Public Defendants Opposition To Agilents Motion To Compel

Opposition

Cal. Super. - 6th Dist.February 3, 2016

A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16CV291137 Santa Clara - Civil REDACTED FOR PUBLIC FILING QUINN EMANUEL URQUHART & SULLIVAN LLP KEVIN P.B. JOHNSON (S.B. #177129) kevinjohnson @quinnemanuel.com VICTORIA F. MAROULIS (S.B. #202603) victoriamaroulis @ quinnemanuel.com ANDREW J. BRAMHALL (S.B. #253115) andrewbramhall @ quinnemanuel.com 555 Twin Dolphin Dr., 5th Floor Redwood Shores, California 94065 Telephone: (650) 801-5113 Facsimile: (650) 801-5100 Melissa J. Baily (S.B. # 237649) melissabaily @quinnemanuel.com 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Fax: (415) 875-6700 Attorneys for TWIST BIOSCIENCE CORP., EMILY LEPROUST, and SIYUAN CHEN WILSON SONSINI GOODRICH & ROSATI PC CHARLES T. GRAVES (S.B. #197923) tgraves @wsgr.com One Market Plaza, Spear Tower, Suite 3300 San Francisco, CA 94105-1126 Telephone: (415) 947-2000 Facsimile: (415) 947-2099 Attorneys for TWIST BIOSCIENCE CORP., and EMILY LEPROUST Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/15/2019 11:19 PM Reviewed By: R. Walker Case #16CV291137 Envelope: 2635025 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA AGILENT TECHNOLOGIES, INC., a Delaware Corporation, Plaintiff, Vv. TWIST BIOSCIENCE CORP., a Delaware Corporation; EMILY LEPROUST, an Individual; STYUAN CHEN, an Individual; SOLANGE GLAIZE, an Individual; and DOES 1 through 20, inclusive, Defendants. TWIST BIOSCIENCE CORP and EMILY LEPROUST, Cross-Complainants, V. AGILENT TECHNOLOGIES, INC., and DOES 1 through 10, inclusive, Cross-Defendants CASE NO. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 [Filed Concurrently with Declaration of David E. Myre] **REDACTED FOR PUBLIC FILING** *LODGED CONCURRENTLY UNDER SEAL** Action Filed: February 3, 2016 Cross-Complaint Filed: January 29, 2019 Trial Date Set: February 24, 2020 Judge: Hon. Brian C. Walsh Discovery Referee: Hon. James Ware (Ret.) Location: Department 1 Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL. III. REDACTED FOR PUBLIC FILING TABLE OF CONTENTS Page INTRODUCTION ju cvsnsusrnsssnsnsovsssuusssssws ovsswins ss o s 5s35a6055 8 55 6855455005 5535 A055 VS F005 475 506 ERIE 1 BACKGROUND cotta eects sree sabes nee sees eae 3 A. The Identification Of The Documents At Issue In This Case .......cccccceceevvienierneennen. 3 B. The Forensic Images That Agilent Waited More Than A Year To Examine ............ 4 C The Forensic Interrogatories And The Court Order Governing Defendants’ RESPONSES eevee see eects ee see sabe eee eee sree sere een 5 ARGUMENT cot sabes se ee sree sabe eee snes sree sane 7 A. Defendants Have Provided All Of The Raw Forensic Data Related To The Documents, Including Any And All Forensics Data Responsive To Interrogatory Nos. 218, 219, 220, 221, and 223........cccceeriiiiriiienieeenieeerieeee e 7 B. Defendants Have Provided Sufficient Narrative Responses To Interrogatory Nos. 218, 219, 220, 221, and 223 ......cccciirieerieeieceeeiee sees eee 9 C Agilent Must Act Before Defendants Can Provide Their Substantive Response To Interrogatory NO. 222 ......cccoiiiiiiiiiiiiiinieene cece cec 13 D. Agilent’s Motion To Compel Information Not Within Defendants’ Possession, Custody, Or Control Should Be Denied ..........ccooceevviiinniiinnieennieennne 13 E. Defendants Have Verified Their Interrogatory ReSponses ...........ccccevveevvieennuieenen 14 F. Agilent’s Motion Is Frivolous, And Defendants Should Be Awarded The Fees They Incurred In Responding To It .......cooeeeiiiiiiniiiniiieceee cec 14 -i- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING TABLE OF AUTHORITIES Page Cases Holguin v. Superior Court (1972) 22 Cal. APP. 3A 812 neice eee sees sees sabes sabes sabes 13, 14 Jones v. Superior Court (1981) 119 Cal. APP. 3A 534... eee eee eee sees sees sates sabe e ese eases eas 14 Statutory Authorities Cal. Civ. Proc. Code § 2023.030(2) ..ueeeeeiurereeiiiiieeeeitireeeisireeeessiree eee sssaeeeessss ses ssssa ssssnsasessssssesesns 15 Cal. Civ. Proc. Code § 2030.300(A) ..vveeeeeorrreeeiiirieeeeiiieeeeiitieeeesstieee ee srae ee esssseeessssssa esssnsasassssssesesns 15 i Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING I. INTRODUCTION Since the moment the stay of discovery was lifted on February 7, 2018, Defendants Twist and Emily Leproust have made clear that they are “opening the kimono” with respect to the documents at issue in this case (which Agilent contends contain its trade secret and/or confidential information) (the “Documents”). From the inception of discovery, Defendants have repeatedly told Agilent that it would have access to complete forensic images of the entirety of each and every device on which any Document was found. Pending an agreement regarding how to deal with the presence of personal and privileged information on these devices, Agilent would have access to everything, including an unfiltered view of any and all forensic evidence related to each Document - from data relevant to creation, access, modification, deletion, and transfer to data relevant to when a file “thumbnail” was last generated. Though nuanced and most properly the subject of expert analysis, forensics data is direct evidence