BORIS FELDMAN, State Bar # 128838
DOUGLAS J. CLARK, State Bar # 171499
CHERYL W. FOUNG, State Bar # 108868
JILL NISSEN, State Bar # 191098
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Telephone: (650) 493-9300

Attorneys for Defendants
ELECTRONICS FOR IMAGING, INC.,
DAN AVIDA, JEFFREY LENCHES,
FRED ROSENZWEIG and ERIC SALTZMAN

INTRODUCTION

ARGUMENT

I. FEDERAL POLICY PRECLUDES PLAINTIFFS' LITIGATION TACTIC

A. SLUSA Was Enacted To Preclude Circumvention Of The Mandatory Stay

B. Plaintiffs' Use Of Their State Discovery Here Circumvents The Mandatory Stay Of The Reform Act

C. Plaintiffs Ignore Persuasive State Authority And Focus Only On Informix and Vanstar

II. NO FUNDAMENTAL RIGHT EXISTS WHICH ALLOWS THE SHARING OF DISCOVERY IN THIS PROCEEDING

III. GOOD CAUSE EXISTS TO GRANT THE MOTION AND WILL NOT PREJUDICE PLAINTIFFS

CONCLUSION

Burlington City Bd. of Educ. v. United States Mineral Products Co., 115 F.R.D. 188 (M.D.N.C. 1987)

Dove v. Atlantic Capital Corp., 963 F.2d 15 (2d Cir. 1992)

Empire Blue Cross and Blue Shield v. Janet Greesons A Place For Us Inc., 62 F.3d 1217 (9th Cir. 1995)

Essex Wire Corp. v. Eastern Electric Sales Co., 48 F.R.D. 308 (E.D. Pa. 1969)

Harris v. Wells, 764 F. Supp. 743 (D. Conn. 1991)

Head v. NetManage, No. C-97-20061 JW (N.D. Cal. Oct. 31, 1997)

In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693 (9th Cir. 1993)

In re Informix Sec. Litig., No. C97-1289 CRB (N.D. Cal. Nov. 6, 1998)

Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405 (N.D.N.Y. 1973)

Medhekar v. United States District Court, 99 F.3d 325 (9th Cir. 1996)

ONeal v. Vanstar, No. C-98-0216-MJJ (N.D. Cal. Feb. 5, 1999)

Powers v. Eichen, 961 F. Supp. 233 (S.D. Cal. 1997)

Ravens v. Iftikar, 174 F.R.D. 651 (N.D. Cal. 1997)

Sasu v. Yoshimura, 147 F.R.D. 173 (N.D. Ill. 1993)

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-34 (1984)

Sperry Rand Corp. v. Rothlein, 288 F.2d 245 (2d Cir. 1961)

United States v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421 (W.D.N.Y. 1981)

United States v. Northrop Corp., 59 F.3d 953 (9th Cir. 1995)

Wauchop v. Dominos Pizza, Inc., 138 F.R.D. 539 (N.D. Ind. 1992)

Copperstone v. TCSI Corp., No. 775199-2 (Alameda County Super. Ct. Jan. 12, 1998)

Raymond Handling Concepts Corp. v. Superior Court, 39 Cal. App. 4th 584 (1995)

15 U.S.C. 77z-1(b)

15 U.S.C. §78u-4(b)(3)(B)

28 U.S.C. § 165

28 U.S.C. Sec. 2283

Securities Litigation Uniform Standards Act of 1998, Pub. L. No. 105-353, 112 Stat. 3227 (1998)

141 Cong. Rec. H13691 at H13699-700 (Nov. 28, 1995)

141 Cong. Rec. S19060, S19065 (Dec. 21, 1995)

H.R. Conf. Rep. No. 104-369, 104th Cong., 1st Sess. at 31-32 (1995)

S. Rep. 104-98, 104th Cong., 1st Sess. at 14, reprinted in 1995 U.S.C.C.A.N. at 693 (1995) (Foung Dec. at Ex. G.)_

Testimony Concerning the Impact of the Private Sec. Litig. Reform Act of 1995 Before the Senate Subcomm. on Securities Comm. on Banking, Housing & Urban Affairs (July 24, 1997)

U.S. Sec & Exch. Commn, Report to the President and the Congress on the First Year of Practice Under the Private Sec. Litig. Reform Act of 1995, at 69 (April 1997)

Conf. Rep. No. 105-803, 105th Cong. 2d Sess. (1998)

Defendants Electronics for Imaging, Inc. ("EFI"), Dan Avida, Jeffrey Lenches, Fred Rosenzweig and Eric Saltzman respectfully submit this Reply Memorandum In Support of their Motion to Preserve and Enforce the Mandatory Discovery Stay of the Private Securities Litigation Reform Act.

