SolarCity Corporation v. Doria, No. 3:2016cv03085 - Document 97 (S.D. Cal. 2017)

Court Description: ORDER granting in part and denying in part Defendant's Motion to Compel (ECF Nos. 69 , 71 ); granting Plaintiff's request for entry of a protective order (ECF No. 75 ); denying Plaintiff's request to stay discovery into Defendant's Counterclaim (ECF No. 75 ); and denying Plaintiff's and Defendant's requests for sanctions (ECF Nos. 71 , 75 ). Signed by Magistrate Judge Ruben B. Brooks on 12/21/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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SolarCity Corporation v. Doria Doc. 97 Dec 21 2017 s/ judep Dockets.Justia.com 1 Doria. (See Opp'n 4-5, 9, ECF No. 75.) 1 Defendant's Reply was filed nunc pro tune to 2 November 6, 2017 [ECF Nos. 76, 77]. Shortly thereafter, the Court issued a minute order 3 requiring the parties to supplement their pleadings by providing the disputed requests for 4 production and responses [ECF No. 79]. The Court also ordered Plaintiff to file a 5 detailed privilege log if it was withholding any responsive documents on the basis of 6 privilege [Id.]. Pursuant to the Court's order, SolarCity filed the requests for production 7 and responses on November 14, 2017 [ECF No. 82], and its privilege log on November 8 21, 2017 [ECF No. 85]. For the reasons discussed below, Defendant Doria's Motion to Compel [ECF Nos. 9 10 69, 71] is GRANTED in part and DENIED in part, and Plaintiffs and Defendant's 11 respective requests for sanctions [ECF Nos. 69, 71, 75] are DENIED. The Court 12 GRANTS SolarCity's request for the entry ofa protective order and DENIES its request 13 to stay discovery into Doria's Counterclaim [ECF No. 75]. 14 I. FACTUAL BACKGROUND 15 Plaintiff SolarCity, a manufacturer and seller of solar energy products and services, 16 employed Defendant Daniel Doria as a sales representative from May 2015, until his 17 termination on October 21, 2016. (Comp!. 2-4, ECF No. 1.) On December 23, 2016, 18 SolarCity filed this action alleging that "[o]n at least five separate occasions while Doria 19 was still employed by SolarCity, Doria stole SolarCity's confidential customer 20 information .... " (Id. at 2.) Defendant Doria is alleged to have used the information to 21 contact Plaintiffs existing and prospective customers in an "attempt to dissuade them 22 from using SolarCity's products." (Id.) Plaintiff claims that Defendant stole contact 23 information for at least 1,343 customers by accessing its confidential customer database, 24 copying the information, and sending it to his personal e-mail address. (Id.) SolarCity 25 further alleges that Doria "used that confidential information to send the solar warning 26 27 1 28 The Court will cite to documents as paginated on the electronic case filing system. 2 16cv3085-JAH (RBB) 1 email to an unknown number of SolarCity customers in an attempt to dissuade them from 2 entering into a contract with SolarCity or to terminate their existing contracts with 3 SolarCity." (Id. at 8.) Plaintiff contends that as a result, its reputation and relationships 4 with existing and potential customers were damaged, and it lost business; and that 5 Defendant's conduct violated his employment agreements with Plaintiff. (See id. at 3, 86 11.) SolarCity asserts causes of action for violation of the Defend Trade Secrets Act, the 7 California Uniform Trade Secrets Act, and breach of contract; it seeks injunctive relief, 8 restitution, disgorgement, royalties, compensatory and exemplary damages, penalties, 9 attorneys' fees, costs, and interest. (Id. at 2, 12-19.) 10 11 II. PROCEDURAL BACKGROUND On December 27, 2016, SolarCity filed an Application for Temporary Restraining 12 Order and Request for Order to Show Cause re Preliminary Injunction [ECF No. 3]. 13 United States District Judge John A. Houston granted Plaintiff's application for a 14 Temporary Restraining Order on January 11, 2017, and enjoined Defendant Doria from 15 (1) "altering, destroying, or disposing of any evidence or other materials" related to this 16 action; (2) "failing to take all necessary steps to preserve documents, data," and other 17 materials relating to the action; and (3) "directly or indirectly accessing, using, 18 disclosing, or making available" Plaintiff's customer data. (See Order Granting TRO 2- 19 3, ECF No. 15.) On January 31, 2017, Judge Houston issued an Order Granting 20 Plaintiff's Motion for Preliminary Injunction with the same restrictions [ECF No. 22]. 21 Doria answered SolarCity's Complaint on February 21, 2017 [ECF No. 28], and 22 the Court subsequently issued a Scheduling Order Regulating Discovery and Other Pre- 23 trial Proceedings [ECF No. 39]. Defendant's Motion for Leave to File Amended Answer 24 and Counter-Claim and Application for Temporary Restraining Order and Request for 25 Order to Show Cause re Preliminary Injunctive Relief were filed nunc pro tune to May 3, 26 2017 [ECF No. 37]. On August 30, 2017, Judge Houston granted both motions and 27 enjoined SolarCity's "senior and upper level management" from "making disparaging 28 3 16cv3085-JAH (RBB) 1 remarks or causing others to make any disparaging remarks regarding the pending case, 2 Defendant, or Defendant's business." (Order Granting Prelim. lnj. 2, ECF No. 56.) 3 Defendant's Amended Answer and Counter-Claim for Declaratory Judgment 4 Demand for Damages was filed nunc pro tune to October 16, 2017 [ECF No. 67]. Doria 5 alleges that SolarCity defrauded its clients by "causing them to believe that SolarCity net- 6 metering agreements cannot change" and "omitting virtually all information regarding the 7 financial instrument ... known as Solar Renewal Energy Certificates or SREC's from the 8 information distributed to clients." (Am. Answer & Countercl. 12, ECF No. 67.) 9 Further, Defendant Doria claims that Plaintiff defrauded its employees by "devising a 10 plan to avoid a traditional restructure or 'layoff" by manipulating the company's sales 11 performance requirements and lead distribution. (Id. at 13.) He also contends that 12 SolarCity's Team Lead Guy Zubia assaulted him at work; the assault was witnessed by 13 multiple individuals and recorded by video surveillance; and that SolarCity investigated 14 the assault and subsequently terminated Zubia. (Id. at 14-15.) Additionally, Defendant 15 alleges that shortly after his termination, Plaintiff"announced through a 'SolarCity Live' 16 or 'SolarCity T.V. Event' a one time 'get out of jail free card' to individuals who came 17 forward regarding trade secret theft they knew about or participated in[,]" and that 18 Lynden Rive2 stated during the event that he "intended to prosecute to the fullest extent 19 of the law, anyone that had been accused of such violations." (Id. at 26.) Finally, Doria 20 maintains that his employment agreement with SolarCity required arbitration of "all 21 matters regarding Trade Secret disputes" and that SolarCity breached the agreement by 22 filing this action. (Id. at 16.) Defendant alleges causes of action he describes as breach 23 of contract; "violation of the FLSA employer retaliation"; "violation of the FTC fraud 24 25 26 27 28 2 Plaintiffs pleadings and requests for production indicate that Mr. Rive was SolarCity's CEO at the time he allegedly made the statement. (See Mem. P. & A. Supp. Mot. Compel 3, ECF No. 71; Suppl. Deel. Mack Attach. #1, 8, ECF No. 82.) 4 16cv3085-JAH (RBB) 1 and deceptive practices"; "violations of the WARN Act"; "civil conspiracy, concert of 2 3 action"; and violation of California Civil Code Sections 45 and 46. (Id. at 24-37.) On August 25, 2017, Doria served SolarCity with thirty requests for production. 4 (Opp'n Attach. #1 Deel. Mack 1, ECF No. 75.) Plaintiff responded to Defendant's 5 requests on September 27, 2017. (Id. at 3.) SolarCity agreed to produce documents 6 responsive to twenty requests, produced 2,774 pages of documents, objected to the 7 remaining ten requests, and withheld additional responsive documents until the entry of a 8 protective order governing the use and disclosure of confidential information. (Id.; see 9 10 also Reply 13-14, ECF No. 77.) On November 8, 2017, Plaintiff filed a motion to dismiss each of the causes of 11 action in Defendant's Counterclaim for failure to state a claim. (Pl.'s Mot. Dismiss 12 Countercl., ECF No. 78.) District Judge Houston issued a minute order setting January 13 22, 2018, as a hearing date on the motion. (See id.) 14 III. LEGAL STANDARDS 15 A. Motion to Compel 16 A party may obtain discovery regarding any nonprivileged matter that is relevant 17 to any claim or defense and proportional to the needs of the case, "considering the 18 importance of the issues at stake in the action, the amount in controversy, the parties' 19 relative access to relevant information, the parties' resources, the importance of the 20 discovery in resolving the issues, and whether the burden or expense of the proposed 21 discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(l). Relevant information 22 need not be admissible at trial to be discoverable. Id. Relevance is construed broadly to 23 include any matter that bears on, or reasonably could lead to other matters that could bear 24 on, any issue that may be in the case. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 25 340, 350-51 (1978) (footnote and citation omitted)). District courts have broad discretion 26 to determine relevancy for discovery purposes and to limit the scope of discovery. See 27 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Fed. R. Civ. P. 26(b)(2)(C) 28 (allowing courts to limit discovery where it would be unreasonably cumulative or 5 J6cv3085-JAH (RBB) 1 duplicative, or can be obtained from a more convenient, less burdensome, or less 2 expensive alternate source; the requesting party has had ample opportunity to obtain 3 discovery; or the discovery sought is beyond the scope of Rule 26(b )( 1)). 4 Federal Rule of Civil Procedure 37 enables the propounding party to bring a 5 motion to compel responses to discovery. Fed. R. Civ. P. 37(a)(3)(B). The party seeking 6 to compel discovery has the burden of establishing that its request satisfies the relevance 7 requirement of Rule 26 of the Federal Rules of Civil Procedure. Soto v. City of Concord, 8 162 F.R.D. 603, 610 (N.D. Cal. 1995). The party opposing discovery bears the burden of 9 resisting disclosure. See DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 10 2002); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). 