of the “life” of a document - whether it was accessed, when it was accessed, how it was accessed, whether and when it was deleted, and so on. But Agilent did not inspect a single forensic image until February 19, 2019. That is, Agilent brought the instant motion to compel “basic forensic information” (Mot. 5) before it even bothered to look at the complete forensics record that Defendants had already made available. In tacit recognition of the fact that Defendants have already made every bit of known forensics data regarding the Documents available to Agilent, Agilent complains that Defendants’ responses to the “forensics interrogatories” do not contain extensive “human background obtained from Twist employees.” (Mot. 5.) But that is because the Documents were passively retained. If a Twist employee did not even realize that he or she had retained a Document, that employee will not have much - if any - “human background” to share about it. And if no one “accessed or used” a Document, there is no “narrative” to provide when asked to “identify each time the document was accessed or used” (Interrogatory No. 219), to “identify each piece of media . . . on which the document was accessed or used” (Interrogatory No. 220), or to “identify each person who has ever accessed the document” (Interrogatory No. 221). What is more, two aspects of Agilent’s motion to compel directly contravene a Court Order. First, Agilent moved to compel a substantive response to Interrogatory No. 222, which seeks “the -1- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING earliest date” on which Defendants had knowledge of the possession of the Documents. But per Court Order, Defendants are withholding their response to this interrogatory pending the parties’ execution of a stipulation confirming that Defendants’ response (which relates to activity by counsel) will not result in a waiver of privilege. If Agilent wants Defendants’ response to Interrogatory No. 222, all it needs to do is respond to the draft stipulation that Defendants revised over a month ago. Second, Agilent moved to compel further responses to the forensics interrogatories with respect to Documents that Agilent contends reference confidential (as opposed to trade secret) information. But the same Court Order expressly allocated the burden of conducting a forensics examination related to those Documents to Agilent, required Agilent to specify any information that could not be obtained through Agilent’s own forensics analysis, and required Defendants to provide only that information, once it was specified by Agilent, in response to the forensics interrogatories. Here again, Defendants are in compliance with that Court Order; Agilent’s motion is at odds with it. In sum, Defendants have given Agilent access to the forensics images needed to conduct a forensic analysis related to all of the Documents. Defendants have provided narrative responses to Defendants’ forensics interrogatories to the extent possible given the reality that the Documents were passively retained. Where information responsive to an interrogatory does not exist, Defendants have provided related information." Defendants will be making fact witnesses available for deposition, and Agilent will be free to test the sufficiency of the “human background” provided in Defendants’ interrogatory responses in that context. And Defendants have been pushing for the exchange of federal-style expert reports (which Agilent resisted until recently), which would provide Agilent with Defendants’ full expert analysis of the forensics images that are already available to Agilent. The only “roadblock” here is that Agilent has ignored a Court Order and is otherwise burying its head in the sand with respect to the forensics record already provided by Defendants in this case (presumably because that record does not support Agilent’s claims). Agilent’s motion is meritless and frivolous, and Defendants should be awarded their costs for having to oppose it. '' For example, Defendants are aware of no media on which any of the purported “trade secret” Documents was “accessed or used” (Interrogatory No. 220) so Defendants identified media on which those Documents were found. 2- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING II. BACKGROUND A. The Identification Of The Documents At Issue In This Case On April 6, 2018,% Defendants produced 2,450 documents containing any information that could even conceivably have originated from a Twist employee’s prior employment at Agilent.’ (Declaration of David E. Myre in Support of Defendants’ Opposition to Agilent’s Motion to Compel [“Myre Decl.”’] Ex. 1 [Defendants’ April 6, 2018 Interrogatory Supplement, Ex. A]; Ex. 2 [Leproust’s April 6, 2018 Interrogatory Supplement, Ex. A]; Ex. 3 [Defendants’ April 18, 2018 Interrogatory Supplement, Ex. A]; Ex. 4 [Leproust’s April 18, 2018 Interrogatory Supplement, Ex. A].) Atthe same time, Twist produced the metadata associated with each of those documents. (/d.) Also in April 2018, without being asked, Defendants provided Agilent with “Most Recently Used” (“MRU”) data showing the date of last use of any of the 2,450 documents that were present on nine devices used by Twist’s founders Emily Leproust, Bill Banyai, and Bill Peck. (Myre Decl. Ex. 5.)