UNOPPOSED MOTION AND ORDER GRANTING LETTER ROGATORY RE: DOCUMENT SUBPOENA TO INTERTEK TESTING SERVICES, NA LTD.

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), 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. 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 upon consideration of the pleadings, declarations, and orders filed to date in this case, and therefore being fully informed, GRANTS Class Plaintiffs' Unopposed Motion for Letter Rogatory Re: Document Subpoena to Intertek Testing Services, NA Ltd., and will execute the Letter Rogatory without delay.

IT IS SO ORDERED.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTER ROGATORY RE: DOCUMENT SUBPOENA)

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, Washington, 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 it 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 under 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 Class Plaintiffs' "Unopposed Motion and Proposed Order Granting Letter Rogatory re: Document Subpoena to Intertek Testing Services, NA Ltd.," ("Intertek") and it requests the assistance described herein as necessary in the interests of justice and for the preservation of testimony at trial.

Specifically, this Court requests that the appropriate judicial authority of Canada compel Intertek to produce documents as described in Exhibit A to this Request for International Judicial Assistance.

III. CLASS PLAINTIFFS' SUMMARY OF THE ACTION

Class Plaintiffs' view of this case is as follows. The Court does not adopt this statement as findings of fact or law. Based solely on Class 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 Users, 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 CSSB; and third, by adopting and strengthening the so-called "All or Nothing Rule," which prohibits CSSB Members from producing lower-priced, off-grade CSS.

Defendants deny Class Plaintiffs' allegations and believe that Class Plaintiffs' claims are without merit. Defendants oppose and will vigorously defend their claims. Although Defendants do not oppose Class Plaintiffs' request for the documents sought through this Request for International Judicial Assistance, they reserve all rights to object under the Federal Rules of Evidence and all other applicable rules and laws to the introduction and admissibility of evidence obtained by Class Plaintiffs through this request.

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

Class 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 Intertek to produce these records in accordance with your civil rules of procedure. Class Plaintiffs request to be contacted by Intertek if the service fees will exceed $1,000 USD. Class Plaintiffs have further assured this Court that they will reimburse the Supreme Court of British Columbia for the costs incurred in executing the Letter Rogatory. Class 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 2nd day of January, 2020.