11 B. Pro Se Litigants 12 "In general, prose representation does not excuse a party from complying with a 13 court's orders and with the Federal Rules of Civil Procedure." Hupp v. San Diego 14 County. Civil No. 12cv0492 GPC (RBB), 2014 WL 1404510, at *2 (S.D. Cal. Apr. 10, 15 2014) (citing Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 16 1996)). Accordingly, parties who choose to represent themselves are expected to follow 17 the rules of the court in which they litigate. Bias v. Moynihan, 508 F.3d 1212, 1223 (9th 18 Cir. 2007) (quoting Carter v. Comm'r, 784 F.2d 1006, 1008-09 (9th Cir. 1986) 19 ("Although prose, [a litigant] is expected to abide by the rules of the court in which he i 20 litigates.")). "[W]hile prose litigants may be entitled to some latitude when dealing with 21 sophisticated legal issues, acknowledging their lack of formal training, there is no cause 22 for extending this margin to straightforward procedural requirements that a layperson can 23 comprehend as easily as a lawyer." Jourdan v. Jabe, 951F.2d108, 109 (6th Cir. 1991). 24 25 IV. DISCUSSION Defendant seeks an order compelling Plaintiff to "serve further responses to [his] 26 requests for production, produce responsive documents and allow reasonable 27 inspection .... " (Mero. P. & A. Supp. Mot. Compel 2; ECF No. 71.) Doria contends 28 that SolarCity refused to provide the requested discovery and delayed drafting a 6 16cv3085-JAH (RBB) 1 protective order. (See Reply 2, 5, 7, 16, ECF No. 77.) He also asks the Court to sanction 2 Plaintiff for the expenses he incurred in connection with bringing the motion. (Mem. P. 3 & A. Supp. Mot. Compel 2, 15-16, ECF No. 71.) SolarCity argues that Doria's Motion 4 to Compel should be denied because it is procedurally deficient, and it asserted valid 5 objections to the requests at issue. (Opp'n 5-10, ECF No. 75.) Plaintiff also asks the 6 Court to enter a protective order and sanction Defendant. (Id. at 10-11.) 7 A. 8 Plaintiff requests that the Court enter its proposed protective order. (Id. at 10-11 9 Plaintiff's Request to Enter a Protective Order (citing Fed. R. Civ. P. 26(c), 37(a)(5)(B).) SolarCity claims that Doria refused to 10 stipulate to the protective order it proposed "or any other" protective order, and Doria's 11 refusal to agree to a protective order precludes further production. (See id. at 2, 4, 11; id. 12 Attach. # 1 Deel. Mack 3.) Plaintiff asserts that the proposed protective order is 13 warranted in this trade secret action to protect its confidential information, while 14 permitting Defendant access to discovery he seeks. (Id. at 2, 11.) Doria contends that SolarCity unjustifiably delayed drafting a protective order. 3 15 16 (See Reply 2-5, 7, 16, ECF No. 77.) Defendant states that although he is willing to enter 17 into a protective order, he will not stipulate to an order providing "great advantage" to 18 Plaintiff, and that he "concluded" that a "model court order ... will not suffice without a 19 reasonable court intervention, and potential modification." (Id. at 5, 9, 17, 23.) 20 Federal Rule of Civil Procedure 26(c) allows a party from whom discovery is 21 sought to move for a protective order. Fed. R. Civ. P. 26(c)(l). For good cause, the court 22 may issue a protective order "specifying terms ... for the disclosure or discovery"; 23 "forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery 24 25 26 27 28 3 Doria cites Plaintiffs e-mail dated April 5, 2017, stating, "[W]e have not finished drafting the proposed protective order and will send that over hopefully this week." (Reply 28, ECF No. 77.) He asserts that despite the parties' numerous communications during May-July 2017, SolarCity did not provide a protective order draft. (Id. at 3-5.) Defendant further alleges that on August 10, 2017, he emailed Plaintiffs counsel, Ron Arena, requesting the draft, and on October 11, 2017, Arena finally forwarded the draft to Doria. (Id. at 5.) 7 l 6cv3085-JAH (RBB) 1 to certain matters"; or "requiring that a trade secret or other confidential research, 2 development, or commercial information not be revealed or be revealed only in a 3 specified way .... " Id. "For good cause to exist, the party seeking protection bears the 4 burden of showing specific prejudice or harm will result if no protective order is 5 granted." Phillips ex rel. Estates of Byrd v. Gen. Motors Com., 307 F.3d 1206, 1210-11 6 (9th Cir. 2002). The court has broad discretion to determine whether a protective order is 7 appropriate and what degree of protection is warranted. Seattle Times Co. v. Rhinehart, 8 467 U.S. 20, 36 (1984). 9 Although Doria indicates that he is willing to enter into a protective order, he 10 refused to stipulate to the protective order proposed by SolarCity. (See Reply 17, ECF 11 No. 77.) The parties' pleadings include Plaintiffs proposed protective order, (Opp'n 12 Attach. #2, 6-15, ECF No. 75), and two paragraphs of Defendant's proposed "sample" 13 language, (Reply 44, ECF No. 77). SolarCity contends that its proposed protective order 14 is modeled after the Southern District of California's Model Protective Order. (Opp'n 15 11, ECF No. 75.) A federal district court's "model protective order, upon which the 16 parties have based their own proposed protective orders, has been approved by the court 17 and governs discovery unless the court enters a different protective order." Barnes and 18 Noble, Inc. v. LSI Corp., No. C 11-02709 EMC (LB), 2012 WL 601806, at* 1 (N.D. Cal. 19 Feb. 23, 2012). SolarCity alleges that it modified the model order to account for Doria's 20 prose status, but neither discusses nor identifies any of its proposed modifications. 21 The Court has reviewed the Model Protective Order and Plaintiffs proposed 22 protective order. SolarCity's proposed order adds the following language as paragraphs 23 two and three to the Court's Model Protective Order: 24 25 26 27 2. The term "Highly Confidential" will mean and include any information which belongs to a Designating Party who believes in good faith that the Disclosure of such information to another Party or non-Party would create a substantial risk of serious financial or other injury that cannot be avoided by less restrictive means. 28 8 16cv3085-JAH (RBB) 3. "Highly Confidential Materials" will mean and include any Documents, Testimony, or Information, as defined below, designated as "Highly Confidential" pursuant to the provisions of this Protective Order. 1 2 3 4 (Opp'n Attach. #2, 7, ECF No. 75.) Without describing its rationale, SolarCity also seeks 5 to replace a "CONFIDENTIAL-FOR COUNSEL ONLY" designation in the Model 6 Protective Order with a "HIGHLY CONFIDENTIAL-FOR IN CAMERA REVIEW 7 ONLY" designation. (See id. at 8, 10-12.) 8 SolarCity, as the party seeking the inclusion of its proposed confidentiality 9 designation in the protective order, bears the burden of establishing good cause for the 10 provision. See Rivera v. NIBCO, Inc., 384 F.3d 822, 827 (9th Cir. 2004); Lindsey v. 11 Elsevier Inc., Case No.: 16-cv-00959-GPC (DHB), 2016 WL 8731471, at *5 (S.D. Cal., 12 Aug. 19, 2016). Other than stating that it modified the Model Protective Order to 13 account for Defendant's pro se status, Plaintiff does not provide any explanation or legal 14 authority to support its proposed confidentiality designation. (See Reply 10-11, ECF No. 15 77.) 16 Doria's pro se status is a factor to consider in drafting a protective order, and the 17 Court is mindful that Doria is litigating this case without legal counsel. By proposing to 18 replace a "CONFIDENTIAL-FOR COUNSEL ONLY" designation contained in the 19 Model Protective Order with a "HIGHLY CONFIDENTIAL-FOR IN CAMERA 20 REVIEW ONLY" provision, SolarCity, in essence, is asking the Court to review 21 documents that would have been produced and used in this litigation by Doria's counsel, 22 ifhe had retained counsel. The Court is not Doria's legal representative and cannot 23 litigate on his behalf. 24 Additionally, the Model Protective Order's "CONFIDENTIAL-FOR COUNSEL 25 ONLY'' provision does not preclude the use of the information by the party seeking 26 disclosure; rather, it limits the individuals with access to the information. SolarCity's 27 proposed language is not narrowly tailored to recognize this distinction. 28 9 16cv3085-JAH (RBB) 1 Further, in cases involving "trade secrets or other confidential commercial 2 information" the court is required to "balance the risk of disclosure to competitors against 3 the risk that a protective order will impair prosecution or defense of the claims." 4 Nutratech, Inc. v. Syntech CSSPF) Int'l. Inc., 242 F.R.D. 552, 555 (C.D. Cal. 2007) 5 (citing Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992)); 6 see also 6 James Wm. Moore et al., Moore's Federal Practice§ 26.105[8][a], at 26-550 7 (3d ed. 2017) ("To demonstrate good cause under [Rule 26(c)(l)(G)], the party seeking 8 the protective order must show that the information sought is a trade secret or other 9 confidential information, and that the harm caused by its disclosure outweighs the need of 10 the party seeking disclosure.") (footnote omitted). The district court must "examine 11 factually all the risks and safeguards surrounding inadvertent disclosure." Brown Bag 12 Software, 960 F.2d at 1470. The court should consider "the nature of the claims and ofa 13 party's opportunity to develop its case through alternative discovery procedures," and 14 whether the receiving party is "involved in 'competitive decisionmaking'[.]" Id. (citing 15 U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984)). 16 1. The risk to SolarCity of inadvertent disclosure 17 "A risk of inadvertent disclosure that cannot be adequately mitigated by a 18 protective order is a factor in limiting access to confidential information." Barnes and 19 Noble, Inc., 2012 WL 601806, at *2 (citing U.S. Steel Corp., 730 F.2d at 1468). The key 20 factor in this determination is whether the party seeking disclosure engages in 21 "competitive decisionmaking," which entails "advising on decisions about pricing or 22 design 'made in light of similar or corresponding information about a competitor."' 23 Brown Bag Software, 960 F.2d at 1470 (citing U.S. Steel Corp., 730 F.2d at 1468). 24 Doria worked for SolarCity as a sales representative in its Las Vegas territory from 25 May 2015, until October 21, 2016. (See Comp!. 2, 4, ECF No. 1.) His exhibits indicate 26 that he has been receiving pay checks from "Vivint Solar Developer, LLC" since at least 27 January 23, 2017. (See Reply 21, ECF No. 77; id. at 68-72.) Although Plaintiff contends 28 that Doria's discovery requests seek confidential information, (see Opp'n 3, ECF No. 75), IO 16cv3085-JAH (RBB) 1 it has not presented any evidence indicating that Doria should be precluded from 2 obtaining the requested information because he is performing any "competitive decision- 3 making" functions, such as advising his new employer about marketing and/or business 4 strategy, product design, development, and product pricing, or engaging in a competitive 5 analysis. See Barnes and Noble, Inc., 2012 WL 601806, at *3 (considering those factors 6 in analyzing whether a company's in-house counsel was engaged in "competitive 7 decision-making"). "Nor does [Doria's] proximity to competitive decisionmakers 8 necessarily confer that status on him." Id. at *4. Furthermore, Doria is now working in a 9 different geographical market. (See Reply 21, ECF No. 77 (containing Defendant 10 Doria's representation that he resided in Nevada during the events giving rise to this suit, 11 and moved to California on November 1, 2017).) 