Ryan Corley et al v. Google, Inc.

Filing 115

Order by Magistrate Judge Howard R. Lloyd denying #90 Defendant's motion for protective order and granting in part #89 Plaintiffs' motion for protective order. (hrllc1, COURT STAFF) (Filed on 6/22/2016)

E-Filed 6/22/16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RYAN CORLEY, et al.,
Plaintiffs,

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GOOGLE, INC.,
Defendant.

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United States District Court
Northern District of California

ORDER DENYING DEFENDANT’S
MOTION FOR PROTECTIVE ORDER
AND GRANTING IN PART
PLAINTIFFS’ MOTION FOR
PROTECTIVE ORDER

v.

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Case No. 16-cv-00473-LHK (HRL)

Plaintiffs

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allege

Re: Dkt. Nos. 89, 90
Defendant

Google,

Inc.

(“Google”)

violated

the

Electronic

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Communications Privacy Act “by intercepting and scanning” certain emails for commercial

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purposes and without consent. Dkt. No. 19 at 6-7. The parties tried and failed to agree upon a

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protective order which would govern discovery in this case, and the presiding district judge

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granted a joint request by the parties for leave to file cross-motions for a protective order. Dkt.

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No. 87.

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Google moves the court to issue the protective order the parties developed together during

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their negotiations and to rule in Google’s favor on the “only two substantive issues” the parties

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were unable to resolve: (1) the parties “should be required to disclose” the names of third parties

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who receive confidential information; and (2) protected information “produced in this case” may

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be used in “related” cases, but only in certain cases which currently exist or else are likely to soon

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exist, Dkt. No. 90 at 1-2. Plaintiffs respond that Google’s non-standard proposed order has not

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actually been agreed upon by the parties, because Plaintiffs clearly communicated they would not

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enter any binding agreement unless a full protective order could be agreed upon.

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Plaintiffs move the court to issue the model protective order that this court provides for use

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in highly sensitive cases because that model order is “presumptively reasonable[.]” Dkt. No. 89 at

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2. Plaintiffs also seek four substantive modifications to that order: (1) a new definition for experts

so that Plaintiffs may hire “past employees of Google or its competitors”; (2) broad permission to

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use any materials discovered in this case in “all future closely-related actions arising from the

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same acts”; (3) the inclusion of optional, court-authored provisions which govern the discovery of

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“HIGHLY CONFIDENTIAL – SOURCE CODE” materials; and (4) the inclusion of an optional,

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court-authored provision which would permit each party to keep the identity of any given non-

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testifying expert secret so long as the expert reviews no protected “source code” and the expert “is

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not an officer, director, or employee of a competitor of a [p]arty or expected to become one.” Dkt.

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No. 89 at 2-3. Google responds that it would be unreasonable to throw out the terms the parties

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developed together during their negotiations; in the alternative, Google asks the court to issue the

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model order but raises several arguments for why the court should reject Plaintiffs’ proposed

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United States District Court
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amendments to that order.
Discussion

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The court may, for good cause shown, “protect a party . . . from annoyance,

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embarrassment, oppression, or undue burden or expense” by issuing a protective order which

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“specif[ies] terms” for how discovery shall occur. See Fed. R. Civ. P. 26(c)(1). This court has

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“approved” the model protective orders it provides online, and the model order for use in highly

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sensitive cases contains “presumptively reasonable conditions” for managing the discovery of

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highly sensitive materials. See Barnes and Noble, Inc. v. LSI Corp., Case No. 11-cv-02709-LB,

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2012 WL 601806, at (N.D. Cal. Feb. 23, 2012); CAND Model Order for Highly Sensitive Cases,

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available at http://www.cand.uscourts.gov/model-protective-orders.

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requests a deviation from the presumptively valid terms of that model order must show “specific

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harm or prejudice” will result if the court denies the request; otherwise, the party has failed to

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show good cause. See MasterObjects Inc. v. Google, Inc., Case No. 11-cv-01054-LB, 2012 WL

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2958227, at *2-3 (N.D. Cal. Jul. 19, 2012).

A party who unilaterally

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The court denies Google’s motion for lack of good cause. Google moves the court to issue

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the protective order developed by the parties in the course of their negotiations, but the parties

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reached neither a final agreement to adopt that protective order nor any binding subsidiary

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agreement to adopt a subset of its terms. Dkt. No. 94-1 at 6-8. Google has failed to show it will
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suffer any specific harm or prejudice if the court, instead, issues the model order. Indeed, Google

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asserts in its opposition brief that its interests will be sufficiently protected if the court adopts the

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model order “without modification.” See Dkt. No. 93 at 3. The undersigned is therefore satisfied

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that the model order provides a reasonable starting point for setting the terms that will govern

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discovery in this case. The court shall issue the model order, but shall modify that order based on

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Plaintiffs’ requested modifications and Google’s arguments for why those requests should be

