E.D.C. Technologies, Inc. v. Seidel et al

Filing 92

ORDER RE: DISCOVERY 91 . (Illston, Susan) (Filed on 8/21/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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E.D.C. TECHNOLOGIES, INC.,
Plaintiff,

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Re: Dkt. No. 91
JIM SEIDEL, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER RE: DISCOVERY

v.

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Case No. 16-cv-03316-SI

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The Court is in receipt of the parties’ joint discovery letter. Dkt. No. 91. In the letter,

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plaintiff and defendants object to one another’s designations of certain materials as either “Source

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Code” or “Attorneys’ Eyes Only” under the parties’ stipulated protective order, Dkt. No. 81, and

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further object to the sufficiency of one another’s document productions.

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I.

EDC’s Objections

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EDC first takes issue with defendants’ designation of certain materials as “Highly

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Confidential – Source Code” under the parties’ stipulated protective order. EDC argues that three

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documents should be redesignated as “Attorneys’ Eyes Only” material: (i) defendant GreenBox’s

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hardware specification; (ii) its software specification; and (iii) its bill of materials. The Court

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finds that only the third item, GreenBox’s bill of materials, must be redesignated.
EDC’s objection focuses on the definition of “source code” in the abstract, rather than in
the context of the parties’ protective order.

Defendants correctly point out that “Highly

Confidential – Source Code” materials under the stipulated protective order, Dkt. No. 81 ¶ 2.8,
include both hardware and software specifications. Despite EDC’s protestations regarding the
parties’ hasty negotiation of their protective order, this is the agreement the parties have in place.
Without modification, the hardware and software specifications are properly designated. The bill

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of materials, however, is not “source code” within the definition of the parties’ protective order,

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and defendants are ORDERED to redesignate this item accordingly.

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Second, EDC objects to defendants’ designation of a broad range of materials as “Highly

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Confidential – Attorneys’ Eyes Only” under the stipulated protective order. EDC provides a

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single example in the joint letter, which it claims is just one example of “thousands.” The Court

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agrees that this single email should be designated simply as “Confidential,” rather than

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“Attorneys’ Eyes Only.” The court sees no “substantial risk of serious harm” if this email were

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disclosed to another party or non-party. See Dkt. No. 81 ¶ 2.7. But the Court cannot make a

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decision as to “thousands” of other documents based on a single example. As such, aside from the

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United States District Court
Northern District of California

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one example provided, the parties are ORDERED to continue their meet and confer efforts in this
regard, and to reexamine and designate their productions accurately and in good faith.
Finally, EDC objects to many of defendants’ responses to its requests for production, in
which defendants have stated simply that they have no responsive documents. Where defendants
state that they do not have any responsive documents in their possession, EDC seeks further
explanation in some instances when, for example, EDC believes defendants once had such
materials, and would like an explanation as to why defendants no longer possess the responsive
materials. EDC also seeks additional information as to the searches conducted, and a certification
that defendants’ searches uncovered no responsive documents. EDC does not provide a copy of

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defendants’ responses, but states that each response says something along the lines of, “subject to

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a diligent search and reasonable inquiry, [defendant] is not in possession of any responsive
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documents.” Defendants argue that they indeed “conducted a diligent search and reasonable
inquiry of the appropriate custodians, servers, devices, data locations and/or physical files, which
confirmed that no such documents were in their possession, custody, or control.” Defendants
argue that this response is sufficient under the Federal Rules of Civil Procedure.
The Court will hold defendants to the standard articulated in Hullinger v. Anand, No. 15cv-7185-SJO (FFM), 2016 WL 3460789 (C.D. Cal. Mar. 16, 2016), a nonbinding case cited by
EDC. There, the court ordered:
“[t]o the extent Responding Parties contend that they do not have
possession, custody, or control of responsive documents, or that they
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already have produced such documents, they must provide a verified
statement to that effect. If Responding Parties had possession,
custody, or control of responsive documents at one time, but
contend that they no longer have possession, custody, or control of
them, they must provide a verified statement that explains the
circumstances and approximate date of their loss of possession,
custody, or control to the best of Responding Parties’ knowledge.”

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Id. at *1. If defendants have met this standard, then they need do nothing further. If they have
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not, the Court ORDERS defendants to supplement their responses accordingly within fourteen
days of the date of this order.

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II.

Defendants’ Objections

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Defendants include some of their own objections in the parties’ joint letter.

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defendants argue that EDC’s productions were a “document dump” of 100,000 pages, from which

United States District Court
Northern District of California

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First,

defendants cannot discern which documents are responsive to specific requests. Defendants seek

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an order compelling EDC to amend its responses to “indicat[e] which specific documents are

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responsive to each request, if any . . . .” Defendant fails to identify a cognizable basis for its

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objection under the Federal Rules or applicable case law. With the limited information at its

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disposal, the Court concludes that EDC’s so-called “document dump” generally complies with

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Rule 34’s requirements for producing electronically stored information. See TetraVue, Inc. v. St.

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Paul Fire & Marine Ins. Co., No. 14-cv-2021-BLM, 2017 WL 1008788, at *6-7 (S.D. Cal. Mar.

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15, 2017). However, consistent with Part I, above, EDC must indicate in its responses whether it

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has provided documents responsive to each request.

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documents, EDC must say so. See Hullinger, 2016 WL 3460789, at *1. Both sides should know

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from reading the other’s responses whether any responsive documents have been produced as to

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each request. If necessary, EDC must supplement its responses within fourteen days of the date

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of this order. In all other respects, defendants’ request is DENIED at this time.

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To the extent EDC has no responsive

Second, defendants take issue with EDC’s “indiscriminate” designations under the parties’

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stipulated protective order.

Defendants argue that EDC has over-designated some 26,000

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documents as “Highly Confidential – Attorneys’ Eyes Only,” when the vast majority of these

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documents do not deserve such designation. EDC does not offer a response to defendants’

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objection. As such, consistent with Part I, above, the parties are ORDERED to continue their
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meet and confer efforts in this regard, and to reexamine and designate their productions accurately

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and in good faith.

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This order resolves Dkt. No. 91.

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IT IS SO ORDERED.

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Dated: August 21, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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