M L K B. C KENNETH NABITY KERR & WAGSTAFFE...

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Case No. 3:15-cv-02356-JCS PL.’S OPP’N TO MOTION TO EXCLUDE PROTECTED MATERIAL

MICHAEL VON LOEWENFELDT (178665) KEVIN B. CLUNE (248681) KENNETH NABITY (287927) KERR & WAGSTAFFE LLP 101 Mission Street, 18th Floor San Francisco, CA 94105-1727 Telephone: (415) 371-8500 Fax: (415) 371-0500 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Plaintiff SANFORD WADLER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SANFORD S. WADLER, an individual,

Plaintiff,

v. BIO-RAD LABORATORIES, INC., a Delaware Corporation; NORMAN SCHWARTZ; LOUIS DRAPEAU; ALICE N. SCHWARTZ; ALBERT J. HILLMAN; DEBORAH J. NEFF,

Defendants.

Case No. 3:15-cv-02356-JCS

REDACTED VERSION OF PLAINTIFF SANFORD S. WADLER’S OPPOSITION TO DEFENDANTS’ MOTION TO EXCLUDE PROTECTED INFORMATION FROM THE TRIAL OF THIS ACTION

DATE: December 15, 2016 TIME: 10:30 a.m. DEPT: Courtroom G, 15th Floor JUDGE: Hon. Joseph C. Spero

TRIAL: January 9, 2017

Case 3:15-cv-02356-JCS Document 101 Filed 11/10/16 of 26

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i Case No. 3:15-cv-02356-JCS PL.’S OPP’N TO MOTION TO EXCLUDE PROTECTED MATERIAL

TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................ 1

II. FACTUAL BACKGROUND ........................................................................................... 2

III. PROCEDURAL HISTORY .............................................................................................. 4

A. Bio-Rad Discloses Privileged Information To The SEC, DOJ, And Department Of Labor ............................................................................................ 4

B. Bio-Rad Litigates This Case Publicly ................................................................... 5

C. The FRE 502 Order ............................................................................................... 6

D. Defendants Confirm That They Are Not Moving For Summary Judgment ......... 7

E. Bio-Rad Publicly Files Expert Reports In Support Of Its Motion To Strike ........ 7

F. Bio-Rad Identifies Numerous Witnesses It Now Claims May Not Be Questioned ............................................................................................................ 7

IV. ANALYSIS ....................................................................................................................... 8

A. Bio-Rad Failed To Raise What Is Effectively A Dispositive Motion In A Timely Manner ...................................................................................................... 8

B. The Privilege Issues Here Are Governed By Federal Law ................................... 9

C. Bio-Rad Has Waived Privilege or Confidentiality With Respect To All Subject Matters Relevant To Mr. Wadler’s Claims And Bio-Rad’s Defenses .............................................................................................................. 12

1. Privilege and confidentiality are waived by either disclosing confidential subjects or placing them at issue .........................................12

2. Bio-Rad ignores its burden of showing non-waiver ...............................14

3. Bio-Rad’s disclosures to the SEC, DOJ, and Department of Labor waived its privilege before this case was even filed ...............................15

4. Bio-Rad’s actions in this case further waived any remaining confidentiality in these matters ...............................................................16

D. If any Confidential Material Remains, the Court Can Address that through Sealing or Similar Orders While Allowing Plaintiff to Proceed with his Claims ................................................................................................................. 19


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ii Case No. 3:15-cv-02356-JCS PL.’S OPP’N TO MOTION TO EXCLUDE PROTECTED MATERIAL

E. In No event Should Plaintiff be Required to Provide a “Question-by-Question” Recitation of His Entire Case Before Trial ........................................ 19

V. CONCLUSION ............................................................................................................... 21


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iii Case No. 3:15-cv-02356-JCS PL.’S OPP’N TO MOTION TO EXCLUDE PROTECTED MATERIAL

TABLE OF AUTHORITIES

Page

Cases

Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234 (N.D. Cal. 2015) ................................................................................... 14

Balla v. Gambro, Inc., 145 Ill.2d 492 (1991) ............................................................................................... 10, 11

Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) ......................................................................................... 12

Cave Consulting Grp., Inc. v. OptumInsight, Inc., 2016 WL 6216696 (N.D. Cal. Oct. 25, 2016) ........................................................... 12, 14

Doe ex rel. Doe v. State of Hawaii Dep't of Educ., 351 F. Supp. 2d 998 (D. Haw. 2004) ............................................................................... 9

Fox v. California Sierra Financial Services, 120 F.R.D. 520 (N.D. Cal. 1988) ................................................................................... 17

General Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164 (1994) ............................................................................................. 10, 19

Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322 (9th Cir. 1995) ......................................................................................... 13

IGT v. All. Gaming Corp., 2006 WL 8071393 (D. Nev. Sept. 28, 2006) ........................................................... 13, 16

In re Oracle Sec. Litig., 2005 WL 6768164 (N.D. Cal. Aug. 5, 2005) ................................................................ 12

In re Pac. Pictures Corp., 679 F.3d 1121 (9th Cir. 2012) ....................................................................................... 12

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) ........................................................................................... 9

Jordan v. Sprint, 2009 WL 3165850 (Dep’t of Labor, Admin. Review Bd. Sept. 30, 2009) .................... 10

McMorgan & Co. v. First California Mortg. Co., 931 F. Supp. 703 (N.D. Cal. 1996) ................................................................................ 13

Shared Med. Res., LLC V. Histologics, LLC, 2012 WL 5570213 (C.D. Cal. Nov. 14, 2012) ............................................................... 14

Siedle v. Putnam Investments, Inc., 147 F.3d 7 (1st Cir. 1998) ......................................................................................... 11, 17


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iv Case No. 3:15-cv-02356-JCS PL.’S OPP’N TO MOTION TO EXCLUDE PROTECTED MATERIAL

Tennenbaum v. Deloitte & Touche, 77 F.3d 337 (9th Cir. 1996) ........................................................................................... 13

Van Asdale v. Int'l Game Tech., 577 F.3d 989 (9th Cir. 2009) ................................................................................... 10, 13

Volterra Semiconductor Corp. v. Primarion, Inc., 2013 WL 1366037 (N.D. Cal. Apr. 3, 2013) ................................................................. 13

Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18 (9th Cir.1981) ............................................................................................ 14

