Miller v. Facebook, Inc. et al

Filing 90

Declaration of Julio C. Avalos in Support of 89 Statement of Non-Opposition filed byFacebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 89 ) (Avalos, Julio) (Filed on 11/23/2010)

Miller v. Facebook, Inc. et al

Doc. 90

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 4 Park Plaza, Suite 1600 Irvine, CA 92614-2558 Telephone: [phone] Facsimile: 949-567 6710 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants.

Case No. CV-10-00264 (WHA) DECLARATION OF JULIO C. AVALOS IN SUPPORT OF FACEBOOK INC.'S CONSENT TO ENTRY OF PROTECTIVE ORDER

OHS West:261041603.1

FACEBOOK'S CONSENT TO ENTRY OF PROTECTIVE ORDER CASE NO.: 5:07-CV-01389-RS

Dockets.Justia.com

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I, Julio C. Avalos, declare as follows: 1. I am over 18 years of age and make this Declaration upon personal knowledge of

the facts set forth below except as to those matters stated on information belief, and as to those matters, I believe them to be true. If called upon to testify, I could and would testify competently as the matters set forth herein. 2. I am an attorney licensed to practice law under the laws of the State of California

and am an associate with the law firm of Orrick Herrington & Sutcliffe, attorneys for Defendant Facebook, Inc. ("Facebook") in the above-captioned matter. This declaration is filed in support of Facebook's Consent to Entry of Protective Order. 3. I have been working to get a stipulated protective order on file in this matter for

over a month. At the time that Plaintiff filed the instant motion for protective order, the parties had already come to an agreement on the terms of the protective order. The Court's intervention is unnecessary and the latest attempt by Plaintiff to force expensive motion practice in this litigation. 4. On October 13, 2010, I wrote to opposing counsel Brian Hancock with respect to a

joint protective order that we were attempting to draft and come to an agreement on. Given the sensitive nature of the discovery targeted and likely to be targeted in this litigation, I suggested that our protective order needed to have "different categories of protected documents." "So for instance," I wrote, "we're proposing that rather than having one catch-all category, we would have a base level of protection for documents marked CONFIDENTIAL and then a higher-level of protection for documents marked HIGHLY CONFIDENTIAL." A true and correct copy of this e-mail is attached hereto as Exhibit A. 5. Later that day, Mr. Hancock responded, "As described in your e-mail below, I

have no problem with confidentiality distinctions. I look forward to receiving the approved markups from your client." A true and correct copy of this e-mail is attached hereto as Exhibit B. 6. I e-mailed a proposed draft of the protective order to Mr. Hancock on October 19,

2010. A true and correct copy of this e-mail, with attachment, is attached hereto as Exhibit C.

OHS West:261041603.1

FACEBOOK'S CONSENT TO ENTRY OF PROTECTIVE ORDER CASE NO.: 5:07-CV-01389-RS

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With the exception of some minor edits, the protective order was taken from the Northern District of California's form standard protective order governing litigations with sensitive information. 7. On October 22, 2010, Mr. Hancock responded with a multi-page objection to my

draft. Other than taking issue with some redactions that Facebook had made to the Court form, Mr. Hancock objected primarily to certain standard Northern District provisions regarding the vetting of expert witnesses and the inspection of sensitive source code. A true and correct copy of this e-mail is attached as Exhibit D. 8. On October 27, 2010, I wrote to Mr. Hancock and alerted him that "a meet and

confer may be required" on a couple of his objections. "Both of the provisions," I noted, "are taken virtually verbatim from the Northern District of California's standard protective order for cases in which there is highly sensitive material at issue." I provided Mr. Hancock with a link to the form order. A true and correct copy of this e-mail is attached as Exhibit E. 9. We continued working on the language of the protective order during the next

week and a half. On November 11, 2010, I wrote to Mr. Hancock and told him that our protective order had a gap with respect to source code inspection logs. In that e-mail, I cited to an October 20, 2010 Central District of California opinion that I had recently run across and that highlighted a possible pitfall associated with the missing provision in our protective order. A true and correct copy of my e-mail to Mr. Hancock, along with the Central District opinion referenced in the email, is attached hereto as Exhibit F. 10. Following that e-mail, Mr. Hancock responded that he was open to my edit. A

true and correct copy of this e-mail is attached hereto as Exhibit G. That was the last communication I had with Mr. Hancock in any form prior to the filing of the instant motion for a protective order or the concurrently-filed letter brief seeking to compel discovery responses. The court's intervention could have and should have been avoided here. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 23rd day of November 2010 at Menlo Park, California. /s/ Julio C. Avalos Julio C. Avalos
OHS West:261041603.1

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5:07-CV-01389-RS