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