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International Longshore and Warehouse Union v. ICTSI Oregon, Inc.

United States District Court, D. Oregon

December 3, 2018

INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, Plaintiff,
v.
ICTSI OREGON, INC., Defendant. ICTSI OREGON, INC., Counterclaim-Plaintiff,
v.
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION; INTERNATIONAL LONGSHORE AND WAREHOUSE UNION Local 8; and INTERNATIONAL LONGSHORE AND WAREHOUSE UNION Local 40, Counterclaim-Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE

         Before the Court is ICTSI Oregon, Inc.'s (“ICTSI”) Motion to Compel and International Longshore and Warehouse Union (“ILWU”), International Longshore and Warehouse Union Local 8 (“Local 8”), and International Longshore and Warehouse Union Local 40's (“Local 40”) (collectively, “ILWU Entities”) Motion for Protective Order. For the reasons discussed below, both motions are granted in part and denied in part, and the Court reserves ruling on a few issues.

         A. Case Background

         This case is the last remaining active case out of five separate actions that were filed in 2012 arising from a labor dispute at fever (“T6”) at the Port of Portland (“Port”).[1] Briefly stated, the dispute concerns who is entitled to perform two jobs of plugging in, unplugging, and monitoring refrigerated shipping containers (the “reefer” jobs) at T6. This case was originally filed by the ILWU and Pacific Maritime Association (“PMA”). They argued that their collective bargaining agreement-the Pacific Coast Longshore and Clerks Agreement (“PCL&CA”)- required ICTSI, the then-operator of T6 and a PMA member, to assign the reefer jobs to ILWU members. ICTSI, the Port of Portland (the “Port”), and the International Brotherhood of Electrical Workers (“IBEW”) Local 48 contended that other contracts-including the T6 Lease Agreement between the Port and ICTSI and the District Council of Trade Unions Agreement between the Port and IBEW-required that the reefer jobs be assigned to IBEW members.

         The ILWU and PMA brought this action under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, to enforce two arbitration awards, issued by arbitrators pursuant to the PCL&CA, assigning the reefer jobs to ILWU members. After the ILWU and PMA filed their complaint, the Port and the IBEW intervened as defendants.

         The Port and ICTSI filed counterclaims against the ILWU Entities. The Port also filed crossclaims against ICTSI. The Court dismissed some of the counterclaims and stayed one of the counterclaims pending resolution of the appealof the National Labor Relations Board (“NLRB”) decision awarding the reefer jobs to IBEW members. The NLRB later issued a decision that certain conduct by the ILWU Entities was illegal secondary boycott conduct and not legal primary conduct, and that decision was also appealed. Those appeals were heard before the U.S. Court of Appeals for the D.C. Circuit, which upheld the decisions of the NLRB. Because NLRB decisions take precedence over inconsistent arbitration decisions, those cases mooted the ILWU and PMA's claim to enforce the arbitration award in this case and the Port and ICTSI's counterclaims requesting that the Court void the arbitration award. At the parties' requests, the Court dismissed ILWU and PMA's claims and the Port and ICTSI's counterclaims relating to the arbitration award. ECF 280. The Court then dismissed the Port and the PMA from this case. ECF 229, 231, 285. IBEW also withdrew. ECF 241.

         After the various legal rulings and voluntary dismissals in this case and the legal rulings in other related cases, the only remaining parties in this case are the ILWU Entities and ICTSI. What remains at issue is: (1) ICTSI's Second Counterclaim for money damages under 29 U.S.C. § 187 based on the ILWU Entities' illegal secondary boycott activities; and (2) ILWU's First through Seventh Affirmative Defenses.[2]

         B. ICTSI's Motion to Compel

         1. Settlement-Related Documents-DENIED

         ICTSI moves to compel the ILWU Entities to produce documents for which they have withheld production based on the confidentiality of settlement negotiations. The ILWU Entities have asserted this “settlement privilege” in response to numerous Requests for Production (“RFP”) issued by ICTSI. The underlying documents appear to relate to the settlement between the ILWU Entities and the Port, including early settlement discussions that occurred through the office of the Governor of Oregon. Although ICTSI has a copy of the final settlement agreement between the ILWU Entities and the Port, ICTSI requests draft agreements and other documents relating to discussions between the parties. ICTSI also requests the documents relating to the settlement efforts by the Governor's office. ICTSI asserts that the ILWU Entities are going to rely on these discussions in their defense in this lawsuit. The ILWU Entities respond that they are not going to rely on any of these discussions in their defense in this case.

