United States Of America v. Bazaarvoice, Inc.

Filing 33

Order re Protective Order and other discovery issues raised in joint case management conference statement. Signed by Magistrate Judge Laurel Beeler on 3/4/2013.(lblc2, COURT STAFF) (Filed on 3/4/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division UNITED STATES, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 13-00133 EMC (LB) Plaintiff, ORDER RE PROTECTIVE ORDER AND OTHER DISCOVERY ISSUES RAISED IN JOINT CASE MANAGEMENT CONFERENCE STATEMENT v. 13 BAZAARVOICE, INC, 14 15 Defendant. _____________________________________/ 16 17 [Re: ECF No. 31] INTRODUCTION There are two discovery categories pending: (1) the parties’ disagreements about language in the 18 protective order (raised in the joint letter brief at ECF No. 31), and (2) issues identified in the joint 19 case management conference statement at ECF No. 26. 20 21 22 ANALYSIS I. PROTECTIVE ORDER Given the deadlines in this case, a protective order needs to be entered immediately. The 23 undersigned read the parties’ joint letter brief at ECF No. 31 and concludes that Defendant has the 24 better argument, especially because the government is not precluded from moving to modify the 25 protective order. 26 More specifically, as to section 7.6(c), Defendant’s proposal mirrors Plaintiff’s proposal with 27 these permitted disclosures: to authorized persons in the Executive Branch, for law enforcement 28 purposes, to enforce the judgment, or for other purposes authorized by law. Ex. A, Joint Letter ORDER C 13-00133 EMC (LB) 1 Brief, ECF No. 31-1 at 2. Plaintiff proposes adding as a permitted use that it may use produced 2 information “in the course of any other legal proceeding in which the United States is a party.” As 3 support for that proposal, Plaintiff cites its special obligations and points to other stipulated 4 protective orders that include that provision. But as Defendant points out, those were stipulated 5 orders. It may be that the Department of Justice can articulate the reasons that it ought to be able to 6 use the information in any other legal proceeding, but it can do so in the procedural posture of 7 asking to modify the order (and it may do so with a more robust showing in a joint letter brief). For 8 now, absent that illumination, the disclosures need to be made, and they cannot be made until the 9 protective order is filed. case, Plaintiff wants to be able to retain and use confidential or highly confidential information “for 12 For the Northern District of California As to section 13, which governs the return or destruction of confidential material at the end of a 11 UNITED STATES DISTRICT COURT 10 law enforcement purposes or as otherwise required by law.” Defendant proposes that “[s]hould 13 plaintiff want to retain any protected information for the purposes set forth in section 7.6(c),” which 14 include for a law enforcement purpose or as authorized by law, it needs to ask the court at the end of 15 litigation to modify the order to permit it to do so. Ex. A, Joint Letter Brief, ECF No. 31-1 at 3-4. 16 Given the allegations in the complaint, the undersigned cannot see why the determination needs 17 to be made now in such a blanket way without any grounding in whatever discovery ultimately is at 18 issue. The government ought to ask to keep it after it gets it (as opposed to before it even sees it). 19 Also, at the end of a case or investigation, the Antitrust Division returns materials absent specific 20 authorization to return them. Joint Letter Brief, ECF No. 31 at 4 n.5 (citing Antitrust Division 21 Policy). If the Division were to say – after reviewing the documents – that it wants to retain them as 22 “‘relevant to a current or actively contemplated Department investigation or case’” or that they 23 “‘will be of substantial assistance in the Division’s continuing enforcement responsibilities,’” then 24 the undersigned would agree that the protective order ought to be modified then to permit such 25 retention. Id. (quoting Antitrust Division policy). For now, and without any suggestion that the 26 Antitrust Division’s request is grounded in this particular case, the parties can rely on the standard 27 order to get the productions moving. 28 In sum, the court authorizes the protective order in Exhibit B with Defendant’s proposed terms in ORDER C 13-00133 EMC (LB) 2 1 Exhibit A. See Ex. A & Ex. B to Joint Letter Brief, ECF Nos. 31-1 & 31-2. The parties should 2 submit a stipulated order so that the docket is clear. 3 II. PENDING MATTERS IN JOINT CMC STATEMENT 4 There are other discovery issues in the joint CMC statement: (1) production of the data used to 5 create the charts on pages 23, 65, and 81 of the white paper that counsel for Bazaarvoice submitted 6 to the Department of Justice on December 5, 2012; (2) what a privilege log ought to look like 7 (document by document or categorical); and (3) the use of the investigative deposition of Mr. 8 Godfrey. As to issue 1, the court cannot tell from the joint CMC statement what the data is or what 9 the burdens might be. As to issue 2, Defendant cited some cases, and Plaintiff did not, but it seems 10 The court previously set a discovery hearing on the joint letter brief for Thursday, March 7, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 ripe for discussion, and issue 3 does too. 2013, and it keeps it to discuss these issues. To the extent that the parties want to illuminate point 1, 13 it might be helpful to at least submit the chart to the court in advance (say, by Monday, March 4, 14 2013, at 4 p.m.). 15 16 CONCLUSION To avoid any further delay with discovery, and because Plaintiff’s proposed uses can be 17 addressed easily and without undue burden on the Department of Justice later in the case, the court 18 grants Defendant’s proposed protective order. This disposes of ECF No. 31. 19 The court keeps the hearing that is now set for March 7, 2013 to discuss the remaining issues. 20 IT IS SO ORDERED. 21 Dated: March 4, 2013 _______________________________ LAUREL BEELER United States Magistrate Judge 22 23 24 25 26 27 28 ORDER C 13-00133 EMC (LB) 3

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