* That data showed that the last use of those documents pre-dated Dr. Leproust’s departure from Agilent. (/d.) After it had produced these documents and provided this information, Defendants asked Agilent to identify which (if any) of the 2,450 documents Agilent was actually alleging contained its confidential or trade secret information, as only those documents could be relevant to the case. (See Myre Decl. Ex. 7 [Defendants’ Third Set of Interrogatories to Agilent, May 31, 2018].) On July 20, 2018, Agilent identified Blocuments as allegedly containing its confidential information (Myre Decl. Ex. 8 [Yae Email to Quinn Emanuel, dated July 20, 2018]); on July 31, 2018, Agilent revised that list to identify 44 documents allegedly containing its trade secrets and 1,280 documents allegedly containing its non-trade-secret confidential information.” (Myre Decl. Ex. 9 [Agilent’s Responses to 2 There was an 18-month stay of discovery resulting from Agilent’s repeated failure to identify the purported trade secrets allegedly at issue in this case. 3 It has since been determined that many of those documents contain no information that could have originated at Agilent. 4 Additional MRU data was produced in August 2018. (Myre Decl. Ex. 6.) > Defendants dispute that the information in these documents is properly classified as confidential. (See Myre Decl. Ex. 29 [Defendants’ General Objections to Agilent’s Second Set of Special Interrogatories Regarding Documents Identified By Agilent In Response To Defendants’ -3- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING Defendants’ Third Set of Interrogatories].) Those are the documents that have been the focus of the parties’ discovery (the “Documents”). B. The Forensic Images That Agilent Waited More Than A Year To Examine On March 19, 2018, before a single document was produced by Defendants in this case, Defendants made clear that they would be providing Agilent with a forensic image of any device that contained any document that Agilent alleged included its trade secret or confidential information. (See, e.g., Myre Decl. Ex. 10 [Defendants’ Responses to Agilent’s Requests for Production Nos. 43, 44,45].) The only condition precedent to Defendants providing Agilent with this access was that the parties reach some agreement that would protect any privileged and/or personal information on those devices. (Id.) Despite implicitly conceding that such an agreement would be necessary and appropriate (see Myre Decl. Ex. 11 [Almeling Email to Myre dated March 30, 2018]), Agilent demonstrated little interest in reaching such an agreement or in actually accessing the forensic images. For example, on April 9, 2018, Defendants proposed a protocol for inspecting forensic images based on prior discussions between the parties (Myre Decl. Ex. 12 [Myre Letter to Almeling, dated April 9, 2018]) and raised its proposal again during a meet and confer with Agilent the next day (Myre Decl. at 93); however, Defendants heard nothing from Agilent regarding that proposal - or anything else related to the inspection of forensic images - for four months (Myre Decl. Ex. 13 [Pear] Email to Bramhall, dated August 10, 2018]). And even after the parties finalized their Forensic Inspection Protocol on December 21, 2018 (Myre Decl. Ex. 14 [Joint Stipulation Re: Forensic Inspection]), Agilent waited until February 19, 2019 - more than two weeks after bringing the instant motion to compel “basic forensics information” (Mot. 5) - to begin inspecting the forensic images (Myre Decl. Ex. 15 [Ehlers Email to Quinn Emanuel, dated February 4, 2019]). The forensic images that Defendants have provided to Agilent contain all of the known forensics data associated with the documents that Agilent alleges contain its trade secret or confidential information. Defendants have identified no other forensics information - “basic” or Special Interrogatory Nos. 241 And 243]; see also Ex. 30 [Bramhall Letter to Almeling dated April 5, 2018] [“[O]ur investigation has revealed that materials bearing Agilent designations- including Agilent Confidential and Restricted files-are readily available online.”].) -4- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING otherwise - beyond what it has provided to Agilent in the form of these images. Defendants are withholding nothing. C. The Forensic Interrogatories And The Court Order Governing Defendants’ Responses On May 11, 2018, Agilent served the six interrogatories at issue here, which sought information regarding each of the 2,450 documents that Defendants had originally produced to Agilent. (Myre Decl. Ex. 16 [Agilent 2nd Set of Interrogatories (Nos. 218-223)].) Five of those interrogatories sought “basic forensics information” related to the possession (Interrogatory No. 218), access (Interrogatory Nos. 3. 