         ICTSI cites to patent cases for the proposition that settlement discussions and related documents may lead to admissible evidence. In the unique context of patent cases, however, settlement agreements may be relevant in calculating a reasonable royalty as damages for infringement. Other than arguing that the ILWU Entities will rely on the settlement discussions as a defense in this case, which the ILWU Entities deny, ICTSI has not explained how the settlement discussions between the Port and the ILWU Entities could lead to admissible evidence in this case.[3] Settlement discussions are generally confidential, protected, and not admissible. See, e.g., Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003) (explaining that “there exists a strong public interest in favor of secrecy of matters discussed by parties during settlement negotiations”); Four in One Co. v. S.K. Foods, L.P., 2014 WL 4078232, at *2 n.1 (E.D. Cal. Aug. 14, 2014) (noting that “settlement negotiations and communications exchanged therein are inherently confidential”). The ILWU Entities assert that they will not use any of the settlement discussions or documents in their defense. The Court will hold them to this assertion. Accordingly, ICTSI's motion is denied with respect to settlement documents.

         2. Personal Email Accounts-DENIED

         ICTSI moves to compel the ILWU Entities to search the personal email accounts of their officers, agents, and members for responsive documents. ICTSI notes that only one personal email account was searched as a source for document production-the email account of Leal Sundet.

         ICTSI fails to show that the ILWU Entities have possession, custody, or control over the personal email accounts of their officers, agents, and members. Personal email accounts are separate from work email accounts. As U.S. Magistrate Judge Paul S. Grewel explained in considering a similar motion:

What does it mean for a party to have control over data like the data disputed here? “Control is defined as the legal right to obtain documents upon demand.” In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999). Like the majority of circuits, the Ninth Circuit has explicitly rejected an invitation “to define ‘control' in a manner that focuses on the party's practical ability to obtain the requested documents.” Id. at 1107-08. Documents are not discoverable under Rule 34 if the entity that holds them “could legally-and without breaching any contract-continue to refuse to turn over such documents.” [Id.] “The party seeking production of the documents . . . bears the burden of proving that the opposing party has such control.” [United States v.] Int'l Union of Petroleum & Indus. Workers, 870 F.2d [1450, ]1452 [(9th Cir. 1989)].

Matthew Enter., Inc. v. Chrysler Grp. LLC, 2015 WL 8482256, at *3 (N.D. Cal. Dec. 10, 2015) (citations omitted) (denying motion to compel production of employees' personal email accounts and noting that the moving party had not identified any legal authority under which the employer could force its employees to turn over email from personal accounts).

         The Court acknowledges, however, that a company's officer or agent should not be able to avoid the rules of discovery by using personal email, which is in the custody and control of that officer or agent, for work purposes. See, e.g., Waymo LLC v. Uber Techs., Inc., 2017 WL 2972806, at *2 (N.D. Cal. July 12, 2017) (“Otto Trucking must produce responsive documents in the custody, control or possession of its officers . . . . It cannot hide responsive documents simply because these officers' work for Otto Trucking was done using their personal email accounts, especially since they are all current Otto Trucking officers. . . . The cases Otto Trucking does cite are all inapposite; none involve a corporation refusing to produce documents involving corporation business in the possession, custody or control of the corporation's officers. To accept Otto Trucking's argument would mean that it could not compel its current officers to produce Otto Trucking's own trade secrets to Otto Trucking merely because the officers conducted Otto Trucking business with their personal email accounts. Nonsense. Otto Trucking must produce responsive documents in the custody, control or possession of its officers and agents.”). Other than producing a single work-related email from Bruce Holte's personal account, however, ICTSI fails to show that the officers, agents, or members of the ILWU Entities use personal email for work correspondence more than a de minimus amount. To the contrary, the deposition testimony is that they do not. ICTSI's motion is denied.

         3. RFP 3: Redacted Meeting Minutes-GRANTED IN PART

         The ILWU Entities produced union meeting minutes that are heavily redacted. ICTSI moves to compel production of those minutes without redaction. ICTSI contends that the ILWU Entities stated that the redactions involve complaints against other employers and thus are irrelevant. ICTSI argues, however, that the ILWU Entities assert in this case that ICTSI was a “particularly terrible” employer that did not follow West Coast labor standards, and thus complaints against (or complimentary discussions about) other employers are relevant. The ILWU Entities now argue that producing unredacted versions of these minutes would violate the union members' First Amendment associational privilege.

