ORDER

Re: ECF No. 14.

LAUREL BEELER, Magistrate Judge

The parties in the Barnes case filed a discovery dispute about certain documents that the plaintiff retained in hard copy and in electronic form from his previous employment with Energy Recovery, Inc. ("ERI"). ERI moved to return the documents; the court allowed the plaintiff in the related securities litigation to permissively intervene for the sole purpose of opposing ERI's motion to return the documents.1 The court held a hearing on April 7, 2016, fashioned a process for return of the information, and now captures that process in this order.

Several things are not contested. The parties agree that the hard copies can be returned, and ERI agrees that the plaintiff's private data should be excepted from return.2 The parties also agree that everything that the plaintiff has in electronic form will be copied and given to ERI.3 The Barnes parties' main dispute is about the implication of deleting the material from the plaintiff's hardware. The plaintiff in the related securities litigation issued a Rule 45 subpoena to preserve the electronically stored information ("ESI"), and the Barnes plaintiff fears that wiping the information from his computer is destroying evidence.4

To resolve this issue, the parties agreed to the following procedure in court. First, the plaintiff's counsel already has the ESI on a thumb drive and will provide it to ERI. Second, the plaintiff agreed to wipe the ESI from his devices and submit to a verification process through a third-party vendor. The parties will confer and agree to a vendor and a verification process. ERI will pay for the vendor. Third, the Barnes plaintiff's attorney will retain a full copy of the ESI. Fourth, the parties already agreed in the related securities litigation to a protective order that requires ERI to treat any information from the Barnes plaintiff as the subject of a continuing request for production from the securities-litigation plaintiff.5

The remaining issue is whether the Barnes plaintiff can share non-trade-secret information and documents with the plaintiff in the related securities case. (Barnes's lawyer — who will have the only copy of the ESI apart from ERI — represented at the hearing that he will not share trade-secret information.) Because the district judge dismissed the securities claims with leave to amend, the case is pre-discovery, and the securities-litigation counsel are investigating to more fully plead their securities claims against ERI.

Especially given the whistleblower protections in Sarbanes-Oxley and general case law, ERI's confidentiality agreement does not prevent the Barnes plaintiff from talking with counsel in the securities litigation. See Brado v. Vocera Communications, Inc., 14 F.Supp.3d 1316, 1319 (N.D. Cal. July 30, 2014). "To hold to the contrary would severely compromise plaintiffs' ability in securities cases to meet the heightened pleading requirements of the PSLRA." Id. The court elaborated on this point at the hearing, but in sum, a confidentiality agreement cannot defeat access to a percipient witness with useful information about alleged fraud. Moreover, there is no issue here of sharing trade-secret information; the securities-litigation plaintiff disavows interest in it, and the Barnes plaintiff's counsel can protect against its disclosure. The scope of the pre-complaint investigation instead is about misrepresentations by the defendants in the securities litigation, including two who overlap with the defendants in the Barnes case: former CEO Thomas Rooney and current CEO Joel Gay.

It is a different issue with respect to the documents. There is no formal request for documents; the Rule 45 subpoena is a preservation subpoena to prevent the return of information that the Barnes plaintiff might provide to the securities-litigation plaintiff. And because the securities litigation is pre-discovery, the court cannot order document production through ordinary channels, which would allow ERI to designate its productions under a protective order. Also, the court is reluctant to issue a blanket order about using information when it has no idea what the information is. The court also wonders whether the documents have any practical utility. The record suggests misrepresentations that ultimately are belied by public SEC filings. If that is so, a witness interview seems sufficient, and documents can await formal discovery.

Given that the parties agreed to return a copy of all information to ERI, the court devises the following process. The Barnes plaintiff must designate any document he wants to give counsel in the securities case. ERI may object. The Barnes parties must confer and raise any dispute to the court via the joint letter-brief process described in the court's standing order.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

STANDING ORDER FOR UNITED STATES MAGISTRATE JUDGE LAUREL BEELER

(Effective December 15, 2015)

Parties must comply with the procedures in the Federal Rules of Civil and Criminal Procedure, the local rules, the general orders, this standing order, and the Northern District's general standing order for civil cases titled "Contents of Joint Case Management Statement." These rules and a summary of electronic filing requirements (including the procedures for emailing proposed orders to chambers) are available at http://www.cand.uscourts.gov (click "Rules" or "ECF-PACER"). A failure to comply with any of the rules may be a ground for monetary sanctions, dismissal, entry of judgment, or other appropriate sanctions.

I. CALENDAR DATES AND SCHEDULING

Motions are heard each Thursday: civil motions at 9:30 a.m. and criminal motions at 10:30 a.m. Case-management conferences are every Thursday: criminal cases at 10:30 a.m. and civil cases at 11:00 a.m. Parties must notice motions under the local rules and need not reserve a hearing date in advance if the date is available on the court's calendar (click "Calendars" at http://www.cand.uscourts.gov). Depending on its schedule, the court may reset or vacate hearings. Please call courtroom deputy Lashanda Scott at (415) 522-3140 with scheduling questions.