219-221), and deletion (Interrogatory No. 223) of those documents. The sixth interrogatory requested “the earliest date” that Defendants had knowledge of their possession of those documents (Interrogatory No. 222). The parties subsequently agreed that the scope of these interrogatories should be limited to the Documents - i.e., those documents that Agilent alleged contained Agilent trade secrets (44 documents) or Agilent confidential information (1,280 documents), as identified by Agilent on July 31, 2018. (Myre Decl. Ex. 17 [Shyr Email to Ehlers, July 12, 2018].) The parties also met and conferred regarding who should bear the burden and expense of extracting the forensics data that was responsive to these interrogatories from the forensic images that Defendants were already providing to Agilent. Defendants had received an estimate of nearly $3 million in fees and expenses to extract the forensics data associated with all the Documents that Agilent had identified. (Myre Decl. Ex. 18 [Shyr Email to Ehlers, August 15, 2018].) Defendants thus proposed that Defendants incur the burden and expense of extracting the forensics data from the forensic images for the 44 documents that Agilent alleged contained its trade secrets, with the parties to work out a cost-sharing or cost-shifting arrangement for extracting the forensics data for the 1,280 documents that Agilent alleged contained its confidential information. (Myre Decl. Ex. 19 [Myre Email to Ehlers, August 14, 2018].) Ultimately, Agilent raised this issue with the Court. (Myre Decl. Exs. 20 [2018.08.15 Agilent’s IDC brief], 21 [2018.08.15 Defendants’ IDC Statement], 22 [2018.08.17 Agilent’s IDC brief], 23 [2018.8.20 Defendants’ IDC brief], 25 [2018.08.27 Agilent’s IDC Brief], and 24 -5- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING [2018.08.24 Defendants’ IDC Brief].) And based on the Court’s guidance, the parties entered into a stipulation detailing exactly how Interrogatory Nos. 218-223 would be handled, which the Court So Ordered on September 20, 2018. (Myre Decl. Ex. 26 [Joint Stipulation following August 28, 2018 IDC].) As astarting point in “address[ing] outstanding issues regarding Agilent’s previously-served Special Interrogatory Nos. 218, 219, 220, 221,222, and 223,” the Stipulation and Order acknowledges Defendants’ agreement to make available “forensic images of all the devices” requested by Agilent “subject to a mutually agreed protocol protecting both privileged and personal documents.” (Id. 9.) The Stipulation and Order then provides that, with respect to the 44 Documents that Agilent alleges contain its trade secrets, Defendants will provide responses to the six interrogatories and “may rely on providing forensic data where such data answers the interrogatory.” (Id. J 10.) With respect to the 1,280 non-trade-secret Documents, however, Agilent was required to - among other things - “specify and describe the requested information [sought by the six interrogatories] Agilent asserts cannot be uncovered through a forensic examination of the devices containing such document(s).” (Id. J 11 [emphasis added].) Within 45 days of Agilent specifying any such information, Defendants were required to respond to Interrogatory Nos. 218-223 “with information available to Defendants that cannot be uncovered through a forensic examination.” (Id. [emphasis added].)® Agilent never specified or described any information responsive to the forensic interrogatories that could not be uncovered through a forensics examination of the devices, as required by Paragraph 11 of the Stipulation and Order. Moreover, with respect to Interrogatory No. 222 (seeking the “earliest date” Defendants had knowledge of their possession of Documents), the Stipulation and Order provides that “the Parties will confer regarding a reasonable stipulation that will permit each Party to disclose dates at which certain forensic information was uncovered by the Parties’ respective counsel in such a manner that would not result in a waiver of any privilege or work product protections.” (Id. J 12.) The Stipulation and Order 6 Agilent’s motion says nothing about the fact that - with regard to 1,280 of the Documents at issue - the Court agreed that Agilent should bear the burden of extracting forensics data from the forensics images provided by Defendants or the fact that - with regard to the same 1,280 Documents - Defendants are only required to provide information responsive to the forensics interrogatories that cannot be uncovered by such a forensic investigation. -6- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING makes explicit that - until such a stipulation is executed - Defendants need only provide any responsive information that is “independent of any forensic examination by Defendants’ counsel.” (Id.)" Defendants revised a “no-waiver” stipulation more than a month ago (Myre Decl. Ex. 32 [Shyr Email to Ehlers, February 8, 2019); Agilent never responded. III. ARGUMENT Agilent’s motion to compel should be denied in its entirety. With respect to five of the six “forensic interrogatories” at issue, Defendants have gone beyond their obligations to provide responsive facts by - among other things - providing information that is more properly the subject of expert discovery and providing information that is not even directly called for by the interrogatories. With respect to the sixth “forensic interrogatory” regarding the earliest date Defendants were aware of their possession of the Documents, Defendants have been waiting for more than a month for Agilent to respond to - or otherwise