12 The protective order proposed by Plaintiff requires the recipients of"Confidential 13 Information" to agree in writing to be bound by the terms of the protective order, to hold 14 all "Confidential Information" in confidence, use the information "only for purposes" of 15 this action, and "take reasonable precautions to prevent the unauthorized or inadvertent 16 disclosure of such information." (Opp'n Attach. #2, 12, 15, ECF No. 75.) The terms of 17 the protective order therefore provide additional safeguards against disclosure, and 18 minimize any potential harm from inadvertent disclosure. Accordingly, SolarCity failed 19 to establish that there is an unacceptable risk of disclosure that would warrant denying 20 Doria's access to highly confidential information. 21 2. The potential prejudice to Doria from nondisclosure 22 Prejudice can be established where the protective order "actually prejudice[s] 23 presentation of the moving party's case." Lindsey, 2016 WL 8731471, at *4 (citing Intel 24 Corp. v. VIA Technologies, Inc., 198 F.R.D. 525, 528 (N.D. Cal. 2000)). Plaintiffs 25 proposed "HIGHLY CONFIDENTIAL-FOR IN CAMERA REVIEW ONLY" 26 designation would preclude Defendant from obtaining, reviewing, and using documents 27 with that designation. Doria needs to know what information forms the basis of 28 SolarCity's claims so that he may adequately assess the claims and the scope of potential 11 16cv3085-JAH (RBB) 1 damages, meaningfully defend against the claims, engage in settlement discussions, as 2 well as litigate his counterclaims. See Barnes and Noble, Inc., 2012 WL 601806, at *4-5 3 (finding prejudice from nondisclosure where the party seeking disclosure claimed that it 4 required confidential information to manage litigation and "make a realistic assessment" 5 of the opposing side's "infringement claims and the scope of potential damages[]"). 6 Doria's ability to litigate will be severely prejudiced by SolarCity's proposed 7 confidentiality designation in the protective order. See id. at *5; Lindsey, 2016 WL 8 8731471, at *4 (finding prejudice to plaintiff, where defendant's proposed confidentiality 9 designation would have precluded plaintiff from reviewing documents with that 10 designation, including defendant's financial information and agreements relevant to 11 plaintiffs claims); see also Profil Institut fur Stoffwechselforschung GmbH v. Prosciento, 12 Inc., Civil No. 16cv1549-LAB(BLM), No. 73, slip op. at 7 (refusing to designate the 13 allegedly misappropriated information or data as "Highly Confidential-Outside Counsel's 14 Eyes Only" in a trade secret misappropriation action between direct competitors). 15 16 3. Conclusion Having considered and balanced the parties' interests, the Court concludes that 17 SolarCity has not established good cause for the inclusion of a "HIGHLY 18 CONFIDENTIAL-FOR IN CAMERA REVIEW ONLY" designation in the parties' 19 protective order. See Lindsey, 2016 WL 8731471, at *l-2, 5 (finding that defendant did 20 not establish good cause for the inclusion in the protective order of"Attorneys Eyes 21 Only" designation, covering documents that plaintiff deemed "highly confidential and 22 sensitive and or/trade secrets"); see also Mad Catz Interactive, Inc. v. Razor USA, Ltd., 23 No. 13CV2371-GPC (JLB), 2014 WL 4161713, at *5 (S.D. Cal. Aug. 19, 2014) (finding 24 that plaintiffs general counsel's role would not "give rise to an unacceptable risk of 25 disclosure such that he should be denied access to [defendant's] highly confidential 26 information[]"). The Court has modified the protective order proposed by Plaintiff and 27 separately issues a protective order to govern this case; an unexecuted copy is attached as 28 Exhibit 1 to this Order. 12 16cv3085-JAH (RBB) 1 B. 2 Plaintiff SolarCity asks the Court to stay discovery into Defendant's Counterclaim Plaintiff's Request for Discovery Stay 3 until Judge Houston rules on Plaintiffs motion to dismiss. (See Opp'n 9, ECF No. 75; 4 see also Pl.'s Mot. to Dismiss Countercl. 1, ECF No. 78.) In support of its request, 5 SolarCity argues that Doria seeks highly confidential information regarding claims that 6 will "likely" be dismissed. (Opp'n 9, ECF No. 75.) Defendant Doria responds that 7 Plaintiffs request should be denied because a stay would delay discovery, and the 8 requested information relates to his counterclaims and defenses. (See Reply 9, 18-20, 9 ECF No. 77.) 10 In its responses to Defendant's thirty document requests, SolarCity contends that 11 each request, "to the extent" that it calls for information related to Doria's proposed 12 counterclaims, is premature because the counterclaims are subject to dismissal. (See 13 Suppl. Deel. Mack Attach #1, 19-48, ECF No. 82.) "Objections to discovery requests 14 cannot be conclusory. Proper objections 'show' or 'specifically detail' why the disputed 15 discovery request is improper." Collins v. Landry's, Inc., Case No. 2:13-cv-01674-JCM- 16 VCF, 2014 U.S. Dist. LEXIS 83003, at *8 (D. Nev. June 17, 2014) (citing Blankenship v. 17 Heart Corp., 519 F.2d 418, 429 (9th Cir. 1975)). "Boilerplate, generalized objections are 18 inadequate and tantamount to making no objection at all." Id. at *6-7. 19 In its Opposition, SolarCity identifies six requests for production that it contends 20 only relate to Doria's counterclaims: l, 8, 12, 23, 24, and 29. (See Opp'n 7-9, ECF No. 21 75.) In its response to request number 1, Plaintiff stated that "it has been unable to locate 22 responsive documents following a reasonably diligent search in conformity with the 23 Federal Rules of Civil Procedure." (Suppl. Deel. Mack Attach.# 1, 19, ECF No. 82.) 24 This may be a sufficient response. Bryant v. Armstrong, 285 F.R.D. 596, 603 (S.D. Cal. 25 2012). For request 23, SolarCity responds that "it is unaware of documents it 26 understands to be responsive to this request and that it will produce copies of documents 27 signed by Defendant in connection with his employment." (Suppl. Deel. Mack Attach. 28 #1, 41, ECF No. 82.) If responsive items do not exist, their production cannot be 13 16cv3085-JAH (RBB) 1 compelled. But Doria is correct, the discovery sought in the listed document requests is 2 3 not only relevant to his counterclaims. "[A] party seeking a stay of discovery carries the heavy burden of making a strong 4 showing why discovery should be denied." Clark v. New Century Mortg. Co., 5 No. 2:17-cv-01065-JAD-VCF, 2017 U.S. Dist. LEXIS 165266, at 3 (D. Nev. Oct. 4, 6 2017) (quoting Ministerio Roca Salida v. U.S. Dep't of Fish & Wildlife, 288 F.R.D. 500, 7 503 (D. Nev. 2013)). When deciding whether a stay of discovery should be imposed 8 pending a motion to dismiss, among other things, the Court determines whether it is 9 '"convinced' that the plaintiff [or counterclaimant] is unable to state a claim for relief." 10 Id. (citing Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984)). The Court has taken a 11 "preliminary peek" at the merits of SolarCity's motion to dismiss and concluded that a 12 stay of discovery in response to the document requests is not warranted. See id. at *3-4. 13 Furthermore, the relevance of the discovery that Doria seeks is broader than SolarCity 14 contends. 15 The deadline to serve written discovery passed on November 6, 2017, and fact 16 discovery will close on January 8, 2018. (Scheduling Order 1-2, ECF No. 39.) In light of 17 the procedural posture of the case, a discovery stay into Defendant's Counterclaim will 18 significantly delay discovery, and Plaintiff has not carried its heavy burden of making a 19 strong showing that discovery should be stayed while its motion to dismiss is pending. 20 Accordingly, the Court DENIES SolarCity's request to stay discovery. 21 C. 22 Defendant seeks to compel Plaintiff to supplement responses to his requests for Defendant's Motion to Compel 23 production numbers 1-30. (Mem. P. & A. Supp. Mot. Compel 2, 5-7; ECF No. 71 (citing 24 Fed. R. Civ. P. 34 and 37).) Doria asserts that the requests seek relevant information, are 25 narrowly tailored, not burdensome, and are proportionate to the needs of the case. (Id. at 26 8-14.) He acknowledges that SolarCity produced approximately 2, 77 4 pages of 27 documents, but states that the production comprised of"hundreds of virtually blank 28 pages" that were heavily redacted, and contained duplicative and nonresponsive 14 16cv3085-JAH (RBB) 1 information. (See Reply 6, 13-14, ECF No. 77; see also Mem. P. & A. Supp. Mot. 2 Compel 2, 14, ECF No. 71.) Defendant Doria further maintains that Plaintiff's objections 3 to the requests were boilerplate and unsupported, and Plaintiff did not produce a privilege 4 log describing the documents it withheld as privileged. (See Mem. P. & A. Supp. Mot. 5 Compel 2, 14-15, ECF No. 71; Reply 6, ECF No. 77.) 6 SolarCity argues that the Motion to Compel fails on procedural grounds and lacks 7 merit. (Opp'n 5-10, ECF No. 75.) It claims that Defendant's requests seek proprietary 8 information, and information related to Defendant's Counterclaim that was not filed at 9 the time Plaintiff served its responses. (Id. at 2-3.) SolarCity states that because it served 10 "fully compliant" responses, produced responsive documents, and agreed to supplement 11 its production after the entry of a protective order, the Motion to Compel should be 12 denied. (Id. at 2-10.) 13 14 1. Procedural challenges Plaintiff argues that Defendant's Motion to Compel fails on procedural grounds 15 because it was not filed and served within the time frame prescribed by Federal Rule of 16 Civil Procedure 6(d) and Civil Local Rule 7.1.e.4. (Id. at 5.) SolarCity also contends that 17 the motion lacks supporting documentation and that Doria's prose status does not excuse 18 his alleged failure to comply with procedural rules. (Id. (citing Fed. R. Civ. P. 6(c)(2)).) 19 Defendant responds that Plaintiff fails to explain why the Motion to Compel is 20 procedurally deficient. (Reply 11, ECF No. 77.) 