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Case 8:11-cv-01972-CJC-AN Document 35-1

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Gregory L. Weeks, Esq., CSB No. 58584 Email: gweeks@wknjlaw.com Gregory K. Nelson, Esq. CSB No. 203029 Email: gnelson@wknjlaw.com Chandler G. Weeks, Esq., CSB No. 245503 Email: chandlerw@wknjlaw.com WEEKS, KAUFMAN, NELSON & JOHNSON 462 Stevens Avenue, Suite 310 Solana Beach, CA 92075 Telephone: (858) 794-2140 Facsimile: (858) 794-2141 Attorneys for Plaintiff, Red.com, Inc. JAMES H. NEALE (PRO HAC VICE) FULBRIGHT & JAWORSKI L.L.P. 666 Fifth Avenue New York, New York 10103-3198 Telephone: (212) 318-3000 Facsimile: (212) 318-3400 jneale@fulbright.com JOSHUA D. LICHTMAN, SBN 176143 RYAN MCCOY, SBN 239882 ROSARIO DORIOTT DOMINGUEZ, SBN 279630 FULBRIGHT & JAWORSKI L.L.P. 555 South Flower Street, Forty-First Floor Los Angeles, California 90071 Telephone: (213) 892-9200 Facsimile: (213) 892-9494 jlichtman@fulbright.com rmccoy@fulbright.com rdoriottdominguez@fulbright.com Attorneys for Defendant ARRI, INC. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION RED.COM, INC. dba RED DIGITAL CAMERA, a Washington corporation, Plaintiff, v. ARRI, INC., a Delaware corporation, and MICHAEL BRAVIN, an individual, Defendant. Case No. SACV11-01972 CJC (ANx) JOINT STIPULATION RE RED.COM, INC.S MOTION TO COMPEL Trial Date: Oct. 8, 2013 Final Pretrial Conf.: Sept. 30, 2013 Discovery Cutoff: June 28, 2013

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TABLE OF CONTENTS Page INTRODUCTORY STATEMENTS .............................................................. 2 A. REDs Introductory Statement .............................................................. 2 1. Background ................................................................................. 2 2. Discovery at Issue ....................................................................... 4 B. ARRIs Introductory Statement ............................................................ 8 C. The Parties Efforts To Meet And Confer .......................................... 11 REDS ARGUMENT .................................................................................... 12 A. California Code of Civil Procedure 2019.210 does not apply in federal court ........................................................................................ 12 B. ARRI should immediately produce those documents it already agreed to produce once a protective order was entered ...................... 15 C. ARRIs position that it needs to review REDs documents prior to searching for its own documents is wholly unsupportable ............. 16 D. REDs conclusion ............................................................................... 17 ARRIS ARGUMENT .................................................................................. 17 A. RED must disclose the allegedly misappropriated trade secrets before it may take discovery from ARRI on trade secret issues, regardless of whether C.C.P. 2019.210 applies ............................... 17 B. As RED alleges its trade secrets are contained in emails it sent to Band Pro, REDs production of those emails is also a prerequisite for the parties and Court to determine the proper scope of REDs document requests to ARRI ................................................ 24 C. REDs motion is frivolous to the extent it seeks to compel production of documents ARRI has already produced or is in the process of producing ........................................................................... 29 D. RED is not entitled to enforce its overbroad document requests, and to skip the requisite pre-discovery trade secret disclosure, merely because it served its First Request one week before ARRI served its initial discovery requests .......................................... 30 E. REDs proposal that conditions its future disclosure of the allegedly misappropriated trade secrets on (i) RED being granted priority of production and (ii) ARRI waiving all objections to the 65 demands in REDs First Requests must be rejected ................................................................................................ 31 F. ARRIs Conclusion ............................................................................. 35

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Pursuant to Local Rule 37-2, Plaintiff Red.com, Inc. (RED) and defendant ARRI, Inc. (ARRI) hereby submit the following written stipulation. This joint stipulation relates to REDs motion to compel, and is filed contemporaneously with the parties joint stipulation with respect to ARRIs) motion to compel. By this motion, RED seeks an order compelling ARRI to immediately produce documents and information as set forth below. I. INTRODUCTORY STATEMENTS A. REDs Introductory Statement 1. Background

