. - . UILUJM ?00le 'Case 3. 02- c-v- -O-1642 B- 4% Documet mile? sir-1, . ,Michael Goldstein, Esq. (SBN 95128)_ a ?11?11? LAW OFFICES OF MICHAEL GOLDSTEIN _1 I 5 1:58 120 Birmingham Drive, Suite 200 0 1 1111?: 3 Cardiff, CA 92007 .1, 1.1 113: 3' Telephone: 760-436-1801 1?11 Facsimile: 760-436-8248 If Attorneys for Plaintiffs? Counsel Guy Ricciardulli, Esq. THE UNITED STATE DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA HAROLD J. PHILLIPS and Cause No. 02 CV1642 (B) (NLS) GEORG-ANNE PHILLIPS, ATTORNEY Plaintiffs, RESPONSE IN OPPOSITION TO APPLICATION FOR v. ORDER TO SHOW CAUSE GOODYEAR TIRE RUBBER COMPANY, an Ohio Corporation, and DOES 1 through X, inclusive, Defendants. Plaintiffs? counsel Guy Ricciardulli, Esq. (?Attorney Ricciardulli?) submits this Response in Opposition to defendant Goodyear Tire Rubber Company?s (?Goodyear?) Application for Order to Show Cause as to why Plaintiffs? Counsel should not be Held in Contempt for Violation of Protective Order. This Motion is supported by the following Memorandum of Points and Authorities, the Court?s entire ?le in this matter, and any oral argument that the Court may wish to hear. 1 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE [)3ng 16/07 agelD 406 Page 1 of 2 Ix.) ~13 . .2 'Case Document 37-3 Filed Page 2 of 2 I. INTRODUCTION. Goodyear has asked this Court to hold Attorney Ricciardulli in contempt for allegedly violating the Court?s June 13, 2003 Protective Order (Docket No. 22). Goodyear claims that a violation occurred when Attorney Ricciardulli told another lawyer who is currently in litigation against Goodyear litigation involving the same tire, the same tire defect claims, and the same Class of motor home - that a Goodyear corporate representative had essentially made an admission of liability at his deposition. ?Mr. Cox testified that Goodyear was aware of the fact that the subject tire the Goodyear 159 - did not perform properly when it was placed in use on a Class A coach :It at: cannot recall with certainly the exact language that Mr. Cox used at his deposition to describe the nature of the problem with the 159 tire. However, I do recall being very pleased with the candor of the testimony which I construed as a clear admission of liability.? (See Ricciardulli Declaration, paragraphs 5 6, ?led herewith)?. It is important for the Court to appreciate that nowhere in its Application has Goodyear accused Attorney Ricciardulli of revealing any trade secrets or proprietary information. The Court should deny Goodyear?s Motion because: The tire at issue herein is a Goodyear G159, 275/70 22.5 tire (hereinafter a 159 tire?). The subject testimony came from Goodyear employee, Mr. Kim Cox, whom Goodyear had produced for deposition as a Rule Fed. R. Civ. P., corporate witness in the summer of 2003. 2 ATTORNEY RESPONSE IN OPPOSITION T0 APPLICATION FOR ORDER TO SHOW CAUSE - 'Case Document 37-3 Filed Page 3 of 2i the plain language of the Protective Order protects from disclosure only proprietary, trade secret or con?dential business information that would work a material harm on Goodyear should such information fall into the hands of its competitor tire manufacturers; the express terms of the Protective Order do not bar, and cannot be reasonably interpreted as barring, disclosure of the fact of a prior Goodyear witness? testimonial admission of liability in speci?c litigation; and in disclosing the testimonial admission of liability, Attorney Ricciardulli was in substantial compliance with the Protective Order and acted on a good-faith, reasonable interpretation of the Order. 11. THE LEGAL STANDARD. To hold Attorney Ricciardulli in civil contempt, Goodyear must prove with clear and convincing evidence that he violated a speci?c provision of the Protective Order. Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982); see also In re: Dual Deck Video Cassette Record Antitrust Litigation 00- Video, Inc. v. The Motion Picture Association of America et al., 10 F.3d 693, 695 (9th Cir. 1993). This heavy standard requires more evidence than does the preponderance of the evidence standard applicable to most civil cases. Battaglia v. United States, 653 F.2d 419, 422 (9th Cir. 1981). A ?nding of contempt is not appropriate if Attorney Ricciardulli?s limited disclosure was in substantial compliance with the Protective Order and ?appears to be based on a good faith and reasonable interpretation of the [court?s order].? Vertex Distrib., Inc., 689 F.2d at 889. 