         The Ninth Circuit has addressed First Amendment associational rights and discovery requests (in the context of a government defendant), describing how a court should analyze the claim as follows:

a claim of First Amendment privilege is subject to a two-part framework. The party asserting the privilege must demonstrate a prima facie showing of arguable first amendment infringement. This prima facie showing requires appellants to demonstrate that enforcement of the [discovery requests] will result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or ‘chilling' of, the members' associational rights. If appellants can make the necessary prima facie showing, the evidentiary burden will then shift to the government [to] demonstrate that the information sought through the [discovery] is rationally related to a compelling governmental interest [and] the ‘least restrictive means' of obtaining the desired information. More specifically, the second step of the analysis is meant to make discovery that impacts First Amendment associational rights available only after careful consideration of the need for such discovery, but not necessarily to preclude it. The question is therefore whether the party seeking the discovery has demonstrated an interest in obtaining the disclosures it seeks which is sufficient to justify the deterrent effect on the free exercise of [the] constitutionally protected right of association.
To implement this standard, we balance the burdens imposed on individuals and associations against the significance of the interest in disclosure, to determine whether the interest in disclosure outweighs the harm. This balancing may take into account, for example, the importance of the litigation; the centrality of the information sought to the issues in the case; the existence of less intrusive means of obtaining the information; and the substantiality of the First Amendment interests at stake. Importantly, the party seeking the discovery must show that the information sought is highly relevant to the claims or defenses in the litigation-a more demanding standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid unnecessary interference with protected activities, and the information must be otherwise unavailable.

Perry v. Schwarzenegger, 591 F.3d 1126, 1140-41 (9th Cir. 2009) (alterations in original) (alterations, quotation marks, and citations omitted).

         The ILWU Entities offer declarations of members and officers regarding the sensitive nature of information discussed at the meetings, including political activity, collective bargaining strategy, contract interpretation, complaints against members, and charitable contributions. The declarants also testify that disclosure of this information would have a chilling effect on the free flow of information at these meetings. The Court agrees, and also notes that ICTSI has not made a request for that type of information or explained the relevance of that information. ICTSI has requested complaints against or complimentary discussions about other employers as relevant to the ILWU Entities' assertions that ICTSI is a particularly poor employer. Thus, the Court considers only whether disclosure of that specific type of information gives rise to First Amendment associational concerns.

         ICTSI disputes that the ILWU Entities meet their burden of establishing a prima facie case regarding that specific information. ICTSI argues that the Protective Order in this case provides sufficient protection from disclosure to third parties, thereby mitigating any potential chilling effect of disclosure in this case. ICTSI furthers argues that it is no longer leasing any facilities at the Port and thus there is no risk of it retaliating against union members. The requested redacted information, however, does not relate to complaints about ICTSI, but complaints about other employers. The risk of retaliation and harassment from disclosure of that information thus would not be from ICTSI-the ILWU entities produced the complaints about ICTSI without redaction. The risk the Court must consider is whether disclosure to ICTSI of complaints about other employers would chill the associational conduct of the members of the ILWU Entities.

         The evidence offered by the ILWU Entities does not specifically discuss disclosure under a protective order to ICTSI of complaints or compliments about nonparty employers. Nor does common sense dictate that disclosure in this lawsuit of discussions regarding complaints or compliments about nonparty employers, which would be subject to a protective order, would chill associational rights. Disclosure in a manner that might risk exposure to those nonparty employers, who could subject the speakers of complaints to retaliation and harassment, may well chill associational rights. But disclosure in this lawsuit is not disclosure to those nonparty employers, and the risk of such disclosure is minimal because of the protective order. The declarations submitted by the ILWU Entities describe numerous topics discussed at meetings and ICTSI requests disclosure of only a small part-complains or compliments about nonparty employers. The disclosure of only a small part of the discussions at the meetings does not give rise to “other consequences which objectively suggest an impact on, or ‘chilling' of, the members' associational rights, ” such as discouraging the free flow of information at meetings. Perry, 591 F.3d at 1140.

         Moreover, although ICTSI disputes that the ILWU Entities meet their burden of making a prima facie showing that disclosure would have a chilling effect on associational rights, ICTSI proposes having the names of the speakers at the meetings designated as “attorney's eyes only” under the protective order, arguing that the name of the speaker is the most sensitive information. The Court finds that the entire discussion regarding other employers is sensitive, not just the name of the speaker. Accordingly, the entire discussion may be designated as “attorney's eyes only” under the protective order. ICTSI's motion on this topic thus is granted in part. Discussions regarding complaints or compliments about other employers must be produced unredacted. They may be designated as “attorney's eyes only” under the protective order. Any other redacted information may remain redacted.