II. CHAMBERS COPIES

Under Civil Local Rule 5-1(b), parties must lodge a paper "Chambers" copy of any filing unless another format makes more sense (such as for spreadsheets, pictures, or exhibits that might be better lodged electronically). Paper copies must be printed on both sides, use exhibit tabs, and be three-hole punched. Parties do not need to submit copies of certificates of service, certificates of interested entities or persons, consents or declinations to the court's jurisdiction, stipulations that do not require a court order (see Civil Local Rule 6-1), and notices of appearance or substitution of counsel. Please read Civil Local Rule 79-5 carefully regarding the requirements for filing documents under seal and providing copies.

III. CIVIL DISCOVERY

1. Evidence Preservation. After a party has notice of this order, it must take the steps needed to preserve information relevant to the issues in this action, including suspending any document destruction programs (including destruction programs for electronically-maintained material).

2. Production of Documents In Original Form. When searching for material under Federal Rule of Civil Procedure 26(a)(1) or after a Federal Rule of Civil Procedure 34(a) request, parties (a) must search all locations — electronic and otherwise — where responsive materials might plausibly exist, and (b) to the maximum extent feasible, produce or make available for copying and/or inspection the materials in their original form, sequence, and organization (including, for example, file folders).

3. Privilege Logs. If a party withholds material as privileged, see Fed. R. Civ. P. 26(b)(5) and 45(d)(2)(A), it must produce a privilege log that is sufficiently detailed for the opposing party to assess whether the assertion of privilege is justified. The log must be produced as quickly as possible but no later than fourteen days after its disclosures or discovery responses are due unless the parties stipulate to, or the court sets, another date. Unless the parties agree to a different logging method, privilege logs must contain the following: (a) the title and description of the document, the number of pages, and the Bates-number range; (b) the subject matter or general nature of the document (without disclosing its contents); (c) the identity and position of its author; (d) the date it was communicated (or prepared, if that is the more relevant date); (e) the identity and position of all addressees and recipients of the communication; (f) the document's present location; (g) the specific basis for the assertion that the document is privileged or protection (including a brief summary of any supporting facts); and (h) the steps taken to ensure the confidentiality of the communication, including an affirmation that no unauthorized persons received the communication.

4. Expedited Procedures for Discovery Disputes. The parties may not file formal discovery motions. Instead, and as required by the federal rules and local rules, the parties must meet and confer to try to resolve their disagreements. See Fed. R. Civ. P. 37(a)(1); Civil L. R. 37-1. Counsel may confer initially by email, letter, or telephone to try to narrow their disputes. After trying those means, lead trial counsel then must meet and confer in person to try to resolve the dispute. (If counsel are located outside of the Bay Area and cannot confer in person, lead counsel may meet and confer by telephone.) Either party may demand such a meeting with ten days' notice. If the parties cannot agree on the location, the location for meetings will alternate. The plaintiff's counsel will select the first location, defense counsel will select the second location, and so forth. If the parties do not resolve their disagreements through this procedure, lead counsel must file a joint letter brief no later than five days after lead counsels' in-person meet-and-confer. The letter brief must be filed under the Civil Events category of "Motions and Related Filings > Motions — General > Discovery Letter Brief." It may be no more than five pages (12-point font or greater, margins of no less than one inch) without leave of the court. Lead counsel for both parties must sign the letter and attest that they met and conferred in person. Each issue must be set forth in a separate section that includes 1) a statement of the unresolved issue, 2) a summary of each parties' position (with citations to supporting facts and legal authority), and 3) each party's final proposed compromise. (This process allows a side-by-side, stand-alone analysis of each disputed issue.) If the disagreement concerns specific discovery that a party has propounded, such as interrogatories, requests for production of documents, or answers or objections to such discovery, the parties must reproduce the question/request and the response in full either in the letter or, if the page limits in the letter are not sufficient, in a single joint exhibit. The court then will review the letter brief and determine whether formal briefing or future proceedings are necessary. In emergencies during discovery events such as depositions, the parties may contact the court through the court's courtroom deputy pursuant to Civil Local Rule 37-1(b) but first must send a short joint email describing the nature of the dispute to lbpo@cand.uscourts.gov.

IV. CONSENT CASES

1. In cases that are assigned to Judge Beeler for all purposes, the parties must file their written consent or declination of consent to the assignment of a United States Magistrate Judge for all purposes as soon as possible. If a party files a dispositive motion (such as a motion to dismiss or a motion for remand), the moving party must file the consent or declination simultaneously with the motion, and the party opposing the motion must file the consent or declination simultaneously with the opposition.

2. The first joint case-management conference statement in a case must contain all of the information in the Northern District's standing order titled "Contents of Joint Case Management Statement." Subsequent statements for further case-management conferences must not repeat information contained in an earlier statement and instead should report only progress or changes since the last case-management conference and any new recommendations for case management.

V. SUMMARY-JUDGMENT MOTIONS

The parties may not file separate statements of undisputed facts. See Civil L. R. 56-2. Joint statements of undisputed facts are not required but are helpful. Any joint statement must include — for each undisputed fact — citations to admissible evidence. A joint statement generally must be filed with the opening brief, and the briefs should cite to that statement. A reasonable process for drafting a joint statement is as follows: 1) two weeks before the filing date, the moving party proposes its undisputed facts, and 2) one week later, the responding party replies and the parties meet and confer about any disagreements. For oppositions, a responding party may propose additional undisputed facts to the moving party within seven days after the motion is filed and ask for a response within two business days.

IT IS SO ORDERED.