2 ?Substantial compliance? with a protective order is a defense to an application for contempt. Vertex Distrib., Inc., 689 .2d. at 892; see also 60- Video, 10 F.2d at 695 (?Because Go? Video substantially complied with a reasonable interpretation of the protective order, it could not properly be held in contempt?). 3 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE ?Case Document 37-3 Filed Page 4 of 2: Goodyear has failed to provide any evidence -- let alone evidence meeting its clear and convincing evidentiary burden -- establishing that the Protective Order expressly bestowed ?con?dential? status upon a witness? testimonial admission of liability. Goodyear?s failure is not surprising because the express terms of the Protective Order do not protect from disclosure such testimonial admissions. To the contrary, the terms intend, on their face, to protect only proprietary, trade secret, con?dential commercial or business information that would work a material harm on Goodyear if such information were to fall into the hands of its competitor tire manufacturers. Absent clear and unambiguous language which expressly precludes the disclosure of a witness? admission of liability, or any language that would impliedly classify such an admission as proprietary, trade secret or con?dential business information, a ?nding of contempt is clearly not warranted because Attorney Ricciardulli substantially complied with the Order and made a good-faith and reasonable interpretation that the Order did not preclude disclosure of the admission of liability. THE PROTECTIVE ORDER DOES NOT TREAT PARTY OPPONENT TESTIMONIAL ADMISSIONS AS OR The starting point for the Court?s ruling on Goodyear?s Application is the Protective Order. As a practical matter, the Protective Order is a stipulated contract between the Plaintiffs and Goodyear that was subsequently adopted by the Court as its Order. California law on contract interpretation, therefore, provides guidance in evaluating the Protective Order and determining whether Attorney Ricciardulli violated the same beyond substantial 4 ATTORNEY RESPONSE IN OPPOSITION T0 APPLICATION FOR ORDER TO SHOW CAUSE 'Case 3:02-cv-01642-B-18 Document 37-3 Filed Page 5 of2 compliance. Vertex Distrib, Ina, supra, 689 F.2d at 892 (?Since orders have many of the attributes of ordinary contracts, they should be construed basically as contracts. . see also United States v. ITT Continental Baking Co. (1975) 420 US. 223, 236-237 All contracts in California, whether public or private, are to be interpreted by the same rules. Cal Civ. Code 1 635. A court must ?rst look to the plain meaning of the contract?s language. Cal Civ. Code 1638, 1644. This ?rst inquiry focuses on whether the express provisions of the contract clearly and unambiguously prohibit a certain disclosure. If the express provisions do not speci?cally prohibit a disclosure, it is logical and reasonable to conclude that a violation of the express terms of the contract/order did not occur. A party can not violate a term that does not exist in the order. If the language in the contract is ambiguous, the second inquiry requires the contract to ?be interpreted in the sense in which the promisor [Plaintiffs and Attorney Ricciardulli] believed, at the time of making it, and that the promisee [Goodyear] understood it. Cal. Civ. Code 1 649. This inquiry does not consider the subjective belief of the promisor but, rather, the "objectively reasonable" expectation of the promisee. Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254, 1265. ?Although the intent of the parties determines the meaning of the contract, the relevant intent is objective that is, the objective intent as evidenced by the words of the instrument, not a party?s subjective intent. Badie v. Bank of America (1998) 67 Cal. App. 4th 779, 802 (internal quotation marks and citation omitted) (Emphasis added). In other words, the past or current subjective intent of Goodyear about the treatment of the testimonial admission of liability is immaterial; what is dispositive is whether Goodyear?s expectation that the admission by Cox would remain hidden forever by virtue of the 5 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE ?Case 3:02-cv-01642-B-N6 Document 37-3 Filed Page 6 of 2 Protective Order) is ?objectively reasonable? based on the parties? intent as shown by the language of the Protective Order itself. As shown above already, the words of the Protective Order make no reference to testimonial admissions and the intent of the Order was to guard only true business secrets. As a consequence, Goodyear?s expectation