Wilcox v. Arpaio, 753 F.3d 872 (9th Cir. 2014) ........................................................................................... 9

Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005) ......................................................................................... 10

Rules

FED. R. CIV. P. 16 .......................................................................................................................... 9

FED. R. EVID. 501 .......................................................................................................................... 9

FED. R. EVID. 502 ........................................................................................................................ 14

Regulations

SEC Final Rule: Implementation of Standards of Professional Conduct for Attorneys, 68 Fed. Reg. 6296-01, 2003 WL 247093 (Feb. 6, 2003) ......................................... 11, 12


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1 Case No. 3:15-cv-02356-JCS PL.’S OPP’N TO MOTION TO EXCLUDE PROTECTED MATERIAL

I. INTRODUCTION

On the eve of trial, Bio-Rad Laboratories, Inc. and its Board of Directors (collectively

“Bio-Rad”) have filed an astonishing and unprecedented motion seeking essentially to gag

Plaintiff Sanford Wadler, to prevent him from testifying about anything relevant to this case, and

to exclude large categories of undefined evidence. Ignoring this Court’s admonition that any

motion to exclude must specifically reference the particular evidence at issue, Bio-Rad asks the

Court to force the plaintiff to preview his entire case, question-by-question, in writing before trial

so that Bio-Rad can attack it (while Bio-Rad remains able to hold its cards to its vest). No law

supports such a fundamentally unbalanced and unfair approach to a trial. The Court should deny

Bio-Rad’s motion for at least three reasons:

First, Bio-Rad’s motion is effectively a dispositive one, but is brought in violation of this

Court’s prior case management orders. Bio-Rad could have made all of the arguments it now

makes at the outset of its case. Its change of counsel provides no basis for revisiting its prior

choice not to make these arguments in a timely fashion.

Second, federal privilege law, which Bio-Rad ignores in its motion, controls in this case

and does not allow Bio-Rad to hide behind the attorney-client privilege after terminating its

general counsel for whistleblowing. Bio-Rad’s arguments, if accepted, would immunize

companies from the very retaliation that federal law prohibits.

Third, and perhaps most importantly, Bio-Rad’s insistence that its “secrets” must be

protected is sharply at odds with its conduct throughout this case. Even before the case was

filed, Bio-Rad disclosed the core issues and positions to the federal government in adversary

proceedings. Bio-Rad then permitted the complaint to be publicly filed, repeatedly argued its

case in public filings, and even publicly filed detailed expert reports describing the underlying

events which Bio-Rad now claims are “inextricably intertwined with Bio-Rad’s privileged and

confidential information.” Bio-Rad could have chosen to say nothing, urge confidentiality, and

conduct all proceedings under seal. Instead it chose to publicly demean Mr. Wadler’s work and

reveal its view of the underlying events. It cannot now suddenly insist that the case must be

shielded from public view. Bio-Rad’s motion should thus be denied.


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II. FACTUAL BACKGROUND

Sanford Wadler was Bio-Rad’s general counsel for over 24 years. (Dkt. No. 1 at ¶ 2.)

On December 20, 2012, Bio-Rad’s CEO, Norman Schwartz gave Mr. Wadler a written

performance evaluation. (Clune Decl. Ex. A.) In that evaluation, Mr. Schwartz gave Mr. Wadler

his highest performance marks he ever received at the company. Mr. Schwartz praised Mr.

Wadler for, among other things, being

(Id.) the evaluation states

(Id.) When Mr. Wadler was given this review

at the end of December 2012, Mr. Wadler’s title was elevated to Executive Vice President, and

his base salary was increased by over $12,000. (Id. at 2.)1

Two months later, and pursuant to his mandatory “up the ladder” reporting requirements

under federal securities laws, Mr. Wadler notified Bio-Rad’s Audit Committee that he had

uncovered evidence of potential violations of the Foreign Corrupt Practices Act (“FCPA”) and

other securities laws regarding Bio-Rad’s operations in China. (Clune Decl. Ex. B.) Mr. Wadler

was concerned that senior management may have been involved or complacent based on their

prior unresponsiveness to his efforts to obtain documentation from China, and requested that the

audit committee have these matters investigated. (Id.)

A mere two days after Mr. Schwartz found out about Mr. Wadler’s disclosure to the

Audit Committee, he wrote an email to the director of human resources suggesting Mr. Wadler

be

1 During discovery, Bio-Rad massively over-designated material as subject to the Court’s 502 order or otherwise “confidential,” for example by designating the entirety of every deposition as confidential and subject to the 502 order. As such, Plaintiff has no choice but to seal or redact references to these matters in this opposition. But Plaintiff does not believe that any such matters are, in fact, properly sealable at this juncture. As discussed in detail below, even if a small subset of this information were ever once properly sealable, Bio-Rad has revealed all of this information publicly through its filings in this case, or to the government in the related administrative proceedings. As such, none of this information remains confidential, privileged, or secret, and thus there is no reason to keep any references in this opposition under seal.


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(Clune Decl. Ex. C.)

In April, acting upon Mr. Schwartz’s recommendation, Bio-Rad’s Board of Directors met

and decided to terminate Mr. Wadler. Board member and chairman of the audit committee Louis

Drapeau’s typed-up notes in advance of that meeting explicitly state

(Clune Decl. Ex. D.)

Having decided to fire Mr. Wadler, Bio-Rad then waited until the investigation he

prompted was complete so that they could claim they were not retaliating against him. On June

7, 2013, Mr. Schwartz formally terminated Mr. Wadler with no prior notice or warning

whatsoever. Mr. Schwartz admitted in deposition that

(Clune Decl. Ex. E (Dep. of Norman

Schwartz) 136:16-138:2.)

After firing Mr. Wadler, Bio-Rad then manufactured evidence. On July 9, a full month

after Mr. Wadler’s termination, and after it was clear that Mr. Wadler would be suing for

wrongful termination, Mr. Schwartz typed up a draft, “unfinished” performance evaluation for

Mr. Wadler and backdated it to April 15, 2013. (Clune Decl. Ex. F (N. Schwartz Resps. to Pl.’s

Interrog., Set Two) at Resp. No. 11.)

(Clune Dec. Ex. G (Resp. of

Bio-Rad to DOL Compl.) Attach. 3 (Decl. of N. Schwartz in Supp. of Resp.) ¶ 11 & Ex. B.)

