CV 16-5124-DMG (AGRx)
United States District Court, C.D. California
Filed May 23, 2017
Robert Ahdoot, Tina Wolfson, Ahdoot and Wolfson PC, Los Angeles, CA, David P. Milian, Frank S. Hedin, Carey Rodriguez O'Keefe Milian Gonya LLP, Miami, FL, Meredith Shane Lierz, Ahdoot and Wolfson PC, West Hollywood, CA, for Diana Soukhaphonh.
Anne-Marie D. Dao, Arameh Zargham O'Boyle, Joshua M. Briones, E. Crystal Lopez, Mintz Levin Cohn Ferris Glovsky and Popeo PC, Los Angeles, CA, for Hot Topics, Inc.
RE PLAINTIFF'S EX PARTE APPLICATION FOR ORDER COMPELLING PRODUCTION OF DOCUMENT AND ELECTRONICALLY STORED INFORMATION (ESI)
*1 Case is called. Counsel state their appearances. Also present is Andy Medlin, In House Counsel for Hot Topics, Inc.
On May 17, 2017, Plaintiff filed an ex parte application for an order compelling Defendant Hot Topic, Inc. (“Hot Topic”) to produce eight categories of information and an order permitting Plaintiff to take second depositions of Mr. Singh and Mr. Kosoff after production of these additional documents. (Dkt. No. 65.) On May 22, 2017, Defendant filed an opposition. (Dkt. No. 67.) The matter came on for hearing on May 23, 2017.
As background, Hot Topic filed a motion for summary judgment (“MSJ”) on May 5, 2017. (Dkt. No. 53.) The motion argued that Plaintiff gave consent to receive the text message she received on November 4, 2015 from Hot Topic by ordering merchandise from the Hot Topic website on May 26, 2015 with her phone number (“1810 Number”) and the text message subscription service box in the “checked” default. Hot Topic states that it sent Plaintiff a confirmation text on November 4, 2015, before it launched its next text message campaign in November 2015. (MSJ, Memo. at 3-4.)
On May 12, 2017, on Plaintiff’s ex parte application, the District Judge granted a 30-day extension of time for Plaintiff to file an opposition to the motion for summary judgment. (Dkt. No. 63.) In that order, the Court “urges the parties to complete all discovery necessary to a full and developed evidentiary record on the issue of consent and to obviate the need for any further requests for relief under Fed. R. Civ. P. 56(d).” (Id.
The court finds that Plaintiff has satisfied the standards for filing an ex parte application to the extent that she seeks discovery “essential to justify [her] opposition” to the motion for summary judgment. Fed. R. Civ. P. 56(d). At a minimum, an ex parte application must demonstrate why bypassing the regular noticed motion procedure is necessary. Mission Power Engineering Co. v. Continental Casualty Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). “First, the evidence must show that the moving party’s cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures. Second, it must be established that the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id.
The court addresses the eight categories of information in Plaintiff’s ex parte application.
The Unredacted “Blue Martini” Database Files in Original Native Format.
According to the KPMG report provided by Hot Topic, the Blue Martini database recorded customer activity on Hot Topic’s website during the approximate period September 2006 through September 2015. (Exh. 1 at 1 to Lopez Decl.) The database was archived or backed up periodically. An archived database contains customer data in the system at the point in time when the archiving took place. (Id.
*2 Hot Topic restored the Blue Martini database from backup tapes. (Id.
at 2.) The database is a 665-gigabyte .dbf file.
(Opp. at 8.)
The KPMG Report states: “The Blue Martini database was not programmed to record the exact date for changes in subscription preferences associated with receiving SMS messages.” (Exh. 1 at 2.) In the April 1, 2015 backup database, KPMG observed that Plaintiff’s phone number had been opted out of receiving SMS messages. The field “ATR_NM” was populated with the attribute “OKToContactText” and the associated field “OBA_BOO_VAL” was marked “F” or false. (Id.
at 3.) In the June 1, 2015 backup database, the associated field “OBA_BOO_VAL” was marked “T” or true. In other words, Plaintiff’s phone number had been opted in to receive SMS messages. (Id.
