Kannan v. Apple Inc.

Filing 148

Order by Magistrate Judge Virginia K. DeMarchi re 140 Discovery Letter Brief re Protective Order and expert disclosure. (vkdlc1S, COURT STAFF) (Filed on 10/11/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAJA KANNAN, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 Case No. 17-cv-07305-EJD (VKD) ORDER RE DISPUTE RE APPLE’S DESIGNATIONS UNDER THE PROTECTIVE ORDER v. APPLE INC., Defendant. Re: Dkt. Nos. 140, 145 On September 26, 2019, the Court entered a revised protective order that permitted the 13 parties to designate discovery materials “Highly Confidential – Attorneys’ Eyes Only.” Dkt. No. 14 122. The order was entered in connection with the parties’ extended dispute regarding defendant 15 Apple Inc.’s anticipated production to plaintiff Raja Kannan of certain confidential employment- 16 related records for Apple employees other than Mr. Kannan. See Dkt. Nos. 105, 120. 17 Mr. Kannan advises the Court that Apple has now designated 5,114 pages of Apple’s 18 6,400-page document production “Highly Confidential – Attorneys’ Eyes Only,” even though a 19 multi-page document might include mention of one employee in one portion of the document. See 20 Dkt. No. 145 at 4. Apple does not appear to dispute this characterization, although it does note 21 that it has recently produced thousands of additional personnel and compensation records for the 22 eight employees of Mr. Kotni, as the Court ordered, and it acknowledges that these records have 23 been designated “Highly Confidential – Attorneys’ Eyes Only.” Id. at 7–8. Apple suggests that 24 Mr. Kannan should be required to challenge specific “Highly Confidential – Attorneys’ Eyes 25 Only” designations using the procedures set forth in the protective order. Id. 26 The Court cannot tell from the parties’ joint submission whether the “Highly Confidential 27 – Attorneys’ Eyes Only” designations that Apple has applied to particular documents merit that 28 designation or not. However, the Court provides the following guidance: Over-designation will 1 not be tolerated. Apple may not use blanket “Highly Confidential – Attorneys’ Eyes Only” 2 designations for the entirety of a document where only a portion of that document includes 3 material deserving such protection. The Court encourages Apple to review its designations with 4 this guidance in mind. The same guidance applies to deposition testimony. The Court expects the 5 parties to discuss this issue civilly and professionally before submitting disputes about particular 6 designations to the Court. 7 Mr. Kannan raises another concern about compliance with the protective order. He 8 worries that an expert to whom he might wish to show documents designated “Highly 9 Confidential – Attorneys’ Eyes Only” might not have available the information required to be shared under paragraph 9 of the protective order. As far as the Court can tell, this is a hypothetical 11 United States District Court Northern District of California 10 dispute, not a real one. If, as Mr. Kannan contends, an actual expert with whom he wishes to share 12 “Highly Confidential – Attorneys’ Eyes Only” documents is unable to provide all of the 13 information the order requires, the Court expects the parties to confer promptly and reach a 14 sensible resolution. The Court further expects that Apple will not make unnecessary objections or 15 unduly delay consent to disclosure. 16 The Court will not revisit the terms of the protective order at this time. If the parties 17 stipulate to revised terms, they may submit their proposed revised protective order to the Court for 18 approval. 19 20 IT IS SO ORDERED. Dated: October 11, 2019 21 22 VIRGINIA K. DEMARCHI United States Magistrate Judge 23 24 25 26 27 28 2

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