Doshier et al v. Facebook Inc

Filing 112

ORDER Granting 110 Stipulated Remote Video Deposition Protocol Signed by Judge William Alsup. (whalc5, COURT STAFF) (Filed on 2/22/2021)

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SOLOMON B. CERA (Bar No. 099467)
THOMAS C. BRIGHT (Bar No. 169713)
CERA LLP
595 Market St. Suite 1350
San Francisco, CA 94105
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
DAVID A. HODGES
(Admitted Pro Hac Vice)
THE DAVID HODGES LAW FIRM
Centre Place
212 Center Street, Fifth Floor
Little Rock, AR 72201-2429
Telephone: [phone]
Email: [e-mail]

ASHLEY M. SIMONSEN (Bar No. 275203)
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067-4643
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
SIMON J. FRANKEL (Bar No. 171552)
SEAN F. HOWELL (Bar No. 315967)
COVINGTON & BURLING LLP
Salesforce Tower
415 Mission Street, Suite 5400
San Francisco, CA 94105-2533
Telephone: + 1 [phone]
Fax: + 1 [phone]
Email: [e-mail]
Email: [e-mail]

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KATHRYN E. CAHOY (Bar No. 298777)
COVINGTON & BURLING LLP
3000 El Camino Real
5 Palo Alto Square, 10th Floor
Palo Alto, CA 94306-2112
Telephone: + 1 [phone]
Fax: + 1 [phone]
Email: [e-mail]

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Attorneys for Defendant Facebook, Inc.

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Attorneys for Plaintiff and the Proposed Class

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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DOTSTRATEGY, CO., Individually and
On Behalf of All Others Similarly
Situated,
Plaintiff,
v.

Case No. 3:20-CV-00170-WHA
STIPULATED REMOTE VIDEO
DEPOSITION PROTOCOL AND
[PROPOSED] ORDER
Hon. William Alsup

FACEBOOK, INC.,
Defendant.

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STIPULATED REMOTE VIDEO DEPOSITION PROTOCOL
AND [PROPOSED] ORDER

Case No.: 3:20-cv-00170-WHA

Through their respective counsel, Plaintiff dotStrategy, Co. and Defendant Facebook, Inc.

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(together, the “Parties”) hereby agree to the following protocol for conducting depositions

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remotely using videoconference technology in the pending litigation captioned dotStrategy, Co.

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v. Facebook, Inc., Case No. 3:20-cv-00170-WHA (N.D. Cal.). This agreement is not intended

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to act as a waiver of any party’s rights or protections, nor is it intended to act as a waiver of the

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applicable procedures under the Federal Rules of Civil Procedure. Nothing in this protocol in

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any way modifies the Protective Order in effect in this case, with which the parties must comply.

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A.

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Prior to the Deposition
1.

At least two business days prior to the scheduled deposition, counsel taking the

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deposition will advise opposing counsel of the remote deposition vendor assisting in

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taking the deposition along with contact information for such vendor.

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2.

At least five calendar days prior to the scheduled deposition, counsel taking the

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deposition will advise opposing counsel of the method counsel intends to use to

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display or provide documents to the witness during the deposition.

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3.

Any party who wishes the deponent to use hard copies of documents as exhibits

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during the deposition is responsible for ensuring that copies of those documents are

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received by the deponent one business day prior to the deposition. The party

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representing the deponent shall provide the correct address for such delivery by

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FedEx, UPS, or other delivery service no later than three business days prior to the

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deposition. All documents provided in hard copy to a deponent shall simultaneously

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be transmitted to all counsel and the court reporter designated to attend that

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deposition by hard copy (for arrival one business day prior to the deposition. Hard

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copy documents may be sealed in envelopes or other packaging for opening on

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camera during the deposition by the witness and all counsel.

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4.

Any party who wishes the deponent to use electronic copies of documents as exhibits

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during the deposition (pursuant to the procedures set forth in Subsection B.14) need

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not share copies in advance of the deposition.

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STIPULATED REMOTE VIDEO DEPOSITION PROTOCOL
AND [PROPOSED] ORDER

Case No.: 3:20-cv-00170-WHA

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B.

During the Deposition
1.

The deposition must be conducted by secure audio and video conferencing

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technology that requires secure access by each participant. The deposition shall not

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commence until each deposition attendee, including all lead counsel, has announced

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his or herself and has joined the electronic “room” in which the deposition will take

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place and audio and video are functioning properly.

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2.