Defendants brought this Motion on the ground that plaintiffs' counsel, who filed parallel state and federal actions, represented that they would use their state court discovery in the parallel federal action, notwithstanding the mandatory discovery stay provision that applies in this action. Defendants argued that this tactic violates the spirit, if not the letter, of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §78u-4(b)(3)(B) ("the Reform Act"). Plaintiffs now concede the factual basis for this Motion. They admit that in the absence of granting this Motion and upon expiration of a temporary stipulation, plaintiffs will use that discovery in "their case against defendants in this action." Pl. Opp. at 1, 8. Plaintiffs argue that three grounds support their use of state obtained discovery here. Each is erroneous as a matter of law.

First, plaintiffs argue that the recently enacted Securities Litigation Uniform Standards Act of 1998, Pub. L. No. 105-353, 112 Stat. 3227 (1998) ("SLUSA") (Declaration of Cheryl W. Foung In Support of Reply ("Foung Dec.") at Ex. A) has no application here because plaintiffs filed their state suit before SLUSA's enactment. While that is true, the Motion at issue may be decided by a provision of SLUSA which does apply to this case. Section 101(b)(2) of SLUSA empowers this Court to stay discovery proceedings in the state court to prevent circumvention of the Reform Act's mandatory stay of discovery. That provision manifests the clear federal policy to preclude the use of state discovery in actions such as this which are subject to the Reform Act.

Second, plaintiffs claim that the only policy underlying the discovery stay of the Reform Act is to prevent the cost of discovery from compelling innocent defendants to settle. Pl. Opp. at 2, 9-10. Plaintiffs ignore a second, central purpose of the Reform Act's mandatory stay, which is to require plaintiffs to file complaints based on their actual knowledge of the facts, rather than information produced by defendants after the action has been filed. By enforcing the stay, the Court can ensure that the federal complaint is filed on the basis of facts known before, not discovered after the suit was filed - as Congress clearly intended.

Third, plaintiffs claim that, notwithstanding the Reform Act's mandatory stay pending resolution of the pleadings here, case law permits a sharing of discovery in parallel actions. None of the cases plaintiffs rely upon, however, is a securities case subject to the mandatory discovery stay of the Reform Act. Plaintiffs' generic cases, unlike the case at bar, do not address, much less sanction, a party's ability to utilize discovery in one action which subverts a Congressionally-mandated policy in the second. Obviously, where a general policy favoring the free flow of information collides with such a federal policy, the former must yield.

This Court should not permit a practice Congress has condemned. An order denying plaintiffs and their counsel access to the state discovery pending resolution of the pleadings here will protect the interests of all litigants. Such an order will allow discovery to go forward in the parallel state action without eviscerating defendants' rights to a discovery stay in the federal case.

I. FEDERAL POLICY PRECLUDES PLAINTIFFS' LITIGATION TACTIC

A. SLUSA Was Enacted To Preclude Circumvention Of The Mandatory Stay

Plaintiffs claim that there is no federal policy which makes it "improper [to use] state-obtained discovery in the federal action." Pl. Opp. at 9. They claim that it is defendants who are striving "to create the impression that plaintiffs commenced an action in state court simply to obtain discovery and use it to amend their federal complaint." Id. at 1. Plaintiffs are wrong. There is such a federal policy. It results from the express condemnation by the Securities & Exchange Commission and Congress of plaintiffs' common litigation tactic.

The Reform Act's efforts to curb abusive securities litigation in the federal forum led to a dramatic increase in dual-track state and federal securities class action cases. According to the Chairman of the Securities & Exchange Commission, the reason for the flood of cases in state court is avoidance of the discovery stay in federal court.¹ The SEC recently reported to the President that "[t]o the extent that state courts can be used to avoid the discovery stay in cases that would otherwise have been brought under the federal securities laws, one of the goals of the Reform Act may be frustrated."²

Congress, concurring with the SEC's observations³, took action and enacted SLUSA. Congress passed SLUSA to "prevent plaintiffs from seeking to evade the protections that Federal law provides against abusive [securities] litigation by filing suit in State, rather than in Federal, court." SLUSA Conf. Rep. at 13; Pub. L. No. 105-353, Sec. 2(2) ­ (3) (the shift "from Federal to State courts . . . has prevented that [Reform] Act from fully achieving its objectives.") The newly enacted SLUSA preempts all state court securities class action litigation so that state courts may not provide a means to evade the Reform Act.⁴

