Kannan v. Apple Inc.

Filing 86

Order by Magistrate Judge Virginia K. DeMarchi denying without prejudice 83 Stipulated Protective Order. The parties may either submit a revised proposed protective order that addresses the concerns noted, or they may submit a joint discovery dispute letter that explains why the current proposed provisions should be adopted, notwithstanding the Court's concerns. (vkdlc1S, COURT STAFF) (Filed on 4/22/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RAJA KANNAN,
Plaintiff,

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United States District Court
Northern District of California

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ORDER DENYING WITHOUT
PREJUDICE STIPULATED
PROTECTIVE ORDER

v.
APPLE INC.,
Defendant.

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Case No.17-cv-07305-EJD (VKD)

Re: Dkt. No. 83

On April 16, 2019, the parties filed a stipulation and proposed protective order, which was
referred to the undersigned magistrate judge for review. Dkt. Nos. 83, 42.
The Court appreciates that the parties have cooperated on a proposed form of order to

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govern the use and exchange of confidential information in this case. However, some of the

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proposed protective order provisions appear to be inconsistent with the Civil Local Rules,

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guidelines, and other policies of this Court. Other proposed provisions are ambiguous and require

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clarification.

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The Court denies the proposed protective order without prejudice. The Court outlines its
concerns below and invites the parties to submit a revised proposed protective order.

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1. Definitions:

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The proposed order’s definition of “Court” in paragraph 1.b does not clearly include any

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judge to whom motions or discrete proceedings (such as discovery disputes or settlement

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conferences) may be referred, short of assignment of the entire “Proceeding” (as that term has

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been defined by the parties). An appropriate definition of “Court” would be: “the United States

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District Court for the Northern District of California and its personnel.” See, e.g., Model Order

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¶ 7.2(d).1

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2. Ambiguous provisions:

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a.

The second sentence of paragraph 6 of the proposed order states: “The Parties may

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agree that the case name and number are to be part of the ‘Confidential’ designation.” It is not

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clear to which case name or number the parties refer. Case names and numbers are generally part

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of the public record and therefore are not likely to be entitled to confidential treatment or

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protection such as sealing under Civil Local Rule 79-5. The parties may wish to omit or clarify

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this provision.
b.

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The term “non-Designating Party” as used in paragraph 17 is ambiguous, as it

might be read to include any party not expressly subject to the terms of the proposed order. The

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United States District Court
Northern District of California

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parties may wish to use “Receiving Party” (a defined term) instead, or further clarify this

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provision.
3. Dispute resolution provisions:

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a. Any challenges to confidentiality designations or to the clawback of inadvertently

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produced privileged material are subject to the Court’s discovery dispute procedures described in

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Judge DeMarchi’s Standing Order for Civil Cases, available at https://cand.uscourts.gov/

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vkdorders. The proposed protective order should so state. The deadlines for initially conferring

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about challenges to designation objections as described in lines 5-12 on page 6 of the proposed

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order, which also appear in paragraph 6.2 of the Model Order, need not be modified. However,

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the deadlines described in lines 12-19 on page 6 of the proposed order, which also appear in

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paragraph 6.3 of the Model Order, should be modified to conform to the provisions of paragraphs

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4.b and 4.c on pages 2–3 of the Standing Order.

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b. Paragraph 14 of the proposed order describes the obligations of non-parties who

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designate information as “Confidential” in the course of this action, but neglects to address any

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protections available to such non-parties. The proposed protective order should state that the

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All references to the Model Order are to the “Stipulated Protective Order for Standard
Litigation,” available on the Court’s website at https://cand.uscourts.gov/model-protective-orders.
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discovery dispute procedures described in Judge DeMarchi’s Standing Order for Civil Cases apply

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equally to non-parties required to produce information or documents in this case. The proposed

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order should also include provisions and procedures similar to those in paragraph 9(a)-(c) of the

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Model Order to protect the interests of non-parties whose documents or information may be the

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subject of discovery in this case.

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4. Retention of jurisdiction:

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Paragraphs 22 and 23 of the proposed order provide for the Court’s retention of

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jurisdiction to enforce, modify, reconsider, or otherwise rule over issues arising out of the

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proposed order. The Court generally does not retain such jurisdiction for this purpose following

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United States District Court
Northern District of California

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termination of the action.
The parties may either submit a revised proposed protective order that addresses the

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concerns noted above, or they may submit a joint discovery dispute letter in accordance with

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Judge DeMarchi’s Standing Order for Civil Cases (in lieu of a noticed motion) that explains why

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the current proposed provisions should be adopted, notwithstanding the Court’s concerns.

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IT IS SO ORDERED.
Dated: April 22, 2019

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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