is not ?objectively reasonable.? If after this second inquiry any ambiguity remains, the language of the contract should be interpreted strongly against the party who caused the uncertainty to exist. Cal Civ. Code 1654? With the foregoing background provided, it is helpful to turn to the key provisions of the Protective Order. A. ?stimonial Admission is Not ?Proprietarv? Under the Order. The recital to the Order shows the intent of the parties when seeking the Order. The intent was to protect documents and testimony that contained sensitive commercial and business information and secrets. For example, the recital states that ?discovery requests have been made calling for [Goodyear] to produce documents and information Goodyear believes to be proprietary and confidential.? (See June 13, 2003 Protective Order, at p. 1, lns. 17-20) (Emphasis added). The Order expressly states that it is intended ?to preserve the con?dentiality of said documents. . (Id. at In. 24). The Protective Order, however, does not define the term ?proprietary.? As such, the Court is to construe the unde?ned term ?according to the plain meaning a layman would ordinarily attach to them.? Ray v. Farmer Ins. Exch. (1988) 200 Cal. App. 3d 1411. The Goodyear drafted the proposed Protective Order that was entered by the Court. 6 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE 'Case 3:02-cv-01642-B-Ni Document 37-3 Filed Page 7 of 21- unde?ned term is also ?to be understood in [its] ordinary and popular sense. . Cal. Civ. Code 1644. The term ?proprietary? is commonly de?ned as ?something that is used, produced, or marketed under exclusive legal right of the inventor or maker; something that is protected by secrecy, patent, or copyright against free competition as to name, product, composition, or process of manufacturer; something that is used, made, or marketed by one having the exclusive legal right (a process)? (Webster ?3 Ninth New Collegiate Dictionary (1983) at p. 944). Applying this common lay de?nition of the term ?proprietary? to the testimonial admission disclosed by Attorney Ricciardulli, it is readily apparent that the disclosed information is not ?proprietary.? The Cox admission is not a disclosure of a secret, a patent, or a copyright. The Cox admission does not concern those types of subjects which are typically considered by businesses as proprietary, such as Goodyear?s research, development data, tire adhesion compounds or formulas, rubber compounds or ingredients, design speci?cations, performance standards, testing protocols or results, the manufacturing or quality control processes or any other type of information which could reasonably constitute con?dential commercial information. In fact, Goodyear has conspicuously failed to charge Attorney Ricciardulli with disclosing any such proprietary information. Finally, the disclosure simply is not the type of information that would work a material economic harm on Goodyear should it fall into the hands of its economic competitors in the tire manufacturing industry.4 This is especially true in year 2007 because the G159 275/70 22.5 tire was pulled from the market in 2003 and Goodyear permanently stopped its production the same year. Information about the tire, therefore, is arguably stale. Moreover, while the disclosure of a 7 ATTORNEY RESPONSE OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE 'Case 3:02-cv-01642-B-N6 Document 37-3 Filed 08/16/07 .agelDAlB Page 8 of 21 If there is any ambiguity in the Protective Order as to what constitutes ?proprietary? information, that ambiguity supports a denial of Goodyear?s Application. ?Where the language of a[n] [order] is too vague, it cannot be enforced; to do so would be an invalid exercise of judicial authority.? Vertex Distrib., Inc, supra at 889; see also International Longshoremen ?s Assoc, Local 129] 12. Philadelphia Marine Trade Assoc. (1967) 389 US. 64, 76 (reversing a civil contempt judgment founded upon a decree too vague to be understood); United States v. Joyce, 498 F.2d 592, 596 (7th Cir. 1974) (reversing a contempt judgment because terms of a court order should be clear and speci?c and leave no doubt or uncertainty in the minds of those to whom it is addressed). The Protective Order does not de?ne the term ?proprietary? and does not include any reference to a witness? testimonial admission. For these reasons as well, the Court should deny Goodyear?s application. B. A Testimonial Admission is Not ?Con?dential? Under the Order. The Protective Order does not include the testimonial