This manufactured-after-the-fact performance review is not Bio-Rad’s only false

evidence. and interrogatories in this case, Bio-Rad has

claimed that it terminated Mr. Wadler for a variety of shifting reasons unrelated to his disclosure

to the audit committee. Among other reasons, Bio-Rad has publicly stated that Mr. Wadler’s


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relationship with other members of senior management had deteriorated during his final year of

service, that Mr. Wadler’s assertion that a pre-existing accrual for a royalty audit was too low

caused Bio-Rad to file its Form 10-K late in March 2013, that Mr. Wadler “sought to negotiate a

multi-million dollar settlement with Life Technologies beyond the level that was authorized by

Bio-Rad’s management and Board of Directors,” that Mr. Wadler undermined the Corporate

Compliance Officer, and that Mr. Wadler became upset when he learned that Bio-Rad’s French

legal department still did not report to him in late 2012. (Clune Decl. Ex. H (Bio-Rad 2nd Am.

Interrog. Resp.) at Resp. No. 1.) Bio-Rad echoed these claims in its public Joint Case

Management Statements. (See Dkt. Nos. 44, 59, 66, 73, 79, 89.)

Undeterred, Bio-

Rad continued to publicly pursue these debunked theories until acquiring new counsel, at which

time it switched theories to the new, equally absurd, claim that Mr. Wadler somehow “set up the

company” so he could eventually sue it as a whistleblower if he was fired, even though Mr.

Wadler had never been threatened with termination and received a promotion and a raise at the

exact time he was purportedly concerned about job security. (Dkt. 89 at 4.)

III. PROCEDURAL HISTORY

A. BIO-RAD DISCLOSES PRIVILEGED INFORMATION TO THE SEC, DOJ, AND DEPARTMENT OF LABOR

Before this lawsuit was even filed, Bio-Rad had waived much of its purported

confidentiality. First, following Mr. Wadler’s termination, Bio-Rad provided materials

(Clune Decl. Ex. I (Supp. Resp of Bio-Rad to DOL

Compl.) Attach. 1.)

After he was fired, Mr. Wadler filed a complaint with the Department of Labor. (Dkt.

No. 25-1.) In response, Bio-Rad initially posited that Mr. Wadler might be precluded from

pursuing his claims because proving those claims would require Mr. Wadler to disclose


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privileged materials. (Clune Decl. Ex. G (Bio-Rad Resp. to DOL Compl.) Attach. 1 at 13-17).)

Then, Bio-Rad changed course and flooded the Department of Labor with privileged and

confidential material as evidence in support of its response to Mr. Wadler’s complaint,

(Clune Decl.

Exs. G & I.) Bio-Rad’s responses and declarations parallel many of the same reasons Bio-Rad

has offered in this case for why it fired Mr. Wadler. These declarations plainly reveal the

matters Bio-Rad now claims are confidential. For example,

(Clune Decl. Ex. G

Attach. 2 (Drapeau Decl.) ¶ 7),

(id. ¶ 11),

(id. ¶ 13).

(Clune Decl. Exs. G & I.)

B. BIO-RAD LITIGATES THIS CASE PUBLICLY

On January 26, 2015, Mr. Wadler’s counsel sent Bio-Rad’s counsel a copy of the

Complaint it planned to file and offered to “discuss (and hopefully resolve) any confidentiality

objections” Bio-Rad had before filing the complaint publicly. (Clune Decl. Ex. J.) On February

9, 2015, Bio-Rad’s lead counsel Linda Inscoe called Mr. Wadler’s counsel to confirm that Bio-

Rad did not have any privilege-related objections to the body of the draft complaint, but did have

a confidentiality objection to the filing of proposed Exhibit B, the same Davis Polk presentation

provided to the SEC, DOJ, and Department of Labor. (Clune Decl. ¶ 11.) On May 18, 2015,

counsel followed up to confirm that understanding in an email. (Clune Decl. Ex. K.) And again,

Bio-Rad only sought to seal proposed Exhibit B, and its counsel worked extensively with Mr.

Wadler’s counsel to prepare a Stipulated Protective Order for that purpose and discuss the

appropriate procedures for filing this sole exhibit under seal. (Id.) The Complaint provides a

detailed discussion of the underlying issues in this case. (See, generally, Dkt. No. 1.)


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Bio-Rad moved to dismiss the complaint, but did not argue in any way that the issues in

this case were confidential or that privilege or confidentiality concerns were a basis to prevent

this case from proceeding. (Dkt. No. 24.) Following this Court’s granting in part and denial in

part of that motion to dismiss, Bio-Rad answered the complaint. (Dkt. No. 54.) Bio-Rad’s

answer did not raise any privilege or confidentiality concerns as an affirmative defense, and

merely denied Mr. Wadler’s individual allegations. (Id.)

Throughout the litigation, the parties worked together six times to prepare the required

Joint Case Management Statements submitted to this Court. (Clune Decl. ¶ 13.) The Joint Case

Management Conference Statements repeatedly and publicly revealed the parties’ detailed

contentions in this case. (Dkt. Nos. 44, 59, 66, 73, 79, 89.) Bio-Rad never objected to any

information Mr. Wadler provided in his portion of those statements, and each time provided their

own lengthy description of the underlying facts. (Id. & Clune Decl. ¶ 13.) Each of the Joint

Case Management Conference Statements lists both legal issues to be decided and anticipated

motions. In none of those statements did Bio-Rad identify the confidentiality issues it now raises

as essentially a bar to this entire lawsuit or propose any motion to deal with them. (Id.)

C. THE FRE 502 ORDER

Nearly six months after the complaint was filed, and at the Court’s suggestion, the parties

entered into the Stipulated Order Pursuant to Federal Rule of Evidence 502(d) Re: Non-Waiver

of Attorney-Client Privilege and Work Product Protection In Production of Documents in

Discovery (the “FRE 502 Order”). (Dkt. No. 56.) The FRE 502 Order stipulates that the

attorney-client privilege and work product protection is not waived through mere production in

discovery so long as the produced matters are marked as subject to the 502 Order. (Id.) The

FRE 502 Order does not otherwise address, much less preserve, confidentiality of matters that

are publicly revealed or placed at issue by any party, and does not address any privilege or

confidentiality beyond the federal common law attorney-client or work product protections. (Id.)

