Ubiquiti Networks, Inc. v. Kozumi USA Corp. et al

Filing 125

ORDER RE: JOINT STATEMENT REGARDING INTERPRETATION OF PROTECTIVE ORDER (Dkt. No. 121). Signed by Magistrate Judge Jacqueline Scott Corley on 2/25/2013. (ahm, COURT STAFF) (Filed on 2/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

Northern District of California

United States District Court

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UBIQUITI NETWORKS, INC.,
Plaintiff,

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v.

Case No.: 12-cv-2582 CW (JSC)
ORDER RE: JOINT STATEMENT
REGARDING INTERPRETATION OF
PROTECTIVE ORDER (Dkt. No. 121)

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KOZUMI USA CORP., et al.,
Defendants.

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Pending before the Court is the parties’ Joint Statement Regarding Interpretation of the

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Protective Order (Dkt. No. 121). The parties seek guidance from the Court regarding the

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procedures under the Protective Order for challenging the designation of documents as

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confidential. In addition, both parties claim waiver under the Protective Order. The Court

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addresses the parties’ issues below and orders the parties to be prepared to meet and confer

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regarding this dispute following the hearing on Plaintiff’s Motion for Sanctions scheduled for

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February 28, 2013 at 9:00 a.m. in Courtroom F, 450 Golden Gate Ave., San Francisco,

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California.

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DISCUSSION
The parties here entered into a Stipulated Protective Order (Dkt. No. 89) based on the

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Northern District’s Model Stipulated Protective Order for Standard Litigation which allows

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either party to designate material as “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” (“AEO”). Section 6 of the Stipulated Protective Order sets

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forth a procedure for challenging confidentiality designations should a party disagree with the

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other sides confidentiality designations; first, informally through meet and confer, and then, if

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that is unsuccessful, through judicial intervention. The parties have had considerable

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disagreement regarding confidentiality designations and the Court has previously considered

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challenges to Defendant’s designation of material as AEO. (Dkt. Nos. 101, 110.) The

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parties’ current dispute places form over substance which the Court looks on with disfavor.

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On December 12, 2012, Plaintiff sent Defendants a short letter (one and a half pages

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with a 50 page attachment listing a series of bate-stamp numbers) challenging Defendants’

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AEO designation of over 1700 documents. (Dkt. No. 121-4.) The letter stated that the

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documents were “inappropriately and indiscriminately designated as AEO” and requested that

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Defendants re-designate the documents identified in the attachment “[p]ursuant to section 6 of

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the Protective Order.” (Id. at 2.) The letter contended that the documents were not

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confidential because they related to non-parties and concluded by requesting that Defendants

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“identify the specific documents by Bates number and the specific reasons for the designation

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so that we can take that information into consideration during the meet and confer process.”

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(Id. at 3.) On December 20, 2012, Defendants responded by withdrawing the designation as

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to over 500 documents, re-designating approximately 500 as CONFIDENTIAL rather than

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AEO, and maintaining the AEO designation of another 10 documents. (Dkt. No.121-5.) On

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December 21, 2012, Defendants sent a letter as to the remaining documents withdrawing the

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designation as to another 144, re-designating approximately 500 as CONFIDENTIAL rather

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than AEO, and maintaining the AEO designation of another 45 documents. (Dkt. No. 121-6.)

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On December 27, 2012, Plaintiff sent a letter to Defendants objecting to the designations and

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proposing a meet and confer. (Dkt. No. 121-7.) The parties telephonically met and conferred

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Robert Harkins, who participated in the call represents that he “thought the issues were

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entirely resolved at the end of the call.” (Id. ¶ 9.) At 4:35 pm that same day (New Year’s

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Eve) Plaintiff sent an email stating that they could not agree to the confidentiality

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designations and stating that “if you intend to file a motion to retain the confidentiality of

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these documents by the Wednesday deadline, please provide us with your insert to the

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statement by noon tomorrow.” (Dkt. No. 121-3, p. 6.) Defense counsel apparently did not

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receive this email until January 2, 2013 as he was out of the office on vacation (a vacation he

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represents he told Plaintiff’s counsel about during their December 31 call). (Id. at p. 5.) In

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Defense counsel’s email he states: “we cannot tell if Ubiquiti is continuing to challenge the

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on the morning of December 31, 2012. (Dkt. No. 121-1 ¶ 8-9.) Counsel for Defendants,

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highly confidential designation, or is now challenging the merely confidential documents.”

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(Id.) The parties then exchanged several emails back-and-forth culminating in Plaintiff

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emailing that its position was that Defendants had waived the confidentiality of any of the

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documents identified in the December 12 letter by failing to file a brief with the Court seeking

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to retain the confidentiality of the documents and Defendants contending that Plaintiff had

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waived any challenge to the confidentiality of the documents by failing to initiate a meet and

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confer within two weeks of the December 12 letter challenging the confidentiality

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designations.

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The confidentiality designation challenge process set forth in Section 6 of the

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Stipulated Protective Order is meant to provide a mechanism whereby the parties meet and

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confer to resolve disputes over confidentiality designations and seek court intervention if

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necessary. It is not meant as a mechanism whereby a party waives the confidentiality

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designation of documents by engaging in the meet and confer process. Here, the parties’

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correspondence reflects an effort to meet and confer to resolve the disputes over

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confidentiality designations. Defendants appear to have believed this process was ongoing

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such that it would not have made sense to move to retain the confidentiality of documents if

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the parties were attempting to work it out—notably, Defense counsel repeatedly requested

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clarification regarding the scope of Plaintiff’s objections. The speed and timing of the meet

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and confer process was understandably complicated by the holidays. As such, Plaintiff’s

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waiver argument is not well taken as it places the form (the specific dates set forth in the

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agreement) over the substance (a mechanism by which the parties attempt to resolve

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confidentiality designations).

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Defendants are not without responsibility having designated large swathes of

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documents as AEO in the first instance and then as confidential; however, Defendants did de-

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designate and redesignate numerous documents. Rather than going back and reviewing the

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re-designations, Plaintiff responded with a broad objection to the designation of any

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documents as confidential or AEO. However, parties routinely designate documents

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exchanged in discovery as confidential and doing so does not prevent counsel from showing

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those documents to their client or in-house counsel. Accordingly, Plaintiff’s unilateral

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objection is both unreasonable and not in compliance with Section 6 of the Stipulated

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Protective Order which requires a party to describe the basis for “each challenge.”

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The process set forth in Section 6 of the Stipulated Protective Order is meant to ensure

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that the parties meet and confer in good faith prior to bringing a dispute to the Court. The

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record here suggests that the parties have not adequately met and conferred and that any

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dispute over the designation of documents is premature. The Court finds that there has been

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no waiver of confidentiality with respect to the documents identified in the December 12

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letter nor has there been a waiver of Plaintiff’s right to challenge confidentiality designations

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with particularity.

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To the extent that the parties continue to have a dispute regarding the confidentiality of

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documents designated as confidential or AEO, then following the hearing on Plaintiff’s

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Motion for Sanctions on February 28, 2013 the parties will be escorted to the Court’s jury

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room to meet and confer in person. During this meet and confer, the parties shall review each

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document over which there is a dispute. If the parties are unable to resolve the dispute(s)

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during the meet and confer, the parties may file a joint letter brief on or before March 14,

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2013 whereby they set forth the dispute as to each document or category of documents

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attaching the disputed documents.

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This Order disposes of Docket No. 121.

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IT IS SO ORDERED.

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Dated: February 25, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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Northern District of California

United States District Court

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