admission of liability within its de?nition of the term ?con?dential.? The Order at ?de?nitions? section de?nes the term ?con?dentialz? The words ?con?dential,? ?con?dential information,? and ?con?dential material? describe information which is or contains trade secrets, research, development and other proprietary matters including, but not limited to, methodology, technique, process, control, and evaluation which any party believes in good faith pertains to testimonial admission of defect might expose Goodyear to liability in the collateral litigation over the safety of the G159 tire, that fact alone does not equate to economic harm brought about by a competitor in the tire industry learning a true secret about Goodyear?s product. 8 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE 'Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 .agelD.414 Page 9 of 2: its trade or business and has independent value from not being generally known and not being readily ascertainable by other persons who may obtain economic value from its disclosure or use. In addition, such information is not normally revealed to others except in con?dence and is not revealed to others in the party?s trade or business and is of the type that the party has made efforts to maintain as secret. (See June 13, 2003 Protective Order, at p. 2, lns. 3-9) (Emphasis added). If the express de?nition of ?con?dential? does not include a Goodyear witness admitting liability, a violation of the Protective Order could not have occurred. Moreover, the de?nition of ?con?dential? cannotrbe artfully expanded by Goodyear years later to somehow broadly include such an admission. A corporate witness? admission of liability in a product case may be many things - it may be embarrassing; it may affect the corporation?s goodwill or reputation; it may prevent Goodyear from denying a defect in collateral litigation. The one thing the admission certainly is not however, is a con?dential business or trade secret intended to be protected from disclosure by the Protective Order. The Protective Order was intended by the parties to protect true business secrets from competitors, not from litigation admissions. (See attached Declaration of Guy Ricciardulli). The clear and unambiguous language of the Protective Order does not bestow ?con?dential? status on the testimonial admission of liability. Moreover, the clear and unambiguous intent of the parties when entering into the Protective Order was to keep?secret from Goodyear?s economic competitors its con?dential commercial and business information. It is not ?objectively reasonably? for Goodyear to now argue that a testimonial 9 ATTORNEY RESPONSE IN OPPOSITION T0 APPLICATION FOR ORDER TO SHOW CAUSE Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 ?gelDAlS Page 10 of 2 admission of liability by its corporate representative in a deposition is now somehow con?dential when that was never expressed in the Protective Order and was certainly not intended by the parties as demonstrated by the language of the Protective Order itself. Bank of the West supra, 833 P.2d 545; see also attached Declaration of Guy Ricciardulli. On these grounds alone, the testimonial admission is not ?con?dential.? The Court should deny Goodyear?s Motion. Again, if there is any ambiguity as to what constitutes ?con?dential? information in the Protective Order, that ambiguity supports a denial of Goodyear?s Application. Vertex Distrib, Inc. supra, 689 F.2d at 889; International Longshoremen ?s Assoc, Local 1291. supraAgreement That the Cox Deposition Would Be Subject to the Terms of the Protective Order Did Not Bestow Con?dential Status On the Subject Admission Goodyear?s Application relies heavily on the fact that Attorney Ricciardulli agreed that the Cox deposition would be subject to the terms of the Protective Order. To support this argument, Goodyear relies on the Protective Order at the ?de?nitions? section provides. This section provides: Information designated as ?con?dential? or ?con?dential information? or ?con?dential material? shall be considered trade secret and fully protected by this order. All portions of transcripts, depositions, exhibits, or other pleadings or ?lings in this action which contain or otherwise set forth documents, information, or other 10 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE 1 Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 igelD.416 Page 11 of 2 1 materials, or contents thereof, which have been previously designated as 2 con?dential, shall likewise be subject to the terms of this protective order. (See June 13, 2003 Protective Order, at p. 2, Ins. 10-15) (Emphasis added). 