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