) This designation remained unchanged in the September 1, 2015 backup database. (Id.
In between the April 1, 2015 backup database and the June 1, 2015 backup database, the Blue Martini database indicated one purchase transaction for Plaintiff on May 26, 2015. This transaction was linked to Plaintiff by email address, shipping address and phone number. (Id.
at 4-5.) That transaction was completed as a guest, meaning that Plaintiff was not logged in to her account. (Id.
) A guest must uncheck the box for SMS message subscription during a transaction in order to opt out of receiving SMS messages. (Id.
at 1-2.) As discussed above, the SMS text subscription box is checked as the default for a guest.
Plaintiff states that she is in the process of retaining a “digital forensics expert who can travel to Hot Topic’s headquarters.” (App. at 18 n.6.)
The court questioned counsel about the feasibility of an inspection by Plaintiff’s digital forensics expert of the Blue Martini database in the original native format on June 2, 2017. This procedure will ensure that Plaintiff has a fair opportunity to challenge the reliability of the Blue Martini database without compromising the private and confidential transactions and identifying information of other customers. See
Fed. R. Evid. 803(6), 1006; United States v. Rizk, 660 F.3d 1125, 1130 0(9th Cir. 2011) (Rule 1006); U'Haul Int'l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1045 (9th Cir. 2009) (Rule 803(6)). Counsel will be ordered to meet and confer about procedures to be followed for the inspection.
Plaintiff argues that Hot Topic waived its right to object to production of the unredacted Blue Martini database. A requesting party “may specify the form or forms in which [ESI] is to be produced.” Fed. R. Civ. P. 34(a)(b)(1)(C). Plaintiff’s request for production of documents instructed Hot Topic to provide information in the original native format. (Instruction No. 1, Exh. D to Hedin Decl.) A responding party may object to such an instruction and “state the form or forms it intends to use.” Fed. R. Civ. P. 34(b)(2)(D). Hot Topic did not object to the instruction to produce information in original native format. (See
Exhs. E & J to Hedin Decl.) However, Plaintiff provides no authority for the proposition that an agreement to the format of ESI constitutes a waiver of any redaction. Under Plaintiff’s theory, a responding party’s agreement to produce documents in native format would waive redaction on the basis of attorney client privilege or work product doctrine, for example. On the contrary, a responding party may redact information subject to attorney client privilege, work product doctrine or other bases. See, e.g.,
Fed. R. Civ. P. 26(b)(5), 26(c). Form ESI orders commonly provide for redaction. See, e.g., Martinelli v. Johnson & Johnson
, 2016 U.S. Dist. LEXIS 53146, *9 (E.D. Cal. Apr. 13, 2016); In re Fresh & Process Potatoes Antitrust Litig.
, 2012 U.S. Dist. LEXIS 139440 (D. Id. Aug. 31, 2012).
*3 Plaintiff argues that the existence of a protective order obviates any concern about production of private, confidential or proprietary information. Plaintiff is incorrect. The grant of a protective order did not absolve a party from making an showing that the information sought was relevant to the litigation under the prior version of Fed. R. Civ. P. 26(b)(1). Cacique, Inc. v. Robert Reiser & Co., 169 F.3d 619, 622-23 (9th Cir. 1999). The current version of Rule 26(b)(1) requires a showing of proportionality. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). As discussed above, Plaintiff’s ex parte application is appropriate only to the extent she seeks information relevant to her opposition to the motion for summary judgment.
1. The “Opt-In” File, “Opt Out” File, Welcome File and Status File that contains the 1810 Number
Hot Topic states that it produced on May 19, 2017 the native Opt-In File for Plaintiff containing the 1810 Number in advance of the November 4, 2015 text message she received. (Lopez Decl. 11.)
