UNOPPOSED MOTION AND [REDACTED/] ORDER GRANTING LETTERS ROGATORY RE: TELEPHONE RECORDS TO ROGERS COMMUNICATIONS CANADA INC.

MARSHA J. PECHMAN, District Judge.

I. UNOPPOSED MOTION

Pursuant to Federal Rule of Civil Procedure 28(b)(3) and 28 U.S.C. 1781(b)(2), undersigned Plaintiffs ("Plaintiffs") move this Court for an Order issuing the attached Letters Rogatory to the appropriate authorities in British Columbia, Canada for the telephone records of certain executives and competitors of Defendants in this case. Plaintiffs seek telephone records of telephone calls made to and from executives and competitors of Defendants in Canada. Defendants have been consulted and do not oppose this motion.

Courts have the inherent authority to issue Letters Rogatory and Letters of Request to foreign nations, and may request that the 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 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. 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, Plaintiffs seek to obtain telephone records to provide further evidence to prove the allegations in their Second Amended Complaint, namely that the alleged co-conspirators furthered the conspiracy to coordinate price fixing for cedar shakes and shingles over the phone. For example, Plaintiffs allege that Mr. Dziedzic, G & R's Sales Manager, spoke on the phone with some competitors, either Brooke Meeker of Anbrook Industries or Curtis Walker of Waldun Forest Products, who asked him to raise G & R's shake and shingle prices. Pl. Liebo's Second Amended Complaint, ¶ 201.

Plaintiffs further allege Defendants Waldun and CSSB "pressure[d] Teal to raise its prices via phone conversations." Id. at ¶ 218. Plaintiffs allege that, "[o]n multiple occasions during the last 10 years, Curtis Walker made calls to Pacific Cedar's Vice President Kathy Klassen, in which he told her that her company's cedar shake and shingle prices were too low and urged her to raise those prices to levels recommended by Mr. Walker." Id. at ¶ 219. Plaintiffs allege that "[o]n multiple occasions ... Curtis Walker made calls to Bill Maitland of Goat Lake Cedar in which he asked Mr. Maitland to raise his company's cedar shake and shingle prices to levels recommended by Mr. Walker." Id. at ¶ 220. Plaintiffs seek phone records of these and other calls to prove their case.

Moreover, the issuing of a Letter Rogatory will not be overly burdensome. Plaintiffs seek telephone records of only 56 telephone numbers from January 1, 2011 to the date of collection. These documents are regularly produced by Rogers Communications Canada Inc., as evidenced by the fact that they have a policy for producing telephone records, i.e., one has to submit a filed Court Order in order to obtain copies of records.

Further, Plaintiffs have volunteered to pay reasonable fees and judicial costs associated with the requested production of telephone records. Plaintiffs have been informed by Rogers Communications Canada Inc. that they will produce telephone records only pursuant to a filed court Order. Thus, it is necessary to compel production of telephone records through a Letter Rogatory.

Defendants do not oppose the issuance of Letters Rogatory compelling the phone records of the executives of defendants in this case listed in the attached Exhibit A. Defendants' non-opposition is made without prejudice to its right to oppose the introduction of any documents or information obtained from Rogers Communications Canada Inc. 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 Plaintiffs copies of all documents obtained from Rogers Communications Canada Inc. pursuant to the Letters Rogatory.

II. [REDACTED/] ORDER

Upon consideration of the pleadings, declarations, and orders filed to date in this case, the Court finds and orders as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

The Court, having reviewed the submitted material and relevant authority, and therefore being fully informed, GRANTS Plaintiffs' Unopposed Motion and Proposed Order For Letters Rogatory Re Telephone Records and will execute the Letters Rogatory without delay.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

I. INTRODUCTION

The United States District Court for the Western District of Washington presents its compliments to the Supreme Court of British Columbia, and requests international judicial assistance to obtain evidence to be used in a civil proceeding before this Court in the above-captioned matter. The evidence may be used at the trial on this matter, presently scheduled for October 26, 2021 in Seattle, WA, USA. Discovery is now in progress, with a fact discovery deadline of September 24, 2020.

