Judge: Gregory Keosian, Case: 22STCV22269, Date: 2023-04-26 Tentative Ruling

Case Number: 22STCV22269    Hearing Date: April 26, 2023    Dept: 61

Defendant Ford Motor Company’s Motion for Protective Order is GRANTED.

Defendant to provide notice.

I.                PROTECTIVE ORDER

CCP section 2031.060, subdivisions (b) and (c) state:

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

(2) That the time specified in Section 2030.260 to respond to the set of demands, or to a particular item or category in the set, be extended.

(3) That the place of production be other than that specified in the demand.

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.

(6) That the items produced be sealed and thereafter opened only on order of the court.

(c) The party or affected person who seeks a protective order regarding the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.

Defendant Ford Motor Company (Defendant) seeks a protective order to guard what it claims to be confidential, trade secret materials regarding its business and private information regarding its customers. (Motion at p. 3.) Defendant argues that it and Plaintiff Bryan Bergman (Plaintiff) have agreed in principle to a protective order modeled on the LASC Model Protective Order — Confidential Designation, but that Plaintiff has refused to agree to certain modifications which his counsel has agreed to in other, similar cases — specifically the addition of a provision requiring non-lawyers given access to the materials to certify that they are bound by the protective order. (Motion at p. 6.) Defendant claims that Plaintiff has refused to agree to such a provision without explanation. (Motion at p. 7.)

Plaintiff in opposition contends that Defendant in other cases has agreed to be bound by the model protective order without the provision it seeks in the present case. (Opposition at pp. 4–5.) Plaintiff argues that Defendant has not met its burden to show the existence of a trade secret or the applicability of other privileges, and further argues that a requirement of certification would chill witness testimony. (Opposition at pp. 7–9.)

Good cause supports the existence of a protective order in this case. Courts must act to protect trade secrets by reasonable means including protective orders, in camera hearings, sealing records and restricting disclosure.  (Civil Code § 3426.5; Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1555 n. 16.)  A “trade secret” is “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) [d]erives independent economic value . . . from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  (Code Civ. Proc. § 3426.1, subd. (d).)

The party asserting trade-secret objections has the burden to establish their existence and operation. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1390.) “Some factors to be considered in determining whether given information is one's trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” (Uribe v. Howie (1971) 19 Cal.App.3d 194, 208.)

Defendant has met its burden to establish good cause for the issuance of a protective order. The Doss declaration outlines how Defendant’s warranty and consumer complaint policies and procedures are confidentially maintained by Defendant, how Defendant invested resources in their development, and the injury that would ensue from competitors learning and potentially adopting the same policies for themselves. (Doss Decl. ¶¶ 7–12.)

Plaintiff’s arguments in opposition narrowly concern whether Defendant has established that the above information constitutes a trade secret. (Opposition at pp. 5–6.) These arguments are not persuasive, as even if they were correct, the court’s authority to enter a protective order is broader than the protections derived from the Uniform Trade Secrets Act, but extends to “other confidential research, development, or commercial information.” (Code Civ. Proc. § 2031.060, subd. (b)(5).)

Plaintiff’s argument that he will be prejudiced by entering the proposed order with Defendant’s desired provision is unpersuasive. Such an argument is based on the speculation that if required to sign a certification to abide by the protective order, some witnesses may refuse to testify. (Opposition at pp. 8–9.) The possibility of such an outcome is remote and unlikely, however.

The motion is therefore GRANTED.