Elizabeth Lofts Condos. Owners' Ass'n v. Victaulic Co.

428 P.3d 952, 293 Or. App. 572
CourtCourt of Appeals of Oregon
DecidedAugust 29, 2018
DocketA162442
StatusPublished
Cited by6 cases

This text of 428 P.3d 952 (Elizabeth Lofts Condos. Owners' Ass'n v. Victaulic Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elizabeth Lofts Condos. Owners' Ass'n v. Victaulic Co., 428 P.3d 952, 293 Or. App. 572 (Or. Ct. App. 2018).

Opinion

JAMES, J.

*954*574Appellant appeals an order denying its motion for an order to show cause why respondents should not be found in contempt for violating a protective order and nondisclosure agreement created in an earlier litigation. ORS 33.015(2) ; ORS 33.055. Appellant argues that its motion and supporting affidavits sufficiently established a prima facie case of remedial contempt and, thus, the trial court erred when it denied the motion. Respondents contend that the trial court correctly denied the motion because the record did not sufficiently establish that respondents willfully violated the underlying protective order and nondisclosure agreement. We agree with appellant and, accordingly, reverse and remand.

The question on appeal is whether appellant's show of proof was sufficient to establish a prima facie case of contempt. In a contempt proceeding, "[w]e review to determine whether the record contains evidence from which a rational trier of fact, drawing all reasonable inferences in the light most favorable to the [movant], could find all elements of contempt." State v. Beleke , 287 Or. App. 417, 420, 403 P.3d 481, rev. den. , 362 Or. 208, 407 P.3d 814 (2017) (internal quotation marks omitted). Therefore, "[t]he question is not whether we believe that the [respondents were] in contempt, but whether the evidence is sufficient for the trier of fact to so find." Id. at 420-21, 403 P.3d 481. As such, we state the facts in the light most favorable to the movant. See Handy v. Lane County , 360 Or. 605, 608 n. 1, 385 P.3d 1016 (2016) (stating the facts in the light most favorable to the plaintiff where the question on review was whether the plaintiff's evidence was sufficient to establish a prima facie case).

Respondents are a group of lawyers and law firms that represented Elizabeth Lofts Condominiums Owners' Association in a products liability action against appellant, Victaulic Company. As part of that litigation ("Elizabeth Lofts "), the parties agreed to, and the court approved, a protective order and nondisclosure agreement to keep closely held trade secrets, patents, and testing material confidential as it was shared between appellant and respondents during discovery. The protective order directed that "qualified persons"-including experts used by the parties-were subject *575to the protective order and nondisclosure agreement. As part of the order, respondents were to provide a copy of the protective order and "execute" a nondisclosure agreement with their experts before confidential documents and information were received. Ultimately, appellant and the condominium association settled the Elizabeth Lofts case and the court dismissed the matter. However, the stipulated protective order and nondisclosure agreement was still binding.

The events giving rise to this contempt proceeding came years later. During a deposition in a different products liability case, an expert that respondents had retained in the Elizabeth Lofts action disclosed appellant's confidential documents and information. The documents and information disclosed by that expert were Bates stamped with "Confidential" and "VIC_LIZ." One of the attorneys in that later litigation alerted appellant's counsel to the disclosure.

Appellant's counsel reviewed the disclosed documents and information and determined that the material was from the Elizabeth Lofts case and was protected by the protective order and nondisclosure agreement. Soon after the disclosure, appellant's counsel and respondents exchanged numerous letters and emails in an attempt to claw back and resolve the expert's disclosure of Victaulic's confidential documents and information. Appellant's counsel repeatedly requested a copy of the nondisclosure agreement executed by the expert retained by respondents. No executed nondisclosure agreement with the expert in the Elizabeth Lofts case was ever produced by any respondent in response to appellant's requests. Rather, one of the respondents, the law firm Ball Janik LLP, produced an old email from a former Ball Janik attorney to the expert. In the email, the attorney wrote:

"This is just a reminder that the documents you reviewed yesterday are confidential *955and subject to a protective order. A copy of the protective order is attached for your file. Victaulic is taking this protective order very seriously and has been adamant regarding the confidentiality of the documents they produced.
"Please confirm you have reviewed it and agree to be bound by it. Yesterday you indicated you understood the *576documents were confidential and not to be discussed, or disclosed with anyone outside the Elizabeth Lofts litigation."

That email was the only evidence Ball Janik produced for appellant regarding the expert, the protective order and nondisclosure agreement, and the Elizabeth Lofts case. Other respondents, lawyer Michelle McClure and the law firm Landye Bennett Blumstein LLP, produced nondisclosure agreements signed by that expert in other products liability cases between Victaulic and different plaintiffs. Landye Bennett Blumstein denied releasing any confidential documents to that expert in the Elizabeth Lofts case.

Appellant subsequently moved for an order to show cause regarding contempt for breach of the protective order and nondisclosure agreement: Appellant requested respondents-Phillip Joseph, Daniel Webert, and Ball Janik; Michelle McClure and Landye Bennett Blumstein-to appear and show cause as to violations of the protective order that occurred when their expert produced confidential documents to parties during a deposition in a separate case.

Following appellant's amended motion, the trial court issued a letter to the parties. The trial court wrote, in relevant part:

" * * * [D]espite this Court's routine consideration of such motions ex parte

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Cite This Page — Counsel Stack

Bluebook (online)
428 P.3d 952, 293 Or. App. 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elizabeth-lofts-condos-owners-assn-v-victaulic-co-orctapp-2018.