Memorandum Points and Authorities

Cal. Super. - 6th Dist.November 5, 2020

©W\IO\UIhMNH NNNNNNNNNHHHHHHHHHH WQQUIRMNHO©WQONUI£MNHO Elizabeth C. Pritzker (CA SBN: 146267) Jonathan K. Levine (CA SBN: 220289) Elecuon'cally F'led Bethany Caracuzzo (CA SBN 190687) by SUPEV'” cw” °f CA, PRITZKER LEVINE LLP county Of santa Clara, 1900 Powell Street, suite 450 on 7/9/2021 11:05 AM Emeryville, CA 94608 Reviewed By: L Del Mundo Telephone: (415) 692-0772 case #20cv373138 Facsimile: (415) 366-61 10 Envelope: 6812806 Email: ecp@pritzkerlevine.com jkl@pritzkerlevine.com bc@pritzkerlevine.com John C. Camillus (pro hac vice application pending) LAW OFFICES OF JOHN C. CAMILLUS LLC P.O. Box 141410 Columbus, OH 43214 Telephone: (614) 992-1000 Facsimile: (614) 559-6731 Email: icamillus@camilluslaw.com Derrick S. Boyd (pro hac vice application pending) BOYD POWERS & WILLIAMSON 105 North State Street, Suite B P.O. Box 957 Decatur, TX 76234 Telephone: (940) 627-8308 Facsimile: (940) 627-8092 Email: dbovd@bpwlaw.com Attorneys for PlaintiffENVIRODIGM, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION ENVIRODIGM, INC., a Delaware Corp.; Case No. 20CV373138 Plaintiff, PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT vs. OF MOTION FOR ENTRY OF [1] CONFIDENTIALITY ORDER AND APPLE INC.; and DOES 1 - 10, [2] STIPULATED PRIVILEGE AND REDACTION ORDER Defendants, [Proposed] Date: September 7, 2021 Time: 9:00 a.m. Dept: 2 Judge: Hon. Drew Takaichi Trial Date: None set PLTF.’S MEMO. OF POINTS & AUTH. I .S.O. MOTION FOR ENTRY OF CONFIDENTIALITY ORDER AND STIUPLATED PRIVILEGE AND REDACTION ORDER Case No. 20CV373 1 38 ©W\IO\UIhMNH NNNNNNNNNHHHHHHHHHH WQQUIRMNHO©WQONUI£MNHO I. INTRODUCTION The parties agree that a Confidentiality Order is appropriate in this case, but disagree 0n its contents. Plaintiff Envirodigm has proposed a Confidentiality Order that mirrors this Court’s Model Confidentiality Order, With minor modifications. Apple refuses t0 enter into this proposed Confidentiality Order, and instead has insisted upon a 20-page Confidentiality Order that it drafted, which, among other things, requires two weeks’ advance notice before sharing any information designated as confidential with anyone, and precludes Envirodigm’s principal, Shawn Sahbari, from reviewing any documents Apple unilaterally designates as confidential. Envirodigm respectfully asks this Court to enter its proposed Confidentiality Order, modeled on this Court’s model form of order and adapted specifically for this case, and to rej ect Apple’s unreasonable alternative. I. BACKGROUND A. Relevant Facts Envirodigm’s allegations in this case remain straightforward. Apple had a problem with how its aluminum body products, including its popular iPhone products, scratched, chipped, and scuffed, knew it needed t0 fix the problem, and sought Envirodigm’s help. First Amended Complaint (“FAC”) at 1H 10-15. In response, Envirodigm informed Apple that the problem was not With how Apple cleaned its products during the manufacturing process, but rather how Apple anodized its products. Id., at 1N 16-18. Envirodigm’s discussions occurred over email and over the course 0fthree in-person meetings: in December 2012, April 2013, and again in August 2013. Id., at 1H 19-23. Throughout these meetings and Via email, Shawn Sahbari ofEnvirodigm communicated With Apple’s representatives and design team, which were subj ect t0 a non-disclosure agreement requested and prepared by Apple (the “NDA”). FAC at 1H] 19-27, 31. Envirodigm disclosed specialized and confidential information concerning an improved anodization and graphic design process for Apple’s products that Envirodigm had developed. Id. Envirodigm also provided samples t0 Apple at both the April 24, 2013 and August 14, 2013 meetings, Which Apple took from the meetings (the “Samples”). Id., atW 19-20, 23-24. N0 attorneys were present at any of the meetings Envirodigm had With Apple. Apple then used the confidential know-how from Envirodigm in its iPhone 7 and other products, Without Envirodigm’s knowledge or permission. 