Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 122

NOTICE by Fusion Garage PTE. LTD of Further Challenges to Confidentiality Designations from Transcript of TechCrunch 30(b)(6) Deposition (Doolittle, Patrick) (Filed on 5/12/2010)

2 3 4 5

QUINN EMANUEL URQUIIAR`1' & SULLIVAN, LLP Claude M. Stern (Bar No. 96737) . claudestern a quiiinenianueLcoln 1- vette Pennypacker (Bar_No. 203515) evettepennypackei a?quinnenlanue1.coIn 555 Twin Dolphin Dr., 511` floor Redwood Shores, CA 94065

't'elephone: [phone] Facsimile: [phone] Patrick Doolittle (Bar No. 203659)

6

[e-mail] 7 50 California Street, 22nd Floor San Francisco, California 94111 8 Telephone: [phone]

Facsimile:
9 10 II

[phone]

Attorneys for Defendant Fusion Garage PTE Ltd.

UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA

13 14
15 INTERSERV E, INC. dba TECHCRUNCH, a Delaware corporation , and CRUNCHPAD, INC., a Delaware corporation, Plaintiffs, CASE NO. C 09-cv-5812 RS (PVT) FUSION GARAGE'S NOTICE OF FURTHER CHALLENGES TO CONFIDENTIALITY DESIGNATIONS FROM TRANSCRIPT OF TECHCRUNCH 30(B)(6) DEPOSITION (Lodged Under Seal)

16 17
VS.

18 19
20 21 22 FUSION GARAGE PTE LTD ., a Singapore company, Defendant.

23
24 25 26 27

28
04049 . 5163213488100.4

Case No. C 09-cv-5812 RS (PVT) NOTICE OF CONFIDENTIALITY CHALLENGES

I 2 3

NO`T'ICE OF CONFIV EN7'IAh. TY CHALLENCIES In its Apri130, 2010 Order Dissolving the Apri128, 2010 Order to Show Cause (Dkt. 88), the Court held that "Defendant Fusion Garage shall advise whether it has further challenges to any

4 confidentiality designations for the [TechCrunch] Mule 30(b)(6) transcript no later than May 14,
2010." M. at 1. TechCrunch has designated pages 261:18-276:6; 373:10-375:5; 388:18-390:12 and Exhibits 9-10 of the Rule 30(b)(6) transcript as "Confidential" under the Stipulated Protective Order. (Doolittle Decl., Ex. A). Pursuant to the Court's April 28 Order, Fusion Garage hereby provides notice that it challenging TechCrunch's designations.

9
10 1 12 13

Exhibits 9 and 10 to the TechCrunch 30(b)(6) deposition are email exchanges between TechCrunch employees Michael Arrington and Nik Cubrilovic in whic {Doolittle Decl., Exs. B & Q. Transcript pages 261:18-276:6; 373:10-375:5; and 388:18-390:12 involve questions about these e-mail exchanges. (Doolittle Decl., Ex. D). None of these exhibits or deposition excerpts deserve Confidential status. TechCrunch has waived any confidentiality that might have otherwise attached to this information. TechCrunch's publicly-filed Complaint is based on allegations that the parties were in a partnership and owed fiduciary duties to each other. Butfare completely inconsistent with the existence of a partnership or fiduciary duty, since (needless to say) Having publicly put the supposed partnership and fiduciary duties at issue in this litigation, TechCrunch cannot seek to shield its own internal communications that so starkly refute the existence of a partnership or fiduciary duty. See Fraihat V. Cohen, No. 06-1452, 2007 WL 3333117, *4 (S.D. Cal. Nov. 6, 2007) ("to the extent Plaintiff has any expectation of confidentiality in his disciplinary or immigration records ... he has waived it by placing his disciplinary history and immigration status at issue via the claims in this case.") Even if TechCrunch had not waived confidentiality, these exhibits and transcript excerpts would not qualify for "Confidential" status. The Stipulated Protective Order states that "Confidential" status shall be given only to information that is protectable under Fed. R. Civ. P
-1Case N). C 09-cv-5812 RS (PVT) NOTICE OF CONFIDENTIALITY CHALLENGES

14 15
16

17 18
19 20 21 22 23

24
25 . 26 27 28
04049.5163213488100.4

26(c). (Dkt. 35 at 2) That rule provides: "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The naterials TechCrunch seeks to shield from public disclosure here do not qualify for protection under Rule 26(c). There is nothing in these emails or in the transcript discussing these emails that reveals TeehCrunch's confidential research, development, or commercial information. The emails and transcript do not address TechCrunch's revenues, ongoing commercial relationships, or ongoing business strategies. At most, they are embarrassing , since they disclose

This is not the type of embarrassment that serves as a ground to shield this information behind a "Confidential" designation under Rule 26(c) or the Protective Order in this case . See, e.g., Ideal Steel Supply Corp. v. Anza, No. 02-4788, 2005 WL 1213848, *3 (S.D.N.Y. May 23, 2005) ("The only other ground posited by defendants (through Ideal's letter) is that this information will incriminate or embarrass defendants. That, however, is not a basis for documents to be held to be `confidential' under Rule 26"); Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 301 (N.D. Ill. 1993) ("Although the information ... may be embarrassing and incriminating, this alone is insufficient to bar public disclosure.") Rather, to shield "embarrassing" documents from public disclosure under Rule 26(c), "a business will have to show with some specificity that the embarrassment resulting from dissemination of the information would cause a significant harm to its competitive and financial position." See Cippollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). TechCrunch cannot credibly argue that its ongoing business activities will be unfairly jeopardized if this year-old information is disclosed to the public, and the designation should therefore be lifted. For all these reasons, Fusion Garage respectfully requests that the "Confidential" designation be removed from pages 261:18-276:6; 373:10-375:5; 388:18-390:12 and Exhibits 910 of the Rule 30(b)(6) transcript.

-2Case No . C 09-cv-5812 RS (PVT) NOTICE OF CONFIDENTIALITY CHALLENGES

1

l

DATED: May 12, 2010

QUINN F.MANUEA, URQUHART & SULLIVAN, LIT

3

4
5

By

Al PafrickG D wl-if to

Patrick C . Doolittle
Attornevs for Defendant Fusion Gacas)-c I'TE Ltd.

6
7

8
9 10 II 12

13 14
15 16

17 18
19 20

21 22 23
24 25

26
27

28
04049 .51632/3488100.4 -3Case No. C 09-cv-5812 RS (PVT)

NOTICE OF CONFIDENTIALITY CHALLENGES