Judge: Theodore R. Howard, Case: 21-1211860, Date: 2023-07-20 Tentative Ruling

Defendant, Henkel US Operations Corp.’s (“Henkel”) Motion to Uphold Designation of Confidential Document is DENIED.

As an initial matter, the court notes that Plaintiff, Mischa Denton (“Plaintiff”) again failed to file a proof of service of the opposition.  Although this defect was waived by Henkel filing a reply on the merits, (see Carlton v. Quint (2000) 77 Cal.App.4th 690, 697), Plaintiff is admonished to timely file proof of service for all future motions and oppositions.

Here, Henkel seeks a protective order and enforcement under the parties’ stipulated protective order (“SPO”).  The designating party shall have the burden on any designation motion of establishing the applicability of any confidential designation.  (SPO ¶ 6.)

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:…(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.  (C.C.P. §2031.060(b)(5).)

A party seeking a protective order restricting disclosure of trade secrets must provide an affidavit or declaration:

•        listing the declarant's qualifications to give an opinion;

•        identifying the alleged trade secret;

•        identifying the documents disclosing the trade secret; and

•        presenting evidence that the secret qualifies as a “trade secret.”

(The Rutter Group, Civ. Proc. Before Trial, Discovery § 8:1456.8, citing Ev.C. §§ 1060-1061; see C.C.P. § 2031.060(b)(5); Stadish v. Sup.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1144-1145.)

Here, Plaintiff is correct that Henkel failed to support its motion with competent evidence establishing that the document at issue is a trade secret or confidential commercial information.  The only evidence submitted supporting the designation is a declaration from Henkel’s counsel in this case, Andrew Higgs.  However, counsel’s declaration does not state facts sufficient to demonstrate that counsel is qualified to testify as to the nature of Henkel’s confidential and proprietary business information and trade secrets, Henkel’s safeguarding procedures, or harm that Henkel will suffer from improper disclosure of the information.  The declaration does not state that Mr. Higgs is an employee of Henkel or that he is otherwise involved in the operations of the Henkel company such that he would have personal knowledge of these matters.

The statement in the declaration that “[t]he facts set forth herein are of my own personal knowledge” is not sufficient to show counsel’s competency when the facts stated regarding Henkel’s confidential and trade secrets information are not matters as to which counsel would presumably have knowledge.  (See Snider v. Snider (1962) 200 Cal.App.2d 741, 753-754; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 692, fn. 1.)

As there are no facts stated to show how the declarant would have personal knowledge of these contentions, counsel’s declaration does not provide competent evidence to support the motion.  (Evid. Code § 702.)  Thus, good cause has not been shown for the order requested.

Accordingly, the motion is DENIED.

Counsel for Plaintiff to give notice.