ESC-Toy Ltd. v. Sony Interactive Entertainment LLC et al

Filing 369

Protective Order (unsealed) (emclc5, COURT STAFF) (Filed on 3/27/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESC-TOY LTD.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 21-cv-00778-EMC
PROTECTIVE ORDER

v.
SONY INTERACTIVE
ENTERTAINMENT LLC,
Defendants.

On November 27, 2023, the Court granted Sony Interactive Entertainment LLC’s (“SIE”)
Motion to Disqualify ESC-Toy Ltd.’s (“ESC”) Counsel, Maschoff Brennan (“MABR”). See
Docket No. 335. In the Court’s Order, it instructed SIE’s counsel to meet and confer with MABR
to draft appropriate language for a protective order to ensure that ESC’s new counsel does not
have access to the same improperly obtained privileged and confidential information that created
the basis for MABR’s disqualification. SIE and MABR met and conferred but did not agree upon
the appropriate language for the protective order. MABR requested that the Court permit briefing
so each party could explain its position regarding the appropriate language for the protective order.
The Court hereby denies MABR’s request for additional briefing and grants an edited version of
SIE’s proposed protective order.
The protective order is as follows:
1. ESC and any counsel representing ESC in connection with this matter, whether or not such
counsel has made an appearance in this case, is prohibited from contacting or
communicating with Shelly Gayner in any capacity or manner to discuss this case, the
factual backgrounds of this case, and/or Ms. Gayner’s knowledge of SIE-related matters;

United States District Court
Northern District of California

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2. ESC may not provide any counsel representing ESC in connection with this matter,

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whether or not such counsel has made an appearance in this case, with any documents,

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materials, or information prepared by or received from Ms. Gayner that concerns this case,

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the factual background of this case, or Ms. Gayner’s knowledge of any SIE-related matters.

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This includes any documents, materials, or other writings that contain, reflect, include, or

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are derived in any way from documents, materials, or information received from Ms.

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Gayner as well as any material in which Ms. Gayner was involved in any aspect of its

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preparation, drafting, or creation, including as a co-author, editor, or person who provided

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factual knowledge in preparing the content of the document where such document,

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material or information is based on Ms. Gayner’s knowledge of any SIE-related matters;

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3. Neither ESC nor any of its counsel, regardless of whether they have made an appearance in

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this litigation, may rely upon any documents, materials, or information described in ¶ 2 of

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this Order for any purpose at any point in this case. Such documents, materials, or factual

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information shall be inadmissible at trial if offered into evidence by ESC;

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4. MABR shall not provide any assistance to ESC to retain new counsel and is prohibited

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from speaking to new counsel concerning this case other than to transfer case documents to

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new counsel subject to the restrictions in ¶ 2 or to inform ESC of any appeal right, though

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MABR may not represent ESC in the appeal;

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5. MABR shall destroy all accessible documents that reflect any communications with Ms.

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Gayner or ESC discussing information provided by Ms. Gayner about any SIE-related

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matters and certify under penalty of perjury 5 calendar days after this Order is entered to

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said destruction and shall not retain copies;

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6. Ms. Gayner’s testimony, whether live or in the form of deposition designations, shall not
be admissible at trial if offered into evidence by ESC; and
7. The Court hereby strikes the Declaration of Ms. Gayner (Docket Nos. 76 and 100) from

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the record. ESC may not rely on the contents of Ms. Gayner’s Declaration for any purpose

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at any point in this case. Ms. Gayner’s Declaration shall be inadmissible at trial if offered

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into evidence by ESC.
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As stated in the Court’s Order to Disqualify MABR, ESC has 90 days from the date of the

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Order to find counsel and to have new counsel enter an appearance. Docket No. 316.

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Subsequently, the stay will be lifted.

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IT IS SO ORDERED.

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Dated: January 16, 2024

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______________________________________
EDWARD M. CHEN
United States District Judge

United States District Court
Northern District of California

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