GSI Technology, Inc. v. United Memories, Inc.

Filing 42

ORDER RE MOTIONS TO ENTER PROTECTIVE ORDER by Judge Paul S. Grewal denying 38 Motion for Protective Order; granting 39 Motion for Protective Order (psglc1, COURT STAFF) (Filed on 5/16/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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GSI TECHNOLOGY, INC., a Delaware
corporation,
Plaintiff,

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v.

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UNITED MEMORIES, INC., a Colorado
corporation,

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Defendant.

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Case No.: C 13-1081 PSG
ORDER RE MOTIONS TO ENTER
PROTECTIVE ORDER
(Re: Docket Nos. 38, 39, 40, 41)

Plaintiff GSI Technology, Inc. (“GSI”) and Defendant United Memories, Inc. (“UMI”) each

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submitted two letter briefs regarding their dispute over entry of the protective order that ought to

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govern in this case.1 The parties have isolated two issues for the court to resolve – GSI proposes

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two modifications to the Model Protective Order, both of which are opposed by UMI. The court

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discusses each in turn below.

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As a preliminary matter, under Patent L.R. 2-2, this district’s Model Protective Order

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governs unless the court enters a different protective order.2 As the Model Protective Order “set[s]

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See Docket No. 38, 39, 40, 41.

See Patent L.R. 2-2 (“The Protective Order authorized by the Northern District of California shall
govern discovery unless the Court enters a different protective order.”). See also
http://cand.uscourts.gov/stipprotectorder.
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Case No.: C 13-1081 PSG
ORDER

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forth presumptively reasonable conditions regarding the treatment of highly confidential

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information,” 3 this court has previously held it appropriate to place the burden of showing good

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cause on the party urging the deviation from the terms of the Model Protective Order.4

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GSI first argues that it should be able to designate a single client representative, who would
have access to documents designated “Highly Confidential – Attorney’s Eyes Only.”
In GSI’s view, good cause exists for such a provision because UMI can and has over-designated

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materials as highly confidential. Under the Model Protective Order and the protective order
substantially agreed upon by the parties, information may be designated “Highly Confidential –

United States District Court
For the Northern District of California

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Attorney’s Eyes Only” only when the information consists of “extremely sensitive ‘Confidential

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Information or Items,’ disclosure of which to another Party or Non-Party would create a substantial

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risk of serious harm that could not be avoided by less restrictive means.”5 According to GSI, UMI

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has already shown that it takes an unduly broad view of this provision by “indicat[ing] that it

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considered information such as its organizational structure, the job responsibilities of its
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employees, and the hire date of its employees” to be “Highly Confidential – Attorney’s Eyes Only”

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information.6 GSI urges that in light of the pending preliminary injunction hearing on June 25,

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2013, and what it fears will be a pattern of overdesignation by UMI, the deviation it proposes is

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necessary to allow its attorneys to discuss these materials with the client representative and quickly

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understand them in time for the hearing.

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Kelora Sys., LLC v. Target Corp., Case No. 11-01548 CW (LB), 2011 WL 6000759, at *7 (N.D.
Cal. Aug. 29, 2011).
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See Dynetix Design Solutions, Inc. v. Synopsys, Inc., Case No. 11-05973 PSG, 2012 WL
1232105, at *2 (N.D. Cal. Apr. 12, 2012).

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Docket No. 38, Attachment A at 6.

See Docket No. 38 at 2. The court does not have a motion to compel before it, so it cannot now
decide whether these designations are overbroad. At first glance, however, it does not appear that
hiring dates, organizational job structure, and job responsibilities, without more, could possibly
warrant the designation of “Highly Confidential – Attorney’s Eyes Only.”
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Case No.: C 13-1081 PSG
ORDER

While the court understands GSI’s concerns, without disclosure of the identity of the

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potential GSI “client representative,” the court is unable to weigh the risk of inadvertent disclosure

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of UMI’s information against GSI’s ability to prosecute its claims.7 As GSI and UMI are

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competitors and adversaries in a trade secret and breach of contract case, the risk of inadvertent

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disclosure through an unknown “client representative” is very real. The court cannot issue a blank

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check for GSI to designate any client representative, without context to assess the potential risk of

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inadvertent disclosure.
GSI next argues that the Designating Party, rather than the Challenging Party, should bear

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United States District Court
For the Northern District of California

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the burden of filing a motion with the court in the event the parties dispute the confidentiality

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designation of a document. This proposal is nonsensical in that it forces the Designating Party to

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preempt its opposing party’s challenges to the designation, when that motion should properly be

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framed by the Challenging Party itself. The proposal also goes too far – if the Challenging Party

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expresses disagreement with a designation during meet and confer, the Designating Party must file
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a motion to maintain the confidential designation, or else the confidential designation will

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automatically evaporate.8 This mechanism is excessive and is also prone to potential abuse. In any

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event, the Model Protective Order acts as a sufficient check against over-designation of materials

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because although the Challenging Party must bring the motion, the burden of persuasion regarding

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the confidentiality of the document remains on the Designating Party. GSI’s proposed

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modification is thus unnecessary.9

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See Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992).

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See Docket No. 38, Attachment A at 11 (“Failure by the Designating Party to make such a motion
including the required declaration within 14 days shall automatically waive the confidentiality
designation for each challenged designation.”).
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To further assuage GSI’s concerns, the court notes that it will not hesitate to issue sanctions if the
Challenging Party shows that overdesignation is rampant.
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Case No.: C 13-1081 PSG
ORDER

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It appears that there is a more narrowly-tailored way to resolve the parties’ discovery

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discord – motions to compel, challenging the designations of specific categories of documents. If

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GSI believes certain categories of documents are clearly overdesignated, GSI may file a five page

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or less letter brief requesting relief, and UMI may respond with the same within three days. The

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court will then decide whether a hearing is necessary and can resolve the manner expeditiously.

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GSI’s proposed modifications are DENIED. UMI shall file a complete proposed protective

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order consistent with this ruling without delay.
IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: May 16, 2013

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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Case No.: C 13-1081 PSG
ORDER