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 Att. 7

EXHIBIT G

Dockets.Justia.com

Dalton, Amy
From: Sent: T o: Cc: Subject: Brian Hancock [[e-mail]] Thursday, November 11, 2010 3:08 PM Avalos, Julio Chatterjee, I. Neel; Gray, Thomas RE: Stipulated Protective Order (Redlined Draft)

Julio, I have no problem with that. As requested in my email dated November 9th, and in light of the Plaintiff's pledge to abide by the terms of the agreedupon protective order prior to formal entry by the Court, please confirm whether or not Facebook is willing to respond to Plaintiff's discovery requests now that the parties are in agreement.
Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 [phone] (direct) [phone] (office) [phone] (fax) [e-mail]

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From: Avalos, Julio [mailto:[e-mail]] Sent: Thursday, November 11, 2010 12:38 PM To: Brian Hancock Cc: Chatterjee, I. Neel; Gray, Thomas Subject: RE: Stipulated Protective Order (Redlined Draft) Brian, I think we're just about there on the protective order. However, I wanted to get your thoughts on Section 8(e) regarding source code inspection logs. As currently drafted, the provision reads:

(e)

The Receiving Party shall maintain a record of any individual who has inspected any portion of

the source code in electronic or paper form. The Receiving Party shall maintain all paper copies of any printed portions of the source code in a secured, locked area. The Receiving Party shall not create any electronic or other images of the paper copies and shall not convert any of the information contained in the paper copies into any electronic format. The Receiving Party shall only make additional paper copies if such additional copies
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are (1) necessary to prepare court filings, pleadings, or other papers (including a testifying expert's expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its case. Any paper copies used during a deposition shall be retrieved by the Producing Party at the end of each day and must not be given to or left with a court reporter or any other individual.
Though the Receiving Party is required to "maintain a record of any individual who has inspected" source code, the Order currently says nothing regarding what rights, if any, the Producing Party has to review that record/log. Indeed, the Order currently says nothing whatsoever about what may or may not be done with those logs or what purpose they're supposed to serve. Given the sensitivity of source code likely to be targeted in this litigation, this omission presents a problem. I've just come across an October 20, 2010 Southern District of California opinion highlighting the risks associated with such an omission. I've attached the case here, HTI IP LLC, et al. v. Webtech Wireless, Inc., et al., 2010 U.S. Dist. LEXIS 111441 (S.D. Cal. Oct. 20, 2010). The producing party asked for access to the receiving party's logs. The Court held that under the language of the protective order, the receiving party was under no obligation to make the logs available for inspection to the other side: "[T]he plain language of ... [the disputed provision] only requires Plaintiffs to maintain their own log of files that are printed out or photocopied from the source code. The parties negotiated the terms of this detailed protective order, and if they had intended that a log or copies of printouts be provided to the producing party ... they would have included the specifics of that procedure in the protective order." In order to avoid unnecessary ambiguity later on, we suggest that 8(e) be amended to expressly require that source code "inspection logs" be made available upon request to the Producing Party. If you agree, we'll go ahead and draft up some proposed language for you to review. Thanks, Julio

From: Brian Hancock [mailto:[e-mail]] Sent: Tuesday, November 09, 2010 12:28 PM To: Avalos, Julio Cc: Chatterjee, I. Neel; Gray, Thomas Subject: FW: Stipulated Protective Order (Redlined Draft)

Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 [phone] (direct) [phone] (office) [phone] (fax) [e-mail]

The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any.
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From: Brian Hancock Sent: Tuesday, November 09, 2010 2:25 PM To: 'Avalos, Julio' Cc: Chatterjee, I. Neel; Gray, Thomas Subject: Stipulated Protective Order (Redlined Draft)

Julio, Per your request in your email dated November 4th, please find attached a redlined version of the Protective Order agreed to by Mr. Miller and Facebook. There should be no disputes left as to the terms of the present draft. Please confirm. I would also ask that if the parties are in agreement as to the terms of the Protective Order as set forth in the attached version, that Facebook proceed with full production and responses to the Plaintiff's First Consolidated Discovery Requests prior to entry of an Order by the Court. The Plaintiff agrees to be fully bound by the terms of the agreed-upon order prior to the Court's formal entry of same, and in light of the fact that Facebook's responses and document production is past due and the non-expert discovery cut-off is presently little more than two months away (January 31, 2011), the Plaintiff does not consider this to be an unreasonable request. Please confirm whether or not Facebook is willing to proceed with discovery as requested. Should you have any questions or comments, please do not hesitate to contact me. Sincerely,
Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 [phone] (direct) [phone] (office) [phone] (fax) [e-mail]

The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any.

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