Am. Small Bus. League v. DOD, No. 18-01979, 2019 WL 4416613 (N.D. Cal. Sept. 15, 2019) (Alsup, J.)

Am. Small Bus. League v. DOD, No. 18-01979, 2019 WL 4416613 (N.D. Cal. Sept. 15, 2019) (Alsup, J.)

Re:  Request for records concerning Lockheed Martin, Sikorsky Aircraft Corporation, and GE Aviation's involvement with the Department of Defense's Comprehensive Subcontracting Plan Test Program

Disposition:  Granting in part plaintiff's motion for discovery and allowing plaintiff to take up to three depositions

• Exemption 4 & Litigation Considerations, Discovery:  The court grants plaintiff's motion for discovery in part and allows plaintiff to take up to three depositions.  The court relates that, "[i]n light of Food Marketing, defendants again move for summary judgment on the Exemption 4 issue, and plaintiff seeks discovery under Rule 56(d)."  "Rule 56(d) (formerly Rule 56(f)) provides that '[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . allow time to obtain affidavits or declarations or to take discovery.'"  The court finds that, "[r]elevant to defendants' motion for summary judgment, defendants must show, at a minimum, that the relevant companies customarily and actually treated as private all of the information at issue to prevail on the Exemption 4 issue."  The court relates that, "[i]n support, defendants filed numerous declarations by various declarants who testified that the relevant companies customarily and actually kept said information private and disclosed the information to the government under the assurances of privacy."  "Plaintiff seeks to depose those declarants . . . ."  "As plaintiffs point out, [the intervenor's] selective disclosure of supposed confidential information (i.e., supplier names, performance to goals, strategic supplier partnerships, success stories of supplier contract awards) undercuts its vague contention that the company 'customarily' treats said information as confidential . . . ."  "The trustworthiness of the [intervenor's] declaration is further chipped away by her statement in the next breath that [the intervenor] customarily keeps purchase orders, including supplier names (among other things), private 'because it could be used by competitors to target and award work to [the intervenor's] suppliers, thereby making them unavailable, or less available, to work on' its contracts . . . ."  "In other words, according to [the intervenor], [the intervenor] simultaneously keeps private its supplier names to protect against poaching and freely discloses its 'exemplary' suppliers to attract more suppliers."  "These explanations do not square."  "Vague statements and discrepancies such as these sufficiently demonstrate that certain limited discovery is warranted under Rule 56(d)."