Oracle America, Inc. et al v. Hewlett Packard Enterprise Company
Filing
444
STIPULATION AND ORDER re 443 STIPULATION WITH PROPOSED ORDER TO TAKE LIMITED DISCOVERY AFTER THE FACT DISCOVERY DEADLINE filed by Hewlett Packard Enterprise Company. Signed by Judge Jon S. Tigar on December 1, 2017. (wsn, COURT STAFF) (Filed on 12/1/2017)
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LATHAM & WATKINS LLP
Christopher S. Yates (SBN 161273)
Christopher B. Campbell (SBN 254776)
Brittany N. Lovejoy (SBN 286813)
Alexander E. Reicher (SBN 286667)
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: 415.391.0600
Facsimile: 415.395.8095
Email: chris.yates@lw.com
christopher.campbell@lw.com
brittany.lovejoy@lw.com
alexander.reicher@lw.com
Attorneys for Plaintiffs
Oracle America, Inc., and Oracle
International Corporation
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JEFFREY T. THOMAS, SBN 106409
jtthomas@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612-4412
Telephone: 949.451.3800
Facsimile: 949.451.4220
SAMUEL LIVERSIDGE, SBN 180578
sliversidge@gibsondunn.com
BLAINE H. EVANSON, SBN 254338
bevanson@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: 213.229.7000
Facsimile: 213.229.7520
Attorneys for Defendant
Hewlett Packard Enterprise Co.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ORACLE AMERICA, INC., a Delaware
corporation; ORACLE INTERNATIONAL
CORPORATION, a California corporation
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Plaintiffs,
v.
HEWLETT PACKARD ENTERPRISE
COMPANY, a Delaware corporation; and DOES
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CASE NO. 3:16-cv-01393-JST
JOINT STIPULATION AND
[PROPOSED] ORDER BY
DEFENDANT HEWLETT PACKARD
ENTERPRISE COMPANY AND
PLAINTIFFS ORACLE AMERICA
INC. AND ORACLE INTERNATIONAL
CORPORATION TO TAKE LIMITED
DISCOVERY AFTER THE FACT
DISCOVERY DEADLINE
Defendants.
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JOINT STIPULATION AND [PROPOSED] ORDER RE CASE SCHEDULE
Case No. 3:16-cv-01393-JST
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Plaintiffs Oracle America, Inc. and Oracle International Corporation (together “Oracle”) and
Defendant Hewlett Packard Enterprise Company (“HPE”) (together, the “Parties”) submit the
following joint stipulation in response to the Court’s November 27, 2017 order entered by Magistrate
Judge Laporte concerning various letter briefs submitted by the Parties pursuant to Local Rule 37-3
(the “November 27 Order”), seeking this Court’s approval to exchange discovery after the fact
discovery cutoff as ordered by Judge Laporte and as anticipated by the Local Rules.
WHEREAS, fact discovery in this matter closed on October 2, 2017 (ECF No. 312);
WHEREAS, Local Rule 37-3 permits the parties to submit motions to compel discovery “7
days after the discovery cut-off”;
WHEREAS, on October 10, 2017, the Parties submitted a Joint Discovery Letter Brief
wherein HPE challenged the sufficiency and scope of Oracle’s document collection and production
for nine of Oracle’s document custodians (ECF No. 374);
WHEREAS, on October 10, 2017, the Parties submitted a Joint Discovery Letter Brief
wherein Oracle argued that HPE had waived the attorney-client privilege with respect to certain
issues (ECF No. 378);
WHEREAS, on October 11, 2017, the Parties submitted a Joint Discovery Letter Brief
regarding discovery related to Oracle’s hardware displacement claims (ECF No. 382);
WHEREAS, on October 11, 2017, the Parties submitted a Joint Discovery Letter Brief
wherein Oracle argued that HPE had improperly withheld discovery on certain issues (ECF No. 384);
WHEREAS, on November 27, 2017, Magistrate Judge Laporte issued an Order on the
Parties’ aforementioned Joint Discovery Letter Briefs (ECF No. 442);
WHEREAS, with respect to ECF No. 374, the November 27 Order requires Oracle to do the
following: “On or before Monday, December 11, 2017, Oracle shall search and review updated
document collections for custodians Jim Stonaker and Jeremy Sparks from the date of their last
collection to the date of the updated collection (performed on or after the filing of this litigation) and
produce all responsive, non-privileged documents,” and “[o]n or before Monday, December 18, 2017,
Oracle shall produce a privilege log to HPE that sets forth any responsive documents from
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JOINT STIPULATION AND [PROPOSED] ORDER RE CASE SCHEDULE
Case No. 3:16-cv-01393-JST
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Mr. Stonaker’s and Mr. Sparks’s updated document collections that were withheld, either in full or in
part, on the basis of privilege” (id.);
WHEREAS, with respect to ECF No. 378, the November 27 Order requires HPE to “either
(1) produce and waive the privilege over documents listed on its privilege log in ‘the relevant time
period’ reflecting ‘general legal advice’ regarding Terix and what HPE employees should do with
respect to opportunities involving Terix . . ., or (2) withdraw or adequately redact all documents
reflecting advice by HPE attorneys or HPE’s legal department and stipulate that HPE will not make
an advice of counsel defense or advance a good faith defense or other argument at summary
judgment or trial that relies on ‘subjective belief[s] . . . informed by attorney advice’ from HPE’s
legal department or attorneys” (id.);
WHEREAS, with respect to ECF No. 378, the November 27 Order further requires HPE, if it
elects option (2) above, to, on or before December 11, 2017, “identify for Oracle (by Bates number)
all documents it seeks to redact or withdraw from production on the basis of attorney-client privilege
and/or work product protection in ‘the relevant time period’ reflecting ‘general legal advice’
regarding Terix and what HPE employees should do with respect to opportunities involving Terix”;
“produce revised, redacted versions of all such documents, except for those documents that HPE
seeks to withdraw in their entirety, and provide a written stipulation that HPE will not make an