At no time prior to the instant motion did Bio-Rad suggest that the FRE 502 Order would

somehow allow it to bring the instant motion at the end of the case.


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D. DEFENDANTS CONFIRM THAT THEY ARE NOT MOVING FOR SUMMARY JUDGMENT

Following the first Case Management Conference, the Court set the dispositive motion

hearing date for September 23, 2016. (Dkt. No. 46.) At the July 15, 2016 Case Management

Conference, the Court ordered that each side advise the Court whether it would file a summary

judgment motion, and the topics they plan to seek summary judgment on. (Dkt. No. 80.) On

July 29, 2016, Bio-Rad confirmed that neither it nor the individual defendants would file a

dispositive motion on any topics. (Dkt. No. 81.)

E. BIO-RAD PUBLICLY FILES EXPERT REPORTS IN SUPPORT OF ITS MOTION TO STRIKE

On September 2, 2016 Bio-Rad filed a motion to strike one of Mr. Wadler’s rebuttal

expert witnesses. (Dkt. No. 82.) In support thereof, Bio-Rad publicly filed unredacted versions

of four expert opinions containing substantial amounts of information that Bio-Rad claims are

privileged and confidential. (See, e.g., Dkt. Nos. 83-1, 83-2, 83-4, 83-6.) For example, the

expert report of Donald A. Walker, Jr. contains approximately twenty-three references or direct

quotes from documents Bio-Rad marked “SUBJECT TO FRE 502 ORDER.” (Dkt. No. 83-6.)

Separate reports from Bio-Rad’s expert E. Emre Carr and Plaintiff’s Expert W. Bradley Wendel

discuss in detail Mr. Wadler’s disclosure to Bio-Rad’s Audit Committee, as well as Mr. Wadler’s

advice concerning a litigation accrual. (Dkt. No. 83-1.) These publicly filed expert reports thus

again publicly reveal in substantial detail many of the matters Bio-Rad now insists are

confidential.

F. BIO-RAD IDENTIFIES NUMEROUS WITNESSES IT NOW CLAIMS MAY NOT BE QUESTIONED

Bio-Rad disclosed only eleven witnesses likely to have information Bio-Rad might use to

support its defenses in its initial disclosures on August 21, 2015. (Clune Decl. Ex. L (Defs.’

Initial Disclosures, Aug. 21, 2015) at 3-5.) On May 18, 2016, Bio-Rad supplemented its initial

disclosures with an additional six witnesses, including three partners at Bio-Rad’s outside legal

counsel and two in-house attorneys. (Clune Decl. Ex. M (Defs.’ Supplemental Initial


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Disclosures, May 18, 2016) at 3-5.)

Bio-Rad hired additional counsel from Quinn Emanuel Urquhart & Sullivan, LLP, who

first appeared in the case on September 13, 2016. (See Dkt. Nos. 84-86.) On September 14,

2016, pursuant to agreement of the parties, Bio-Rad disclosed additional trial witnesses they

intended to call who had not already been deposed, and who Mr. Wadler would now be

permitted to depose. (Clune Decl. Ex. N.) Bio-Rad’s list included four previously undisclosed

witnesses, including another in-house attorney, a partner at Latham & Watkins, and its new

Chief Compliance Officer. (Id.)

In anticipation of the final case management statement before the pretrial conference, the

parties submitted a Joint Case Management Conference Statement. Bio-Rad did not identify this

motion or any new legal issues or potential motions in its final Joint Case Management

Statement. (Dkt. No. 89 at 4-5.)

It was a surprise, then, that Bio-Rad asserted for the first time during the October 7, 2016

Case Management Conference that it was planning to file a motion addressing whether the case

could proceed given the substantial attorney-client privileged and confidential material needed to

try the case. (See Dkt. No. 91.) The Court unambiguously instructed Bio-Rad to specifically

identify precisely what evidence it sought to exclude. Instead of following the Court’s

instruction, Bio-Rad filed the instant motion which does not identify or address any specific

evidence, but instead asks the Court to make categorical exclusions and to force Mr. Wadler at

some unspecified time to make detailed written “offers of proof” so that Bio-Rad can essentially

preview Mr. Wadler’s entire case before trial on, as they say, a “question-by-question basis.”

(Dkt. No. 94 at 2.)

IV. ANALYSIS

A. BIO-RAD FAILED TO RAISE WHAT IS EFFECTIVELY A DISPOSITIVE MOTION IN A TIMELY MANNER

Bio-Rad’s failure to timely raise what is essentially a dispositive motion disguised is

grounds to deny its motion. As the Ninth Circuit has cautioned, “A scheduling order ‘is not a

frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without


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peril. . . . Disregard of the order would undermine the court’s ability to control its docket,

disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier. ’”

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). Thus, a scheduling

order “may be modified only for good cause and with the judge’s consent.” FED. R. CIV. P. 16;

see also Doe ex rel. Doe v. State of Hawaii Dep't of Educ., 351 F. Supp. 2d 998, 1007 (D. Haw.

2004).

Bio-Rad’s request is effectively a motion for summary judgment (or perhaps a motion to

dismiss) disguised as a motion to exclude. If Bio-Rad wanted to file a dispositive motion, it was

required to do so in time to be heard on September 23, 2016 according to this Court’s scheduling

order, which has been in place for over a year, or establish good cause and secure this Court’s

consent before doing so. It did neither. Nor did Bio-Rad ever suggest in any of the Joint Case

Management Conference Statements it filed that such a motion was contemplated despite the

Court’s clear rule that all anticipated motions or evidentiary issues be discussed. (Dkt. No. 10-1

(“parties must include the following information”); see also Dkt. Nos. 44, 59, 66, 73, 79, 89.)

No good cause exists for this delayed motion. This is not a new issue – indeed Bio-Rad

recognized this potential argument in filings before the Department of Labor, but then never

raised it again during years of litigation. (Clune Decl. Ex. G Attach. 1 at 13-17.) Granting Bio-

Rad’s request would severely harm Mr. Wadler’s trial preparation. This motion is currently

scheduled to be heard at the Pretrial Conference. It would be manifestly unfair to force Mr.

Wadler’s counsel to spend the time immediately before trial preparing an elaborate “offer of

proof,” not to mention the grossly inappropriate tactical advantage such a procedure would give

to Bio-Rad.