5 As can be seen from the attached Declaration of Guy Ricciardulli, he does not now 5 recall entering into any such stipulation. I 7 don't recall ever having any discussion with Mr. McCormick regarding the applicability of the provisions of the Protective Order to the transcript of the Cox 10 deposition. I have reviewed Mr. McCormick's declaration wherein he states and/or '11 implies that I stipulated that the transcript, in its entirety, would be treated as 12 con?dential. I have to believe that if I had entered into such an extraordinary 1: stipulation, I would remember having done so. 15 (See Ricciardulli Declaration, paragraph 9) 16 It is also interesting to note that all documentary evidence of such a stipulation i.e. 17 the on?the-record statements of counsel - were apparently all deliberately destroyed by Goodyear?s counsel. It should be clear however, that any agreement between counsel as to 20 the applicability of the Protective Order to the Cox deposition would have no effect on the 21 analysis herein. The deposition testimony regarding Mr. Cox?s admission of liability would 22 be entitled to protection from disclosure if, and only if, it constituted proprietary information 23 24 - which was clearly not the case. Thus, any agreement that the Cox deposition would be 25 subject to the terms of the Protective Order would not have magically bestowed con?dential 26 status on the subject admission, which was never entitled to any such protection form the 27 28 outset. 11 ATTORNEY RESPONSE IN OPPOSITION T0 APPLICATION FOR ORDER TO SHOW CAUSE 1" 00 - VCase Document 37-3 Filed 08/16/07 igelD.417 Page 12 of 2 IV. ATTORNEY DISCLOSURE OF THE TESTIMONIAL ADMISSION WAS BASED ON A GOOD-FAITH AND REASONABLE INTERPRETATION OF THE PROTECTIVE ORDER AND HE WAS IN SUBSTANTIAL COMPLIANCE WITH THE ORDER. As discussed above, it is inappropriate to hold a party in contempt of a Court Order if the party?s action ?appears to be based on a good faith and reasonable interpretation of the [court?s order],? and he was in substantial compliance with the Order. Vertex Distrib., Inc. supra, 689 F.2d at 889. That is precisely the scenario here. The Protective Order does not expressly prohibit the disclosure of party-opponent admissions. It also does not impliedly include such testimonial admissions within its de?nition of the term ?con?dential.? Thus, when Attorney Ricciardulli was contacted by counsel in collateral litigation regarding the G159 tire, he had a good-faith belief, based in his reasonable interpretation of the Protective Order, that the Order did not prohibit him from disclosing the statement of a Goodyear witness admitting liability in the scenario of 159 tire being placed in service on a Class A motor homes. Indeed, even the af?davit of counsel in one of the collateral litigation matters, Timothy J. Casey, Esq., makes abundantly clear that Attorney Ricciardulli was prudent and careful in responding to the inquiry. For example, when Mr. Casey asked Attorney Ricciardulli if he could get cepies of Goodyear documents from the case, Attorney Ricciardulli declined to provide them, out of caution and concern that those documents might be con?dential and therefore protected from disclosure under the Protective Agreement. (See 12 ATTORNEY RESPONSE IN OPPOSITION T0 APPLICATION FOR ORDER TO SHOW CAUSE Case 3:02-cv-Ol642-B-Ni Document 37-3 Filed 08/16/07 ?gelD.4l8 Page 13 of 21 1 Goodyear?s Memorandum at Exhibit to the McCormick Declaration (Casey Af?davit) at 2 1[ This fact, along with the fact that Goodyear has not charged Attorney Ricciardulli with any disclosure of undisputed trade or business secrets, demonstrates that he was at all 5 times in substantial compliance with the Protective Order. Under these circumstances, it 6 would be manifestly unfair to hold Attorney Ricciardulli in contempt for allegedly violating 7 the Protective Order. Finally, there are other reasons the Court should deny Goodyear?s Motion - public 10 policy considerations of public health and safety, and the promotion of fairness and ef?ciency 11 in the administration of justice. Goodyear is apparently attempting to forever conceal a prior 12 corporate admission of liability regarding the 159 tire, notwithstanding the importance of 13 14 this information to public health and safety, and, according to the Casey Af?davit, in the 15 collateral litigation wherein Goodyear has apparently denied that the G159 tire is defective. 