acknowledge - Defendants’ revised “no-waiver” stipulation so that they can provide their substantive response. In this and all respects, Defendants have fully complied with the September 20 Stipulation and Order that governs the responses to the six interrogatories at issue here (a Stipulation and Order that Agilent must and does ignore in order to make the bulk of its arguments). If there were more information that Defendants could provide at this time, they would provide it. But what Agilent seems to want is evidence that would only exist if the Documents were actively used at Twist rather than passively retained; there is no such evidence. A. Defendants Have Provided All Of The Raw Forensic Data Related To The Documents, Including Any And All Forensics Data Responsive To Interrogatory Nos. 218, 219, 220, 221, and 223 As described above, Defendants have made available forensic images of every device on which any of the Documents identified by Agilent has been found. (Myre Decl. Ex. 31.) These images contain all of the known forensics data regarding the possession (Interrogatory No. 218), access or use (Interrogatory Nos. 219-221), and deletion (Interrogatory No. 223) of Documents. It would have been proper and appropriate for Defendants to simply point to this raw forensics data in 7 Agilent’s motion says nothing about this provision of the relevant Court Order. -7- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING response to any interrogatory “seek[ing] basic forensic information” about the Documents, including the interrogatories at issue here (Mot. 5). But Defendants did more. Defendants offered to and did extract the forensics data and artifacts specifically related to the 44 Documents that Agilent contends contain its trade secret information. This extraction of forensics data must be done by a forensics expert, and the resulting information is something typically provided in the context of expert discovery (if at all). Nonetheless, Defendants provided that extracted forensics data to Agilent during fact discovery, and - as expressly contemplated by paragraph 10 of the September 20 Stipulation and Order - relied on that extracted forensics information in its responses to the forensic interrogatories at issue. (See Myre Decl. Ex. 28 [Exs. A, B, C and D to Defendants Supplemental Interrogatory Responses, dated March 15, 2019].) At various points in its motion to compel, Agilent appears to complain that Defendants did not also provide the same extracted forensics data and artifacts for the other 1,280 Documents that Agilent contends contain its non-trade-secret confidential information. (See, e.g., Mot. 6.) But Defendants were not required to do that. To be clear, Defendants provided the complete forensic image of the devices on which any of those 1,280 Documents was found. As such, Agilent has the same ability as Defendants to extract any and all forensics data and artifacts related to those 1,280 Documents. The question is simply which party should incur the burden and cost of doing the extraction. And the September 20 Stipulation and Order answers that question, making clear that Defendants should not bear that burden and cost.® Instead, with respect to the 1,280 non-trade-secret Documents, Agilent was to specify any information it was seeking in response to the forensics interrogatories that could not be uncovered through Agilent’s forensic examination of the device images; and Defendants, in 8 The parties agreed to, and the Court ordered, this particular allocation of the burden and expense associated with the examination of the forensic images provided by Defendants - namely, Defendants would incur the burden and expense for the Documents that Agilent alleges contain trade secret information and Agilent would incur the burden and expense for the remainder. This is a fair allocation given the tenuous nature of Agilent’s claim that the 1,280 non-trade-secret Documents contain anyone’s confidential information and given that only Agilent knows which, if any, of those Documents it actually intends to raise at trial. That said, Defendants are willing to provide extracted forensic data for some small number (e.g., five to ten) of non-trade-secret Documents of Agilent’s choosing. -8- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING turn, would be required to provide only such specified information in its responses to the interrogatories at issue. (Myre Decl. Ex. 26 at { 12 [Joint Stipulation Following August 28, 2018 IDC].) Accordingly, in contending that Defendants should have provided extracted forensics data related to the 1,280 non-trade-secret Documents in response to the forensics interrogatories, Agilent simply ignores the September 20 Stipulation and Order, re-litigating - with no justification or explanation - an already-decided issue. In sum, it cannot be disputed that Defendants have provided Agilent with access to all known forensics data related to all of the Documents identified by Agilent. Indeed, Defendants offered up complete forensic images of any devices on which relevant documents were found in March 2018 (though Agilent did not begin examining such forensic images until more than two weeks after it filed the instant