21 Other than citing Federal Rule of Civil Procedure 6(c)(2) and (d) and Civil Local 22 Rule 7.1.e.4, SolarCity does not provide any facts or arguments to support its contention 23 that Doria's motion is procedurally barred. (See Opp'n 5, ECF No. 75.) On August 25, 24 2017, Defendant served Plaintiff with thirty requests for production, and Plaintiff 25 provided its responses on September 27, 2017. (Id. Attach. #1 Deel. Mack 2-3.) The 26 Court's scheduling order states that "[a]ll motions for discovery shall be filed no later 27 than thirty (30) days following the date upon which the event giving rise to the discovery 28 dispute occurred[,]" and for "written discovery, the event giving rise to the discovery 15 l 6cv3085-JAH (RBB) 1 dispute is the service of the response." (Scheduling Order 2, ECF No. 39.) Accordingly, 2 Doria's motion had to be filed within thirty days of SolarCity's September 27, 2017 3 responses, which was October 27, 2017. (See id.) On October 16, 2017, Defendant 4 informed the Court of the discovery disputes that are the subject of this motion, and the 5 Court issued a minute order requiring Defendant Doria to file his motion by October 17, 6 2017. (Mins. 1, October 16, 2017, ECF No. 63.) The Motion to Compel was filed nunc 7 pro tune to October 16, 2017 [ECF No. 68]; in any event, it was timely filed. Further, 8 although Doria did not initially provide the disputed requests for production and 9 SolarCity's responses, the alleged deficiency was cured when those documents were filed 10 on the docket [ECF No. 82]. 11 2. 12 On August 29, 2017, Judge Houston granted Doria's motion to amend his answer 13 and file a counterclaim [ECF No. 56]. The Court notes that Plaintiff objected to all of 14 Defendant's requests on September 27, 2017, claiming that the requests were premature 15 because they related to Defendant's proposed counterclaim. (Suppl. Deel. Mack Attach. 16 #1, 18-49, ECF No. 82.) Doria filed his Counterclaim on October 18, 2017. (Am. 17 Answer & Countercl., ECF No. 67.) 18 The filing of Defendant's Counterclaim triggered Plaintiffs duty to supplement its 19 discovery responses pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. The 20 rule provides that a party who has responded to a request for production "must 21 supplement or correct its disclosure or response ... in a timely manner if the party learns 22 that in some material respect the disclosure or response is incomplete or incorrect, and if 23 the additional or corrective information has not otherwise been made known to the other 24 parties during the discovery process or in writing .... " Fed. R. Civ. P. 26(e)(l); see also 25 Medina v. County of San Diego, Civil No. 08cvl252 BAS (RBB), 2014 WL 4793026, at 26 *12 (S.D. Cal. Sept. 25, 2014) (reminding the responding party of its duty to supplement 27 or correct incomplete or inaccurate discovery responses). As discussed above, the Court 28 declines to stay discovery. Consequently, ifSolarCity withheld any documents on the 16 l 6cv3085-JAH (RBB) 1 basis that they were only relevant to Doria's counterclaims, it must supplement its 2 production, subject to the protective order, by January 8, 2018. 3 4 5 a. Requests for production numbers 2-6, 11, 13-14, 16-21, 23, 2528, and 30 Plaintiff SolarCity states that it agreed to produce documents responsive to 6 Defendant's requests numbers 2-6, 11, 13-14, 16-21, 23, 25-28, and 30, and produced 7 2,774 pages of responsive documents. (Opp'n 6, ECF No. 75; id. Attach. #1 Deel. Mack 8 4.) Doria asserts that SolarCity's responses were deficient. (See Mem. P. & A. Supp. 9 Mot. Compel 2-3, 14-15, ECF No. 71; Reply 6, 9, 13-14, ECF No. 77.) The majority of 10 Plaintiff's responses to the requests state that Plaintiff will produce documents "following 11 entry of a protective order governing the use and disclosure of confidential information." 12 (Suppl. Deel. Mack Attach. #1, 30, 32, 35-37, 43-45, 48-49, ECF No. 82.) 13 Simultaneously with this Order, the Court is entering a protective order; SolarCity is 14 required to produce the withheld responsive documents subject to the terms of the 15 protective order. Further, because Defendant alleges that Plaintiff produced "hundreds" 16 of heavily redacted pages, (see Reply 6, 13-14, ECF No. 77; see also Mem. P. & A. Supp. 17 Mot. Compel 2, 14, ECF No. 71), the Court orders Plaintiff to review the redactions, 18 remove the redacted information, and produce the documents to Defendant subject to the 19 provisions in the protective order. Finally, ifSolarCity withheld any documents on the 20 basis that they were only relevant to Doria's counterclaims, the documents should be 21 produced. As discussed below, the Court GRANTS the Motion to Compel as to requests 22 numbers 2-6, 11, 13-14, 16-21, 23, 25-28, and 30. 23 24 b. Request for production number 1 The request seeks "SolarCity Live television event recording" during which 25 Plaintiff's former CEO Lyndon Rive "on a company-wide broadcast to 12,000 or more 26 people, threatened to ruin the life of and bankrupt, anyone that he feels violated the 27 mutual Trade Secret Agreement." (Suppl. Deel. Mack Attach. #1, 8, ECF No. 82.) 28 SolarCity objected that the request was vague, ambiguous, overbroad, unduly 17 !6cv3085-JAH (RBB) 1 burdensome, and premature; and sought irrelevant, confidential, private, proprietary, and 2 privileged information. (Id. at 19.) Plaintiff also stated that "it has been unable to locate 3 responsive documents following a reasonably diligent search in conformity with the 4 Federal Rules of Civil Procedure." (Id.) 5 Doria argues that the video was made shortly after his termination and is highly 6 relevant because it establishes Plaintiffs "malicious" intentions and behavior. (Mem. P. 7 & A. Supp. Mot. Compel 3, ECF No. 71.) Plaintiffs counsel states in his declaration that 8 after a "reasonable diligent search, Plaintiff was unable to locate the video." (Opp'n 9 Attach. #1 Deel. Mack 4, ECF No. 75.) SolarCity also asserts that the requested 10 "Facebook" video is only relevant to Doria's counterclaims, and would likely be subject 11 to a protective order. (Opp'n 7, 10, ECF No. 75.) Defendant replies that he is not 12 seeking a "Facebook" video, but rather a "'SolarCity Live' Event" video, and that 13 Plaintiff has not disputed the existence of the video. (Reply 10, 16, 22, ECF No. 77.) 14 The videotaped statement allegedly was made by SolarCity's CEO shortly after 15 Doria's termination. Ifit exists, the requested video is relevant and should be produced 16 pursuant to the parties' protective order. Although Plaintiff asserts that it could not locate 17 the video, its pleadings indicate that it may have been searching for a different video than 18 the one requested by Defendant Doria. (See id. at 10, 16, 22; see also Opp'n 7, 10, ECF 19 No. 75.) Accordingly, ifSolarCity cannot locate the "SolarCity Live event" video 20 described in Doria's Reply, SolarCity should state so under oath. See 7 James Wm. 21 Moore, et al., Moore's Federal Practice,§ 34.13[2][a], at 34-57 (3d ed. 2017) (providing 22 that when a party responds to a document request with an answer, as opposed to 23 production or an objection, the party must answer under oath) (footnote omitted); see also 24 Brvant, 285 F.R.D. at 603 ("If there are no other responsive documents in [d]efendant's 25 possession, custody, or control, after conducting this further attempt to locate records, 26 [the party resisting discovery] must state so under oath and describe efforts [the party] 27 made to locate responsive documents.") (citing Vazguez-Fernandez v. Cambridge Coll., 28 Inc., 269 F.R.D. 150, 155 (D.P.R. 2010))). Accordingly, the Court GRANTS 18 16cv3085-JAH (RBB) 1 Defendant's motion as to request number 1. SolarCity is ORDERED to either produce 2 the requested video or provide a sworn declaration describing its efforts to locate the 3 item. 4 c. Requests for production numbers 10 and 15 5 Request number 10 seeks all documents relevant to Plaintiffs allegation that 6 "information was exported from Plaintiffs servers, post termination" including "all 7 information that indicates Defendant exported any proprietary information from 8 Plaintiffs secure servers" after Doria's termination. (Suppl. Deel. Mack Attach. # 1, 10, 9 ECF No. 82.) Request for production number 15 asks for documents relevant to 10 SolarCity's allegation in the Complaint regarding Doria's "psychological state when . 11 refusing to return information." (Id. at 11.) Plaintiff asserted the same objections as it 12 did in response to request number 1, and it also stated that the requests were burdensome 13 because they required Plaintiff to create documents that did not exist. (Id. at 27-28, 32- 14 33; see also id. at 19.) Additionally, SolarCity stated that it was "unaware of documents 15 responsive" to the above requests. (Id. at 28, 33.) 16 Doria explains that request number 15 seeks evidence SolarCity relied on to allege 17 that he was "bitter about his pending termination" and "attempting to conceal" his alleged 18 theft. (See Mem. P. & A. Supp. Mot. Compel 11, ECF No. 71; Reply 22, ECF No. 77.) 19 Defendant otherwise generally argues that SolarCity's responses to the above requests 20 were deficient. (See Mem. P. & A. Supp. Mot. Compel, ECF No. 71.) SolarCity 21 responds that it is unaware of any documents responsive to the requests, and that Doria is 22 not entitled to discovery of documents that SolarCity does not possess. (Opp'n 10, ECF 23 No. 75.) 24 Plaintiff has provided a copy of its discovery responses and a declaration under the 25 penalty of perjury supporting its assertion that it is unaware of any documents responsive 26 to requests for production numbers 10 and 15. (See id. Attach. #1 Deel. Mack 5; Suppl. 27 Deel. Mack Attach. #1, 27-28, 32-33, ECF No. 82.) The Court therefore GRANTS in 28 part Doria's motion to compel as to requests for production numbers 10 and 15. (See 19 16cv3085-JAH (RBB) 1 Fed. R. Civ. P. 34(a)(l) (limiting discovery to "documents in the responding party's 2 3 possession, custody, or control.").) d. Request for production number 7 4 Request number 7 seeks: "All e-mail and text-message communications, between 5 staff affected by the injunctive relief order granted by the Honorable John A. Houston, as 6 it relates to Defendant's counter-claims, including but not limited to, relevant e-mail and 7 text message communications of Director Gary Algood, and RSM Brian Dickens" dating 8 back to October 21, 2016. (Suppl. Deel. Mack Attach. #1, 9, ECF No. 82.) SolarCity 9 objected on the same grounds as it did in response to request number 1, and that the 10 request was unduly burdensome because it required SolarCity to create documents. (Id. 11 at 25; see also id. at 19.) 12 Defendant argues in his Motion to Compel that he seeks information regarding 13 "the extent of damage caused by Plaintiffs violation of defamation laws, as referenced in 14 the relief requested prior and granted by the Courts." (Mem. P. & A. Supp. Mot. Compel 15 9, ECF No. 71.) Plaintiff responds that the request seeks privileged communications 16 between SolarCity and its counsel regarding this case, which are protected by the 17 attorney-client privilege and the work product doctrine. (Opp'n 8, ECF No. 75.) It also 18 contends that the request was premature when it was served, because it was directed at 19 Defendant's proposed counterclaim. (Id.) 20 It appears that Doria is referencing Judge Houston's August 30, 2017 order 21 enjoining SolarCity's "senior and upper level management" from "making disparaging 22 remarks or causing others to make any disparaging remarks regarding the pending case, 23 Defendant, or Defendant's business." (Order Granting Prelim. Inj. 2, ECF No. 56.) 