1d,, atW 29-3 1. _ 1 _ PLTF’S. MEMO. OF POINTS & AUTH. I.S.O. MOTION FOR ENTRY OF CONFIDENTIALITY ORDER AND STIPULATED PRIV. & REDACTION ORDER Case N0. 20CV3 73 1 38 ©W\IO\UIhMNH NNNNNNNNNHHHHHHHHHH WQQUIRMNHO©WQONUI£MNHO B. Relevant Procedural History As a result 0f the Court’s May 11, 2021 ruling 0n Apple’s demurrer, Plaintiff proceeds on claims 0f for breach of contract, unjust enrichment, Violations 0f the California Uniform Trade Secrets Act (“CUTSA”), and breach 0f the implied covenant 0f good faith and fair dealing. Despite the lack 0f entry 0f a Confidentiality order, discovery has commenced. Plaintiff served substantive written responses t0 Apple’s first discovery on June 18, 2021. Apple served responses, consisting almost entirely 0f duplicative repetitive obj ections, 0n April 12, 2021 and June 4, 2021, Which are the subject of Plaintiff s motion t0 compel further responses scheduled for September 7, 2021. Apple has moved to compel a further trade secret disclosure from Plaintiff and for an order staying discovery, also scheduled for September 7, 2021. Plaintiff provided Apple With proposed stipulated Privilege And Redaction Order, Confidentiality Order, and ESI protocol in February of 2021. The parties reached agreement and executed a Stipulated Privilege and Redaction Order, attached as Exhibit C to the Declaration of Bethany Caracuzzo filed herewith (“Caracuzzo Decl.”). Plaintiff respectfully requests that the Court enter this stipulated Order now. Plaintiff also proposes that the parties execute the Santa Clara County Model Confidentiality Order, with slight modifications (see redlines, EX. B), but Apple has refused and has instead insisted on unnecessary provisions that will prevent Plaintifffrom meaningfully assessing discovery produced in this case. The parties have conferred With respect t0 these issues, and have not reached an agreement. See Caracuzzo Decl., 1] 3. Plaintiff respectfully seeks the Court’s assistance in resolving the matter, so that discovery may proceed apace. To that end, Plaintiff requests that the Court enter the form of Confidentiality Order submitted herewith as Exhibit A (clean version) t0 the Caracuzzo Declaration. II. ARGUMENT A. The Court’s Model Confidentiality Order, as Modified, Sufficiently Protects All Parties And Their Confidential Information Envirodigm consists, for the most part, 0f a single person: Shawn Sahbari. His relationship and communications with Defendant Apple occurred over a limited period of time, and he met With them in person 0n three occasions. While both parties anticipate discovery Will involve information _ 2 _ PLTF’S. MEMO. OF POINTS & AUTH. I.S.O. MOTION FOR ENTRY OF CONFIDENTIALITY ORDER AND STIPULATED PRIV. & REDACTION ORDER Case N0. 20CV3 73 1 38 ©W\IO\UIhMNH NNNNNNNNNHHHHHHHHHH WQQMfiMNHOfiWQONUIhMNHG and processes that are considered trade secrets or are otherwise proprietary to either party, such that a confidentiality order is appropriate, Plaintiff maintains that the Court’s Model Confidentiality Orderfi as modified here, sufficiently addresses all parties’ needs for confidentiality and protection, and safeguards their processes from disclosure outside this litigation While still allowing the parties to meaningfully participate in the discovery process. Apple proposed a 20-page confidentiality order that would have effectively prevented Mr. Sahbari from having any access to any of the documents 0r information that are the keystones of this case. See Caracuzzo Dec1., EX. C at fl 9(b). It also would require Plaintiff to provide Apple with written notice more than two weeks prior of any intent to share any information designated Confidential With anyone, including Mr. Sahbari (id at 1] 10(a),(b)), and, essentially, obtain Apple’s express approval every time before doing s0 (id ); a process Which was described to take at the very minimum two weeks. Id., at 1] 10(b). Mr. Sahbari, as the person who communicated With Apple directly, developed the processes at issue, and as the person Who “is” Envirodigm, cannot fairly 0r adequately prepare and litigate his case if he is blocked from all the material information and