1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Case No. 19-cv-04286-BLF (SVK)
8 ORDER ON DISCOVERY LETTER 9 In re Google Assistant Privacy Litigation BRIEF 10 Re: Dkt. No. 94 11
13 Before the Court is the Parties’ dispute regarding section 7.4(a)(2) of the Model Protective 14 Order for Litigation Involving Patents, Highly Sensitive Confidential Information and/or Trade 15 Secrets (“MPO”). Dkt. 94. In relevant part, section 7.4(a)(2) requires a party to provide certain 16 identifying information for any retained expert before showing the expert another party’s Highly 17 Confidential information. The party whose documents are at issue then has fourteen days to file 18 an objection to the expert seeing the party’s Highly Confidential information. Section 7.4(b). The 19 objection process is detailed in section 7.4(c). 20 Plaintiffs object to section 7.4(a)(2) to the extent it requires the disclosure of the identity of 21 retained experts, both testifying and non-testifying. Plaintiffs argue that section 7.4(a)(2) invades 22 the attorney client privilege and the attorney work product doctrine, that there is no substantial 23 need for section 7.4(a)(2) disclosures in this case and that the requirements of section 7.4(a)(2) are 24 prejudicial to Plaintiffs. Defendants argue that the provisions of section 7.4(a)(2) are warranted in 25 this case for the protection of extremely sensitive confidential information. Defendant has also 26 indicated a willingness to agree to modest modifications as to the identifying information to be 27 provided. 1 is inherently reasonable and further, that it is appropriate to adopt, with modest modifications, in 2 this case. 3 Plaintiffs suggest that section 7.4(a)(2) is contrary to cited decisions restricting discovery 4 as to the identity of experts. Dkt. 94 at 2-3. This Court finds the cases cited distinguishable from 5 the case at hand in significant ways. In Todd v. Tempur-Sealy Int'l, Inc., No. 13-CV-04984-JST 6 (MEJ), 2015 WL 1022886 (N.D. Cal. Mar. 6, 2015), the discovery dispute concerned the 7 identification of a former employee of defendant who had been contacted by plaintiff’s counsel. 8 In that context, the court engaged in a general discussion of Rule 26 protections as they relate to 9 “informal consultants.” Id. at *3. Notably the court did not address the MPO or the specific 10 situation addressed by section 7.4(a)(2): the identification of experts before they receive a party’s 11 highly confidential information. Similarly, in Burt v. AVCO Corp., No. CV-15-3355-MWF- 12 PJWX, 2015 WL 12912366 (C.D. Cal. Nov. 17, 2015), the Central District addressed unique facts 13 of whether production of documents might violate the Arms Export Control Act (AECA). It was 14 that potential for violation of the statute that was the basis for the defendant’s proposed protective 15 order providing for disclosure of the identity of experts. Without the benefit of this District’s 16 MPO, the court conducted an “exceptional circumstances” analysis and found that defendant’s 17 concerns arising under AECA did not meet that standard. It was in this narrow context that the 18 Central District expressed its concern regarding attorney-client and attorney work product 19 doctrine. Id. at *4. As a result, this Court is not persuaded that those facts in a case from another 20 jurisdiction undermine the inherent reasonableness of section 7.4(a)(2) of this District’s MPO. 21 Plaintiffs cite only one case from this District that addresses section 7.4(a)(2) of the MPO, 22 Corley v. Google, Inc., No. 16-cv-00473-LHK (HRL), 2016 WL 3421402 (N.D. Cal. June 22, 23 2016). In Corley, the plaintiff proposed several modifications to the MPO, and the court agreed to 24 modify the provision requiring the pre-disclosure identification of experts. Id. at *3. This Court 25 does not find Corley instructive in the instant case for the following reasons. First, this Court 26 disagrees that Rule 26 prohibits the discovery of the identity of experts. A plain reading of Rule 27 26 is that it restricts the discovery of facts and opinions. Fed. R. Civ. P. 26(b)(4)(D); Ibrahim v. 1 case for an argument that identification of an expert pursuant to section 7.4(a)(2) would somehow 2 reveal the facts and opinions known to that expert, which appeared to be a concern of the court in 3 Corley. Corley, at *3. 4 Another significant reason for rejecting the reasoning of Corley in this case is a 5 fundamental point worth highlighting. To the extent that “substantial need”1 should be 6 demonstrated before requiring the disclosure of the identity of expert witnesses, the MPO 7 anticipates and satisfies that requirement. The MPO distinguishes between merely Confidential 8 materials and Highly Confidential– Attorneys Eyes Only materials.2 Only the latter calls for 9 identification of an expert before disclosure. Underpinning the MPO is the logic, which this Court 10 adopts, that Highly Confidential information, as defined in the MPO, provides a substantial need 11 for pre-disclosure identification of an expert. A party should have an opportunity to vet someone 12 who is going