16 ?Circumstances weighing against con?dentiality exist when con?dentiality is being sought 17 over information important to the public health and safety [citation omitted], and when the 8 . 19 sharing of information among litigants would promote fairness and ef?ciency [citation 20 omitted].? Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d Cir. 1994); see also 21 Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 258 (7th Cir. 1975) important 22 social issues become entangled to some degree in civil litigation. . .. [Litigation] often exposes the need for governmental action or correction; Such revelations should not be kept from the 25 public?). 26 It has long been recognized that attorney has an obligation not only to protect 27 his client?s interests but also to respect the legitimate interests of fellow members of the bar, 28 13 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE 'Case 3:02-cv-01642-B-Nli Document 37-3 Filed 08/16/07 ?gelDAlQ Page 14 of? the judiciary, and the administration of justice.? Kirsh v. Duryea (1978) 21 Cal.3d 303, 309. Attorney Ricciardulli substantially complied with the Protective Order and acted on a good- faith and reasonable interpretation of the Protective Order when he disclosed the testimonial admission. He did nothing more. As can be seen from a review of the Petition to Intervene however, Goodyear has allegedly failed to make disclosures required by law to the federal government pursuant to 49 C.F.R. 5765?6 and 49 U.S.C. 30118(c)(1), or to the collateral litigants which have sought to Intervene in this case. Rather, Goodyear wants to punish Attorney Ricciardulli - but there is no legitimate basis for punishing him for having disclosed a testimonial admission that is neither covered by any term of the Protective Order nor was ever contemplated as con?dential by the parties when they signed and ?led the Protective Order. V. CONCLUSION. Based on the foregoing, Attorney Ricciardulli respectfully requests that the Court deny Goodyear?s Application. Dated: August 2007 Respectfully Submitted, LAW OFF MICHAEL GOLDSTEIN 13>" [54/ Michael 1 tei - 120 Birmi ham Drive, Suite 200 Cardiff, CA 92007 Tel: 760-436-1801 Fax: 760-436-8248 Attorneys for Guy Ricciardulli, Esq. ORIGINAL of this document ?led with the Clerk?s Of?ce this 16?h day of August, 2007. 14 ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE blah-Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 Page 15 of 2 COPY of this document hand-delivered this 16th day of August, 2007 to: Hon. Nita L. Stormes Magistrate, United State District Court United States District Court for the Southern District of California 880 Front Street Room 4290 San Diego, California 92101-8900 COPY of this document hand?delivered this 16th day of August, 2007 to the following counsel of record John P. McCormick, Esq. MCCORMICK MITCHELL 8885 Rio San Diego Drive Suite 212 San Diego California 92108 Counsel for Goodyear in the Phillips Case Thomas Beck, Esq. COZEN 501 West Broadway, Suite 1610 San Diego, CA 92101 Counsel for Plaintiff-in-Intervention American And Foreign Insurance Company in the Phillips Case COURTESY COPY of this document mailed this 16?h day of August, 2007 to the following persons: Walter M. Yoka, Esq. YOKA SMITH, LLP 777 South Figueroa Street Suite 4200 Los Angeles, CA 90017 Counsel for Goodyear in the Phillips Case Re Motion for Order to Show Cause Craig R. McClellan, Esq. Michelle D. Mitchell, Esq. THE LAW FIRM 1144 State Street San Diego, CA 92101 Counsel for Intervenors David L. Kurtz, Esq. THE KURTZ LAW FIRM 7420 East Pinnacle Peak Road Suite 128 Scottsdale, Arizona 85255 Attorney for the Haegers in Arizona action. Timothy J. Casey, Esq. SCHMITT, SNECK, HERROD, PC. 1221 East Osborn Road Suite 105 Phoenix, Arizona 85014 Attorneys for the Haleys in Arizona action ATTORNEY RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE (.11.wa @013le Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 ?gelDAZl Page 16 ofj Thomas F. Dasse, Esq. David Medina, Esq. LAW OFFICE OF THOMAS F. DASSE, P.C. 14646 North Kierland Blvd. Suite 235 Scottsdale, AZ 85254 Attorneys for the Bogaerts in Arizona action. Jere Beasly, Esq. Rick Morrison, Esq. BEASLY, ALLEN, CROW, METHVIN, PORTIS MILES, P.C. PO. Box 4160 Montgomery, Ala. 36103 Attorneys for the Woods in the Alabama action. Robert E. Ammons, Esq. THE AMMONS LAW FIRM, LLP 3700 Montrose Blvd. Houston, Texas 77006 Attorneys for the Antons in the Texas action Hugh N. Smith, Esq. SMITH FULLER, PA. 455 North Indian Rocks Rd. Suite A Belleair Bluffs, FL 33770 Attorneys for the Schalrnos in theFlorida action. 