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denied.
The court agrees with Google that Plaintiffs have failed to justify their requested

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modification to the model-order definition of experts. The proposed modification would permit

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Plaintiffs to hire the former employees of Google and its competitors as experts. Plaintiffs argue

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they “need the assistance of” these former employees because Plaintiffs are not competitors to

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Google, and so they are less likely to misuse any confidential information they might obtain. See

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Dkt. No. 89 at 2. The undersigned is not persuaded. This court has repeatedly ruled that it is

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usually improper to hire an opponent’s former employee as an expert because such an expert is

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substantially likely to inflict unfair prejudices which the former employer cannot realistically

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discover or guard against. See, e.g., Space Sys./Loral v. Martin Marietta Corp., Case No. 95-cv-

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20122-SW, 1995 WL 686369, at *2 (N.D. Cal. Nov. 15, 1995); Atari Corp. v. Sega of Am., 161

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F.R.D. 417, 421 (N.D. Cal. 1994). Google also persuasively argues: (1) Plaintiffs can probably

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find “computer science professors” who would be capable experts in this case, Dkt. No. 93 at 3;

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and (2) it would create an unnecessary risk of competitive harm if the court permitted Plaintiffs to

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hire the former employees of Google’s competitors as experts, Dkt. No. 93 at 4. The undersigned

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also notes that Plaintiffs’ conclusion does not follow from their argument—even if Plaintiffs are

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less likely to misuse confidential information compared with Google’s competitors, that fact does

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not show they have any heightened need to hire certain experts. The undersigned is therefore

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satisfied that Plaintiffs have failed to show good cause for their requested modification to the

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model-order definition of experts.

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Google agrees in general with the second requested modification—materials discovered in

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this case should be usable in related cases—but Google argues the court should permit the use of
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discovery materials produced in this case only in a specific set of cases which exist, or are likely to

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soon exist, instead of broadly permitting the use of discovery materials in all future related cases.

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Dkt. No. 90 at 5. Plaintiffs emphasize that it would be proper to share discovery materials across

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the set of related cases which exist or are likely to exist, Dkt. No. 89 at 2-3, but they make no

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particular argument for why their broader proposed language is necessary here. The undersigned

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sees good cause to protect the parties from duplicative, undue expenses by permitting the parties to

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use materials discovered in this case in a specific set of related cases which exist or are likely to

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soon exist, see Dkt. No. 90-3 at 14; the undersigned does not see good cause to adopt the broader

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language proposed by Plaintiffs.
Plaintiffs propose the use of the optional court-authored provisions for a “HIGHLY

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CONFIDENTIAL – SOURCE CODE” designation “because source code will be at issue.” Dkt.

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No. 89 at 3. Google makes no substantive argument for why these presumptively valid provisions

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would be improper here; instead, Google argues it might not “need[]” to produce source code in

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this case and that therefore there is no real dispute before the court, at this time, about how source

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code should be produced. See Dkt. No. 93 at 5. The undersigned is satisfied that source code is

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likely to be produced in this case, that the court faces a real dispute about how source-code

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discovery materials should be produced, and that Google’s suggestion—to hold off on setting

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boundaries for source-code discovery until future disputes about source-code discovery have

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developed—seems likely to unduly delay this case and to unnecessarily increase litigation costs.

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The undersigned is therefore persuaded that the discovery order should include the optional court-

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authored source-code provisions in order to guard against undue burdens and expenses which

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would otherwise likely be incurred.

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Plaintiffs also ask the court to modify the model order with optional, court-authored

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language which would permit them to withhold the identity of any non-testifying expert “so long

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as the information or item[s]” shown to the expert are not source code and “the [e]xpert is not an

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officer, director, or employee of a competitor of a [p]arty or expected to become one.” Dkt. No.

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89 at 2-3. Federal Rule of Civil Procedure (“FRCP”) 26(b)(4)(D) ordinarily prohibits a litigant

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from discovering the “facts known . . . by an expert who has been retained or specially employed
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by another party . . . to prepare for trial and who is not expected to be called as a witness at trial.”

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When a litigant attempts to discover the identities of any retained non-testifying experts who know

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certain facts, he is therefore indirectly seeking information that is ordinarily non-discoverable—is

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a certain “fact[] known” by any retained non-testifying expert? This court has also ruled that the

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identities of non-testifying experts should not be disclosed without a showing of “substantial

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need” because that information is “central to lawyering strategy” and is therefore protected work

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product. In re Pizza Time Theatre Securities Litigation, 113 F.R.D. 94, 98 (N.D. Cal. 1986)

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(interpreting Fed. R. Civ. P. 26(b)(3)).
Google argues non-testifying experts should not be permitted to remain anonymous

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because: (1) Google “is entitled to know the identit[ies] of” the people who possess its confidential

