G & G Closed Circuit Events, LLC v. Benjamin et al

Filing 45

(***DISREGARD POSTED IN WRONG CASE IN ERROR ***) Discovery Order re ECF Docket No. 51. Signed by Magistrate Judge Thomas S. Hixson on 1/17/2023. (rmm2, COURT STAFF) (Filed on 1/17/2023) Modified on 1/17/2023 (rmm2, COURT STAFF).

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Case 3:22-cv-04144-SI Document 45 Filed 01/17/23 Page 1 of 3 1 FILED 2 Jan 17 2023 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA Mark B. Busby CLERK, U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO 6 7 SOCIETE DU FIGARO, SAS, et al., Plaintiffs, 8 Re: Dkt. No. 51 APPLE INC., Defendant. 11 United States District Court Northern District of California DISCOVERY ORDER v. 9 10 Case No. 22-cv-04437-YGR (TSH) 12 13 The parties have a dispute about the form and substance of the protective order to be 14 entered in this case. ECF No. 51. There are five areas of disagreement, which the Court addresses 15 in turn. 16 A. 17 Use Restriction Apple’s proposed protective order modifies the first sentence of section 7.1 to make the 18 “use” restriction applicable to all Discovery Material, not just Protected Material. As redlined by 19 Apple, the proposed sentence states: “A Receiving Party may use Protected Discovery Material 20 that is disclosed or produced by another Party or by a Non-Party in connection with this case only 21 for prosecuting, defending, or attempting to settle this litigation.” 22 The Court disagrees with Apple’s edit. As a starting point, the Court treats this District’s 23 model protective orders as presumptively reasonable. The model order for litigation involving 24 highly sensitive confidential information imposes the use restriction only on Protected Material. 25 This is in keeping with Federal Rule of Civil Procedure 26(c), which states that “for good cause,” 26 a court may issue a protective order “to protect a party or person from annoyance, embarrassment, 27 oppression or undue burden or expense . . .” Fed. R. Civ. Proc. 26(c)(1). A protective order can 28 do a number of things, including “requiring that . . . confidential research, development, or Case 3:22-cv-04144-SI Document 45 Filed 01/17/23 Page 2 of 3 1 commercial information not be revealed or be revealed only in a specified way . . .” Fed. R. Civ. 2 Proc. 26(c)(1)(G). If information does not qualify as Protected Material, it is unclear what the 3 good cause is for imposing a use restriction on it. The way Rule 26(c) is written suggests that 4 discovery material is by default unprotected and there has to be a good reason to protect it. 5 B. Apple’s proposed protective order adds a new section 9, entitled “data security.” In 6 United States District Court Northern District of California Data Security Provisions 7 response to the Court’s questions at the hearing on January 13, 2023, it became clear that Apple 8 did not have a clear understanding of what exactly its data security proposal would require. The 9 Court prefers to rule on well-defined disputes after the parties have met and conferred. Since 10 Apple did not have a clear understanding of the effects of its proposal, it seemed that there 11 couldn’t have been a good meet and confer, and the Court was unsure what it was being asked to 12 rule on. Accordingly, the Court ordered the parties to meet and confer about Apple’s proposed 13 data security provisions. If the parties are unable to reach an agreement, they must file a further 14 joint discovery letter brief by January 19, 2023, together with their competing protective orders. 15 The Court sets a further hearing for January 20, 2023 at 3:00 p.m. by Zoom. 16 C. Disclosure of Information Regarding Data Breaches 17 The District’s model protective order states that if a Party is served with a subpoena or 18 court order in other litigation that compels the disclosure of Protected Material, the party must 19 notify the Designating Party of the subpoena or court order and take some other steps. Apple 20 proposes to modify that provision to add those requirements if a Party is served with a subpoena or 21 court order in other litigation “concerning an actual or suspected Data Breach possibly involving a 22 Designating Party’s Protected Materials.” But Apple also defines “data breach” to include a 23 suspected unauthorized access, use or disclosure of Protected Materials. So, this new proposed 24 disclosure requirement is triggered by a suspicion of a suspicion of a possibility that Protected 25 Materials were compromised in a data breach. There is no warrant for this inadministrable 26 requirement. The District’s model protective order already requires a Receiving Party to notify 27 the Designating Party, and then use best efforts to retrieve, if it has disclosed Protected Material 28 “by inadvertence or otherwise,” which the Court thinks includes a data breach of the Receiving 2 Case 3:22-cv-04144-SI Document 45 Filed 01/17/23 Page 3 of 3 1 Party’s system in which Protected Material was obtained. That is sufficient. 2 D. The District’s model protective order provides that when a Producing Party gives notice to 3 4 a Receiving Party that it inadvertently produced privileged material, Rule 26(b)(5)(B) applies. 5 The model order also states that the parties can reach their own agreement on the effect of such a 6 disclosure and incorporate that into a stipulated protective order. Thus, the default is that Rule 7 26(b)(5)(B) applies unless the parties negotiate something else. In In re Apple iPhone Antitrust Litigation, 11-cv-6714 and Cameron v. Apple, 19-cv-3074, 8 9 United States District Court Northern District of California Non-Waiver as to Manually Reviewed Material the parties stipulated that “[t]he production without manual review of any privileged or otherwise 10 protected document or ESI, whether inadvertent or otherwise, is not and shall not be deemed a 11 waiver” of privilege or work product, provided certain procedures are followed. In this case, 12 Apple proposes to delete the words “without manual review,” so that the non-waiver would also 13 apply to manually reviewed documents. Plaintiffs disagree with that proposed edit. The Court will stick with the default rule adopted in the District’s model order. As there is 14 15 no agreement about non-waiver for manually reviewed documents, the Court rejects Apple’s 16 proposed edit. 17 E. 18 Destruction of Materials The District’s model protective order provides that within 60 days after the final 19 disposition of the action, each Receiving Party must return or destroy all Protected Material. 20 Apple proposes two edits to this paragraph to add “or its Professional Vendors” and “and its 21 Professional Vendors” after the term “Receiving Party.” The Court rejects those edits as 22 unnecessary because they are already implied. 23 IT IS SO ORDERED. 24 25 Dated: January 17, 2023 26 THOMAS S. HIXSON United States Magistrate Judge 27 28 3

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