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Pacific Marine Propellers, Inc. v. Wartsila Defense, Inc.

United States District Court, S.D. California

May 3, 2018

PACIFIC MARINE PROPELLERS, INC., Plaintiff,
v.
WARTSILA DEFENSE, INC., BRYAN RUTTER, BOBBY HENINGER, Defendants.

          ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE NO. 4 [ECF No. 46]

          HON. NITA L. STORMES UNITED STATES MAGISTRATE JUDGE

         Before the Court is the parties' Joint Motion for Determination of Discovery Dispute No. 4, whereby the parties request the Court's assistance in determining whether Plaintiff's retained expert, Paul Moore, may be shown documents designated by Defendants as “confidential” and/or “attorneys eyes only.” ECF No. 46. Having reviewed the briefing submitted and for the reasons set forth below, the Court finds that Mr. Moore qualifies as an “independent” expert and may be shown confidential documents needed for his testimony, provided that he signs and adheres to the “AGREEMENT TO BE BOUND BY PROTECTIVE ORDER” form in the Protective Order entered in this case (ECF No. 33).

         I. BACKGROUND

         Plaintiff Pacific Marine Propellers, Inc. (“PMP”) and Defendant Wartsila Defense, Inc. (“Wartsila”) both are in the business of repairing marine propellers. ECF No. 19 ¶¶ 6, 8. In its Second Amended Complaint, Plaintiff presents seven claims related to Wartsila's entry into the San Diego marine propeller repair market and its actions in competing for government subcontracts. Relevant to the specific issues presented in the instant motion is the following background information.

         A. Paul Moore

         On July 31, 2017, PMP identified Mr. Paul Moore in its Initial Disclosures as a person who may potentially have knowledge of the underlying facts and events in this case. Subsequently on September 19, 2017, PMP changed its position and notified Wartsila that:

Mr. Paul Moore, identified in plaintiff's initial Rule 26 disclosure at Paragraph 28, appears to have no percipient knowledge relative to matters at issue in this case. Consequently, he has been engaged by counsel as a consulting expert on behalf of the plaintiff, and will likely later be engaged as a testimonial expert for trial. Mr. Moore may be contacted through plaintiff's counsel.

         ECF No. 46 at 2.

         According to Mr. Moore's CV, he retired from the Navy after 36 years of service. ECF No. 46-2 at 2. During this time at the Navy, he was responsible for “the life cycle management of all Navy submarine and surface ship propellers, shafting and related equipment, ” including “[t]echnical authority for all issues relating to manufacture, repair and in-service.” Id. He was also an instructor for propeller courses for the last 15 years. Id. He is currently employed as a Part-time/On-call Marine Engineer at ECS Federal, LLC, where he “[s]upports the National Oceanic and Atmospheric Administration's (NOAA's) Platform Acquisition Division in all facets of vessel acquisition from preliminary design through vessel delivery, ” among other tasks for NOAA. Id.

         B. Mr. Moore's Communications with PMP

         Relevant to this motion, Mr. Moore had a prior relationship with PMP. As pertinent background, on January 12, 2015, Derek Bateman from PMP sent a letter to the Office of the Secretary of the Navy regarding the contract originally awarded to PMP and later cancelled and given to Wartsila. ECF No. 46-8. The letter accuses Wartsila of not having a Basic Ordering Agreement (“BOA”) to perform work in San Diego and not being equipped to perform the work. Id. at 4. The letter specifically states that Wartsila applied for a BOA but was rejected. Id. The letter also alleges that Wartsila presented a letter signed by a Jeffrey Schumann (“Schumann letter”) that qualifies Wartsila to conduct propeller repairs in San Diego in connection to the Lake Erie contract, and that this letter is in contradiction to the BOA rejection. Id. Mr. Bateman goes onto to call into question the appropriateness of the Schumann letter and accuses Wartsila of deception in connection with that letter and the contract bids. Mr. Moore's communications with PMP appear to be related to at least some of the issues raised in Mr. Bateman's letter.

         In response to an interrogatory regarding communications with “any person concerning Wartsila's participation in the San Diego propeller repair market, ” PMP disclosed the following:

Starting in about January 2015, Mr. Bateman had conversations by phone about once a month with Mr. Paul Moore, after his retirement, concerning Wartsila's effort to enter the San Diego propeller market. In the course of those conversations, Mr. Moore suggested a congressional inquiry concerning the status of Wartsila's San Diego operations as a “NavSea Certified Propeller Repair Facility.” They also discussed the range of Wartsila bid prices to the extent they were then known and the reasonableness of those bids considering the man-hours involved. They also discussed the NAVSUP protest and its denial. We have no records from which precise dates or times can be ascertained; however it is fair to state that the conversations were contemporaneous with the events discussed. Mr. King also had several similar conversations with Mr. Moore and several email exchanges that began about December 2014 and continued into 2015 concerning Wartsila and how to address the issues with the protest.
Mr. King has made phone calls and sent email to Mr. Moore, with whom he had a long professional working relationship and now sees as a friend in retirement. Mr. King wrote to Mr. Moore on May 13, 2015, and met with him not long after while Mr. Moore was in San Diego for an unrelated matter. Mr. King had expressed concerns to Mr. Moore about the technical grinding to the edge of propellers being performed by Wartsila and identified defects in the repairs that would potentially impair the performance of the propeller blades to the detriment of the Navy. He provided photographs to Mr. Moore for his opinion ...

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