Plaintiffs claim that SLUSA "does not expressly prohibit the use in a PSLRA action of discovery obtained in a state action and the SLUSA is strictly prospective". Pl. Opp. at 3. Plaintiffs argue that because they beat the clock by filing their state suit before Congress was forced to intervene and prevent the state suit's maintenance altogether, they may avoid the requirements of SLUSA and evade the mandatory stay of the Reform Act by using their state discovery now. While plaintiffs' state suit may not be dismissed altogether under SLUSA, this Court may still take action under SLUSA at this time.

Section 101(b)(2) of SLUSA provides that "Section 21D(b)(3) of the Securities Exchange Act of 1934 (15 U.S.C. 78u-4(b)(3))⁵ is amended by adding at the end the following new subparagraph":

(D) CIRCUMVENTION OF STAY OF DISCOVERY - Upon a proper showing, a court may stay discovery proceedings in any private action in a State court, as necessary in aid of its jurisdiction, or to protect or effectuate its judgments, in an action subject to a stay of discovery pursuant to this paragraph.

Plaintiffs cannot argue that Section 101(b)(2) is prospective; SLUSA is now in effect. In fact, Section 101(b)(2) would be nonsensical as well as superfluous if it only applied to state securities cases filed after SLUSA's effective date. Since such state suits would be precluded altogether upon SLUSA's effective date, there would be no need to stay discovery in state actions since they will no longer exist. Section 101(b)(2) only has meaning if it applies to state suits like the present one, which were filed before SLUSA's effective date.

In Sperry Rand Corp. v. Rothlein, 288 F.2d 245 (2d Cir. 1961), discussed infra, the Second Circuit held that the district court was justified in preventing a party from using discovery obtained in the federal proceedings in a later filed state action. In so ruling, the Second Circuit found that the district court's ruling did not violate 28 U.S.C. Sec. 2283. That statute provided that "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. The italicized language is identical to that in newly enacted Section 101(b)(2). The Second Circuit observed that such rulings by the district court served to "protect its judgment" since the particular use of the discovery in the later filed action would have thwarted the federal court's discovery plan. Id. at 249. Allowing plaintiffs here to use their state discovery obviously violates the mandatory stay of this Court. Preventing such use here serves to "protect and effectuate" the mandatory stay.

Although this Court has the power to enter a stay of discovery in state court in order to preserve the mandatory stay, it need not take such far-reaching action. The relief requested here is extremely narrow. Defendants request only that the Court enter an order directing that plaintiffs and their counsel may not have access to discovery obtained in the parallel state court action pending this Court's decision on the forthcoming motion to dismiss this federal action. Defs. Motion to Preserve at 1, 10.

B. Plaintiffs' Use Of Their State Discovery Here Circumvents The Mandatory Stay Of The Reform Act

Plaintiffs claim that defendants' Motion does not implicate any policy underlying the Reform Act. They argue that the only "policy interest underlying the PSLRA" is "preventing the costs of discovery from compelling innocent defendants to settle." Pl. Opp. at 10; see also id. at 9 ("It is the cost of discovery, not the use of discovered information, which underpins the PSLRA's automatic discovery stay.") Plaintiffs argue that there is no frustration of this monetary policy, since the discovery will proceed in state court in any event. Id. Plaintiffs' view of the Reform Act is myopic and wrong.⁶ Plaintiffs' contention that the Reform Act discovery stay was enacted merely to lessen the burden or expense of discovery in the federal litigation is flatly inconsistent with the express language of the statute, the legislative history, and the law of this Circuit.

The Ninth Circuit's decision in Medhekar v. United States District Court, 99 F.3d 325 (9th Cir. 1996), which interprets the Reform Act, is dispositive. As Medhekar instructs, though Congress enacted the Reform Act to address "burdensome and abusive discovery" practices, that was not the sole purpose of the statute. Congress intended to "minimize unnecessary costs of production of documents and to prevent abusive filings in which facts are sought after initiation of litigation." Id. at 328 (emphasis added), citing to 141 Cong. Rec. H13691 at H13699-700 (Nov. 28, 1995) [("This legislation implements needed procedural protections to discourage frivolous litigation") (Foung Dec. at Ex. D.) The Ninth Circuit stated that "Congress clearly intended that complaints in these securities actions should stand or fall based on the actual knowledge of the plaintiffs rather than information produced by the defendants after the action has been filed." 99 F.3d at 328 (emphasis added); see Ravens v. Iftikar, 174 F.R.D. 651, 668 (N.D. Cal. 1997) (same); H.R. Conf. Rep. No. 104-369, 104th Cong., 1st Sess. at 31-32 (1995) (Congress enacted the Reform Act to preclude fishing expedition cases filed with only the "faint hope that the discovery process might lead eventually to some plausible cause of action.") (Foung Dec. at Ex. E.)⁷