The dispute is Plaintiff’s request for unredacted files that would reveal identifying information about other customers and her request for information dating back to November 2009 that appear to have little to no relevance to the consent issue in the motion for summary judgment.
After discussion with counsel, the court concluded that Hot Topic will produce for inspection by Plaintiff’s expert on June 2, 2017 the following:
(1) Opt-In Files and Welcome Files for the period October 1, 2014 through December 31, 2015 that contain the 1810 Number and/or Plaintiff’s account numbers; and
(2) Opt-Out Files and Status Files for the period November 1, 2015 through December 31, 2015 that contain the 1810 Number and/or Plaintiff’s account numbers.
Based on the information supplied by counsel at the hearing, the court believes that the time frame for the Opt-In Files and Welcome Files will provide files both before and after the alleged date of consent.
2. JSP File Corresponding to the Guest Checkout Page on May 26, 2015
Hot Topic states that it produced this document in PDF and native format on May 19, 2017. The date last modified is apparently shown as the date the information was downloaded, however. Hot Topic will be ordered to produce for inspection the JSP file corresponding to the Guest Checkout Page on May 26, 2015 for inspection by Plaintiff’s expert on June 2, 2017.
3. Statements of Work A-1 and A-5
Hot Topic states that it produced Statement of Work A-1 on May 19, 2017. (Lopez Decl. 11.) However, Hot Topic states that it has not been able to locate Statement of Work A-5 despite a diligent search. (Opp. at 10.) Accordingly, there is nothing for the court to compel.
4. Communications Among Hot Topic Employees and Its Former Employees, Or Between Hot Topic and Impact Mobile, Concerning Plaintiff or the 1810 Number
After discussion with counsel, the court limits this category to the time period October 1, 2014 through December 31, 2015. Hot Topic stated that it agreed to produce nonprivileged responsive documents. (Opp. at 11 & Exh. 6 at 2 to Lopez Decl.)
At oral argument, Plaintiff’s counsel requested an order that Hot Topic produce a privilege log for all responsive documents. The court finds that Plaintiff’s request would impose an undue burden in that it would require logging the work product of its outside counsel, and every privileged communication among Hot Topic, its in-house and outside counsel during this litigation in response to requests for all documents about Plaintiff or the 1810 Number. Such a privilege log would be unnecessary in that there is no serious dispute that the documents would be privileged, and would enable Plaintiff to intrude upon opposing counsel’s preparation in this case.
*4 At oral argument, Plaintiff advised that Hot Topic’s counsel will represent a former Hot Topic employee, Jessica Chien, in this litigation. Plaintiff requested an order that Hot Topic’s counsel prepare a privilege log of their communications with Ms. Chien. Plaintiff’s ex parte application is directed to Hot Topic. Ms. Chien is not before the court and has not received notice of proceedings involving her privileged communications. Plaintiff’s request is not properly before the court.
5. Complete Data Dictionaries and Code Dictionaries Re Blue Martini Database and Demandware Database
This category seeks definitions or meanings of data fields, attributes, objects or codes in the Blue Martini database or Demandware database. Hot Topic responds that it has not located “complete data dictionaries.” However, it has produced a spreadsheet sufficient to identify store location “0345,” the Blue Martini database field dictionary and the query table scheme and descriptions KPMG used in its report. (Opp. at 11; Lopez Decl. 11.)
At oral argument, Plaintiff complained that she still does not have definitions for the headers and attributes, and in particular the header next to the T or F designation, presumably in the associated field “OBA_BOO_VAL” discussed above. Hot Topic will contact Mr. Singh and confirm that it has produced the responsive documents of which he is aware. To the extent that the definitions are contained in the source code, Hot Topic will make the source code available for inspection by Plaintiff’s expert on June 2, 2017.
6. Documents and Communication Pertaining to KPMG’s Report
Hot Topic states that it produced nonprivileged documents on May 19, 2017. (Lopez Decl. 11.) Hot Topic asserts privilege as to draft reports and communications between counsel and KPMG. (Opp. at 11.) Hot Topic will be ordered to provide a privilege log.
