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In re Cedar Shake & Shingle Antitrust Litigation

United States District Court, W.D. Washington, Seattle

January 2, 2020

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

          Kim D. 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 Purchaser Class

          Gregory J. Hollon, WSBA #26311 McNAUL EBEL NAWROT & HELGREN PLLC Liaison Counsel for the Proposed Reseller Plaintiff Classes

          Larry D. Lahman (admitted pro hac vice) Roger L. Ediger (admitted pro hac vice) MITCHELL DeCLERCK

          Mark 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 LTD.

          Marsha J. Pechman, United States Senior District Judge

         I. UNOPPOSED MOTION

         Pursuant 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.

         Courts 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.

         On 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. Cir. 1968).

         Here, 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.

         Class 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.

         Defendants 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.

         II. ...


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