24 Among his counterclaims, Doria alleges defamation by Plaintiff and seeks 25 communications between SolarCity's upper management, including Director Gary 26 Algood and Regional Sales Manager Brian Dickens, after Doria's termination. Further, 27 because the counterclaims were filed after Plaintiff served its response, request number 7 28 is no longer premature; additionally, the items sought are relevant. SolarCity does not 20 16cv3085-JAH (RBB) 1 explain why it would need to "create" the requested text messages and e-mails. 2 Accordingly, the Court overrules the above objections. If there are no responsive text 3 messages or e-mails, Plaintiff should state so under oath and describe its efforts to locate 4 responsive documents. See Bryant, 285 F.R.D. at 603. 5 Plaintiff also objects to the request on the ground of privilege. The Court therefore 6 will address the application of both the attorney-client privilege and the work product 7 protection doctrine. 8 The purpose of the attorney-client privilege is "to encourage full and frank 9 communication between attorneys and their clients." Upjohn Co. v. United States, 449 10 U.S. 383, 389 (1981). "The party asserting an evidentiary privilege has the burden to 11 demonstrate that the privilege applies to the information in question." Griffith v. Davis, 12 161 F.R.D. 687, 694 (C.D. Cal. 1995) (quoting Tornay v. United States, 840 F.2d 1424, 13 1426 (9th Cir. 1988)). "Because it impedes full and free discovery of the truth, the 14 attorney-client privilege is strictly construed." United States v. Martin, 278 F.3d 988, 15 999 (9th Cir. 2002) (quoting Weil v. Inv./ Indicators, Research & Mgmt., Inc., 647 F.2d 16 18, 24 (9th Cir. 1981)). The privilege "protects only those disclosures necessary to 17 obtain informed legal advice which might not have been made absent the privilege." 18 Fisher v. United States, 425 U.S. 391, 403 (1976). It applies "only when necessary to 19 effectuate its limited purpose of encouraging complete disclosure by the client." Griffith, 20 161 F.R.D. at 694 (quoting Tornay, 840 F.2d at 1428). 21 22 23 24 25 26 27 28 For a communication to be protected by the attorney-client privilege, eight essential elements are considered: ( 1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. 21 l 6cv3085-JAH (RBB) 1 Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1977). 2 For work-product, Federal Rule of Civil Procedure 26(b)(3)(A) states that 3 "[o]rdinarily, a party may not discover documents and tangible things that are prepared in 4 anticipation of litigation or for trial by or for another party or its representative (including 5 the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. 6 P. 26(b)(3)(A). Nevertheless, these materials may be discovered if"(i) they are otherwise 7 discoverable under Rule 26(b)( 1); and (ii) the party shows that it has substantial need for 8 the materials to prepare its case and cannot, without undue hardship, obtain their 9 substantial equivalent by other means." Id. But even when substantial need for work 10 product has been shown, the Court must still "protect against disclosure of the mental 11 impressions, conclusions, opinions, or legal theories of a party's attorney or other 12 representative concerning the litigation." Id. (b)(3)(B). 13 The burden is on the party asserting the protection of the work product doctrine to 14 demonstrate that the withheld documents are protected from discovery. See 6 James 15 Wm. Moore et al., Moore's Federal Practice,§ 26.70[5][a], at 26-454 (3d ed. 2017) 16 (footnote omitted). "[T]he party seeking work product protection must establish that the 17 material is a document or tangible thing prepared in anticipation of litigation for that 18 party." Id. at 26-454 to 26-455 (footnote omitted). "A mere allegation that the work 19 product rule applies is insufficient to invoke its protection." Id. at 26-455 (footnote 20 omitted). Rather, "[t]he protection applies 'if the prospect of litigation is identifiable 21 because of specific claims that have already arisen."' OST Energy, Inc. v. Mervyn's, No. 22 C-00-1699MJJEDL, 2001 WL 777489, at *5 (N.D. Cal. May 14, 2001) (quoting Conner 23 Peripherals, Inc. v. W. Dig. Com., No. C93-20117 RMW/EAI, 1993 WL 726815, at *4 24 (N.D. Cal. June 8, 1993)). "The test is whether 'the document can fairly be said to have 25 been prepared or obtained because of the prospect of litigation."' Id. 26 In this case, SolarCity's privilege log does not list any communications between 27 Director Gary Algood and Regional Sales Manager Brian Dickens, although it lists 28 communications dated between October 25, 2016, and December 9, 2016, sent from 22 16cv3085-JAH (RBB) 1 "Attorneys, Managers and Members of the Legal Department at SolarCity Corporation" 2 to "Confidential SolarCity customer[s], and Attorneys, Managers and Members of the 3 Legal Department at SolarCity Corporation, Attorneys, staff and consultants from Arena 4 Hoffinan, LLP, and Discovia" containing e-mail strings concerning SolarCity's customer 5 complaint(s) "regarding release of confidential, personal information and subsequent 6 investigation into matter conducted to assist in anticipated or pending litigation regarding 7 collection." (Id. at 3 (emphasis added).) 8 9 SolarCity bears the burden of establishing that any documents withheld from production are protected from disclosure by the attorney-client privilege or the attorney 10 work product doctrine. Although the Court requested that Plaintiff supplement its 11 opposition to Doria's motion with a privilege log, (see ECF No. 79), SolarCity's 12 subsequent filing is deficient, (see ECF No. 85). 13 SolarCity makes conclusory assertions that Doria seeks items protected from 14 discovery by the attorney-client privilege and attorney work product doctrine. It fails to 15 set forth with particularity the specific facts as to each document that would support its 16 claims. that items are protected from disclosure by the attorney-client privilege or attorney 17 work product doctrine. Plaintiff's privilege log is inadequate. See Sl.:.&., Safeco Inc. Co. 18 of Am. v. M.E.S., Inc., 289 F.R.D. 41, 47-48 (E.D.N.Y. 2011) (stating that privilege log 19 should set forth specific facts and not rely on conclusory assertions). Nor has SolarCity 20 provided the Court with "evidentiary submissions to fill in any factual gaps." Id. at 48. 21 For these reasons, Plaintiff has not carried its burden of showing that either the 22 attorney-client privilege or the attorney work product doctrine applies. Doria's motion to 23 compel the production of documents in response to request number 7 is GRANTED. 24 25 e. Requests for production numbers 8 and 12 Request number 8 seeks"[a]ll documentation and/or surveillance footage of the 26 physical altercation that resulted in [f]ormer SolarCity Team Lead Guy [Zubia's] 27 termination, and Doria's return to work[,]" including witness statements. (Suppl. Deel. 28 Mack Attach. #1, 10, ECF No. 82.) Request for production number 12 asks for all 23 I 6cv3085-JAH (RBB) 1 documents relevant to Plaintiff's contention that it had no obligation to honor its arbitration 2 agreement with Defendant. (Id.) SolarCity objected and asserted the identical objections 3 it raised in response to request number 1 described above. (Id. at 25-26, 29; see also id. 4 at 19.) Plaintiff also stated that the requests were unduly burdensome because they 5 required the creation of documents that did not exist. (Id. at 26, 29.) 6 Doria contends in his motion that request number 8, among other things, seeks 7 "specifics of the physical assault, from former Team Lead Guy [Zubia]." (Mem. P. & A. 8 Supp. Mot. Compel 9, ECF No. 71.) Defendant further asserts that request number 12 9 seeks the evidence that SolarCity relied on "when stating to the courts, that they had no 10 obligation to arbitrate when choosing to file this claim." (Id. at 10.) SolarCity responds 11 that the requests relate to Doria's counterclaims that were not filed at the time of 12 SolarCity's responses. (Opp'n 8, ECF No. 75.) 13 Defendant alleges in his Counterclaim that Plaintiffs Team Lead Zubia assaulted 14 him at work; the assault was witnessed by multiple individuals and recorded by a video 15 surveillance; and that after investigating the incident, Plaintiff terminated Mr. Zubia. 16 (Am. Answer & Countercl. 14-15, ECF No. 67.) The requested documents and video are 17 therefore relevant and should be produced to Doria subject to the parties' protective 18 order. Likewise, because Doria alleges that SolarCity breached its contractual agreement 19 to arbitrate by filing this suit [id. at 16], the requested documents are relevant and should 20 be produced subject to the protective order. Accordingly, the Court GRANTS 21 Defendant's motion as to requests numbers 8 and 12. 22 23 f. Request for production number 9 Request number 9 seeks "[a]ll documents as it relates to Plaintiff's contention that 24 the financial risks discussed in the communication in question, are 'false and misleading'." 25 (Suppl. Deel. Mack Attach. #1, 10, ECF No. 82.) SolarCity objected on the same 26 grounds it did in response to request number 1, and stated that the request was 27 burdensome. (Id. at 26-27; see also id. at 19.) 28 24 l 6cv3085-JAH (RBB) 1 Doria contends in his Motion to Compel that the request seeks evidence that 2 SolarCity relied on when alleging that he made false and misleading statements. (Mem. 3 P. & A. Supp. Mot. Compel 9, ECF No. 71.) Plaintiff argues in its opposition that the 4 request is vague because there are "multiple communication at issue" in this case, and 5 Defendant fails to identify which "communication" he is referring to. (See Opp'n 9, ECF 6 No. 75; id. Attach. #1 Deel. Mack 5.) SolarCity also asserts that the request seeks 7 information protected by the attorney-client privilege and the work product doctrine. 8 (Opp'n 9, ECF No. 75.) Defendant replies that "I have challenged [Plaintiffs] ability to 9 produce the communications they claim to have caused them damages. They have failed 10 to provide those communications .... " (Reply 20-21, ECF No. 77.) He further states 11 that SolarCity fails to establish that the communications are protected by the work 12 product doctrine. (Id. at 21.) 13 Federal Rule of Civil Procure 34 requires requests for production to "describe with 14 reasonable particularity each item or category of items to be inspected[.]" Fed. R. Civ. P 15 34(b)(1 )(A); see also 7 James Wm. Moore, et al., Moore's Federal Practice, § 34.11 [3], at 16 34-29 (3d ed. 2017) ("The 'reasonable particularity' standard is not susceptible to precise 17 definition. The test is whether a reasonable person would know what documents or 18 things are called for in the request.") (footnotes omitted). Request number 9 does not 19 describe what "communication in question" it seeks, and Defendant's pleadings refer to 20 multiple communications. (See Reply 20-21, ECF No. 77 (stating that Defendant seeks 21 "communications [SolarCity] claim to have caused them damages" and that SolarCity 22 "failed to provide those communications[.]"). The Court therefore finds that the request 23 is vague and DENIES Doria's motion to compel as to request number 9. 