documents. The Model Confidentiality Order, developed for and used in the Complex Litigation departments of Santa Clara County Superior Court, sufficiently restricts all persons and parties from using or disclosing any confidential data outside of this case. See EX. A, 1] 3. Information can only be disclosed t0 a very limited subset of people: counsel and their employees, individual parties 0r officers or employees of a party, t0 the extent deemed necessary by counsel for the prosecution or defense ofthe litigation, experts, the Court and any Witnesses. Id., 1] 4. Any person who is provided with any access to the information must sign under penalty of perjury the Certification attached t0 the Confidentiality Order, agreeing under penalty 0f perjury not to reveal and Confidential Information outside the bounds of the suit, and to return all Confidential Information as proscribed. 1d,, at page 8. Furthermore, While California courts have recognized that parties to civil litigation may enter into stipulated protective orders that permit production but limit disclosure, the purpose is t0 protect 1 This Santa Clara County Complex Department Model Confidentiality Order was found at: https://www.scscourt.org/court_diVisions/ciVil/compleflModel%20Confidentialitv%200rder.pdf _ 3 _ PLTF’S. MEMO. OF POINTS & AUTH. I.S.O. MOTION FOR ENTRY OF CONFIDENTIALITY ORDER AND STIPULATED PRIV. & REDACTION ORDER Case N0. 20CV373 1 38 ©W\IO\UIhMNH NNNNNNNNNHHHHHHHHHH WQQUIRMNHO©WQONUI£MNHO disclosure in advance of trial, and n0 more. Nativi v. Deutsche Bank National Trust C0. (2014), 223 Cal.App.4th 261, 3 17-18 (citations omitted). Plaintiffs proposed form 0f order does this. The Court, for good cause shown, may make any order that justice requires to protect the disclosure 0f trade secret or confidential research, development, 0r commercial information, and there issuance is “t0 a large extent discretionary.” C.C.P. § 2031.060(b)(5); Nativi, 223 Cal.App.4th at 316 (citations omitted). Trade secret and confidential research, development and commercial information are at the heart 0f this case, and therefore must be exchanged between the parties. The Model Confidentiality Order, as modified and proposed for this case, provides robust protection for trade secret and confidential information exchanged during the discovery process, while still permitting each party to actively pursue and defend its position. B. The Parties Have Stipulated T0 A Privilege And Redaction Order Envirodigm and Apple executed the Stipulated Privilege and Redaction Order, attached as Exhibit D t0 the Caracuzzo Decl. Plaintiff respectfully requests that the Court enter that stipulated Order now. III. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that the Court enter the Model Protective Order (adapted for this case) attached as Exhibit A t0 the Caracuzzo Dec1., as well the Stipulated Privilege and Redaction Order attached as Exhibit D t0 that Declaration. Dated: July 9, 2021. Respectfully submitted, /s/Bethany Caracuzzo Elizabeth C. Pritzker (CA SBN 146267) Jonathan Levine (CA SBN 220289) Bethany Caracuzzo (CA SBN 190687) PRITZKER LEVINE LLP 1900 Powell Street, Suite 450 Emeryville, CA 94608 Telephone: (415) 692-0772 Facsimile: (415) 366-61 10 Email: ecp@pritzkerlevine.com; jkl@pritzkerlevine.com; bc@pritzkerlevine.com Derrick Boyd (pro hac vice application pending) BOYD POWERS WILLIAMSON LLP 105 North State Street, Suite B Decatur, TX 76234 Telephone: (940) 627.8308 _ 4 _ PLTF’S. MEMO. OF POINTS & AUTH. I.S.O. MOTION FOR ENTRY OF CONFIDENTIALITY ORDER AND STIPULATED PRIV. & REDACTION ORDER Case N0. 20CV3 73 1 38 ©W\IO\UIhMNH NNNNNNNNNHHHHHHHHHH WQQUIRMNHO©WQONUI£MNHO Facsimile: (940) 627-8092 Email: DBOyd@bpwlaw.com John C. Camillus (pro hac vice application pending) LAW OFFICES OF JOHN C. CAMILLUS LLC P.O. Box 141410 Columbus, OH 43214 Telephone: (614) 992-1000 Facsimile: (614) 559-6731 Email: jcamillus@camilluslaw.com Attorneysfor Plaintifi’ _ 5 _ PLTF’S. MEMO. OF POINTS & AUTH. I.S.O. MOTION FOR ENTRY OF CONFIDENTIALITY ORDER AND STIPULATED PRIV. & REDACTION ORDER Case N0. 20CV3 73 1 38