B. THE PRIVILEGE ISSUES HERE ARE GOVERNED BY FEDERAL LAW

Bio-Rad is also incorrect that state privilege law controls here. Generally, federal

common law governs the attorney-client privilege with respect to federal claims, but state law

governs privilege as to state law claims and defenses. FED. R. EVID. 501. However, where “the

same evidence relates to both federal and state law claims, . . . federal privilege law governs.”

Wilcox v. Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). As Bio-Rad acknowledges, the retaliation-


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based claims under both federal and state law “significantly overlap,” and the evidence for all

claims is essentially the same. (Dkt. No. 94 at 8 n.2.) Thus, federal common law governs the

use of privileged or confidential materials here.

Federal law permits use of privileged or confidential material in attorney retaliation

claims. See, e.g., Van Asdale v. Int'l Game Tech., 577 F.3d 989, 996 (9th Cir. 2009) (dismissal

of the claims on grounds of attorney-client privilege unwarranted, and instead the district court

should use “the many ‘equitable measures at its disposal’ to minimize the possibility of harmful

disclosures”)2; Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005) (no rule or case law

imposes a per se ban on the offensive use of documents subject to the attorney-client privilege in

an in-house counsel's retaliatory discharge claim against his former employer under the federal

whistleblower statutes when the action is before an ALJ);3 Jordan v. Sprint, ARB Case No. 06-

105, 2009 WL 3165850, at *10 (Dep’t of Labor, Admin. Review Bd. Sept. 30, 2009) (“if an

attorney reports a ‘material violation’ in-house in accordance with the SEC’s Part 205

regulations, the report, though privileged, is nevertheless admissible in a SOX Section 806

proceeding as an exception to the attorney-client privilege in order for the attorney to establish

whether he or she engaged in SOX-protected activity.”).

Bio-Rad’s assertion that California state ethical duties prevent the claims before this

Court is contrary to Circuit law. In Van Asdale, IGT argued that Illinois state professional rules

of conduct prevented the Van Asdales from maintaining the suit, based on Balla v. Gambro, Inc.,

145 Ill.2d 492, 164 Ill.Dec. 892, 584 N.E.2d 104 (1991), which held, based on the Illinois rules

of professional conduct, that in-house attorneys are unable to maintain a state law claim for

retaliatory discharge. Van Asdale, 577 F.3d at 994.4 The Ninth Circuit noted that “federal courts

2 The Van Asdales claims were tried to a jury verdict in their favor. (Clune Decl. Ex. O.)

3 Bio-Rad misleadingly claims that Willy “stated expressly that its holding would not apply in ‘a suit involving a jury and public proceedings.’” (Dkt. No. 94 at 12.) Willy in fact states that issue “is not before us” and the Fifth Circuit would “leave that possibility for another day.” Willy, 423 F.3d 500.

4 Balla is essentially Illinois’s stricter version of General Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164, 1191 (1994).


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in Illinois have uniformly declined to apply Balla to claims based on federal law. . . . We thus

reject this argument.” Id. Similarly, there is not a single instance where a federal court in

California has applied General Dynamics or California state rules of professional conduct to a

federal retaliation claim or, like here, a federal retaliation case where federal and state claims

overlap.

Bio-Rad’s other authority is also off point. First, Siedle v. Putnam Investments, Inc., 147

F.3d 7 (1st Cir. 1998), the only federal case Bio-Rad cites to argue dismissal, only proves Mr.

Wadler’s arguments. Siedle does not, in any way, hold that the plaintiff-attorney’s claims could

not go forward, nor could it on a sealing (not dismissal) motion. See, generally, id. To the

contrary, the defendant-client “vigorously pressed its attorney-client privilege throughout,” and

the court sealed the entire proceedings to permit the claims to go forward. Id., at 12; see also

Clune Decl. Ex. P (ECF notice rejecting access to sealed Siedle trial court matter). Further, the

First Circuit’s consideration of Massachusetts ethical rules was perfectly appropriate, because the

plaintiff-attorney brought exclusively state law claims and the case was only before the federal

court based on diversity jurisdiction. Siedle, 147 F.3d at 8. Siedle does not hold what Bio-Rad

asserts, and instead further exposes Bio-Rad’s consistent failure to protect its confidential

information.

Second, Sarbanes-Oxley and Dodd-Frank do preempt state ethical and statutory rules.

Bio-Rad incorrectly cites to the SEC rules on professional conduct requiring attorneys to report

up the ladder to support its position that Sarbanes-Oxley does not preempt state law. (Dkt. No.

94 at 7.) The sentence quoted by Bio-Rad states “[T]his part does not preempt ethical rules in

United States jurisdictions that establish more rigorous obligations than imposed by this part.”

SEC Final Rule: Implementation of Standards of Professional Conduct for Attorneys, 68 Fed.

Reg. 6296-01, 2003 WL 247093, *6296 (Feb. 6, 2003) (codified at 17 C.F.R. 205). But the very

next sentence, which Bio-Rad omits, states: “At the same time, the Commission reaffirms that its

rules shall prevail over any conflicting or inconsistent laws of a state or other United States

jurisdiction in which an attorney is admitted or practices.” Id. Thus, it is clear that the more

“rigorous obligations” Sarbanes-Oxley does not preempt relate to more rigorous up-the-ladder


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reporting requirements, not law concerning client confidences. Id. at *6296-97. If there were

any question in the rule, which there is not, the SEC has expressly argued that the use of client

confidences in Section 806 retaliation proceedings is appropriate, and argues that Section 205

preempts federal common law. (Clune Decl. Ex. Q (Redacted Brief of the SEC, Amicus Curaie,

Jordan v. Sprint Nextel Corp., ARB Case No. 06-105, ALJ Case No. 2006-SOX-0041, Aug. 3,

2009).). Thus, no authority holds that California privilege law somehow prevents Mr. Wadler

from proceeding with his federal Sarbanes-Oxley and Dodd-Frank Claims.