motion to compel “basic forensics information”). Defendants are not aware of any additional raw forensics data that could possibly be provided. And, with respect to providing extracted forensic data and artifacts from devices images in response to the forensics interrogatories, Defendants did exactly what the parties and the Court agreed they should do (as memorialized in the September 20 Stipulation and Order): Defendants provided the extracted data for the 44 purported trade secret Documents but not the remainder. Defendants’ motion to compel “forensics intelligence” in response to Interrogatory Nos. 218, 219, 220, 221, and 223 should be denied. B. Defendants Have Provided Sufficient Narrative Responses To Interrogatory Nos. 218, 219, 220, 221, and 223 Agilent’s motion to compel “human intelligence” in response to Interrogatory Nos. 218, 219, 220, 221, and 223 should also be denied. Defendants have provided narrative responses to the extent they can given the fact (confirmed by the forensics data) that the Documents were passively retained rather than used for some improper purpose at Twist. Agilent’s chief complaint is a vague and general one - namely, the unsupported allegation that Defendants have not “gather[ed] responsive information from the appropriate employees.” (Mot. 5.) Agilent demands that Defendants “question[] the individuals who misappropriated the documents, how they got them, for what purpose, what they did with them, who else had access to the documents.” (Mot. 7.) But Defendants have questioned the relevant individuals and have provided -0- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING narrative responses reflecting the facts gathered so far (even where the interrogatories do not call for such narrative responses). For example, in response to the interrogatory about “possession,” Defendants have explained how documents came into Dr. Leproust’s possession, custody, or control by explaining that (among other things): e In order to work on Agilent tasks and projects on evenings and weekends or while traveling, Dr. Leproust would (1) send materials from her Agilent email address to her personal email address and (ii) send the work she had done on behalf of Agilent back from her personal email address to her Agilent email address; e Materials associated with these emails were passively retained by Dr. Leproust on personal devices that Dr. Leproust had used while an employee at Agilent from 2000 to 2013; and e Dr. Leproust was not aware that she had passively retained documents on any devices until they were discovered by Defendants’ counsel in connection with this lawsuit. (See Myre Decl. Ex. 28 [Defendants’ Response to Agilent’s Interrogatory No. 218].) Defendants have also explained how those documents subsequently came into Twist’s possession, custody, or control by (among other things): stating that documents passively retained by Dr. Leproust were automatically copied over to other devices as part of data migrations where tens of thousands of documents were copied en masse; providing details regarding the devices and documents involved in three such mass data migrations along with recollections about the circumstances of those migrations; and pointing out that each of those mass data migrations involved the transfer of entire directories and included all sorts of files, including personal photographs and music files. (/d.) With respect to “deletions,” Defendants similarly described Dr. Leproust’s recollections about the mass transfers of data - and associated deletions of data - that typically occurred when she obtained new computers, including computers obtained for conducting work at Twist. (See id. [Defendants’ Response to Agilent’s Interrogatory Nos. 218, 223].) But the narrative responses to all of the forensic interrogatories are necessarily limited because - as made clear in Defendants’ interrogatory responses - Dr. Leproust was not aware that she -10- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING even had possession of any of the Documents subsequent to leaving Agilent nearly six years ago. (See id. [Defendants’ Response to Agilent’s Interrogatory No. 222].) And neither Dr. Leproust nor anyone else at Twist ever accessed or used those Documents since that time. (See id. [Defendants’ Response to Agilent’s Interrogatory Nos. 218-221.) In other words, as confirmed by the forensics data, these Documents were unwittingly and passively retained. (Id.) Because the Documents were not intentionally retained or specifically selected for retention (as also detailed in Defendants’ interrogatory responses, see id. [Defendants’ Response to Agilent’s Interrogatory No. 218]), it makes sense that the only “human intelligence” Defendants can provide in response to an interrogatory asking how “documents came into your possession” (Interrogatory No. 218) is of a general nature, reflecting current recollections of events that occurred long ago. (See id.) Similarly, because no one even knew the Documents were in Defendants’ possession until they were discovered by counsel, it makes sense that the only “human intelligence” that Defendants can provide in response to an interrogatory asking Defendants to identify “documents . . . that