The deponent must appear on video with his or her face visible throughout the

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deposition, except during breaks on the record. Lead counsel for each party must

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also appear on video throughout questioning with their faces visible; other attendees

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for each party must be clearly announced before questioning begins, but may appear

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by audio only (unless they are in the same room as deponent, in which case they must

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comply with Subsection B.3 below).

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3.

If counsel who is representing the deponent is in the same room as deponent, counsel

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must clearly announce that they are present in the room with the deponent on the

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record, before questioning begins, as must any other attendee in the room with

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deponent. Any attendee in the same room with the deponent must appear on video

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with faces visible throughout questioning. If, during questioning, anyone (whether

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an attendee or otherwise) enters the same room as deponent, the deponent must

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promptly notify the deposition attendees on the record that someone has entered the

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room, identify the person, and announce when that person exits the room.

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4.

The court reporter will administer the oath to the deponent remotely by means of the

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video and audio connection. The oath may be administered from outside the

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jurisdiction of the witness.

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5.

may record the deposition by video or audio means.

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No one other than the remote deposition vendor, court reporter, and/or videographer

6.

To ensure optimal audio quality and minimize the risk of disruption, all attorneys or
other attendees who are not questioning the deponent or lodging an objection shall

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STIPULATED REMOTE VIDEO DEPOSITION PROTOCOL
AND [PROPOSED] ORDER

Case No.: 3:20-cv-00170-WHA

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mute their microphones unless and until they are required to speak or lodge an

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objection.

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7.

Each party has the right to be present on video and to have clear audio input and

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output. Once the deposition begins, if a lead counsel becomes disconnected from the

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deposition, either by audio, video, or both, that fact shall be noted on the record as

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soon as the parties become aware of that issue and the deposition must immediately

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be suspended until that attorney has re-joined and has full access to both audio and

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video. The suspended time will not count against the time limitations in the Federal

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Rules of Civil Procedure.

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8.

The court reporter and videographer will provide a telephone number for use by the

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attendees to inform the court reporter or videographer if a lead counsel becomes

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disconnected or is otherwise experiencing technical difficulties.

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9.

Any portion of the deposition that has been transcribed while a lead counsel is absent

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or experiencing technical difficulties must be re-read by the court reporter or

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videographer upon the resolution of the technical difficulty and that attorney must be

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given an opportunity to object to any questions or answers that occurred in his or her

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absence.

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10. During the conduct of the deposition, to avoid the difficulties posed by simultaneous

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speaking over an internet video and audio connection, counsel and the deponent will

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not interrupt each other and will strive to allow a pause between the conclusion of

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one person speaking and another person speaking.

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11. If at any time the court reporter indicates that he or she is unable to effectively

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transcribe the deposition due to technical difficulties, the deposition shall be paused,

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and the parties will attempt to resolve those issues. The suspended time will not

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count against the time limitations in the Federal Rules of Civil Procedure. If the

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technical difficulties cannot be resolved to the satisfaction of the court reporter, the

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deposition shall be suspended. The same rule applies to any technical difficulty that

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prevents the deponent or any lead counsel from hearing or seeing the deposition. If
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STIPULATED REMOTE VIDEO DEPOSITION PROTOCOL
AND [PROPOSED] ORDER

Case No.: 3:20-cv-00170-WHA

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the concerns cannot be resolved, then the deposition shall be suspended until the

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concerns are resolved by the Court or through other means. The court reporter shall

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at all times be visible on video so as to best ensure that the reporter is connected to

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the deposition.

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12. The remote deposition vendor may make available a secure breakout room that may

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not be accessed by opposing counsel. Conversations in the breakout room shall not

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be recorded by any means. Each party may also make their own breakout

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arrangements (e.g., a separate conference line). During these private conferences or

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other breaks, the main videoconference feed will remain “live.”

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13. There will be no communication by any counsel with the deponent during actual

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questioning by text, chat, or otherwise, except those communications on the record,

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and any text/chat function in the videoconference technology used to host the

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deposition shall, if possible, be disabled. Counsel for the deponent and other parties

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participating in the deposition are forbidden from sending private messages to or

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using any private “chat” features with the deponent during questioning sessions.

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14. Lead counsel may display documents to the deponent during the deposition via

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electronic means. However, before questioning a witness about the document,

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counsel must first identify that document for the record, assign it a unique exhibit

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number, and provide a copy of the document to all other lead counsel and the witness

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electronically via secure FTP site, ShareFile, or other secure means. For any Excel

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document produced to opposing counsel in native format that counsel plans to use

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during the deposition, counsel will introduce the produced slip sheet noting that the

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document was produced in native format, together with the native file, as one exhibit.