24 25 g. Request for productiou number 22 Request number 22 seeks "[a]ny documentation supporting Plaintiff's argument 26 that Defendant could have existed in the state of California during the dates mentioned in 27 'COMPLAINT'." (Suppl. Deel. Mack Attach. #1, 13, ECF No. 82.) Plaintiff objected on 28 the same grounds as it did in response to request number 1. (Id. at 40; see also id. at 19.) 25 16cv3085-JAH (RBB) 1 SolarCity also stated that "documents reflecting Defendant's San Diego residence during 2 times relevant to the complaint are within Defendant's possession, custody or control and 3 are therefore equally available to Defendant." (Id.) 4 Doria alleges in his motion that the request seeks evidence that SolarCity relied on 5 when alleging that he "resided, or existed, in the State of California during the dates in 6 question." (Mem. P. & A. Supp. Mot. Compel 12, ECF No. 71.) Plaintiff responds that 7 the requested documents are in Defendant's possession, custody or control, and that the 8 requested discovery is therefore not proportional to the needs of the case. (See Opp'n 10, 9 ECF No. 75; id. Attach. #1 Deel. Mack 5.) Defendant replies that he resided in Nevada 10 "on the dates in question" and moved to California on November 1, 2017; and that 11 Plaintiff therefore fails to establish that the alleged misconduct took place in California. 12 (Reply 21, ECF No. 77 (citing id. at 72-76).) 13 "A court may refuse to order production of documents of public record that are 14 equally accessible to all parties." 7 James Wm. Moore, et al., Moore's Federal Practice, 15 § 34.12[5][b], at 34-53 (3d ed. 2017) (footnote omitted). "However, production from the 16 adverse party may be ordered when it would be excessively burdensome ... for the 17 requesting party to obtain the documents from the public source rather than from the 18 opposing party." Id. (footnote omitted). SolarCity states that Doria seeks documents in 19 his possession, custody, or control that are equally available to him. (See Opp'n 8, ECF 20 No. 75; Mack Deel. at 5.) Although this is true, items in Doria's possession will not 21 establish that SolarCity was aware of their contents. Defendant is entitled to discover the 22 bases for Plaintiff's statements. Accordingly, the Motion to Compel production of 23 documents in response to request 22 is GRANTED. 24 h. Request for production number 24 25 Request for production number 24 seeks the following: 26 All documents referencing changes to security protocol for Plaintiff's internal databases. This should include but is not limited to the date and time any new security measures went into effect for internal databases "SalesForce", and "SolarWorks", and how the changes affected Plaintiff's 27 28 26 16cv3085-JAH (RBB) 1 2 3 employees' ability to obtain access to any information concealed, as a result of the change. Plaintiff should include without limitation, all nonprivilege[d] documents, referencing Plaintiffs motive behind the change. This information should be easily searchable. 4 5 (Suppl. Deel. Mack Attach# 1, 14, ECF No. 82.) Plaintiff objected on the same 6 grounds as it did in repose to request number 1, and stated that the request was 7 burdensome. (Id. at 42; see also id. at 19.) 8 Doria contends in the Motion to Compel that the request seeks evidence supporting 9 SolarCity's contention that it took reasonable steps to secure the e-mail addresses at issue 10 in the internal "SolarWorks" database. (Mem. P. & A. Supp. Mot. Compel 13, ECF No. 11 71.) Plaintiff objects that the request seeks confidential and proprietary information 12 about its internal databases, and that the request was premature at the time it was made, 13 because it related to Defendant's "then-nonexistent counterclaim." (Opp'n 8, ECF No. 14 75.) Doria replies that the requested information is relevant to his defenses. (See Reply 15 18-19,ECFNo.77.) 16 As an initial matter, Defendant's request expressly seeks nonprivileged documents, 17 and the Court overrules Plaintiffs objection based on privilege. (See Suppl. Deel. Mack 18 Attach. #1, 14, ECF No. 82.) Further, Doria contends in his Answer that SolarCity did 19 not take "necessary steps to protect the information from the database known as 20 SolarWorks or to properly inform employees as to the detailed definition of a Trade 21 Secret, inside the signed Employment Agreement." (Am. Answer & Countercl. 6, ECF 22 No. 67.) The Court therefore finds that the requested information is relevant and not 23 premature. "[T]rade secrets have widely been held to be discoverable upon appropriate 24 findings and with an appropriate protective order[.]" Nat'! Acad. of Recording Arts & 25 Sciences, Inc. v. On Point Events, LP, 256 F.R.D. 678, 681 (C.D. Cal. 2009) (alterations 26 in original) (quoting MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116, 120 (4th Cir.), 27 cert. denied, 513 U.S. 1000 (1994)); see also BrightEdge Tech., Inc. v. Searchmetrics 28 GmbH., Case No. 14-cv-01009-HSG (MEJ), 2017 WL 5171227, at *2 (N.D. Cal. Nov. 8, 27 16cv3085-JAH (RBB) 1 2017) (ordering production of the "SugarCRM database" and the underlying documents 2 referenced in the database subject to the parties' protective order). Accordingly, the 3 Court GRANTS Defendant's motion as to request number 24. Plaintiff is ordered to 4 produce documents responsive to the request subject to a protective order. 5 6 i. Request for production number 29 Request number 29 seeks "[a]ll documents containing the word 'grandfather' or 7 'grand' or 'grand-father' or 'grandfathering' or 'father', or any variation thereof, making 8 reference to this term" supporting "Plaintiff's denial, that Plaintiff intentionally instructed 9 their agents and representatives to provide information Plaintiff had good cause to know 10 was false, and would cause imminent financial harm to those clients who had relied on 11 this false information, regarding 'grandfathering', in the State of Nevada." (Suppl. Deel. 12 Mack Attach. #1, 15, ECF No. 82.) SolarCity objected on the same grounds as it did in 13 response to request number 1, and stated that the request was unduly burdensome, (Id. at 14 47-48; see also id. at 19.) 15 Doria argues in his motion that he requests information regarding SolarCity's 16 utilization of the term "grandfathering" by their Energy Specialists to defraud SolarCity's 17 employees and investors. (See Mem. P. & A. Supp. Mot. Compel 14, ECF No. 71.) 18 Plaintiff responds that the request seeks information supporting Defendant's counterclaim 19 that was not filed at the time of Plaintiffs responses, and that Defendant has no standing 20 to assert his counterclaim. (Opp'n Attach. #1 Deel. Mack 6, ECF No. 75.) 21 Doria's Counterclaim contains allegations that SolarCity defrauded its clients by 22 "causing them to believe that SolarCity net-metering agreements cannot change, and that 23 despite future legislative changes, the terms of their agreement are such that their 24 financial position regarding rates and compensation cannot be changed." (Am. Answer 25 & Countercl. 12, ECF No. 67.) Accordingly, the requested information is relevant. 26 Further, Plaintiff does not provide any evidence establishing undue burden. SolarCity, as 27 the party opposing disclosure, has the burden to show that discovery should not be 28 allowed. Oakes, 179 F.R.D. at 283 ("The party who resists discovery has the burden tO 28 16cv3085-JAH (RBB) 1 show that discovery should not be allowed, and has the burden of clarifying, explaining, 2 and supporting its objections."). Plaintiff has not carried its burden of explaining and 3 supporting its objections to Defendant's request. See id. The Court therefore GRANTS 4 Doria's motion to compel, and orders SolarCity to produce all nonprivileged documents 5 responsive to request number 29. 6 j. Conclusion For the reasons above, the Court GRANTS in part and DENIES in part 7 8 Defendant's Motion to Compel [ECF Nos. 69, 71]. All documents ordered produced are 9 to be provided to Doria by January 8, 2018, and all further responses that are to be made 1O under oath are due by January 8, 2018. Documents are to be produced pursuant to the 11 protective order limiting use and dissemination of the items. 12 D. 13 SolarCity seeks $5,000 in sanctions against Doria as reimbursement for attorneys' Plaintiff's and Defendant's Respective Requests for Sanctions 14 fees and costs incurred in opposing the Motion to Compel. (Opp'n 4-5, 11, ECF No. 75.) 15 Plaintiff alleges that Defendant's motion was unjustified because it agreed to produce, 16 and did produce, documents responsive to twenty of the discovery requests at issue, and 17 properly objected to the remaining ten requests. (Id. at 2, 10-11 (citing Fed. R. Civ. P. 18 37(a)(5)(B).) SolarCity further maintains that there are no circumstances rendering the 19 award of sanctions unjust in this case. (Id. at 11.) 20 Defendant asks the Court to sanction Plaintiff$12.55 for expenses he incurred in 21 connection with bringing the Motion to Compel. 4 (Mot. Compel 2, ECF No. 69; Mem. P. 22 & A. Supp. Mot. Compel 2, 15-16, ECF No. 71.) Doria asserts that the requested 23 sanctions are reasonable and warranted in light ofSolarCity's refusal to meet and confer 24 in good faith, and to supplement its production. (See id. at 2; see also Reply 19, ECF No. 25 26 4 27 28 He calculates the requested amount of sanctions as follows: $ 2.00 for downtown courthouse parking, $ 1.00 for vehicle depreciation, $ 0.70 for fuel, $ 2.00 for printer toner and wear and tear, $ 1.25 for paper, $ 4.00 for certified mail, $ 1.50 for USPS envelope, and $ 0.10 for paper clips. (Mot. Compel 2, ECFNo. 69.) 29 16cv3085-JAH (RBB) 1 77 .) Defendant also argues that he complied with his discovery obligations and properly 2 brought the Motion to Compel, and that Plaintiffs request for sanctions should therefore 3 be denied. (Id. at 23-24.) 4 Rule 37(a)(5)(C) of the Federal Rules of Civil Procedure provides that "[i]fthe 5 µiotion is granted in part and denied in part, the court ... may, after giving an 6 opportunity to be heard, apportion the reasonable expenses for the motion." Fed. R. Civ. 7 P. 37(a)(5). "By the very nature of its language, sanctions imposed under Rule 37 must 8 be left to the sound discretion of the trial judge." O'Connell v. Fernandez-Pol, 542 Fed. 9 App'x. 546, 547-48 (9th Cir. 2013) (citation omitted). "[T]he burden of showing 10 substantial justification and special circumstances is on the party being sanctioned." 