were deleted and the date of each deletion” (Interrogatory No. 223) reflects current recollections of mass data migrations from one computer to another (and deletions associated with those migrations). (See id. [Defendants’ Response to Agilent’s Interrogatory No. 223].) And because no one at Twist accessed or used any of the Documents, there simply is no “human intelligence” to provide in response to interrogatories asking Defendants to “identify each time the document was accessed or used in any way” (Interrogatory No. 219), to “identify each piece of media . . . on which the document was accessed or used” (Interrogatory No. 220), or to “identify each person who has ever accessed the document” (Interrogatory No. 221). In response to such interrogatories, a proper narrative response (separate from reference to the forensic images provided by Defendants) would simply state that Defendants have no responsive information. But here Defendants provided related information where they could - for example, identifying ] -- which a document was found since it had not been I [Defendants’ Response to Agilent’s Interrogatory No. 220].) In its motion, Agilent makes much of the differences between the narrative responses regarding the purported trade secret Documents versus the narrative responses regarding the non- Al- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING trade-secret Documents. But that difference is accounted for by Agilent’s failure to identify any “basic forensic information” sought by the forensics interrogatories that could not be uncovered by Agilent’s own forensics investigation of the device images. (See Myre Decl. Ex. 26 [Joint Stipulation Following August 28, 2018 Informal Discovery Conference at q 11] [“For the documents Agilent identified in response to Defendants’ Special Interrogatory Nos. 241 and 243, Agilent will . . . specify and describe the requested information Agilent asserts cannot be uncovered through a forensic examination of the devices [.]”’].) Agilent also makes much of “the lack of human background on the supposed ‘automated processes’ that caused the access date” reflected in the forensic data of some Documents. (Mot. 13.) Agilent insists that Defendants should be ordered to provide “an explanation for the purported ‘automatic processes’ that purportedly changed the documents’ access dates.” (Mot. 6.) Agilent’s position that such an explanation should be provided by fact witnesses during fact discovery is frivolous at best. Fact witnesses at Twist do not have personal knowledge of instances in which automatic processes - which run in the background of business computing devices, often at odd hours - touched the Documents at issue here. This sort of technical, forensics analysis is clearly within the purview of expert discovery. But since Agilent’s motion seemed keenly focused on this issue, Defendants have now supplemented their interrogatory responses to provide a preview of certain expert analysis regarding the I Myre Decl. Ex. 28 [Defendants’ Response to Agilent’s Interrogatory No. 218].) When viewed in light of the forensics record (which shows passive retention) and the September 20 Stipulation and Order (which governs responses to the forensics interrogatories at issue here), it becomes clear that Agilent’s motion to compel additional “narratives” is vacuous. The fact of passive retention necessarily limits the “human intelligence” that exists. Regardless, Defendants have attempted to provide all of the information they currently have about the Documents, including full forensic images, certain extracted forensics data (consistent with the September 20 Stipulation and Order), other expert analysis (which remains ongoing), recollections of relevant fact witnesses, and even information related to - though not directly sought by - the interrogatories. If additional _12- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING responsive information becomes known, Defendants will provide it. But there is nothing more to compel, and Agilent’s motion should be denied. C. Agilent Must Act Before Defendants Can Provide Their Substantive Response To Interrogatory No. 222 Agilent complains that “Defendants entirely failed to supplement” their response to Interrogatory No. 222 (Mot. 12) and insists that Defendants must “answer[] when Defendants knew they possessed the documents” (Mot. 7). Defendants are standing by ready to provide that information. But Defendants’ response to Interrogatory No. 222 “require[s] disclosure of dates at which forensic information was uncovered by counsel.” (Myre Decl. Ex. 26 at {12 [Joint Stipulation Following August 28, 2018 IDC].) And, as a prerequisite to making such disclosure, the parties agreed - and the Court ordered - that the parties should enter into “a reasonable stipulation that will permit each Party to disclose dates at which certain forensic information was uncovered by the Parties’ respective counsel in such a manner that would not result in a waiver of any privilege or work product protections.” (I/d.) Defendants revised a non-waiver stipulation more than a month ago. (Myre Decl. Ex. 32 [Shyr Email to Ehlers, February 8, 2019].) Agilent has yet to respond. Agilent’s motion to