         4. RFP 11: Jurisdictional Disputes at Other Ports-GRANTED

         ICTSI alleges that the slowdowns and stoppages at the Port's T6 was part of a larger strategy along the West Coast to monopolize work. Accordingly, in RFP No. 11, ICTSI requested documents from the ILWU Entities regarding claims for maintenance and repair work at other ports that led to jurisdictional disputes with other unions. ICTSI limited the request to documents dated from July 1, 2008, to the present. The ILWU Entities argue that these documents are irrelevant because what happened at other ports has nothing to do with T6 and any coastwide theory is “far-fetched” and without evidentiary support. The ILWU Entities also argue that production would be disproportionate and unduly burdensome because the Port only involves two percent of ILWU members. These arguments are without merit.

         Regarding relevance, at the discovery stage, documents need not be admissible to be discoverable. Fed.R.Civ.P. 26(b)(1). They need only be relevant to claims or defenses. Id. ICTSI cites to the deposition testimony of ILWU's President, who stated with respect to the two reefer jobs at the Port that if the union “let those jobs go” that “it would bleed up and down the whole entire West Coast, ” that “it would undermine the contract that I had bargained, ” and that the two Portland jobs “are symbolic, not just for two jobs, but for jobs up and down the coast.” ICTSI also argues that a West Coast strategy explains why the ILWU Entities were willing to let T6 shut down permanently over a dispute about two jobs, which otherwise makes no financial sense when one looks at T6 in a vacuum. ICTSI has met its burden to show relevancy.

         Regarding proportionality and the burden of production, the discovery request is narrowly-tailored and has nothing to do with the number of union members who worked at the Port as compared to the number of union members working at other ports along the West Coast. The discovery request relates only to a narrow category of information-the ILWU or its local unions' claims for maintenance and repair work that led to jurisdictional disputes with other unions. The request also is limited in scope to only documents after July 1, 2008. ICTSI's motion to compel production of documents in response to RFP 11 is granted.

         5. RFP 44-45: Slowdowns and Stoppages at Other Ports-GRANTED

         ICTSI also issued RFP Nos. 44 and 45, which request documents related to work stoppages or slowdowns by ILWU members or affiliated local unions at any West Coast container terminal between July 1, 2014, and the execution of the contract between the ILWU and the PMA on or about March 2, 2015. ICTSI argues these documents are relevant because the ILWU Entities have argued that their members' conduct at issue in this case was motivated solely by primary labor concerns and not efforts to obtain the disputed reefer jobs. ICTSI asserts that it is entitled to examine ILWU members' conduct and productivity coastwide during its negotiations with the PMA for the new bargaining agreement and compare that to the conduct and productivity in Portland to test the veracity of the ILWU Entities' assertions in this case. The ILWU Entities object that this request is disproportionate and unduly burdensome because work stoppages and slowdowns are some of the most common issues addressed by the union and the amount of union labor at the other ports is far greater than at the Port.

         The ILWU Entities provide no details regarding the purported undue burden, other than the general statistic regarding the size of the Port compared to all other West Coast terminals (two percent). That statistic provides no guidance, however, regarding the production burden relating to work stoppages and slowdowns at those terminals during the requested period. For example, were there work stoppages and slowdowns at every port on the West Coast or only one or two? Were there work stoppages and slowdowns all throughout the requested period or only for a few weeks? This type of information would have been more helpful in evaluating burden than the general fact that the Port represents only two percent of the labor force of the West Coast terminals. If there were only a few work stoppages and slowdowns at other West Coast terminals and there were many at T6, then that two percent of the labor force might represent 90 percent of West Coast work stoppages and slowdowns, and producing documents relating to the other ports would require only a minimal burden. Moreover, the document request has a narrow time frame-eight months. The Court finds that the ILWU Entities have not shown that this request is unduly burdensome or disproportionate. ICTSI's motion is granted with respect to this request.

         6. RFP 25-26: Communications with Carriers-GRANTED

          ICTSI moves to compel documents in response to RFP Nos. 25 and 26, which request communications by or among the ILWU Entities and T6 carriers from January 1, 2012, to the present. ICTSI states that it “knows” that the ILWU has failed to produce responsive documents in its possession because responsive emails have been produced by Hanjin, a T6 carrier. The ILWU Entities did not respond to this portion of ICTSI's motion.

