United States District Court, W.D. Washington, Seattle
IN RE CEDAR SHAKE & SHINGLE ANTITRUST LITIGATION This Document Relates to ALL CLASS ACTIONS
Christopher J. Cormier BURNS CHAREST LLP, Warren T. Burns
Spencer M. Cox William B. Thompson BURNS CHAREST LLP, Lydia
A. Wright BURNS CHAREST LLP, Keith Dubanevich Keil M. Mueller
Lydia Anderson-Dana STOLL BERNE Co-Lead Counsel for the
Proposed Reseller Plaintiff Classes
Stephens, WSBA #11984 Kaleigh N. Powell, WSBA #52684 Jason T.
Dennett, WSBA #30686 Chase C. Alvord, WSBA #26080 TOUSLEY
BRAIN STEPHENS PLLC, Paul Gallagher (admitted pro hac vice)
James J. Pizzirusso (admitted pro hac vice) Nathaniel C.
Giddings (admitted pro hac vice) HAUSFELD LLP, Bonny Sweeney
(admitted pro hac vice) Samantha Stein (admitted pro hac
vice) HAUSFELD LLP, Co-Lead Counsel for the Proposed Direct
Gregory J. Hollon, WSBA #26311 McNAUL EBEL NAWROT &
HELGREN PLLC Liaison Counsel for the Proposed Reseller
D. Lahman (admitted pro hac vice) Roger L. Ediger (admitted
pro hac vice) MITCHELL DeCLERCK
Griffin, WSBA #1629 Raymond J. Farrow, WSBA #31782 Karin B.
Swope, WSBA #24015 KELLER ROHRBACK LLP, Brian D. Clark W.
Joseph Bruckner Elizabeth R. Odette Arielle S. Wagner
LOCKRIDGE GRINDAL NAUEN PLLP Co-Lead Counsel for the Proposed
End User Plaintiff Classes
UNOPPOSED MOTION AND ORDER GRANTING LETTER ROGATORY
RE: DOCUMENT SUBPOENA TO INTERTEK TESTING SERVICES, NA
J. Pechman, United States Senior District Judge
to Federal Rule of Civil Procedure 28(b)(3) and 28 U.S.C.
§ 1781(b)(2), Class Plaintiffs move this Court for an
Order issuing the attached Letter Rogatory to the appropriate
authorities in British Columbia, Canada for documents from
Intertek Testing Services, NA Ltd. (“Intertek”),
the third-party inspector with which Defendant Cedar Shake
and Shingle Bureau (“CSSB”) has an inspection
services agreement. Class Plaintiffs seek documents as
described in the attached Exhibit A.
have the inherent authority to issue Letters Rogatory and
Letters of Request to Foreign nations, and may request that a
foreign nation order a witness to provide testimony that will
aid in the resolution of a matter pending in the United
States. See United States v. Reagan, 453 F.2d 165,
172 (6th Cir. 1971); United States v. Staples, 256
F.2d 290, 292 (9th Cir. 1958). In addition, federal statutes
provide for the issuance of Letters Rogatory by a federal
court. Under Federal Rule of Civil Procedure 28(b)(1), a
deposition may be taken in a foreign country pursuant to the
issuance of a Letter Rogatory. Under 28 U.S.C. §
1781(b)(2), a tribunal in the United States may directly
transmit a Letter Rogatory or request to a foreign or
international tribunal. The British Columbia Evidence Act
also provides that a court outside of Canada may serve
Letters Rogatory upon a Canadian court. See British
Columbia Evidence Act, R.S.B.C. 1996, C. 124 § 53.
applications for the issuance of Letters Rogatory, the Court
will not ordinarily weigh the evidence to be elicited, nor
will the Court determine whether the witnesses will be able
to provide the anticipated testimony. B&L Drilling
Electronics v. Totco, 87 F.R.D. 543, 545 (W.D. Okla.
1978). Rather, “good reason” must be shown for
denying the issuance of a Letter Rogatory. Zassenhaus v.
Evening Star Newspaper Co., 404 F.2d 1361, 1364 (D.C.
Class Plaintiffs have been informed by Intertek that it will
produce documents as sought in the attached Exhibit A only in
response to a filed court Order. Thus, it is necessary to
compel production of documents through a Letter Rogatory.
Plaintiffs seek documents from Defendant CSSB's sole
inspection entity to provide further evidence to prove the
allegations in their Second Amended Complaints. For example,
Class Plaintiffs allege that Defendants have (and have
wielded) the power to prevent the sale of cedar shakes and
shingles (“CSS”) made by CSSB member
(“Member”) mills by “red tagging”
product-preventing its sale-until the product is re-graded or
re-inspected by CSSB's auditor, Clay Walker, or Intertek
acting under Clay Walker's supervision. See,
e.g., Direct Purchaser Pls.' Second Am. Class Action
Compl. (“DPP SAC”), ECF No. 53 ¶ 182. Class
Plaintiffs thus seek documents related to, among other
things, Intertek's role as the inspection agency for CSSB
Members and any documents related to Intertek's
“decision to ‘red tag' any CSSB
Member.” See Ex. A. They also seek documents
in Intertek's possession, custody, or control relating to
“the probation, potential probation, termination or
potential termination of a CSSB Member or Members from CSSB,
” and the “competitive conditions” for CSS.
Id. Class Plaintiffs have volunteered to pay
reasonable fees and judicial costs associated with the
requested production of records. The Court does not adopt
these allegations as findings of fact or law.
do not oppose the issuance of a Letter Rogatory compelling
the documents identified in Exhibit A to the attached Letter
Rogatory. Defendants' non-opposition is made without
prejudice to its right to oppose the introduction of any
documents or information obtained from Intertek based on any
objection allowed by the Federal Rules of Civil Procedure or
other applicable law. Defendants expressly reserve all
evidentiary and trial objections. Defendants further reserve
the right to obtain from Class Plaintiffs copies of all
documents obtained from Intertek pursuant to the Letter
Rogatory. Finally, Defendants contend that CSSB's
agreement with Intertek does not prohibit Intertek from
providing inspection services to manufacturers of CSS that
are not Members of CSSB.