United States District Court, D. Oregon, Portland Division
TRAILBLAZER FOOD PRODUCTS, INC., an Oregon Corporation, Plaintiff,
SILGAN WHITE CAP LLC, a Delaware limited liability company, Defendant.
ORDER AND OPINION
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
Food Products moves to compel Silgan White Cap to produce
internal communications pertaining to Silgan's response
to Trailblazer's complaint that Silgan made and supplied
Trailblazer with negligently manufactured food container
lids. Trailblazer also seeks to compel Silgan to produce the
business calendars for Silgan employees who attended meetings
at which they discussed Trailblazer's complaint. Silgan
responds that the attorney work-product doctrine bars
discovery of the internal communications Trailblazer seeks
because those communications occurred after Trailblazer
asserted a claim for damages and otherwise would not have
seeks a determination from the court regarding disclosure of
the content of its Product Specification Reviews
("PSRs") prepared for use in manufacturing lids for
customers other than Trailblazer. Silgan itself does not
object to producing these PSRs, but at least one of
Silgan's customers has objected to its PSRs being
provided to Trailblazer and has asked the court to not order
its PSRs produced to Trailblazer. Silgan's customer
asserts that its PSRs contain proprietary information which,
if disclosed to Trailblazer, would severely damage its
competitive position in the industry.
motion (ECF No. 23) to compel is denied. Silgan generated the
internal communications in anticipation of litigation and its
communications would not otherwise have been created but for
Trailblazer's claim for damages. Regarding the objecting
customer's PSRs, Silgan is to produce them consistent
with this order, as described below.
manufacturers jams, jellies, and organic fruit spread. Silgan
manufacturers and supplies lids for food and beverage
products, and it applies a protective coating to the
underside of its lids to fit the specific characteristics of
the food product the lid will cover. Trailblazer discovered a
black substance on the inside of lids that Silgan
manufactured for Trailblazer in 2016 for use in packaging
Trailblazer's organic fruit spread. In its lawsuit,
Trailblazer alleges that Silgan negligently applied the wrong
number of coatings to the lids it sold to Trailblazer.
first notified Silgan of the non-conforming lids on October
18, 2016. Silgan investigated Trailblazer's complaint and
responded to Trailblazer on October 26, 2016. During the
following two weeks the parties continued to discuss what had
become an on-going problem for Trailblazer and Silgan's
further investigation to determine its cause.
November 14, 2016, Rob Miller, Trailblazer's CEO, emailed
Silgan that one of Trailblazer's customers announced it
was "no longer going to be selling the product"
because its own customers had returned the product because of
the black substance. Miller then said:
Understanding that you need to continue your work to
determine why there are fissures/pits in the [lid's
inside] coating, we need to change gears and talk about the
financial impact of the coating failure.
Preliminarily, we have direct damages of approximately $7,
5mm and indirect damages of $2.0mm and we need to start a
conversation, right now, with senior management at
Silgan about how to address the damages.
(ECF No. 23, Ex. B., at 6 (underline in original).) Miller
then asked for the contact information "of the person
best able to address the financial issues associated with the
coating failure[.]" (Id.)
Silgan's Customer Incident ("CI") Process.
follows the procedure contained in its CI Process policy
("the Policy") (ECF No. 30, Ex. A) for responding
to customer complaints. Relevant to Trailblazer's motion
is the "Procedure" section of the Policy that
mandates the steps to be taken for investigating and
responding to every customer complaint:
1. The CAS is responsible for entering the CI into the
2. To log into the Silgan CI system:
a. Go to:
spx, under Customer Complaints
b. Enter login name and password 3. The CAS is to enter
ALL necessary CI information. The Complaint
Summary section must include specific information
surrounding what happened, the impact to the customer, the
frequency of the issue, and any other pertinent facts.
Details will facilitate more thorough investigation, root
cause analysis, and corrective actions.
4. It is critical that physical samples and/or digital
photographs of defective product be provided to the CI
recipient as quickly as possible. Digital photographs and
other electronic documents should be attached to the CI.
5. The CI number will be automatically assigned. The CI will
be automatically sent to a fixed distribution list based upon
the plant of manufacture and the claim amount associated with
permanent records of customer issues and are intended to be
shared with the customer. For these reasons, entries should
be professional and follow these additional guidelines:
• Customer emails are not to be copied and pasted into
the Complaint Summary section. The relevant information from
customer emails should be summarized ...