11 Cruz v. Aurora Loan Servs., LLC, Case No. 3:15-cv-00585-LB, 2016 WL 2621795, at *5 12 (N.D. Cal. May 9, 2016) (quoting Hyde & Drath v_ Baker, 24 F.3d 1162, 1171 (9th Cir. 13 1994)). 14 In this case, the Court grants in part and denies in part Defendant's Motion to 15 Compel. In light of the filing of Doria's Counterclaim and the parties' inability to 16 stipulate to a protective order, the Court finds that the parties' positions were 17 substantially justified and declines to sanction either party. See Franklin v. Smalls, Civil 18 No. 09cv1067 MMA(RBB), 2012 WL 5077630, at *32 (S.D. Cal. Oct. 18, 2012) ("A 19 request for discovery is 'substantially justified' under Rule 37 if reasonable people could 20 differ on the matter in dispute.") (citing Reygo Pacific Corp. v. Johnston Pump Co., 680 21 F.2d 647, 649 (9th Cir. 1982); United States EEOC v. Caesars Entm't, Inc., 237 F.R.D. 22 428, 435 (D. Nev. 2006)). Accordingly, the Court DENIES SolarCity's and Doria's 23 respective requests for sanctions. 24 Ill 25 III 26 III 27 III 28 Ill 30 16cv3085-JAH (RBB) 1 V. CONCLUSION 2 For the reasons set forth above, the Court enters the following ORDERS: 3 1. Plaintiffs request to enter a protective order [ECF No. 75], as modified by the 4 Court, is GRANTED. Simultaneously with the filing of this order, the Court will enter a 5 protective order governing the parties' disclosure and use of information obtained 6 through discovery; 7 8 9 2. SolarCity's request to stay discovery into Doria's Counterclaim [ECF No. 75] is DENIED; 3. Defendant's Motion to Compel [ECF Nos. 69, 71] is GRANTED in part and 10 DENIED in part. Plaintiff is to produce items requested in response to requests for 11 production numbers 2-6, 8, 11-14, 16-30 no later than January 8, 2018. In response to 12 request for production number 1, SolarCity is ORDERED to either produce the 13 requested video or provide a sworn declaration describing its efforts to locate the video 14 no later than January 8, 2018. Similarly, with respect to request numbers 7, 10, 15, and 15 23, Plaintiff should either produce the requested e-mails, text messages, and documents, 16 or state under oath that there are no responsive documents and describe the efforts it 17 undertook to locate them by January 8, 2018. Defendant's motion to compel is 18 DENIED as to request number 9; and 19 20 21 4. SolarCity's and Doria's respective requests for sanctions [ECF Nos. 71, 75] are DENIED. IT IS SO ORDERED. 22 23 24 25 Dated: December 21, 2017 Hon. Ruben B. Brooks United States Magish·ate Judge 26 27 28 31 16cv3085-JAH (RBB) 1 2 3 4 5 6 7 8 9 10 11 EXHIBIT 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32 16cv3085-JAH (RBB) 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SOLARCITY CORPORATION, Case No.: 16cv3085-JAH (RBB) 12 14 15 16 PROTECTIVE ORDER Plaintiff, 13 v. DANIEL DORIA, Defendant. 17 18 AND RELATED COUNTERCLAIMS 19 20 21 22 The Court recognizes that at least some of the documents and information 23 ("materials") being sought through discovery in the above-captioned action are, for 24 competitive and other reasons, normally kept confidential by the parties. The parties in 25 this action are to comply with the terms of this Protective Order ("Order"). 26 The materials to be exchanged throughout the course of the litigation between the 27 parties may contain trade secret or other confidential information, research, technical, 28 cost, price, marketing or other commercial information, as is contemplated by Federal 33 16cv3085-JAH (RBB) 1 Rule of Civil Procedure 26(c)(7). The purpose of this Order is to protect the 2 confidentiality of such materials as much as practical during the litigation. 3 THEREFORE: 4 5 DEFINITIONS 1. The term "Confidential Information" will mean and include 6 information contained or disclosed in any materials, including documents, portions of 7 documents, answers to interrogatories, responses to requests for admissions, trial 8 testimony, deposition testimony, and transcripts of trial testimony and depositions, 9 including data, summaries, and compilations derived therefrom that is deemed to be 10 11 Confidential Information by any party to which it belongs. 2. The term "Highly Confidential" will mean and include any 12 information which belongs to a Designating Party who believes in good faith that the 13 Disclosure of such information to a non-Party would create a substantial risk of serious 14 financial or other injury that cannot be avoided by less restrictive means. 15 3. "Highly Confidential Materials" will mean and include any 16 Documents, Testimony, or Information, as defined below, designated as "Highly 17 Confidential" pursuant to the provisions of this Protective Order. 18 4. The term "materials" will include, but is not limited to: documents; 19 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other 20 material that identify customers or potential customers; price lists or schedules or other 21 matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; 22 contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk 23 diaries; appointment books; expense accounts; recordings; photographs; motion pictures; 24 compilations from which information can be obtained and translated into reasonably 25 usable form through detection devices; sketches; drawings; notes (including laboratory 26 notebooks and records); reports; instructions; disclosures; other writings; models and 27 prototypes and other physical objects. 28 34 16cv3085-JAH (RBB) 1 5. The term "counsel" will mean outside counsel of record, and other 2 attorneys, paralegals, secretaries, and other support staff employed in the law firms 3 identified below: Arena Hoffman, LLP. Counsel also includes in-house attorneys for 4 Plaintiff SolarCity Corporation. 5 6. The term "Doria" will mean Defendant Daniel Doria. GENERAL RULES 6 7 7. Each party to this litigation that produces or discloses any materials, 8 answers to interrogatories, responses to requests for admission, trial testimony, deposition 9 testimony, and transcripts of trial testimony and depositions, or information that the 10 producing party believes should be subject to this Protective Order may designate the 11 same as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL." 12 a. Designation as "CONFIDENTIAL": Any party may designate 13 information as "CONFIDENTIAL" only if, in the good faith belief of such party and its 14 counsel, the unrestricted disclosure of such information could be potentially prejudicial to 15 the business or operations of such party. 16 b. Designation as "HIGHLY CONFIDENTIAL": Any party may 17 designate information as "HIGHLY CONFIDENTIAL" only if, in the good faith belief of 18 such party and its counsel, the information is among that considered to be most sensitive 19 by the party, including but not limited to trade secret or other confidential research, 20 development, financial or other commercial information. 21 8. In the event the producing party elects to produce materials for 22 inspection, no marking need be made by the producing party in advance of the initial 23 inspection. For purposes of the initial inspection, all materials produced will be 24 considered as "CONFIDENTIAL" and must be treated as such pursuant to the terms of 25 this Order. Thereafter, upon selection of specified materials for copying by the 26 inspecting party, the producing party must, within a reasonable time prior to producing 27 those materials to the inspecting party, mark the copies of those materials that contain 28 Confidential Information with the appropriate confidentiality marking. 35 l 6cv3085-JAH (RBB) 1 2 9. Whenever a deposition taken on behalf of any party involves a disclosure of Confidential Information of any party: a. 3 the deposition or portions of the deposition must be designated 4 as containing Confidential Information subject to the provisions of this Order; such 5 designation must be made on the record whenever possible, but a party may designate 6 portions of depositions as containing Confidential Information after transcription of the 7 proceedings; a party will have until fourteen (14) days after receipt of the deposition 8 transcript to inform the other party or parties to the action of the portions of the transcript 9 to be designated "CONFIDENTIAL" or HIGHLY CONFIDENTIAL". b. 10 the disclosing party will have the right to exclude from 11 attendance at the deposition, during such time as the Confidential Information is to be 12 disclosed, any person other than the deponent, counsel (including their staff and 13 associates), the court reporter, and the person(s) specified in Paragraph 13 below; and 14 c. the originals of the deposition transcripts and all copies of the 15 deposition must bear the legend "CONFIDENTIAL" or HIGHLY CONFIDENTIAL", as 16 appropriate, and the original or any copy ultimately presented to a court for filing must 17 not be filed unless it can be accomplished under seal, identified as being subject to this 18 Order, and protected from being opened except by order of this Court. 19 10. All Confidential Information designated as "CONFIDENTIAL" or 20 HIGHLY CONFIDENTIAL" must not be disclosed by the receiving party to anyone 21 other than those persons designated within this order and must be handled in the manner 22 set forth below and, in any event, must not be used for any purpose other than in 23 connection with this litigation, unless and until such designation is removed either by 24 agreement of the parties, or by order of the Court. 25 11. If the Court determines that the information does not qualify for the 26 HIGHLY CONFIDENTIAL designation identified in Paragraph 7(b) above, the 27 information shall be designated "CONFIDENTIAL" and disclosed to the non-designating 28 party. 36 l 6cv3085-JAH (RBB) 1 12. The right of any independent expert to receive any 2 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" Information will be subject to the 3 advance approval of such expert by the producing party or by permission of the Court. 4 The party seeking approval of an independent expert must provide the producing party 5 with the name and curriculum vitae of the proposed independent expert, and an executed 6 copy of the form attached hereto as Exhibit A, in advance of providing any Confidential 7 Information of the producing party to the expert. Any objection by the producing party to 8 an independent expert receiving Confidential Information must be made in writing within 9 fourteen (14) days following receipt of the identification of the proposed expert. 10 Confidential Information may be disclosed to an independent expert ifthe fourteen (14) 11 day period has passed and no objection has been made. The approval of independent 12 experts must not be unreasonably withheld. 