Simply put, the Reform Act intended that discovery be used to support a valid claim, not to find a claim. Allowing plaintiffs' co-counsel in the federal court to use discovery that they otherwise could not have obtained had they only filed in the federal court contravenes the spirit of the Reform Act and specifically 15 U.S.C. § 78u-4(b)(3)(B). Absent the requested relief, plaintiffs will do what the Reform Act prohibits: they will use the fruits of their state discovery to amend their federal complaint. The narrow relief requested will protect the Congressional objectives set forth in the Reform Act in a reasonable manner without interfering with the state action.

C. Plaintiffs Ignore Persuasive State Authority And Focus Only On Informix and Vanstar

Plaintiffs urge this Court to reject all state authority which supports this instant motion, arguing without logic that "state court orders pre-date correctly-decided federal court decisions and, thus, have no value." Pl. Opp. at 10 n.13. Ignoring the host of state cases that have granted similar motions does not invalidate their persuasiveness. See Defs. Motion to Preserve at 3-4.⁸

Instead, plaintiffs cite to three federal decisions. One, Head v. NetManage, No. C-97-20061 JW (N.D. Cal. Oct. 31, 1997) (Pl. Opp. at 11 n.14), expressly stated that it was "not appropriate for publication and may not be cited." (Foung Dec. at Ex. I, slip. op. at 1 n.1) (emphasis added).⁹ Plaintiffs' reliance on In re Informix Sec. Litig., No. C97-1289 CRB (N.D. Cal. Nov. 6, 1998) (Foung Dec. at Ex. J), is similarly misplaced. There, the Court lifted the stay only after sustaining plaintiffs' complaint against Informix and several of its officers.

As to the decision in O'Neal v. Vanstar, No. C-98-0216-MJJ (N.D. Cal. Feb. 5, 1999) (Foung Dec. at Ex. K), Judge Jensen did not address the specific argument made in Section A(1), supra, concerning SLUSA's stay of discovery provisions. Rather, he focused solely on the prospective portion of SLUSA that pertains to state court actions filed after January 1, 1999. Sec. 101(a)(2) and (b)(2) of SLUSA, which empowers a federal judge to stay ongoing discovery in a state action to prevent "circumvention of [the Reform Act's] stay of discovery," provides the necessary "overriding policy . . . to bar the use of discovery obtained in the state court action in a federal action". Vanstar, slip op. at 2.¹⁰

II. NO FUNDAMENTAL RIGHT EXISTS WHICH ALLOWS THE SHARING OF DISCOVERY IN THIS PROCEEDING

Plaintiffs argue that there is an inherent right to use pretrial discovery obtained in one action for prosecution of another action. Pls. Opp. at 5-8. This argument fails for two reasons. First, there is no such fundamental rule or right. While plaintiffs rely on several cases within the Second Circuit, id., that Circuit long ago rejected plaintiffs' generic proposition. More particularly, in Sperry Rand, 288 F.2d 245, a district court enjoined a plaintiff from introducing evidence obtained through federal discovery in a subsequently filed state action, where use of the discovery would have thwarted the federal court's discovery rulings. The Second Circuit affirmed:

By prohibiting the use of material divulged during discovery proceedings in the federal court, the district judge was putting the plaintiff-appellant where it would have been had it gone immediately to a state court and not first instituted an action in the federal court. No avenue available to it in the state courts was closed by the order; only use of the fruits of the federal court discovery was denied.

Id. at 248.¹¹ Here, preserving the mandatory stay has a similar result: The federal plaintiffs remain in the same position they would have been, absent the duplicative state action.

