Sony Computer Entertainment America LLC v. Hotz et al

Filing 94

Letter from [Joint] Plaintiff SCEA and Defendant George Hotz re Proposed Order for March 10, 2011 Hearing. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit A)(Smith, Mehrnaz) (Filed on 3/14/2011)

Sony Computer Entertainment America LLC v. Hotz et al

Doc. 94 Att. 10

EXHIBIT A

Dockets.Justia.com

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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SAN FRACISCO DIVSION

14 SONY COMPUTER ENTERTAINMENT Case No. 11-CV-000167 SI

16 Plaintiff,
17 v.
18 GEORGE HOTZ, et aI.,

15AMERICA LLC, a Delaware limited liability company, (PROPOSED) ORDER

19 Defendants.
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On March 10, 2011, the Court held a hearing on the parties' February 18, 2011 and February 28, 2011

joint letters (Docket Nos. 85 and 86) on discovery and impoundment dis-

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putes. Having considered all the papers and arguments, the Court enters the following

order:

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(1) With regard to third party subpoenas, the Court orders that:

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ORDER

24045.01/4822-3543-7832

(No. ii-CV-ooi67-SI)

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(a) SCEA is ordered to immediately notify all subpoenaed parties of their right
to file motions to quash and that all responses are to be marked "Attorneys'

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Eyes Only". SCEA is further ordered to immediately notify all subpoenaed

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parties that each parties' time to respond, currently March 16, 2011, is extended by 7 calendar days. Further, Mr. Hotz believes that SCEA should be

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obligated to return any documents that have already been produced by any

third party and allow that third party seven days to determine whether it
desires to move to quash. These third parties have obligations to protect

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the privacy of numerous consumers

(b) Plaintiff SCEA is authorized to serve third party PayPal, Inc. with a sub-

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poena seeking the following limited information relating to personal juris-

diction: documents suffcient to identify funds from payers having an
address of record in California, that went into any Pay

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Pal account asso-

ciated with geohot(ggmaiI.com for the period of January 1,2009 to February 1, 2011. SCEA is ordered to redraft its subpoena to seek this

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information. SCEA is further ordered to inform PayPal, Inc. that any in-

formation produced in response to the subpoena shall be provided on an
Attorneys' Eyes Only basis and that the issuance of the subpoena is without

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prejudice to its right to file a Motion to Quash.

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(2) Mr. Hotz is ordered to sign a consent for SCEA to obtain Twitter posts under

the Twitter account "geohot" from January 1, 2009 to the present.
(3) Defendant George Hotz is ordered to respond to a written deposition relating

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solely to the question of personal jurisdiction. The parties shall determine the date of

the deposition. Additionally, the parties have stipulated that Mr. Hotz cannot be served

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-224045.01/4822-3543-7832, v. 1

ORDER
(No. ii-cv-oooi67 SI)

with process by the parties to this action or the parties identified in SCEA's Certification
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ofInterested Entities or Person (Docket No. 16) while Mr. Hotz is present in California.

(4) With regard to the impoundment, the Court orders that:
(a) The Intelligence Group ("TIG"), the third party neutral chosen by both par-

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ties, shall only take steps with regard to the impounded devices that are authorized by Court order.
(b) The first $7000 ofTIG costs will be split equally between SCEA and Mr.

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Hotz. SCEA has agreed to and shall pay any amount over the $7000.

(c) Upon Court order ofthe places to be searched and items to be impounded,
TIG is ordered to conduct the procedure of impoundment in the forensically sound manner as proposed in its Certification of February 27,2011.
(d) The Court orders the parties to meet and confer regarding what exactly is

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"information related to circumvention devices." (5) With regard to jurisdictional discovery of documents contained in the im-

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pounded hard drives, the Court orders that:
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(a) TIG shall conduct a forensically sound search of the impounded hard

drives to determine whether:

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(i)

they contain specific portions of the development tools for the
PlayStation 3 System (the "SDK") which specific portions explicitly
state that SCEA owns the SDK and that SCEA is located in Califor-

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nia;

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1) SCEA shall provide Mr. Hotz's counsel the specific source files
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that SCEA allege contain the above-referenced representa-

tions;

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-324045.01/4822-3543-7832, v. 1
ORDER
(NO. ii-cv-oooi67 SI)

2) SCEA shall provide Mr. Hotz's counsel the SDK from which
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the specific portions of the source fies were obtained along

with a declaration from SCEA stating that SCEA has provided
true and correct copies of

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the SDK as distributed by SCEA; and

3) Mr. Hotz's counsel shall have four (4) business days to verify

that the specific portions of the files identified by SCEA are
contained in the SDK provided by SCEA and that the specific

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portions of the fies identified by SCEA in fact state that SCEA
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(c) In order to obtain

is located in California and that SCEA owns the SDK.

jurisdictional discovery relating to whether the impounded

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hard drives have ever connected to the Playstation Network ("PSN"), SCEA shall provide

a declaration made under penalty of perjury stating that a normal standalone computer
hard drive not connected to a PS3 can connect to the PSN, and that if a normal standalone computer hard drive not connected to a PS3 were to connect to the PSN that the user would have to click through the PSN Agreement which contains and has always

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contained a forum selection clause identifyng California as the forum for any lawsuit
brought based on a breach of the PSN Agreement.
(d) If

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the declaration provided for under subdivision (c) is made by SCEA, then

TIG shall determine whether the impounded hard drives have been used to access or
connect to the PSN.
(i)
SCEA shall specifically identify evidence that would only be created

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from a hard drives' standalone access to the PSN.
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(ii)

SCEA shall provide Mr. Hotz's counsel the specific source files that
SCEA alleges would contain such evidence; and

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ORDER
(NO. ii-cv-oooi67 SI)

(iii) Mr. Hotz's counsel shall have four (4) business days to verify that
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such files identified by SCEA would be created were a standalone

hard drive to access the PSN.

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(iv) Afer SCEA and Mr. Hotz verify that subdivisions (i) through (iii)
have been completed, TIG shall follow the protocol described in its
Certification of February 26, 2011 at ~ 10(g) to search for the abovedescribed evidence.

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/// /// ///

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To the

(6) The parties shall enter a Stipulated Protective Order for all discovery matters.

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extent the parties are unable to agree on the terms, they are ordered to file a joint letter
no longer

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than 10 pages to set forth the disputed terms and the parties' respective positions.
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19 IT is SO ORDERED.
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DATED:

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HON. JOSEPH C. SPERO UNITED STATES MAGISTRATE JUDGE

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4822-3543-7832, v. 1

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-524045.01/4822-3543-7832, V. 1
ORDER
(No. ii-cv-oooi67 SI)