13 13. Information designated "CONFIDENTIAL" must be viewed only by 14 counsel and (as defined in paragraph 5) of the receiving party, by Doria, by independent 15 experts (pursuant to the terms of Paragraph 12), and by the additional individuals listed 16 below, provided each such individual has read this Order in advance of disclosure and 17 has agreed in writing to be bound by its terms: 18 1. 19 Executives who are required to participate in policy decisions with reference to this action; 20 11. Technical personnel of the parties with whom Counsel 21 for the parties find it necessary to consult, in the 22 discretion of such counsel, in preparation for trial of this 23 action; and 24 111. 25 26 Stenographic and clerical employees associated with the individuals identified above. 14. With respect to material designated "CONFIDENTIAL" or "HIGHLY 27 CONFIDENTIAL," any person indicated on the face of the document to be its originator, 28 author or a recipient of a copy of the document, may be shown the same. 37 !6cv3085-JAH (RBB) 1 15. All information which has been designated as "CONFIDENTIAL" or 2 "HIGHLY CONFIDENTIAL" by the producing or disclosing party, and any and all 3 reproductions of that information, must be retained in the custody of Doria or the counsel 4 for the receiving party identified in Paragraphs 5 and 6, except that independent experts 5 authorized to view such information under the terms of this Order may retain custody of 6 copies such as are necessary for their participation in this litigation. 7 16. Before any materials produced in discovery, answers to 8 interrogatories, responses to requests for admissions, deposition transcripts, or other 9 documents which are designated as Confidential Information are filed with the Court for 10 any purpose, the party seeking to file such material must seek permission of the Court to 11 file the material under seal. No items will be electronically filed under seal without a 12 prior application to, and order from, the judge presiding over the hearing or trial. Only 13 when the judge presiding over the hearing or trial permits filing an item or items under 14 seal may confidential material be filed with the Court under seal. 15 Whenever the Court grants a party permission to file an item under seal, a 16 duplicate disclosing all nonconfidential information shall be filed and made part of the 17 public record. The item may be redacted to eliminate confidential material from the 18 public document. The public document shall be titled to show that it corresponds to an 19 item filed under seal, e.g., 'Redacted Copy of Sealed Declaration of John Smith in 20 Support of Motion for Summary Judgment.' The public redacted documents shall be 21 filed within twenty-four hours of the Court order authorizing the filing of a document 22 under seal. 23 17. At any stage of these proceedings, any party may object to a 24 designation of the materials as Confidential Information. The party objecting to 25 confidentiality must notify, in writing, counsel for the designating party of the objected-to 26 materials and the grounds for the objection. If the dispute is not resolved consensually 27 between the parties within seven (7) days of receipt of such a notice of objections, the 28 objecting party may move the Court for a ruling on the objection. The materials at issue 38 16cv3085-JAH (RBB) 1 must be treated as Confidential Information, as designated by the designating party, until 2 the Court has ruled on the objection or the matter has been otherwise resolved. 18. 3 All Confidential Information must be held in confidence by those 4 inspecting or receiving it, and must be used only for purposes of this action. Counsel for 5 each party, and each person receiving Confidential Information must take reasonable 6 precautions to prevent the unauthorized or inadvertent disclosure of such information. If 7 Confidential Information is disclosed to any person other than a person authorized by this 8 Order, the party responsible for the unauthorized disclosure must immediately bring all 9 pertinent facts relating to the unauthorized disclosure to the attention of the other parties 10 and, without prejudice to any rights and remedies of the other parties, make every effort 11 to prevent further disclosure by the party and by the person(s) receiving the unauthorized 12 disclosure. 13 19. No party will be responsible to another party for disclosure of 14 Confidential Information under this Order if the information in question is not labeled or 15 otherwise identified as such in accordance with this Order. 16 20. If a party, through inadvertence, produces any Confidential 17 Information without labeling or marking or otherwise designating it as such in 18 accordance with this Order, the designating party may give written notice to the receiving 19 party that the document or thing produced is deemed Confidential Information, and that 20 the document or thing produced should be treated as such in accordance with that 21 designation under this Order. The receiving party must treat the materials as confidential, 22 once the designating party so notifies the receiving party. If the receiving party has 23 disclosed the materials before receiving the designation, the receiving party must notify 24 the designating party in writing of each such disclosure. Counsel for the parties will 25 agree on a mutually acceptable manner of labeling or marking the inadvertently produced 26 materials as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" - SUBJECT TO 27 PROTECTIVE ORDER. 28 39 l 6cv3085-JAH (RBB) 1 21. Nothing within this order will prejudice the right of any party to 2 object to the production of any discovery material on the grounds that the material is 3 protected as privileged or as attorney work product. 4 22. Nothing in this Order will bar counsel from rendering advice to their 5 clients with respect to this litigation and, in the course thereof, relying upon any 6 information designated as Highly Confidential Information, provided that the contents of 7 the information must not be disclosed. 8 23. This Order will be without prejudice to the right of any party to 9 oppose production of any information for lack of relevance or any other ground other 10 than the mere presence of Confidential Information. The existence of this Order must not 11 be used by either party as a basis for discovery that is otherwise improper under the 12 Federal Rules of Civil Procedure. 13 14 15 24. Nothing within this order will be construed to prevent disclosure of Confidential Information if such disclosure is required by law or by order of the Court. 25. Upon final termination of this action, including any and all appeals, 16 counsel for each party must, upon request of the producing party, return all Confidential 17 Information to the party that produced the information, including any copies, excerpts, 18 and summaries of that information, or must destroy same at the option of the receiving 19 party, and must purge all such information from all machine-readable media on which it 20 resides. Notwithstanding the foregoing, counsel for each party may retain all pleadings, 21 briefs, memoranda, motions, and other documents filed with the Court that refer to or 22 incorporate Confidential Information, and will continue to be bound by this Order with 23 respect to all such retained information. Further, attorney work product materials that 24 contain Confidential Information need not be destroyed, but, if they are not destroyed, the 25 person in possession of the attorney work product will continue to be bound by this Order 26 with respect to all such retained information. 27 28 26. The restrictions and obligations set forth within this order will not apply to any information that: (a) the parties agree should not be designated Confidential 40 16cv3085-JAH (RBB) 1 Information; (b) the parties agree, or the Court rules, is already public knowledge; (c) the 2 parties agree, or the Court rules, has become public knowledge other than as a result of 3 disclosure by the receiving party, its employees, or its agents in violation of this Order; or 4 (d) has come or will come into the receiving party's legitimate knowledge independently 5 of the production by the designating party. Prior knowledge must be established by pre- 6 production documentation. 7 27. The restrictions and obligations within this order will not be deemed 8 to prohibit discussions of any Confidential Information with anyone if that person already 9 has or obtains legitimate possession of that information. 10 11 12 13 14 28. Transmission by email is acceptable for all notification purposes within this order. 29. This Order may be modified by agreement of the parties, subject to approval by the Court. 30. The Court may modify the terms and conditions of this Order for good 15 cause, or in the interest of justice, or on its own order at any time in these proceedings. 16 The parties prefer that the Court provide them with notice of the Court's intent to modify 17 the Order and the content of those modifications, prior to entry of such an order. 18 19 20 31. This Court shall retain jurisdiction over any and all disputes arising under this Protective Order for a period of one ( 1) year after the conclusion of the case. IT IS SO ORDERED. 21 22 23 24 Dated: December 21, 2017 Hon. Ruben B. Brooks United States Magistrate Judge 25 26 27 28 41 16cv3085-JAH (RBB) 1 EXHIBIT A 2 AGREEMENT TO BE BOUND 3 4 I , - - - - - - - - - - - - - [print or type full name], declare and say that: 1. I am employed a s - - - - - - - - - - - - - - - - - by 2. 5 I have read the Protective Order entered in the case of SolarCity 6 7 8 Corporation v. Daniel Doria, Case No. 3:16cv3085-JAH(RBB), and have received a copy 9 of the Protective Order. 10 3. I promise that I will use any and all "Confidential" or "Highly 11 Confidential" information, as defined in the Protective Order, given to me only in a 12 manner authorized by the Protective Order, and only to assist counsel in the litigation of 13 this matter. 14 4. I promise that I will not disclose or discuss such "Confidential" or 15 "Highly Confidential" information with anyone other than the persons described in 16 Paragraphs 5, 6, 11and12, 13 of the Protective Order. 17 5. I acknowledge that, by signing this agreement, I am subjecting myself 18 to the jurisdiction of the United States District Court for the Southern District of 19 California with respect to enforcement of the Protective Order. 20 6. I understand that any disclosure or use of "Confidential" or "Highly 21 Confidential" information in any manner contrary to the provisions of the Protective 22 Order may subject me to sanctions for contempt of court. 23 I declare under penalty of perjury that the foregoing is true and correct. 24 Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 25 Printed name: - - - - - - - - - - - - - - - - - - - - - - - 26 27 Signature: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 28 42 16cv3085-JAH (RBB)

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