24/7 Customer, Inc. v. LivePerson, Inc.

Filing 177

STIPULATION AND ORDER re 176 STIPULATION WITH PROPOSED ORDER Re: Authenticity of Third Party Documents filed by 24/7 Customer International Holdings, Ltd., 24 7.ai, Inc. Signed by Judge Jon S. Tigar on February 7, 2018. (wsn, COURT STAFF) (Filed on 2/7/2018)

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1 2 3 4 5 6 7 8 9 10 DARIN W. SNYDER (S. B. #136003) dsnyder@omm.com MARK E. MILLER (S.B. #130200) markmiller@omm.com GEOFFREY H. YOST (S.B. #159687) gyost@omm.com ANNE E. HUFFSMITH (s.b. #236438) ahuffsmith@omm.com ALEXANDER B. PARKER (S.B. #264705) aparker@omm.com O’MELVENY & MYERS LLP Two Embarcadero Center 28ᵗʰ Floor San Francisco, California 94111-3823 Telephone: +1 415 984 8700 Facsimile: +1 415 984 8701 MICHAEL W. DE VRIES (S.B. #211001) michael.devries@kirkland.com SHARRE LOTFOLLAHI (S.B. #258913) sharre.lotfollahi @kirkland.com KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, CA 90071 Telephone: (213) 680-8400 Facsimile: (213) 680-8500 Attorneys for Plaintiff LivePerson, Inc. Attorneys for Defendant [24]7.ai, Inc. 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO 14 15 LivePerson, Inc., 16 17 18 Plaintiff, v. [24]7.ai, Inc., 19 20 21 Defendant. [24]7.ai, Inc. and 24/7 Customer International Holdings, Ltd., 22 23 24 25 Case No. 3:17-CV-01268-JST Plaintiffs, v. Case No. 3:15-CV-02897-JST (KAW) (Lead Case) Case No. 3:15-CV-05585-JST (KAW) STIPULATION AND [PROPOSED] ORDER RE: AUTHENTICITY OF THIRD PARTY DOCUMENTS LivePerson, Inc., Defendant. 26 27 28 STIPULATION RE: AUTHENTICITY OF THIRD PARTY DOCUMENTS CASE NO. 3:17-CV-01268-JST (KAW) CASE NO. 3:15-CV-05585-JST 1 STIPULATION 2 3 LivePerson, Inc. and (“LivePerson”) and [24]7.ai, Inc. and 24/7 Customer Holdings, Inc. 4 (collectively, “[24]7”) have obtained documents from third parties in response to the service of 5 subpoenas under Fed. R. Civ. P. 45 in LivePerson, Inc. v. [24]7.ai, Inc., No. 3:17-cv-01268-JST, 6 and [24]7.ai, Inc. and 24/7 Customer International Holdings, Ltd. v. LivePerson, Inc., Nos. 3:15- 7 cv-02897-JST (KAW) and 3:15-cv-05585-JST (KAW) (the “Actions”). 8 9 The parties, subject to the approval of the Court, hereby agree and stipulate as follows: 1. Documents produced in the Actions by a third party in response to a subpoena 10 under Fed. R. Civ. P. 45 (“third-party documents”) shall be presumed authentic 11 within the meaning of Federal Rule of Evidence 901 for the purposes of the 12 Actions only. 13 2. Neither party will object to the authenticity of the third-party documents for 14 the purposes of the Actions absent good cause. Good cause requires 15 affirmative evidence that a document is not authentic, such as evidence that a 16 document is not what it purports to be, is incomplete (e.g., missing or 17 incomplete pages), or has been modified from the form in which the third party 18 originally produced it. 19 3. For the purposes of the Actions only, a sworn declaration provided by a third 20 party shall be deemed admissible sworn testimony for the sole purpose of 21 establishing foundational facts regarding the admissibility of the third-party 22 documents and [24]7 and LivePerson documents sent to or received from the 23 third party into evidence, including facts demonstrating the applicability of an 24 exception to the rule against hearsay pursuant to Federal Rule of Evidence 803. 25 Any party seeking to admit such a third party declaration must serve such 26 declaration on the opposing party by May 3, 2018. 27 SO STIPULATED. 28 -1- STIPULATION RE: AUTHENTICITY OF THIRD PARTY DOCUMENTS CASE NO. 3:17-CV-01268-JST (KAW) CASE NO. 3:15-CV-05585-JST 1 2 3 Dated: February 6 , 2018 SHARRE LOTFOLLAHI KIRKLAND & ELLIS LLP 4 By: /s/ Sharre Lotfollahi Sharre Lotfollahi 5 6 Attorneys for Plaintiff LivePerson, Inc. 7 8 9 Dated: February 6, 2018 10 11 GEOFFREY H. YOST O’MELVENY & MYERS LLP By: /s/ Geoffrey H. Yost Geoffrey H. Yost 12 Attorneys for Defendant [24]7.ai, Inc. 13 14 15 16 17 18 ATTESTATION Pursuant to Civil Local Rule 5-1(i)(3), I hereby attest that concurrence in the filing of this document has been obtained from Sharre Lotfollahi of Kirkland & Ellis, counsel for LivePerson. Dated: February 6, 2018 O’MELVENY & MYERS LLP 19 20 By: 21 /s/ Geoffrey H. Yost Geoffrey H. Yost 22 23 24 25 26 27 28 -2- STIPULATION RE: AUTHENTICITY OF THIRD PARTY DOCUMENTS CASE NO. 3:17-CV-01268-JST (KAW) CASE NO. 3:15-CV-05585-JST 1 2 ORDER 1. Documents produced in the Actions by a third party in response to a subpoena 3 under Fed. R. Civ. P. 45 (“third-party documents”) shall be presumed authentic 4 within the meaning of Federal Rule of Evidence 901 for the purposes of the 5 Actions only. 6 2. Neither party will object to the authenticity of the third-party documents for 7 the purposes of the Actions absent good cause. Good cause requires 8 affirmative evidence that a document is not authentic, such as evidence that a 9 document is not what it purports to be, is incomplete (e.g., missing or 10 incomplete pages), or has been modified from the form in which the third party 11 originally produced it. 12 3. For the purposes of the Actions only, a sworn declaration provided by a third 13 party shall be deemed admissible sworn testimony for the sole purpose of 14 establishing foundational facts regarding the admissibility of the third-party 15 documents and [24]7 and LivePerson documents sent to or received from the 16 third party into evidence, including facts demonstrating the applicability of an 17 exception to the rule against hearsay pursuant to Federal Rule of Evidence 803. 18 Any party seeking to admit such a third party declaration must serve such 19 declaration on the opposing party by May 3, 2018. 20 21 PURSUANT TO STIPULATION, IT IS SO ORDERED. 22 23 24 25 26 Dated: ___________, 2018 February 7 ________________________________________________ Honorable Jon S. Tigar United States District Judge Northern District of California 27 28 -3- STIPULATION RE: AUTHENTICITY OF THIRD PARTY DOCUMENTS CASE NO. 3:17-CV-01268-JST (KAW) CASE NO. 3:15-CV-05585-JST

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