The United States District Court for the Western District of Washington is the competent court of law and equity over this matter, with power to compel the attendance of witnesses, and has jurisdiction over this matter under 28 U.S.C. § 1331 and 1337. This Court is authorized to request depositions and the production of documents abroad by Letters Rogatory by 28 U.S.C. § 1781(b)(2). This Court may grant reciprocal assistance by the enforcement of Letters Rogatory of the Canadian Courts through its authority under 28 U.S.C. § 1782.

II. ASSISTANCE REQUESTED

This Court has reviewed the Unopposed Motion and Proposed Order for issuance of Letters Rogatory filed by Plaintiffs and requests the assistance described herein as necessary in the interests of justice.

A. Documents to Produce

The Court requests that the appropriate judicial authority of Canada compel Rogers Communications Canada Inc. to produce the following phone records for the phone numbers contained in Exhibit A to this Request for International Judicial Assistance:

III. CLASS PLAINTIFFS' SUMMARY OF THE ACTION

Plaintiffs' view of this case is as follows. The Court does not adopt this statement as findings of fact or law. Based on the Plaintiffs' representations, this Court believes that justice cannot be served between the parties in the above-captioned matter unless the evidence requested herein is made available by the Supreme Court of British Columbia.

Class Plaintiffs bring these actions on behalf of themselves individually and on behalf of three classes consisting of all similarly situated individuals and entities. The three classes are the End User Plaintiffs, the Indirect Purchasers for Resale, and the Direct Purchasers.

Class Plaintiffs allege that Defendants and their co-conspirators entered into an agreement to artificially fix, raise, maintain, or stabilize the price of cedar shakes and shingles ("CSS") sold in the United States in violation of state and federal law. According to Class Plaintiffs, this illegal agreement was implemented and enforced through direct competitor-to-competitor communications and through the Cedar Shake and Shingle Bureau ("CSSB"). As to the latter, Class Plaintiffs allege that Defendants Anbrook, Waldun, and G&R (collectively, the "Manufacturer Defendants") worked with and through Defendant CSSB to implement and enforce their price fixing conspiracy in at least three ways: first, by changing CSSB's rules to ensure their control of the trade association; second, by agreeing to expel price discounters (i.e., would be competitors) from the CSSB; and third, by adopting and strengthening the so-called "All or Nothing Rule," which prohibited CSSB members from producing or selling lower-priced CSS.

Defendants believe that Class Plaintiffs' claims are without merit, and will vigorously oppose the merits of their claims. Nevertheless, Defendants do not oppose Class Plaintiffs' request for telephone records, and reserve all rights to object to the introduction of evidence obtained by Plaintiffs through these Letters Rogatory under the Federal Rules of Evidence and all other applicable rules available in the United States District Court for the Western District of Washington.

IV. RECIPROCITY

In the furtherance of justice and by the proper and usual process of this Court, the United States District Court for the Western District of Washington will provide similar cooperation and assistance to the Supreme Court of British Columbia in the event that the Supreme Court of British Columbia requests similar assistance.

V. REIMBURSEMENT FOR COSTS

Plaintiffs, the parties requesting these documents, have assured this Court that they will pay the usual production costs, if any are required, for the time spent by Rogers Communications Canada Inc. to produce these records in accordance with your civil rules of procedure. Plaintiffs request to be contacted by the telephone company if the service fees will exceed $1,000 USD. Plaintiffs has further assured this Court that they will reimburse the Supreme Court of British Columbia for the costs incurred in executing the Letter Rogatory. Plaintiffs request to be contacted if the amount to execute this Letter Rogatory will exceed $1,000 USD.

VI. CONCLUSION

This Court therefore respectfully requests that, in the interests of justice, you compel by your proper and usual process the above-listed third party to produce documents.

WITNESS, Marsha J. Pechman, United States District Court for the Western District of Washington, this ___ 9th ___ day of December, 2019.