         The fact that responsive email was in the possession of Hanjin at the time of production does not necessarily mean that it remains in the possession of any of the ILWU Entities, depending on their document retention policies and procedures. The Court notes, however, that the lawsuit in this case was filed on June 13, 2012 (six months after the earliest date requested in these RFPs), and thus a litigation hold should have been in place, at a minimum, by that date. Regardless, the Court orders that the ILWU Entities conduct a diligent and reasonable search and produce any responsive documents that are in their possession, custody, or control, or confirm in writing if no responsive documents exist.

         7. RFP 37: Leal Sundet's Journals-DENIED WITHOUT PREJUDICE

         ICTSI originally moved to compel production of Leal Sundet's journals, requested in RFP No. 37. The ILWU Entities responded that no such journals existed. ICTSI replied that one of its employees took a photo of Mr. Sundet with such a journal and that after seeing the photograph the ILWU Entities then claimed that Mr. Sundet destroyed his journals. ICTSI withdrew its motion to compel, but requested sanctions. The ILWU Entities denied that Mr. Sundet destroyed any journals, instead contending that if he took any notes he destroyed those notes.

         Because ICTSI has not filed a proper motion for sanctions, the Court denies ICTSI's informal request for sanctions raised in ICTSI's response to the ILWU Entities' motion for a protective order. This denial is without prejudice to ICTSI's ability to bring a motion for sanctions under Rule 37 of the Federal Rules of Civil Procedure, if ICTSI believes that the relevant standard is met under the circumstances of Mr. Sundet's purported destruction of evidence.

         8. RFP 38-42: Alleged Violations of the CBA, Past Practice, or Working Conditions-DENIED

         ICTSI issued RFP Nos. 38-42, which request documents relating to any action or failure to act by ICTSI that the ILWU Entities contend violated past practices, violated the parties' collective bargaining agreement, relate to working conditions, or interfered with productivity or efficiency at T6. The ILWU Entities produced only union complaints in response. ICTSI requested that the ILWU Entities either confirm that all alleged actions or failures by ICTSI are contained in the union complaints, or identify by Bates number other responsive documents. The ILWU Entities did not respond to this request.

         It is unclear what ICTSI is asking the Court to compel. The ILWU Entities assert that they have provided all nonprivileged, responsive documents. The Court understands this to mean that there are no emails, meeting minutes, internal memoranda, or other documents discussing alleged misconduct or failure to act by ICTSI that have not been produced. To the extent any such documents exist, they must be produced. If the ILWU Entities attempt to use in the future any responsive documents that were not produced, they will be prohibited from doing so.

         Regarding ICTSI's apparent request that the ILWU Entities be estopped from arguing any conduct or failure to act by ICTSI not contained in the union complaints, the Court declines to issue such an order. An ILWU member may have believed that ICTSI acted or failed to act in a relevant manner without documenting it in a way that is now subject to document production. That is a topic to be explored through other means of discovery, such as interrogatories or at deposition, including depositions of the ILWU Entities under Rule 30(b)(6) of the Federal Rules of Civil Procedure, if the question is submitted with appropriate specificity. ICTSI's motion is denied.

         9. RFP 4, 13: Telephone Records and Calendars-DENIED

          ICTSI moves to compel production of cellular telephone records, billing records, and calendars and other documents showing the schedules of certain agents and representatives of ILWU. The ILWU Entities object that ICTSI is requesting the personal cell records and calendar information, which are not within the control of the ILWU Entities. They also object on confidentiality grounds. The parties have resolved this dispute relating to text messages, but not the other aspects of this request.

         This request suffers from the same deficiency as ICTSI's request that the personal email accounts of ILWU members be searched for responsive documents. ICTSI has failed to show either that the ILWU Entities have possession, custody, or control of the requested cell records or calendars, or that the members use their personal cell phones or calendars for more than de minimis work purposes. ICTSI's motion is denied.

         10. RFP 6, 8: ILWU Member Discipline, Expulsion, Resignation, Retirement- DENIED

         ICTSI moves to compel production of records of all fines, discipline, expulsion, and threats of the same, plus retirements and resignations, for ILWU members assigned to work at T6 during the relevant period. ICTSI argues that the disciplinary information is relevant because the ILWU Entities' failure to discipline or expel ILWU members who intentionally engaged in illegal slowdowns is relevant to show the ILWU Entities' failure to take steps to stop the slowdown after the Court issued its injunction. ICTSI ...


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