16 ATTORNEY RESPONSE IN OPPOSITION T0 APPLICATION FOR ORDER TO SHOW CAUSE Michael Goldstein, Esq. (SBN 95128) in} LAW OFFICES OF MICHAEL GOLDSTEIN 553 120 Birmingham Drive, Suite 200 MG 1 6 i Cardiff, CA 92007 Telephone: 760-436-1801 34,334,, .9 st or: . w? Facsimile: 760-436-8248 9590" Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 gigelDAZZ Page 17 of? Attorneys for Plaintiffs? Counsel Guy Ricciardulli, Esq. THE UNITED STATE DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA HAROLD J. PHILLIPS and Cause No. 02 CV1642 (B) (NLS) PHILLIPS, Plaintiffs, DECLARATION OF GUY RICCIARDULLI IN SUPPORT OF v. HIS RESPONSE IN OPPOSITION TO APPLICATION FOR GOODYEAR TIRE RUBBER ORDER TO SHOW CAUSE COMPANY, an Ohio Corporation, and DOES 1 through X, inclusive, Defendants. 1, Guy Ricciardulli, hereby declare: 1. If called as a witness in the above-captioned matter, I am competent to and would testify to the following facts, of which I have personal knowledge. 2. I was the attorney of record for the Plaintiffs, Harold J. Phillips and Georg- Anne Phillips, in the above-referenced matter. 3. When I reviewed and signed the proposed Protective Order in the instant matter in 2003, it was my understanding that the Protective Order would treat as con?dential, only ?trade secrets, research, development and other proprietary matters . . . as the 1 . DECLARATION OF GUY RICCIARDULLI IN SUPPORT OF HIS RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE h" ([1th .Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 gagelDAZB Page 18 of 2 language of the Protective Order itself provides. I understood however, that deposition testimony of Goodyear employees could be entitled to con?dentiality, if that testimony related to such ?trade secrets, research, development or other proprietary matters.? I did not believe, nor consider, that an admission of liability (as described below) by a Goodyear representative (designated by Goodyear as a Rule 30(b)(6) witness) could be properly treated as a proprietary or con?dential business secret, such that it was entitled to protection from disclosure under the Protective Order. 4. In June of 2003, I noticed the deposition of the Goodyear employee(s) who was/were most knowledgeable with respect to the processing of property damage claims. Thereafter, I traveled from my of?ce in San Diego, California, to Goodyear's corporate headquarters in Akron, Ohio, and began the deposition of Goodyear employee, Kim Cox, who was produced by Goodyear as the ?person most knowledgeable? with respect to the foregoing subject. 5. Soon after the commencement of the deposition, in response to my questioning, Mr. Cox testi?ed that Goodyear was aware of the fact that the subject tire the Goodyear 159? - did not perform properly when it was placed in use on a Class A coach (RV), which had been the scenario in the instant case. (That had also been the scenario in a prior incident involving my client and another 159? tire failure. I was not involved in the claim arising out of the prior incident; my client was able to resolve that claim against Goodyear by himself). 6. At this point in time, I cannot recall with certainty the exact language that Mr. Cox used at his deposition to describe the nature of the problem with the 159 tire. 2 DECLARATION OF GUY RICCIARDULLI IN SUPPORT OF HIS RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE 1 . -. 3 Case 3:02-cv-01642-B-Ni Document 37-3 Filed 08/16/07 gigelD.424 Page 19 of2il 1 However, I do recall being very pleased with the candor of the testimony - which I construed 2 as a clear admission of liability. Indeed, Goodyear's counsel, John McCormick, appeared to me to be taken aback by Mr. Cox's apparent admission and, in fact, he asked for a recess in 5 the deposition immediately thereafter. 6 7. During the deposition recess, Mr. McCormick approached me and suggested 7 that we terminate the deposition and instead focus our efforts on mediation and settlement. 1 agreed to Mr. McCormick?s proposal regarding the termination of the deposition and the case 10 was settled shortly thereafter. I had concluded then, and I believe now, that Goodyear?s 11 newfound interest in mediation was a direct consequence of the damaging nature of Mr. 12 Cox?s admission of liability. In fact, my belief in that regard was only strengthened, and 13 14 considerably so, when Mr. McCormick advised me that he wanted to obtain the Court 15 Reporter?s notes of the Cox deposition, so that he could destroy them a scheme which he 16 apparently accomplished. 