Hot Topic is correct that Rule 26 protects from disclosure “drafts of any report or disclosure required under Rule 26(a)(2).” Fed. R. Civ. P. 26(b)(4)(B). Rule 26 also protects “communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B)” except, as pertinent here, to the extent the communications “(ii) identify facts or data that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.” Fed. R. Civ. P. 26(b)(4)(C).
Protected materials can be discoverable under Rule 26(b)(1) only if “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). Even so, the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
Plaintiff makes no showing of any substantial need in the ex parte application.
At oral argument, Hot Topic did not claim privilege as to KPMG’s interviews of Hot Topic employees or other persons who are not attorneys. To the extent Hot Topic has not already produced such documents within its possession, custody or control, Hot Topic will be ordered to make such production on or before May 31, 2017, at noon. To be clear, Hot Topic is not responsible for collecting documents in KPMG’s possession. Plaintiff indicated that KPMG will be appearing for deposition and has been served with a subpoena for documents.
7. Any other documents about Plaintiff’s consent.
*5 A document request “must describe with reasonable particularity each item or category of items to be inspected.” Fed. R. Civ. P. 34(b)(1)(A). As discussed above, Plaintiff meets the standards for filing an ex parte application to the extent she seeks information essential for her opposition to the motion for summary judgment. Fed. R. Civ. P. 56(d). Her request for any other documents on the topic of her consent does not satisfy the “reasonable particularity” standard, particularly given the discovery she has or will receive.
8. Second Depositions of Mr. Singh and Mr. Kosoff
“A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2): (A) if the parties have not stipulated to the deposition and: ... (ii) the deponent has already been deposed in the case.” Fed. R. Civ. P. 30(a)(2)(A)(ii).
This motion appears premature. The court will order counsel to meet and confer as to whether a second deposition of either Mr. Singh or Mr. Kosoff is necessary. To the extent Plaintiff seeks a Rule 30(b)(6) witness to testify regarding the additional information being produced, Hot Topic will decide to designate Mr. Indraganti, who is set for deposition on June 6, or another witness to testify.
IT IS ORDERED that Plaintiff’s ex parte application is GRANTED IN PART AND DENIED IN PART as follows:
1. On or before May 26, 2017, at 2:00 p.m., Plaintiff’s counsel will electronically transmit the proposed procedures for the inspection by Plaintiff’s expert on June 2, 2017 to defense counsel (see
paragraph 3 below).
2. On or before May 31, 2017 by noon, Hot Topic is ordered to produce nonprivileged documents to the extent set forth above under Category Nos. 5, 6 and 7.
3. On June 2, 2017, there will be an inspection by Plaintiff’s digital forensics expert of the files to the extent set forth above in Category Nos. 1, 2, 3 and 6.
4. On or before June 2, 2017, Hot Topic shall produce a privilege log of items withheld in response to Category No. 7. Plaintiff’s request for other privilege logs are denied without prejudice.
5. On or before June 2, 2017, counsel are ordered to meet and confer regarding whether a second deposition of Mr. Singh or Mr. Kosoff is necessary.
6. In all other respects, Plaintiff’s ex parte application is denied.
To the extent that discovery disputes arise from this order or otherwise in this case, counsel are reminded that they may contact the Court Clerk, Marine Pogosyan, to request a telephonic or in-person conference with the Court to address discovery disputes if they are unable to resolve the discovery disputes after a good faith attempt to do so. On the day before the conference, the parties shall file a Joint Agenda that lists, without argument, each discovery dispute to be addressed at the conference.
This category is addressed first, even though it is the second category listed in Plaintiff’s ex parte application, because it appears to be the most relevant to the motion for summary judgment.
One gigabyte is the equivalent of approximately 500,000 typewritten pages. Manual for Complex Litigation (Fourth) § 11.446 (2004).
End of Document.