Second, contrary to plaintiffs' assertion, none of the cases they cite "specifically addressed the issue presented by this case." Pls. Opp. at 6. Plaintiffs' cited authorities do not allow one party to use discovery where such use undermines Congressional intent. In fact, Raymond Handling Concepts Corp. v. Superior Court, 39 Cal. App. 4th 584, 589 (1995) supports defendants' position. That case arose from a personal injury action in which a forklift was purportedly negligently designed. Although the Raymond court allowed litigants in different actions to share discovery, the court's decision was based on the premise that all of the litigants had a right to such discovery. The court noted that "it must be assumed that the information is also discoverable in these other similar cases." Id. at 590 (Emphasis added.) Similarly, in Dove v. Atlantic Capital Corp., 963 F.2d 15, 20 (2d Cir. 1992), the court specifically noted that there was no indication that use of the discovery in another action would "circumvent any ruling of [a] district court." Id. at 20. The court noted further that a district court is "well within its equitable discretion" in proscribing the use of discovery where a party's actions have undermined the court's jurisdiction and control over discovery. Id. at 19-20.¹²

Plaintiffs' other citations are similarly misplaced. In Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405 (N.D.N.Y. 1973), the party seeking the protective order provided no fundamental reason for limiting discovery to the first action. In particular, there was no discovery stay -- let alone a federally mandated discovery stay -- pending in any of the related cases. The decision in In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993), stands only for the proposition that if parties fail to draft protective orders to prevent use of discovery in other lawsuits, courts will not broaden the stipulation to effectuate that purpose. Id. at 695. The Dual-Deck decision does not suggest that a court cannot enter its own order preventing use of discovery in other cases.

In sum, plaintiffs' authorities have no application here in light of the mandatory discovery stay pursuant to the Reform Act. If and when discovery is allowed to proceed here, plaintiffs may share the discovery in any way they see fit.

III. GOOD CAUSE EXISTS TO GRANT THE MOTION AND WILL NOT PREJUDICE PLAINTIFFS

This Court should exercise its discretion to grant the motion here.¹³ This Court will not offend any rule of California law by entering the requested protective order. In fact, plaintiffs concede that the only effect of the instant Motion is to "separately staff the case with duplicative attorneys for each action." Pl. Opp. at 1. Plaintiffs can hardly claim prejudice from the granting of this Motion. It is they who have unnecessarily increased the costs of litigation (and required the dual commitment of judicial resources) by filing a virtual copy of this action in state court, rather than alleging their state-law claims in this action pursuant to the Court's supplemental jurisdiction or dismissing the federal suit now that the defendants' demurrers have been overruled.

On the other hand, defendants' protections under the Reform Act and SLUSA will be rendered moot by a denial of this Motion. Even if plaintiffs have a legitimate motive for filing and seeking discovery in the state action, plaintiffs' use of state discovery in this action would directly contravene the policies underlying the Reform Act discovery stay.

For the foregoing reasons, this case presents one of the strongest situations where the Court should act to preserve federal policy interests, and defendants respectfully submit that the Court should grant the Motion.

¹ Testimony Concerning the Impact of the Private Sec. Litig. Reform Act of 1995 Before the Senate Subcomm. on Securities Comm. on Banking, Housing & Urban Affairs at 15 (July 24, 1997) (testimony of Arthur Levitt, Chairman) (12/29/98 Declaration of David Lansky In Support of Defendants' Motion ("Lansky Dec." at Ex. N.)

² U.S. Sec & Exch. Comm'n, Report to the President and the Congress on the First Year of Practice Under the Private Sec. Litig. Reform Act of 1995, at 69 (April 1997) (Foung Dec. at Ex. B.)

³ See Conf. Rep. No. 105-803, 105th Cong. 2d Sess. (1998) ("SLUSA Conf. Rep.") ("There has also been an increase in parallel litigation between state and federal courts in an apparent effort to avoid the federal discovery stay or other provisions of the Act.") (Foung Dec. at Ex. C, p. 14.)

⁴ SLUSA precludes the maintenance of a class action for securities violations based on state law and allows removal to federal court of any class action filed in state court which asserts securities violations. Public Law 105-353, Sec. 101(a).

⁵ An identical provision, Public Law 105-353, Sec. 101(a)(2), similarly amends the Securities Act of 1933, 15 U.S.C. 77z-1(b).

⁶ Plaintiffs suggest that because they are already imposing such burden and expense in state court, the only purpose of the federal discovery stay has already been thwarted. In essence, plaintiffs argue that because they have successfully evaded the federal law, there is no point in having this Court enforce it.