compel Defendants to respond to Interrogatory No. 222 - which does not even acknowledge the provision of the September 20 Stipulation and Order that governs the timing of Defendants’ response to that interrogatory - should be denied. D. Agilent’s Motion To Compel Information Not Within Defendants’ Possession, Custody, Or Control Should Be Denied Agilent repeatedly argues that, in their responses to Agilent’s interrogatories, Defendants Twist and Dr. Leproust should be compelled to gather and provide information from a different defendant, Solange Glaize. (E.g., Mot. 7,11, 13, 17.) Agilent’s request is nonsensical, is unsupported by the law, and should be denied. Ms. Glaize resigned from Twist in October 2017, before the discovery stay was lifted in this case. Ms. Glaize is a separate defendant represented by separate counsel. She is not within Twist’s or Dr. Leproust’s control, and neither Twist nor Dr. Leproust is now obligated “to seek responsive information from Glaize herself” (Mot. 17) in connection with responding to interrogatories that Agilent served on Twist and Leproust. (See, e.g., Holguin v. Superior Court (Hoage) (1972) 22 Cal. -13- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING App. 3d 812, 821 [“We do not believe that plaintiffs had a right to different answers. They seem to take the position that the propounding of the interrogatories created a duty in defendants to start an investigation with [third parties] . . . and then to answer in accordance with the information thus gathered, even if the facts learned were antagonistic to their trial posture. We know of no principle of discovery law which thus compels a party not only to prepare his opponent’s case, but also to stipulate away his own.”].) Indeed, Twist and Dr. Leproust could certainly not verify any discovery response that simply recounts hearsay information from Ms. Glaize. Ms. Glaize is a named defendant in this case, she is represented by separate counsel, and Agilent is free to serve interrogatories on her.” Agilent’s motion to compel should be denied. E. Defendants Have Verified Their Interrogatory Responses Agilent did not need to move to compel Defendants to verify their interrogatory responses. All of the parties in this case - including Agilent - have been serving verifications after service of their substantive interrogatory responses. (See, e.g., Myre Decl. Ex. 27 [Yae Email to Quinn Emanuel, October 19,2018.].) Defendants have served verification (Myre Decl. Ex. 33), and the issue is moot. F. Agilent’s Motion Is Frivolous, And Defendants Should Be Awarded The Fees They Incurred In Responding To It Agilent’s motion is not just unmeritorious, it is frivolous. Agilent describes its motion as one to compel “basic forensic information” (Mot. 5), but Agilent brought its motion without taking even the most superficial look at the forensic evidence - including full device images - that Defendants had already made available in this case. Agilent not only ignored the relevant provisions of the September 20 Stipulation and Order governing Defendants’ responses to the six interrogatories at issue, it brought a motion that contravened that Order: by Order of the Court, Defendants are not required to provide information that could be uncovered by Agilent’s own examination of the forensics images provided by Defendants for the 1,280 non-trade-secret Documents Agilent identified; and Defendants are not required to provide a substantive response to Interrogatory No. 222 until the parties sign a non-waiver ? This fact, among others, distinguishes the circumstances here from those in Jones v. Superior Court (1981) 119 Cal. App. 3d 534, 552-54, the only authority cited by Agilent in purported support of its position with respect to Ms. Glaize (Mot. 17). _14- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223 ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REDACTED FOR PUBLIC FILING agreement, which Agilent has refused to engage on. Agilent’s motion offers the blind mantra that Defendants should be ordered to identify who accessed or used the Documents, when Defendants have already stated that nobody at Twist accessed or used the Documents. Defendants have been trying to get Agilent to look at forensic images - which contain all known forensics associated with the Documents - for a year. And Defendants stand ready to provide the date Defendants learned of possession of the Documents as soon as Agilent actually engages on the issue. The fact that Agilent brought a motion on these issues can be symptomatic only of the fact that Agilent is not interested in the substance of the parties’ dispute but only in dragging out the litigation for its own competitive advantage. Regardless of motive, this Agilent motion is frivolous and fees should be awarded to Defendants. (Code Civ. Proc. §§ 2030.300, subd. (d), 2023.030, subd. (@).) DATED: March 15, 2019 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN LLP Jo > Lr Kevin P.B. Johnson Victoria Maroulis Melissa J. Baily Andrew J. Bramhall Attorneys for TWIST BIOSCIENCE CORP., EMILY LEPROUST, and SIYUAN CHEN -15- Case No. 16-CV-291137 DEFENDANTS’ OPPOSITION TO AGILENT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO, NOS. 218-223