in the pending Canadian proceeding. (Doc. No. 331.) The Court noted that, if Plaintiff sought to de-designate certain documents, Plaintiff must file a motion seeking such de-designation, and include case law to support its position that the dispute is properly before this Court. Id.
In compliance with the Court's Order, on September 5, 2014, Plaintiff filed a Motion to De-Designate Documents for Use in Foreign Proceedings. (Doc. No. 335.) On September 12, 2014, Defendants filed an Opposition to Plaintiff's Motion. (Doc. No. 341.) On September 15, 2014, Plaintiff filed a Reply in Support of its Motion. (Doc. No. 342.)
Plaintiff moves for de-designation of certain deposition testimony and one document produced by Defendants. (Doc. No. 335 at 2.) Specifically, Plaintiff requests that the Court order that the deposition of Karoun Dairies Inc. ("Karoun Canada") at 190:20-199:14; 225:13-20 and 233:5-24, the deposition of Defendant Ara Baghdassarian ("Defendant Baghdassarian") (June 22, 2011) at 5:14-6:21; 225:10-227:2, and the Karoun Canada 2010 financial statement, be stripped of their "Confidential" or "Highly Confidential" designations. Id. at 6. Plaintiff asserts that the Protective Order in place in this action (Doc. Nos. 62-63) affords the parties the right "[a]t any stage of these proceedings" to move this Court for an Order de-designating material improperly marked "Confidential" or "Highly Confidential" without regard to the reason for de-designation. Id. at 2. Defendants maintain their argument that the dispute is not properly before this Court, and assert that the documents at issue are properly designated because their public disclosure could be potentially prejudicial to the business or operations of Karoun Canada. (Doc. No. 341 at 4.)
The Court has reviewed Plaintiff's Motion, Defendants' Opposition, Plaintiff's Reply, supporting exhibits, and other relevant documents filed in this action. For the reasons set forth below, the Court hereby GRANTS Plaintiff's request and ORDERS Defendants to de-designate the specified documents.
On January 6, 2014, the Canadian Intellectual Property Office ("CIPO") issued an order (the "CIPO Order") in a challenge brought by Plaintiff expunging Karoun Dairies, SAL's ("Karoun Lebanon") registration of the trademark "Karoun" from the Canadian register because the mark had not been used for more than three years. (Doc. No. 335 at 2.) Defendant Baghdassarian appealed that order to a Canadian federal court. Id . In connection with that appeal, Defendant Baghdassarian filed a sworn Declaration (the "Canadian Declaration"), some of which Plaintiff claims is directly contradicted by sworn testimony that Defendant Baghdassarian gave in this action. Id.
A. PLAINTIFF'S ARGUMENT
1. DISPUTE IS PROPERLY BEFORE THIS COURT
Plaintiff argues that this dispute is clearly before this Court, and is "baffled" by the Court's statement in its August 29, 2014, Minute Order that it is not. (Doc. No. 335 at 3.) Plaintiff points out that this Court granted the same type of relief in 2011, when it ordered certain testimony de-designated for use in an Australian proceeding. Id . Additionally, Plaintiff asserts that the governing Protective Order in this case unambiguously gives Plaintiff the right to move the Court for de-designation "[a]t any stage of the proceedings, " without regard to the reason for the motion. Id . Finally, Plaintiff argues, the court that issues a protective order has jurisdiction over its enforcement. Id; citing Westinghouse Elec. Corp. v. Newman & Holzinger, P.C. , 992 F.2d 932, 934 (9th Cir. 1993).
1. THE INFORMATION AT ISSUE IS NOT CONFIDENTIAL
a. RAMI'S MARKET TESTIMONY
Plaintiff seeks to de-designate the Rami's Market testimony, which is marked as "Confidential." (Doc. No. 335 at 4.) Plaintiff argues that, at Karoun Canada's deposition, Defendant Baghdassarian testified about an invoice reflecting a sale of certain products to Rami's Market in Toronto that fell through before delivery. Id; citing Deposition of Karoun Dairies Inc. ("Karoun Canada Dep.") at 190:20-199:14. Plaintiff asserts that at Karoun Canada's deposition, Defendant Baghdassarian contradicted his statements in a Canadian Declaration. (Doc. No. 335 at 4.) Plaintiff argues that Defendant Baghdassarian described the Rami's Market transaction at length in the Canadian Declaration, which is a public document, and he also submitted the invoice to the CIPO and the ...