C. BIO-RAD HAS WAIVED PRIVILEGE OR CONFIDENTIALITY WITH RESPECT TO ALL SUBJECT MATTERS RELEVANT TO MR. WADLER’S CLAIMS AND BIO-RAD’S DEFENSES

1. Privilege and confidentiality are waived by either disclosing confidential subjects or placing them at issue

Bio-Rad has repeatedly waived any privilege or confidentiality concerning Mr. Wadler’s

claims and its defenses by sharing such information with the government and publicly filing its

protected material before and during this litigation. A party waives privilege or confidentiality

by disclosure of protected material. Cave Consulting Grp., Inc. v. OptumInsight, Inc., No. 15-

CV-03424-JCS, 2016 WL 6216696, at *7 (N.D. Cal. Oct. 25, 2016) (Spero, J.). Waiver can

either be express or implied. In re Oracle Sec. Litig., No. C-01-0988 MJJ JCS, 2005 WL

6768164, at *5 (N.D. Cal. Aug. 5, 2005) (Spero, J.) (citing Bittaker v. Woodford, 331 F.3d 715,

719 (9th Cir. 2003)).

“An express waiver occurs when a party discloses privileged information to a third party

who is not bound by the privilege, or otherwise shows disregard for the privilege by making the

information public.” Id.; see also In re Pac. Pictures Corp., 679 F.3d 1121, 1126–27 (9th Cir.

2012) (“voluntarily disclosing privileged documents to third parties will generally destroy the

privilege”). Thus, a party waives the attorney-client privilege when it has transmitted privileged

information to a litigation adversary or a government entity, such as the Department of Labor. In

re Oracle Sec. Litig., 2005 WL 6768164, at *9 (disclosure of privileged material to litigation

adversary, even if they agree not to disclose the information to anyone else, waives the attorney-

client privilege “based on this action alone”); McMorgan & Co. v. First California Mortg. Co.,


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931 F. Supp. 703, 708 (N.D. Cal. 1996) (transmission of privileged material to the Department of

Labor expressly waives the privilege). Intent is irrelevant, because the focus is on disclosure to a

non-protected party. Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 341 (9th Cir. 1996) (“the

focal point of privilege waiver analysis should be the holder's disclosure of privileged

communications to someone outside the attorney-client relationship, not the holder's intent to

waive the privilege.”)

In IGT v. All. Gaming Corp., No. 2:04-CV-1676-RCJ RJJ, 2006 WL 8071393 (D. Nev.

Sept. 28, 2006), the defendant sought materials from IGT based on two alleged express waivers:

first, disclosure of privileged materials to the Department of Labor during OSHA proceedings

between it and its former attorneys, the Van Asdales;5 and second, based on the failure to file

privileged materials under seal on appeal to the Ninth Circuit. Id., at *1. Following McMorgan,

the court found that IGT waived its privilege as to the documents given to Department of Labor

because the DOL is a third party and “IGT could have both defended itself in the OSHA matter

and attempted to protect any attorney-client privileges,” but did not. Id. at *9-10. The court also

found that IGT waived the privilege when it failed to take any steps to protect the information it

filed publicly with the Ninth Circuit. Id. at *5. Thus, the court found waiver of the privilege for

all communications concerning the subject matters contained in the documents given to the DOL

and filed with the Ninth Circuit. Id. at *8, 10.

Implied waiver occurs where “(1) the party asserts the privilege as a result of some

affirmative act, such as filing suit; (2) through this affirmative act, the asserting party puts the

privileged information at issue; and (3) allowing the privilege would deny the opposing party

access to information vital to its defense.” Home Indem. Co. v. Lane Powell Moss & Miller, 43

F.3d 1322, 1326 (9th Cir. 1995). Putting the privileged information at issue does not require

specific identification or quoting of that material. See Volterra Semiconductor Corp. v.

Primarion, Inc., No. 08-CV-05129-JCS, 2013 WL 1366037, at *2–3 (N.D. Cal. Apr. 3, 2013).

5 The Van Asdales are the same parties from the Ninth Circuit decision, Van Asdale v. Int’l Game Tech., 577 F.3d 989 (9th Cir. 2009).


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Instead, “[o]nce a litigant decides to affirmatively rely on privileged information thereby placing

said information into issue ... any privilege that may attach is impliedly waived.” Apple Inc. v.

Samsung Elecs. Co., 306 F.R.D. 234, 243 (N.D. Cal. 2015), motion for relief from judgment

denied, No. 11-CV-01846-LHK, 2015 WL 3863249 (N.D. Cal. June 19, 2015) (quoting Shared

Med. Res., LLC V. Histologics, LLC, No. SACV 12-0612 DOC, 2012 WL 5570213, at *4 (C.D.

Cal. Nov. 14, 2012)).

Further, both the Federal Rules of Evidence themselves and binding Ninth Circuit case

law reject the theory of “selective waiver,” and instead recognize that waiver extends to all

information concerning the same subject matter where the waiver is intentional and the disclosed

and undisclosed information ought in fairness to be considered together. FED. R. EVID. 502(a);

In re Pac. Pictures Corp., 679 F.3d at 1129 (rejecting selective waiver of third-party disclosures

of privileged material); Cave Consulting Grp., Inc., 2016 WL 6216696, at *7. As this Court has

stated, the reason for subject-matter waiver is fairness:

allowing a party to disclose and rely on privileged communications about a given issue so long as they are favorable to its interests and yet fall back on privilege as soon as the party or its counsel becomes aware of (and communicates) a less favorable aspect of the same issue would be a clear case of improperly using privilege as both a shield and a sword.

Cave Consulting Grp., Inc., 2016 WL 6216696, at *8.

2. Bio-Rad ignores its burden of showing non-waiver

In the Ninth Circuit, the party asserting a privilege bears the burden of proving that the

privilege applies, and that the privilege has not been waived. McMorgan & Co., 931 F. Supp. at

707 (citing Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th

Cir.1981)).

Bio-Rad’s Motion does not argue that any privileged or confidential material has not

been waived already, and, in fact, does not address waiver in any way. As a starting point,

neither FRE 502 nor the FRE 502 Order in this case affects whether Bio-Rad has waived

privilege or confidentiality when it distributes material designated as such to third parties, files it

publicly, or puts that material at issue. FED. R. EVID. 502, advisory comm. notes, Nov. 28, 2007


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(“the rule does not purport to supplant applicable waiver doctrine generally.”) Additionally, the

FRE 502 Order speaks only to federal common law privilege protections, and does not permit the

clawback of any additional protections under California ethics rules. (Dkt. No. 56.) Thus, while

the FRE 502 Order means that Bio-Rad did not waive matters simply by providing them to Mr.

Wadler’s counsel (a claim Plaintiff is not making), it has nothing to do with whether they were

otherwise waived.