⁷ See also Powers v. Eichen, 961 F. Supp. 233, 236 (S.D. Cal. 1997) ("[T]he Securities Subcommittee recommended heightened pleading requirements and a stay of discovery pending the outcome of a motion to dismiss. The Subcommittee determined that [ ] discovery should be permitted in securities class actions only after the court has sustained the legal sufficiency of the complaint.'") (citation omitted); 141 Cong. Rec. S19060, S19065 (Dec. 21, 1995) (statement of Sen. Faircloth) (Before the Reform Act, "once a lawyer files a frivolous lawsuit, with little or no facts, he gets the ability to engage in discovery. . . . He does not have to have anything when he starts. He gets it after he files his suit.") (Foung Dec. at Ex. F.)

The Reform Act, in fact, couples dismissal and the stay of discovery under the same heading. See 15 U.S.C. § 78u-4(b)(3)("MOTION TO DISMISS; STAY OF DISCOVERY"). Congress explained that the two provisions were linked: "[T]he [Senate] Committee has determined that discovery should be permitted in securities class actions only after the court has sustained the legal sufficiency of the complaint." See S. Rep. 104-98, 104th Cong., 1st Sess. at 14, reprinted in 1995 U.S.C.C.A.N. at 693 (1995) (Foung Dec. at Ex. G.)

⁸ See also Copperstone v. TCSI Corp., No. 775199-2, slip op. at 2 (Alameda County Super. Ct. Jan. 12, 1998) (no use of discovery in federal action) (Foung Dec. at Ex. H).

⁹ Plaintiffs criticize defendants for citing to unpublished state opinions, Pls'. Opp. at 10 n.13, yet fail to heed the similar mandate in NetManage.

¹⁰ Even without application of Public Law 105-353, Sec. 101(a)(2) and (b)(2), we respectfully submit that Judge Jensen's holding is directly contrary to the spirit of the Reform Act's mandatory stay, as discussed in Section B(2), supra. Moreover, Judge Jensen held that "[n]o evidence has been presented that plaintiffs filed the state action for the sole purpose of obtaining discovery to use in pleading federal securities law claims". This finding defies the findings of the SEC and Congress, see note 7, supra, and accompanying text, and ignores the facts here, where plaintiffs have provided no rationale whatever for their dual-track litigation.

¹¹ See also Sasu v. Yoshimura, 147 F.R.D. 173, 176 (N.D. Ill. 1993) (denying motion to modify protective order to allow discovery from one case to be used in another case because sharing discovery would violate privacy interests; "no right to use pretrial discovery in one case for the prosecution of another case") (citing to Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-34 (1984).)

¹² Plaintiffs' other citations are to similar effect. See Wauchop v. Domino's Pizza, Inc., 138 F.R.D. 539, 545-47 (N.D. Ind. 1992) (in personal injury actions arising from allegedly reckless 30 minute delivery policy, court denies protective order where defendants fail to make any showing of confidentiality; different result would follow if litigation were commenced solely to obtain discovery); Burlington City Bd. of Educ. v. United States Mineral Products Co., 115 F.R.D. 188, 190 (M.D.N.C. 1987) (court condemned the use of discovery in one suit solely for the purpose of assisting in the prosecution of another lawsuit); United States v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421, 426 (W.D.N.Y. 1981) (federal rules do not preclude bestowing benefits on state court litigants, "provided there is no attempt to exploit the federal litigation discovery process solely to assist litigation in a foreign forum"); Essex Wire Corp. v. Eastern Electric Sales Co., 48 F.R.D. 308, 312(E.D. Pa. 1969) (plaintiff may make any "lawful use" of the information; no showing that discovery is sought solely for another proceeding).

¹³ This Court is clearly empowered to grant this Motion. See Empire Blue Cross and Blue Shield v. Janet Greeson's A Place For Us Inc., 62 F.3d 1217, 1219 (9th Cir. 1995) ("'Control of pretrial discovery, including the entry or modification of a protective order, is a matter falling peculiarly within the discretion of the district court.'") (citations omitted) See also All Writs Act, 28 U.S.C. § 165; Harris v. Wells, 764 F. Supp. 743 (D. Conn. 1991) (district court, in order to retain its control over discovery, relied on All Writs Act to enjoin a party from commencing discovery in state court); see also United States v. Northrop Corp., 59 F.3d 953, 960 n.4 (9th Cir. 1995) (federal courts are empowered to "fashion[] a federal common law rule to displace a state law rule, when the state law rule would conflict with specific policies of a comprehensive federal scheme. . . ."); Sperry, 288 F.2d at 248-49.