to have access to their “extremely sensitive” confidential information, the disclosure 13 of which creates a substantial risk of harm. Under such circumstances a party should not have to 14 rely on an opponent’s expert’s self-evaluation of conflicts. See Ibrahim, 669 F.3d at 999. Hence, 15 section 7.4(a)(2) allows for vetting by the party at risk. Importantly, the MPO also provides 16 multiple opportunities for a party, in this case Plaintiffs, to challenge first the designation of 17 information as “Highly Confidential” (MPO, section 6) and second to respond to objections to an 18 expert raised by Defendant. MPO, section 7.4(c). The Court further notes that the objection 19 process places the burden of challenging the expert on the moving party. Id. 20 The Court agrees that Defendants’ concern of potential substantial harm in this case is 21
22 1 Todd v. Tempur-Sealy Int'l, Inc., No. 13-CV-04984-JST(MEJ), 2015 WL 1022886 (N.D. Cal. Mar. 6, 2015); In re Pizza Time Theatre Securities Litigation, 113 F.R.D. 94, 98 (N.D. Cal. 1986). 23
2 Section 2.2 of the MPO defines “CONFIDENTIAL” Information or Items as “information 24 (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).” 25 Section 2.8 of the MPO defines “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items as “extremely sensitive ‘Confidential Information or Items,’ disclosure of 26 which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.” 27 1 legitimate for the reasons set forth in Dkt. 94 at 4. The Court is not persuaded that section 2 || 7.4(a)(2) puts Plaintiffs at a disadvantage in the litigation. Should Defendants challenge an expert, 3 || Plaintiffs’ counsel will not face that challenge unarmed; rather they will have the assistance of the 4 subject expert in responding to any issues Defendants may raise. Accordingly, Plaintiffs’ motion 5 to exclude or modify the identification requirements of section 7.4(a)(2) of the MPO is DENIED. 6 Finally, the Court notes that in the meet and confer process Defendants offered a 7 compromise as to what identification information should be provided.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Case No. 19-cv-04286-BLF (SVK)
8 ORDER ON DISCOVERY LETTER 9 In re Google Assistant Privacy Litigation BRIEF 10 Re: Dkt. No. 94 11
13 Before the Court is the Parties’ dispute regarding section 7.4(a)(2) of the Model Protective 14 Order for Litigation Involving Patents, Highly Sensitive Confidential Information and/or Trade 15 Secrets (“MPO”). Dkt. 94. In relevant part, section 7.4(a)(2) requires a party to provide certain 16 identifying information for any retained expert before showing the expert another party’s Highly 17 Confidential information. The party whose documents are at issue then has fourteen days to file 18 an objection to the expert seeing the party’s Highly Confidential information. Section 7.4(b). The 19 objection process is detailed in section 7.4(c). 20 Plaintiffs object to section 7.4(a)(2) to the extent it requires the disclosure of the identity of 21 retained experts, both testifying and non-testifying. Plaintiffs argue that section 7.4(a)(2) invades 22 the attorney client privilege and the attorney work product doctrine, that there is no substantial 23 need for section 7.4(a)(2) disclosures in this case and that the requirements of section 7.4(a)(2) are 24 prejudicial to Plaintiffs. Defendants argue that the provisions of section 7.4(a)(2) are warranted in 25 this case for the protection of extremely sensitive confidential information. Defendant has also 26 indicated a willingness to agree to modest modifications as to the identifying information to be 27 provided. 1 is inherently reasonable and further, that it is appropriate to adopt, with modest modifications, in 2 this case. 3 Plaintiffs suggest that section 7.4(a)(2) is contrary to cited decisions restricting discovery 4 as to the identity of experts. Dkt. 94 at 2-3. This Court finds the cases cited distinguishable from 5 the case at hand in significant ways. In Todd v. Tempur-Sealy Int'l, Inc., No. 13-CV-04984-JST 6 (MEJ), 2015 WL 1022886 (N.D. Cal. Mar. 6, 2015), the discovery dispute concerned the 7 identification of a former employee of defendant who had been contacted by plaintiff’s counsel. 8 In that context, the court engaged in a general discussion of Rule 26 protections as they relate to 9 “informal consultants.” Id. at *3. Notably the court did not address the MPO or the specific 10 situation addressed by section 7.4(a)(2): the identification of experts before they receive a party’s 11 highly confidential information. Similarly, in Burt v. AVCO Corp., No. CV-15-3355-MWF- 12 PJWX, 2015 WL 12912366 (C.D. Cal. Nov. 17, 2015), the Central District addressed unique facts 13 of whether production of documents might violate the Arms Export Control Act (AECA). It was 14 that potential for violation of the statute that was the basis for the defendant’s proposed protective 15 order providing for disclosure of the identity of experts. Without the benefit of this District’s 16 MPO, the court conducted an “exceptional circumstances” analysis and found that defendant’s 