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Trailblazer Food Products, Inc. v. Silgan White Cap LLC

United States District Court, D. Oregon, Portland Division

November 30, 2017

TRAILBLAZER FOOD PRODUCTS, INC., an Oregon Corporation, Plaintiff,
v.
SILGAN WHITE CAP LLC, a Delaware limited liability company, Defendant.

          ORDER AND OPINION

          JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Trailblazer 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 been created.

         Silgan 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.

         Trailblazer's 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.

         Background

         I The Lids.

         A. Trailblazer's complaint.

         Trailblazer 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.

         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.

         On 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.)

         B. Silgan's Customer Incident ("CI") Process.

         Silgan 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:

         PROCEDURE:

         A. CI Submission:

1. The CAS is responsible for entering the CI into the system.
2. To log into the Silgan CI system:
a. Go to: https://sharepointysilganmfg.eom/sites/swcintranet/default.a 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 the CI.

         CIs are 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 ...

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