3. Bio-Rad’s disclosures to the SEC, DOJ, and Department of Labor waived its privilege before this case was even filed

Bio-Rad has transmitted protected material to government agencies, thereby waiving the

privilege to the subject matters of those communications. First, Bio-Rad provided a

(Clune Decl. Ex. I Attach. 1.)

(Clune Decl.

Ex. I.)

(Id.)

Additionally, Bio-Rad aggressively litigated against Mr. Wadler’s complaint before the

DOL, describing in detail Mr. Wadler’s purported failings as general counsel. Among other

issues,

(Clune Ex. G Attach.

1 at 4-7.)

(Id.) In this litigation, Bio-Rad has marked many produced


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documents about these subjects as “SUBJECT TO FRE 502 ORDER.” (Clune Decl. ¶ 20.)

By transmitting privileged or confidential information to government agencies, Bio-Rad

has waived any protection over those subjects. See McMorgan & Co., 931 F. Supp. at 708

(transmission of privileged material to the Department of Labor expressly waives the privilege);

IGT, 2006 WL 8071393, at *9-10 (privilege waived as to subjects of communications

transmitted to DOL in OSHA proceedings).

4. Bio-Rad’s actions in this case further waived any remaining confidentiality in these matters

Bio-Rad has never objected to Mr. Wadler’s use of privileged or confidential information

he learned as Bio-Rad’s general counsel to prosecute this suit. Bio-Rad itself took affirmative

steps to publicly file documents revealing all of the information it now claims is privileged,

confidential, and “inextricably intertwined” with the claims and defenses at issue.6

Among other waivers, Bio-Rad expressly permitted Mr. Wadler to file his detailed

complaint publicly after being given a chance to review it in advance (Dkt. No. 1; Clune Decl.

Exs. J & K), did not raise the issue in its motion to dismiss (Dkt. No. 24), did not assert the

inability to proceed due to the privilege as an affirmative defense in its answer (Dkt. No. 54), did

not raise the argument as grounds for summary judgment (or even move for summary judgment

at all) (Dkt. No. 81), and never once – in six different Joint Case Management Statements filed

over approximately sixteen months – identified the issue as either a disputed legal issue or

potential motion relevant to the case, and never objected to Mr. Wadler’s recitation of those

same facts from the complaint or held back from affirmatively adding numerous additional facts

in defense (Dkt. Nos. 44, 59, 66, 73, 79, 89).

By permitting its former attorneys to disclose client confidences without objection about

all of his claims, Bio-Rad expressly waived any protections of those materials. See Fox v.

6 By comparison, in the trial court proceedings in Van Asdale, et al. v. Int’l Game Tech., Case No. 3:04-CV-00703-RAM (D. Nev.), the entire proceeding occurred under seal for over two-and-a-half years. See Clune Ex. O.


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California Sierra Financial Services, 120 F.R.D. 520, 527 (N.D. Cal. 1988) (“A client may not

knowingly allow his attorney to testify without objection and later claim that the matters testified

to were subject to the attorney-client privilege and that he did not waive the privilege.”). Bio-

Rad’s conduct in this matter stands in sharp contrast to defendants that protected their privileged

or confidential information. See, e.g., Siedle, 147 F.3d at 12 (entire proceeding, including all

filings, sealed for months) & Clune Decl. ¶ 19 & Ex. P; Van Asdale, et al. v. Int’l Game Tech.,

Case No. 3:04-CV-00703-RAM (D. Nev.) (all proceedings occurred under seal for over two-and-

a-half years) & Clune Decl. Ex. O.

Similarly, Bio-Rad has waived all communications concerning the investigation into Mr.

Wadler’s claims to the Audit Committee. Bio-Rad has repeatedly referenced the conclusions of

Davis Polk’s investigation as a defense to Mr. Wadler’s claims,

to the most recent Joint Case Management Statement in this matter. (Clune Decl.

Ex. G Attach. 2 ¶¶ 8-9

Ex. H at Resp. 6 (“Bio-Rad

hired two renowned international law firms that conducted a thorough investigation of Plaintiff’s

allegations and concluded that the allegations had no factual basis.”) (emphasis added); see also

Dkt. No. 89 (“The law firms of Davis Polk & Wardwell and Steptoe & Johnson, the Department

of Justice and the SEC all investigated or reviewed Mr. Wadler’s claim and all unanimously

concluded there was no merit to anything Mr. Wadler was saying.”) (emphasis added).

Likewise, although Bio-Rad fails to identify in its motion any potential defense it will be

prevented from substantiating at trial due to privilege or confidentiality, all of its listed defenses

have been waived by its intentional conduct. As discussed above, Bio-Rad aggressively litigated

against Mr. Wadler before the DOL, discussing, a

(Clune Decl. Exs. G & I.) Then, at least until new counsel joined the case, Bio-

Rad publicly claimed in this matter that it fired Mr. Wadler for the same reasons outlined to the

DOL. (See Dkt. Nos. 44, 59, 66, 73, 79, 89; see also Clune Decl. Ex. H at Resp. No. 1.) These


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statements are specific disclosures of privileged and confidential materials, which thereby waive

all other protected information concerning the same subject matter.

But Bio-Rad did not stop there. Bio-Rad also publicly filed expert reports replete with

“confidential” information in support of its motion to strike Mr. Wadler’s expert, Brad Wendel.

(See Dkt. Nos. 83-1, 83-2, 83-4, & 83-6.) First, Bio-Rad filed the report of its own expert, Dr. E.

Emre Carr, who argues numerous reasons why Mr. Wadler’s allegations to the Audit Committee

are “unsupported” or his own fault. (Dkt. 83-1 at 15-18.) As this Court summarized, Dr. Carr

also “challenged on the merits Mr. Wadler’s assertion that the accrual amount in the

representation letter needed to be increased . . . .” (Dkt. No. 93.) Second, Bio-Rad publicly filed

the report of Mr. Wadler’s expert, W. Bradley Wendel, which, as this Court summarized, “opines

that based on [legal ethics] standards and the evidence that Mr. Wadler had about potential

FCPA violations in China, Mr. Wadler had an obligation to report his concerns to the Audit

Committee . . . .” (Id., describing Dkt. No. 83-4.) Mr. Wendel’s report summarizes and cites

numerous documents that justify Mr. Wadler’s disclosure to the Audit Committee. (Dkt. No. 83-

4.) Third, Bio-Rad publicly filed the report of Mr. Wadler’s expert, Donald A. Walker, Jr. which

contains the most direct references to potentially privileged or confidential conduct of the

submitted expert reports. (See Dkt. 83-6.) It includes discussions concerning the investigation

into Mr. Wadler’s allegations to the Audit Committee, subsequent investigation, the Form 10-K

filing, and Life Technologies settlement, and includes citations and quotes of over twenty

documents Bio-Rad designated under the FRE 502 Order. (Id.)

