United States District Court, S.D. California
ORDER (1) DENYING DEFENDANT'S MOTION FOR RELIEF
ARISING FROM VIOLATION OF PROTECTIVE ORDER (2) GRANTING APRIL
11, 2017 STIPULATION REGARDING ADDITIONAL DISCOVERY DISPUTE
[ECF NOS. 78, 96]
Bernard G. Skomal United States Magistrate Judge.
February 6, 2017, the parties contacted the Court regarding a
possible violation of the Protective Order. Specifically,
Defendant Airborne Systems North America of CA, Inc. alleges
that Plaintiffs Steve and Beth Cavner violated the Protective
Order by disclosing confidential documents produced by
Airborne to Plaintiffs' expert, John Sherman. Airborne
asserts that Mr. Sherman is a competitor based on his
relationship to Parachute Laboratories, Inc.
(“Parachute Labs”). The Court issued a briefing
schedule. Airborne filed a Motion for Relief Arising from
Violation of Protective Order and Plaintiffs filed an
Opposition. (ECF Nos. 78, 80.) As explained more fully below,
the Court DENIES the Motion because there is
not currently a sufficient connection between Mr. Sherman and
Parachute Labs to consider him a competitor on that basis.
have retained Mr. Sherman as an expert in this case. Mr.
Sherman is employed by Humatec, an expert consulting firm.
(Decl. of John B. Sherman (“Sherman Decl.”)
¶ 6.) He founded Parachute Labs in 1969, but retired
from the company on November 12, 2002. (Id. ¶
3.) His declaration and the President of Parachute Labs'
declaration both indicate that Mr. Sherman has not worked for
or received any compensation from Parachute Labs since his
retirement. (Id.; Decl. of Nancy LaRiviere
(“LaRiviere Decl.”) ¶ 15.) Additionally, a
computerized record from Parachute Labs and the declaration
of the company's Office Manager indicate the same. (Decl.
of Suzie Bass ¶ 5-6, Ex. A.)
Sherman is married to the current President of Parachute
Labs, although his declaration indicates that he has not
provided his wife with any documents related to this
litigation nor discussed any information related to the case
with her or any of Parachute Labs' employees. (Sherman
Decl. ¶ 5.) She declares the same. (LaRiviere Decl. at
¶ 6.) In addition to having executed the Protective
Order in this case, Mr. Sherman also indicates that he is
subject to a Humatec Confidentiality Agreement under which he
cannot disclose any documents or information to any third
party. (Sherman Decl. at ¶ 8.) He declares that he is in
compliance with both. (Id.)
has submitted the Declaration of Jean C. Berland
(“Berland Decl.”) and an exhibit indicating that
on January 16, 2017, Parachute Labs' website indicated
Mr. Sherman would be teaching a parachute rigging course on
January 13-21, 2017. (Berland Decl. ¶ 7, Ex. C.)
Additionally, Airborne has submitted sign in sheets from the
Parachute Certification Standards Committee's meetings
held on February 11, 2012 and August 24, 2012 reflecting Mr.
Sherman signed in at each as affiliated with Parachute Labs
and included his email address associated with Parachute
Labs. (Id. ¶ 9, Ex. E.)
Sherman does not dispute that he attended these meetings in
2012, but indicates he did not represent Parachute Labs nor
was he compensated by Parachute Labs to attend. (Sherman
Decl. ¶ 10.) Ms. LaRiviere indicates the same.
(LaRiviere Decl. at ¶ 14.) Mr. Sherman explains he
attended with his wife and his signing in as associated with
Parachute Labs was a “force of habit, based on my
decades of attending these and similar meetings while
actively involved in my former company prior to my 2002
retirement.” (Sherman Decl. at ¶ 10.) He indicates
he ceased using his email address associated with Parachute
Labs for business purposes when he retired, but continued to
use it otherwise because it was the email address others had
for him and he did not have another personal email address.
(Id. ¶ 11.)
Sherman's declaration also indicates that he was not
present for and did not participate in any way in the January
2017 class listed on the Parachute Labs website. (Sherman
Decl. ¶ 9.) Timothy M. Patterson, Jr., present for this
class, declares the same. (Decl. of Timothy Patterson, Jr.
¶ 6.) Ms. LaRiviere indicates that she personally
maintains the website and the listing of Mr. Sherman was a
mistake - she neglected to take his name off the website
after he participated as an uncompensated speaker for a
similar course years before. (LaRiviere Decl. ¶ 13.)
Protective Order Violation
seeks sanctions against Plaintiffs for violating the February
12, 2016 Protective Order's provision prohibiting
disclosure of confidential documents to competitors of the
designating party. (Prot. Order ¶ 10.) There is no
dispute that Airborne's confidential documents have been
disclosed to Mr. Sherman. The only issue is whether Mr.
Sherman is a competitor to Airborne.
argues Mr. Sherman is a competitor and seeks an order: (1)
compelling Mr. Sherman to return all confidential documents;
(2) disqualifying Mr. Sherman as an expert for Plaintiffs;
(3) imposing civil contempt sanctions against Plaintiffs and
their counsel; (4) requiring Plaintiffs to identify or
certify that their second, anonymous consulting expert is not
associated with any parachute design or manufacturing company
that sells parachutes to U.S. or foreign
provision of the Protective Order Airborne asserts Plaintiffs
violated provides as follows:
Discovery Materials designated as Confidential may not be
provided to competitors of the designating party,
including but not limited to in-house counsel for the
designating party's competitors, their paralegals, or
regularly employed office staff, but excluding local counsel
for any defendant in this case. Any party that believes it is
necessary to disclose Discovery Materials designated as
Confidential to any competitor(s) of the ...