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and proprietary information, because otherwise Google cannot effectively guard against unjust

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harms those people might inflict, Dkt. No. 90 at 5; (2) Google faces a higher-than-usual risk that

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its confidential information will be misused, by some opponent’s expert in some case, because

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Google is involved in more cases than the average litigant, Dkt. No. 90 at 5-6; and (3) Google will

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not gain any unfair insight into Plaintiffs’ trial strategies if the names of the people who possess

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confidential information are not disclosed until this case ends, Dkt. No. 90 at 4. Plaintiffs

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respond: (1) the anonymity provision is presumptively valid because it was authored by the court;

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(2) it will be more difficult for Plaintiffs to find qualified experts in this case if they cannot remain

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anonymous, and “[s]everal” people have already refused to work on this case out of fear that

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Google will cut grant funding to their academic departments or will hire fewer of their students if

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Google learns they worked for Plaintiffs, Dkt. No. 94-1 at 12; and (3) Google relies on a vague

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argument which would apply “to virtually every” large company. Dkt. No. 94 at 3.

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The undersigned is persuaded, for two independent reasons, that the protective order

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should permit the parties to withhold the identities of non-testifying experts who do not review

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source code and who are not officers, directors, or employees of a competitor of a party or

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expected to become one. First, the optional court-authored provision proposed by Plaintiffs is

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presumptively valid. Second, Plaintiffs have shown good cause to justify this provision—the

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undersigned is satisfied that it will be significantly more difficult for Plaintiffs to retain qualified
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non-testifying experts if those experts are not permitted to remain anonymous.
The undersigned also agrees with Plaintiffs’ responses to Google’s arguments here.

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Virtually any large company could assert in each of its pending civil cases, as Google asserts here,

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that non-testifying experts might misuse confidential information, that the company faces this risk

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in several cases, and that the company’s agents should be permitted to track and manage these

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risks by obtaining the names of all non-testifying experts.

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speculative, the possible future harms are remote, and the underlying risks described by Google

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are unexceptional; indeed, the risk that confidential information might eventually be misused is

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inherent to the civil discovery of confidential information. Furthermore, the undersigned has

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already ruled in this order that former employees of Google and its competitors will not be

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permitted to work as experts in this case, and that ruling gives Google a reasonable degree of

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protection against the risk of experts improperly sharing confidential information with Google’s

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competitors. Cf. Martin Marietta Corp., 1995 WL 686369, at *2; Atari Corp., 161 F.R.D. at 421.

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The undersigned is therefore satisfied that Google has failed to show a substantial need, in this

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particular case, for access to identifying information it is “[o]rdinarily” prohibited from

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discovering. Fed. R. Civ. P. 26(b)(4)(D); see In re Pizza Time Theatre Securities Litigation, 113

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F.R.D. at 98 (interpreting Fed. R. Civ. P. 26(b)(3)).

Here, Google’s concerns are

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Finally, the court addresses two arguments which appear in the footnotes of Google’s

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opposition brief: (1) the proposed order unduly “gives Plaintiffs free reign” to decide who

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qualifies as a competitor of Google, Dkt. No. 93 at 5 n.5; and (2) the court “should not adopt

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Plaintiffs’ proposed [s]ection 7.4(a)(2)” because “it is internally inconsistent”—it permits the

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anonymity of experts who review “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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discovery materials, but it also subsequently requires the disclosure of those experts, Dkt. No. 93

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at 5 n.6. The court rejects the first argument; opposing lawyers must often rely on each other’s

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integrity and good faith in the course of civil discovery, and the court sees no reason to suspect

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that Plaintiffs’ lawyers will be unwilling or unable to determine in good faith whether a given

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person or entity is a competitor of Google. Furthermore, the protective order will leave the parties

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free to negotiate about who qualifies as a competitor of Google. The court accepts the second
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footnote argument, but only as a valid technical point which does not alter the court’s substantive

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analysis on the propriety of expert anonymity; the court shall amend Plaintiffs’ proposed section

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7.4(a)(2) so that it will apply the substance of the pertinent court-authored provision without

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creating an internal inconsistency in the protective order.
Conclusion

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The court will issue the model protective order which this court has written for use in

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highly sensitive cases. The model order, for good cause shown, will be amended: (1) to permit the

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parties to use materials produced in this case in a specific set of related cases which exist or are

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likely to soon exist; (2) to include optional court-authored provisions that govern the discovery of

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source code; and (3) to permit the parties to withhold the identities of non-testifying experts who

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have not reviewed protected source code. Plaintiffs’ request for an amendment that would permit

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them to hire the former employees of Google or its competitors as experts is denied. The

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undersigned will also make several procedural amendments to facilitate compliance with his

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Standing Order re: Civil Discovery Disputes.

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IT IS SO ORDERED.
Dated: 6/22/16

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HOWARD R. LLOYD
United States Magistrate Judge

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