The FRE 502 Order does not contemplate or cover any of these continuous and

intentional disclosures. By expressly permitting Mr. Wadler to prosecute his claims publicly,

countering the substance of those claims publicly and to the government, and publicly disclosing

protected material as part of its defenses, Bio-Rad has waived protections over the subject

matters forming the foundation for all the claims and defenses to be tried here.


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D. IF ANY CONFIDENTIAL MATERIAL REMAINS, THE COURT CAN ADDRESS THAT THROUGH SEALING OR SIMILAR ORDERS WHILE ALLOWING PLAINTIFF TO PROCEED WITH HIS CLAIMS

Even if some shred of confidentiality or privilege remains with respect to the evidence

that will be presented in this case (which is hard to imagine given the breadth of the waiver that

has occurred), the proper remedy is not to bar Plaintiff from presenting his claims in court

altogether but instead to use sealing orders, protective orders, and other means to address any

such concerns. The Ninth Circuit, California Supreme Court, the SEC, and the Department of

Labor’s Administrative Review Board all agree that this is the correct approach. Van Asdale, 577

F.3d at 996 (even if a suit “might nonetheless implicate confidentiality-related concerns, . . . the

appropriate remedy is for the district court to use the many ‘equitable measures at its disposal’ to

minimize the possibility of harmful disclosures, not to dismiss the suit altogether”); General

Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164, 1191 (1994) (“the trial courts can and should

apply an array of ad hoc measures from their equitable arsenal designed to permit the attorney

plaintiff to attempt to make the necessary proof while protecting from disclosure client

confidences subject to the privilege”); see also Clune Decl. Ex. Q (arguing that Administrative

Law Judges should permit claims to proceed and protect information by, among other options,

“reviewing relevant documents in camera and/or issuing protective orders, including orders

to seal certain documents and to keep such documents confidential.”); Jordan, 2009 WL

3165850, at *10 (“if an attorney reports a ‘material violation’ in-house in accordance with the

SEC’s Part 205 regulations, the report, though privileged, is nevertheless admissible in a SOX

Section 806 proceeding as an exception to the attorney-client privilege in order for the attorney

to establish whether he or she engaged in SOX-protected activity.”). Thus, this Court can and

should use such sealing measures or other equitable means to allow Plaintiff to vindicate the

important public policy concerns animating whistleblower retaliation statutes while still making

reasonable accommodations to safeguard any confidential or privileged matters that remain.

E. IN NO EVENT SHOULD PLAINTIFF BE REQUIRED TO PROVIDE A “QUESTION-BY-QUESTION” RECITATION OF HIS ENTIRE CASE BEFORE TRIAL

Instead of following this Court’s explicit instruction at the October 7, 2016 status


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conference that Bio-Rad specifically articulate in its motion the particular evidence it sought to

have excluded on privilege grounds, Bio-Rad did just the opposite. Its motion asks this Court for

a sweeping and unprecedented “offer of proof” that would require Plaintiff to identify before

trial, on a question-by-question basis, all evidence he will present at trial with respect to all

witnesses, including examination questions, documentary evidence, and any rebuttal evidence.7

(See Dkt. No. 94 at 2 (“The Court will need to rule on privilege and confidentiality with respect

to virtually every document in the case, and also will need to make those same calls on a

witness-by-witness and question-by-question basis.”); id. at 2-3 (seeking an offer of proof

requiring, among other things a recitation of “all testimony of Plaintiff that may be based on

information he learned in the course of his service as Bio-Rad’s general counsel” and “all

questions and responses likely to elicit attorney-client privileged information from any witness

and/or confidential information from any lawyer-witness.”).)

Bio-Rad has zero authority for this shocking suggestion, and such an astonishing

procedure would violate due process and severely prejudice Mr. Wadler. Bio-Rad is not

unilaterally entitled access the entirety of Plaintiff’s counsel’s examination outlines, rebuttal

evidence, and other work product ahead of trial. Providing that work product before trial even

began would put Mr. Wadler at a substantial and fundamentally unfair disadvantage, especially if

Plaintiff did not have similar information from Defendants. Plaintiff is unaware of any court

ever imposing such an extreme requirement on any party in any case.

The unfairness of Defendants’ suggestion is magnified given the timing of when

Defendants ask for this order. This motion will be heard at the Pretrial Conference on December

15, 2016 and trial begins January 9, 2017. Instead of preparing for trial during this crucial period

of time, Defendants seek to divert Plaintiff’s resources to preparing an elaborate “offer of proof”

on an issue they should have raised years ago.

7 Bio-Rad also fails to address how this Court’s Pretrial Order is insufficient to address these concerns during trial. (Dkt. No. 46 at M (requiring an exchange of witnesses and exhibits for the next two court days and objections and cross-examination exhibits exchanged within 24 hours of such notice.)


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V. CONCLUSION

Having repeatedly broadcast the subject matters at the heart of this case to the world in

public filings and in submissions to the government, Bio-Rad cannot now claim that such

information is still somehow privileged or confidential simply because it wants to shut down a

whistleblower retaliation lawsuit. In any event, to the extent Bio-Rad wanted to suggest that “it

remains an open question as to whether Plaintiff would have a legally viable case following

exclusion of privileged and confidential information” (Dkt. No. 94), its time to do so was at the

outset of this case via a motion to dismiss or, perhaps, as late as the summary judgment deadline.

Having failed to bring such a dispositive motion under the time prescribed by the Court, it cannot

do so now on the eve of trial, in violation of the Court’s scheduling order, and in direct

contravention of the Court’s instructions at the last case management conference. Accordingly,

Bio-Rad’s motion should be denied.

Date: November 10, 2016 KERR & WAGSTAFFE LLP

By /s/ Michael von Loewenfeldt

MICHAEL VON LOEWENFELDT Attorneys for Plaintiff SANFORD S. WADLER


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