advice of counsel defense or advance a good faith defense or other argument at summary judgment or
trial that relies on subjective beliefs that were informed by attorney advice from HPE’s legal
department or attorneys”; and “make a proposal to Oracle with respect to how it proposes to handle
deposition transcripts which attach or quote from documents [HPE] is withdrawing from production”
(id.);
WHEREAS, with respect to ECF No. 378, the November 27 Order requires Oracle to, on or
before December 18, 2017, “inform HPE of additional redactions—if any—it requests that HPE
make to [the documents identified by HPE] or other documents HPE has produced and whether
HPE’s proposal with respect to deposition transcripts which attach or quote from documents it is
withdrawing from production is acceptable,” and requires HPE to, on or before December 21, 2017,
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JOINT STIPULATION AND [PROPOSED] ORDER RE CASE SCHEDULE
Case No. 3:16-cv-01393-JST
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“inform Oracle whether it agrees or disagrees with each of the additional redactions—if any—that
Oracle proposes, and promptly produce the remaining documents with any of the additional
redactions on which the parties agree” (id.);
WHEREAS, with respect to ECF No. 378, the November 27 Order further requires the Parties
to file a joint letter with the Court not to exceed five (5) pages on or before December 29, 2017,
should the Parties continue to disagree on issues concerning Section B of the November 27 Order
(id.);
WHEREAS, with respect to ECF No. 382, the November 27 Order requires Oracle to search
for and produce documents regarding ‘“decline’ in Oracle’s ‘[server] hardware business’ during the
relevant period, including documents concerning the cause(s) of those decline,” from the three (3)
existing Oracle custodians identified by HPE on November 27, 2017 (id.);
WHEREAS, with respect to ECF No. 382, the November 27 Order requires the Parties to
produce specified responsive, non-custodial data on or before Friday, December 1, 2017 (id.);
WHEREAS, with respect to ECF No. 382, the November 27 Order further requires the Parties
to meet and confer after the aforementioned non-custodial data is produced, at which point each party
may identify no more than three (3) customers for which it proposes to pursue custodial productions,
and within seven (7) days of that identification, each party shall identify the name and title of one
document custodian for each of the identified customers, and the Parties shall then produce specified
responsive, non-privileged documents from those custodians on a schedule agreed upon by the
Parties but not exceeding forty-five (45) days from the date the custodians are identified (id.);
WHEREAS, with respect to ECF No. 384, the November 27 Order requires HPE to
“designate, prepare and present a witness to testify on Topic 27 of Oracle’s Rule 30(b)(6) Notice to
HPE” on a date that is “convenient for the witness and the Parties” for a deposition that “shall not
exceed two hours of record time, not including any ‘objections or problems’ (beyond ordinary
objections) that take place on the record” (id.);
WHEREAS, with respect to ECF No. 384, the November 27 Order requires HPE to, on or
before Wednesday, November 29, 2017, “amend its response to Oracle’s Interrogatory No. 24 to
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JOINT STIPULATION AND [PROPOSED] ORDER RE CASE SCHEDULE
Case No. 3:16-cv-01393-JST
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describe any ‘official guidance’ provided by its legal department to any of its employees regarding
Terix, to the extent HPE decides not to withdraw or adequately redact all of the documents it has
produced reflecting that information and provide the stipulation” referenced in Section B of the
November 27 Order (id.);
WHEREAS, the aforementioned discovery ordered in the November 27 Order will take place
after the discovery cutoff of October 2, 2017, and Judge Laporte instructed the Parties to “file a joint
stipulation and request for an extension of the Scheduling Order with Judge Tigar to accommodate
the discovery and deadlines reflected in [the November 27] Order” (id.);
WHEREAS, in light of Judge Laporte’s November 27 Order, good cause exists to permit this
limited discovery after the fact discovery cutoff;
WHEREAS, for the avoidance of doubt, the Parties are not proposing an extension of the fact
discovery period; rather, the Parties are merely seeking this Court’s approval to exchange discovery
after the fact discovery cutoff as ordered by Judge Laporte, and as anticipated by the Local Rules;
WHEREAS, nothing in this stipulation shall be interpreted as any waiver of the Parties’ rights
to relief from Judge Laporte’s November 27 Order;
NOW, THEREFORE, the parties hereby stipulate and request that the Court permit the Parties
to exchange the discovery ordered by Judge Laporte in the November 27 Order by the dates set forth
in that Order.
IT IS SO STIPULATED.
Dated: November 30, 2017
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GIBSON, DUNN & CRUTCHER LLP
By:
/s/ Samuel G. Liversidge
Samuel G. Liversidge
Attorneys for Defendant
Hewlett Packard Enterprise Company
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Dated: November 30, 2017
LATHAM & WATKINS LLP
By: _ /s/ Christopher S. Yates_____________
Christopher S. Yates
Attorneys for Plaintiffs
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JOINT STIPULATION AND [PROPOSED] ORDER RE CASE SCHEDULE
Case No. 3:16-cv-01393-JST
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Oracle America, Inc. and Oracle International
Corporation
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PURSUANT TO STIPULATION, IT IS SO STIPULATED.
Dated: December 1, 2017
By:______________________________
THE HONORABLE JON S. TIGAR
UNITED STATES DISTRICT JUDGE
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JOINT STIPULATION AND [PROPOSED] ORDER RE CASE SCHEDULE
Case No. 3:16-cv-01393-JST
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