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15. If, during the course of questioning, a deponent wishes to review a document that is

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being displayed, the questioning counsel shall display or make available all portions

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of the document requested by the deponent (or give the witness the ability to scroll

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through the document electronically if no hard copies were provided to the

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deponent).
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STIPULATED REMOTE VIDEO DEPOSITION PROTOCOL
AND [PROPOSED] ORDER

Case No.: 3:20-cv-00170-WHA

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16. If, during the course of questioning, a deponent wishes to review a document that is

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not being displayed or referenced on the record, because, for example, the deponent

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wishes to review a document to refresh his or her recollection, the deponent must

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first state their intent to do so, and fully identify the document that the deponent

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wishes to review, prior to beginning their review. The document must be uploaded

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via secure FTP site, ShareFile, or other secure electronic means and available to all

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lead counsel.

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C.

At the Conclusion of the Deposition
1.

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It is the obligation of any questioning counsel who uses a document with the

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deponent to provide a copy of the document in the form used with the deponent to the

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court reporter within one business day (if provided electronically) or three business

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days (if provided in hard copy) of the deposition’s conclusion, if a copy of that

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document was not provided to the parties and the court reporter in advance of the

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deposition. The questioning counsel shall simultaneously provide these documents

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to all counsel electronically via secure FTP site, ShareFile, or other secure means.
2.

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If a deponent requests the opportunity to review a hard copy of their deposition

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transcript for transcription errors, the period of time allowed for such review will not

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commence until after receipt of the hard copy by the deponent.
3.

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sheet notarized in order to be deemed effective.

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The parties stipulate that no deponent shall be required to have execution of the errata

D.

Application of Protocol
1.

The parties agree that, in light of the COVID-19 pandemic, this protocol shall by

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default apply to depositions taken in this action. The parties agree to meet and confer

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in the future regarding the safety and propriety of holding any particular deposition

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in-person, taking into account all relevant factors including containment of the

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COVID-19 pandemic and the individual circumstances of the parties, their counsel,

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and the deponent.

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STIPULATED REMOTE VIDEO DEPOSITION PROTOCOL
AND [PROPOSED] ORDER

Case No.: 3:20-cv-00170-WHA

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IT IS SO STIPULATED.
DATED: February 18, 2021
By: /s/ Thomas C. Bright
Thomas C. Bright

Respectfully submitted,
By:

/s/ Ashley M. Simonsen
Ashley Simonsen

SOLOMON B. CERA (Bar No. 99467)
THOMAS C. BRIGHT (Bar No.
169713)
CERA LLP
595 Market Street, Suite 1350
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

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SIMON J. FRANKEL (Bar No. 171552)
SEAN F. HOWELL (Bar No. 315967)
COVINGTON & BURLING LLP
Salesforce Tower
415 Mission Street, Suite 5400
San Francisco, CA 94105-2533
Telephone: + 1 [phone]
Facsimile: + 1 [phone]
Email: [e-mail]
Email: [e-mail]

-and-

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ASHLEY M. SIMONSEN (Bar No.
275203)
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067-4643
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

By: /s/ David A. Hodges
DAVID A. HODGES (Admitted Pro
Hac Vice)
THE DAVID HODGES LAW FIRM
212 Center Street, 5th Floor
Little Rock, AR 72201
Email: [e-mail]

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KATHRYN E. CAHOY (Bar No.
298777)
COVINGTON & BURLING LLP
3000 El Camino Real
5 Palo Alto Square, 10th Floor
Palo Alto, CA 94306-2112
Telephone: + 1 [phone]
Facsimile: + 1 [phone]
Email: [e-mail]

Attorneys for Plaintiff
and the Proposed Class.

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Attorneys for Defendant Facebook, Inc.

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ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3)

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Pursuant to Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of this document has

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been obtained from each of the signatories hereto.

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By:

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/s/ Ashley M. Simonsen
ASHLEY M. SIMONSEN
Attorney for Defendant Facebook, Inc.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: February 22, 2021

By:

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STIPULATED REMOTE VIDEO DEPOSITION PROTOCOL
AND [PROPOSED] ORDER

Hon. William Alsup
United States District Judge
Case No.: 3:20-cv-00170-WHA