17 concerns arising under AECA did not meet that standard. It was in this narrow context that the 18 Central District expressed its concern regarding attorney-client and attorney work product 19 doctrine. Id. at *4. As a result, this Court is not persuaded that those facts in a case from another 20 jurisdiction undermine the inherent reasonableness of section 7.4(a)(2) of this District’s MPO. 21 Plaintiffs cite only one case from this District that addresses section 7.4(a)(2) of the MPO, 22 Corley v. Google, Inc., No. 16-cv-00473-LHK (HRL), 2016 WL 3421402 (N.D. Cal. June 22, 23 2016). In Corley, the plaintiff proposed several modifications to the MPO, and the court agreed to 24 modify the provision requiring the pre-disclosure identification of experts. Id. at *3. This Court 25 does not find Corley instructive in the instant case for the following reasons. First, this Court 26 disagrees that Rule 26 prohibits the discovery of the identity of experts. A plain reading of Rule 27 26 is that it restricts the discovery of facts and opinions. Fed. R. Civ. P. 26(b)(4)(D); Ibrahim v. 1 case for an argument that identification of an expert pursuant to section 7.4(a)(2) would somehow 2 reveal the facts and opinions known to that expert, which appeared to be a concern of the court in 3 Corley. Corley, at *3. 4 Another significant reason for rejecting the reasoning of Corley in this case is a 5 fundamental point worth highlighting. To the extent that “substantial need”1 should be 6 demonstrated before requiring the disclosure of the identity of expert witnesses, the MPO 7 anticipates and satisfies that requirement. The MPO distinguishes between merely Confidential 8 materials and Highly Confidential– Attorneys Eyes Only materials.2 Only the latter calls for 9 identification of an expert before disclosure. Underpinning the MPO is the logic, which this Court 10 adopts, that Highly Confidential information, as defined in the MPO, provides a substantial need 11 for pre-disclosure identification of an expert. A party should have an opportunity to vet someone 12 who is going to have access to their “extremely sensitive” confidential information, the disclosure 13 of which creates a substantial risk of harm. Under such circumstances a party should not have to 14 rely on an opponent’s expert’s self-evaluation of conflicts. See Ibrahim, 669 F.3d at 999. Hence, 15 section 7.4(a)(2) allows for vetting by the party at risk. Importantly, the MPO also provides 16 multiple opportunities for a party, in this case Plaintiffs, to challenge first the designation of 17 information as “Highly Confidential” (MPO, section 6) and second to respond to objections to an 18 expert raised by Defendant. MPO, section 7.4(c). The Court further notes that the objection 19 process places the burden of challenging the expert on the moving party. Id. 20 The Court agrees that Defendants’ concern of potential substantial harm in this case is 21
22 1 Todd v. Tempur-Sealy Int'l, Inc., No. 13-CV-04984-JST(MEJ), 2015 WL 1022886 (N.D. Cal. Mar. 6, 2015); In re Pizza Time Theatre Securities Litigation, 113 F.R.D. 94, 98 (N.D. Cal. 1986). 23
2 Section 2.2 of the MPO defines “CONFIDENTIAL” Information or Items as “information 24 (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).” 25 Section 2.8 of the MPO defines “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items as “extremely sensitive ‘Confidential Information or Items,’ disclosure of 26 which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.” 27 1 legitimate for the reasons set forth in Dkt. 94 at 4. The Court is not persuaded that section 2 || 7.4(a)(2) puts Plaintiffs at a disadvantage in the litigation. Should Defendants challenge an expert, 3 || Plaintiffs’ counsel will not face that challenge unarmed; rather they will have the assistance of the 4 subject expert in responding to any issues Defendants may raise. Accordingly, Plaintiffs’ motion 5 to exclude or modify the identification requirements of section 7.4(a)(2) of the MPO is DENIED. 6 Finally, the Court notes that in the meet and confer process Defendants offered a 7 compromise as to what identification information should be provided. The Court finds this 8 compromise reasonable and ORDERS that section 7.4(a)(2) be modified to require the disclosure 9 || of only the following: (1) the full name of the Expert and the city and state of his or her primary 10 || residence, and (ii) a copy of the Expert’s current resume, which shall account for at least the past 11 five years of the Expert’s work. The Court also notes that in the draft protective order provided to 12 || the Court at Dkt. 94-3 there is a typographical error in section 7.3(b) to be corrected. 5 13 The parties are to submit a protective order to the undersigned in accordance with this 14 || Court’s order within seven days of the date of this order. Either party may seek relief from this 3 15 order within 14 days by filing a motion for relief with the District Judge in this case. a 16 SO ORDERED. 5 17 || Dated: August 13, 2020
19 Sees ver Yl SUSAN VAN KEULEN 20 United States Magistrate Judge 21 22 23 24 25 26 27 28