17 8. I never considered that the subject testimony by Mr. Cox fell within the 18 19 category of ?trade secret or proprietary information.? In fact, in the course of resolving his 20 prior claim with Goodyear, that similar information about the 159 tire had been 21 communiCated directly to my client. 22 9. I don't recall ever having any discussion with Mr. McCormick regarding the 23 24 applicability of the provisions of the Protective Order to the transcript of the Cox deposition. 25 I have reviewed Mr. McCormick's declaration wherein he states and/ or implies that I 26 stipulated that the transcript, in its entirety, would be treated as con?dential. I have to 27 believe that ifI had entered into such an extraordinary stipulation, I would remember having 28 3 DECLARATION OF GUY RICCIARDULLI IN SUPPORT OF HIS RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE ALAN Ease 3:02-cv-01642-B-Nl? Document 37-3 Filed 08/16/07 8gelD.425 Page 20 of 21 done so. I can state unequivocally that it was never my intent to so stipulate, and treat as con?dential, the above-referenced testimony by Mr. Cox. I did not then believe, nor do I now believe, that such an admission falls within the category of ?trade secret or other proprietary information? entitled to con?dentiality under the Protective Order. 11. In or around May, 2007, I received a telephone call from Tim Casey, who advised me that he was an attorney in Arizona and that he was prosecuting a claim against Goodyear for the alleged failure of a Goodyear 159 tire. Mr. Casey asked me about my experiences in the prosecution of the instant case. I told Mr. Casey about the Cox deposition, including the admission by Mr. Cox, as described above, the deposition recess and the resolution of the case shortly thereafter. 12. At the time that I disclosed this information to Mr. Casey, I did not believe that the admission by Mr. Cox was ?con?dential information? that was protected from disclosure by the Protective Order. 13. In light of the recent developments, namely, the pendency of the Order to Show Cause, I do not intend to discuss, and will not discuss, any further aspect of the Cox deposition with anyone, unless the Court makes clear that my disclosures about the same are allowed, and until I am subpoenaed by a court of competent jurisdiction to provide testimony about the same. DECLARATION OF GUY RICCIARDULLI IN SUPPORT OF HIS RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE Amthas been served as follows: Personall Served this16th da of'Au John P.- McCormick, Esq. MCCORMICK MITCHELL 8885 Rio San Diego Drive Suite 212 San Diego California 92108 1 . Counsel for Goodyear in the Phillips Case Walter M. Yoka, Esq. YOKA SMITH, LLP 777 South Figueroa Street, Suite'4200 Los Angeles, CA 90017 Counsel for Goodyear 1n the Phillips Case Re Motion for Order to Show Cause Craig R. McClellan, Esq. Michelle D. Mitchell, Esq. THE LAW FIRM - 1144 State Street San Diego, CA 92101 Counsel for Intervenors David L. Kurtz, Esq. THE KURTZ LAW FIRM . 7420 East Pinnacle Peak Rd, Suite 128 Scottsdale, Arizona 85255 Attorney for the Haegers (Arizona action.) Timothy J. Casey, Esq. SCHMITT, SNECK, HERROD 1221 East Osborn Road, suite 105 Phoenix, Arizona 85014 Attorneys for the Haleys (Arizona action) 455 North Indian Rocks Rd., 'llcase 3:02-0v-01642-B-Ni Document 37-3 Filed 08/16/07 8gelD.426 Page 21 of 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 16, 2007, a? true and correct copy of the foregoing st 2007: Thomas Beck, Esq. 1 COZEN 501 West Broadway, Suite 1610 San Diego, CA 92101 Counsel for Plaintiff-in- Intervention American And Foreign Insurance company 1n the Phillips Case Served by Mail this 16?h day of Auggst, 2007: ThomasF. Dasse, Esq. David Medina, Esq. LAW OFFICE OF THOMAS F. DASSE, C. 14646 North Kierland Blvd. Suite 235 Scottsdale, AZ 85254 Attorneys for the Bogaerts (Arizona action) Jere Beasly, Esq. Rick Morrison, Esq. . BEASLY, ALLEN, CROW, METHVIN, PORTIS MILES, P.C. PO. Box 4160 Montgomery, Ala. 36103 Attorneys for the Woods (Alabama action). Robert E. Ammons, Esq. .THE AMMONS LAW FIRM, LLP 3700 Montrose Blvd. Houston, Texas 77006 . Attorneys for the Antons (Texas action) Hugh N. Smith, Esq. SMITH FULLER, P.A. Suite A Belleair Bluffs, FL 33770 Attorneys for the Schalmos in the Florida action. LAW OFFICES OF MICHAEL GOLDSTEIN Michael Goldstein 5 DECLARATION OF GUY RICCIARDULLI IN SUPPORT OF HIS RESPONSE IN OPPOSITION TO APPLICATION FOR ORDER TO SHOW CAUSE