RED is the designer, manufacturer, and distributor of digital still/motion cameras and related accessories and support software. Since RED introduced its first camera in 2007, the RED ONE, the Hollywood industry has literally been revolutionized as it has embraced the digital capture of ultra-high-definition movies. The results are seen in the works of Peter Jackson, Steven Soderbergh, James Cameron, Ridley Scott and countless others. The Social Network was shot on RED, and won an Academy Award. Other recent movies such as The Amazing Spiderman and Prometheus, as well as upcoming blockbusters such as The Hobbit trilogy, are all shot on RED. The associated accolades are a testament to the quality of this upstart companys revolutionary technology, and serve as motivation for industry stalwarts, such as ARRI, to know what RED plans. For approximately fifteen years, Michael Bravin (Bravin) was a key employee of Band Pro Film & Digital Inc. (Band Pro). As set forth in REDs complaint, Bravin was privy to certain confidential information from RED based on discussions with RED while employed by Band Pro. (See, e.g. First Amended Complaint, 12) In December 2009, he left Band Pro to take a position at ARRI as its Vice-President of Market Development. It is undisputed that between December 2009 and approximately July 2010, Bravin unlawfully accessed the servers of Band -2-

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Pro and hacked the email account of at least its president and owner, Amnon Band, accessing over 7,000 emails, including several from personnel at RED. It is also undisputed that he forwarded at least some of these 7,000 emails to ARRI executives, including Glenn Kinnell and Bill Russell. In 2011, Bravin pled guilty to his actions in federal court. RED alleges and contends that Bravin relied on information he obtained from RED prior to leaving Band Pro as well as accessed and relied upon proprietary, trade secret information of RED obtained from hacked emails, all to the benefit of ARRI. Prior to and during this period of time, ARRI also engaged in false advertising against RED. While introducing its Alexa camera, in competition with the RED Epic camera, ARRI directed advertising and marketing that was untrue and unfair, in an effort to undermine RED and diminish the market for RED cameras. For example, ARRIs advertising misrepresents some specifications of the RED Epic while embellishing the comparable quality of its own specifications. ARRIs advertising suggested it has better resolution and dynamic range, and lack of aliasing, when in fact this is not true. All these acts were taken with a specific target toward the industry revolutionizer, RED, and undermine REDs sales. Over in Germany, where ARRI is headquartered, ARRIs agents took actions that damaged a RED camera being used on the set of filming Hansel & Gretel: Witch Hunters, set to release next year. As a result, REDs camera was no longer used on the set, but instead ARRI cameras filled that spot. Based on these acts, RED asserts various claims for interference, negligence, and the like. Contrary to ARRIs assertion, this case is not simply about Bravin hacking 7,000 emails from Band Pro containing confidential information from RED, Sony, Leica and others, or even the fact that some of these emails were passed to ARRI executives such as Kinnell and Russell. REDs complaint is about all the unfair acts undertaken by ARRI against it. Bravins acts were criminal. But, ARRI has -3-

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wronged RED on multiple fronts, all of which have damaged RED and form the basis of this action. Now ARRI wants to hinder discovery and has so far failed to produce any responsive documents to REDs requests for production of discovery. 2. Discovery at Issue

The parties met in March 2012 to discuss the topics required by Rule 26, including the discovery plan. At that time, ARRI proposed that discovery be bifurcated, and specifically that the issues regarding REDs trade secret claim be addressed first by conducting discovery on that issue and then ARRI making a motion related to REDs identified trade secret. Thereafter, as ARRI suggested, the rest of discovery could proceed. RED opposed this suggestion. RED believes that discovery should go forth on all matters simultaneously. These positions were articulated in the Joint 26(f) motion, with ARRI specifically drawing attention to its discovery bifurcation suggestion. Ultimately, the Court did not adopt ARRIs bifurcation proposal, and instead set out discovery deadlines that incorporated no restriction on timing or bifurcation. After the parties Rule 26(f) meeting, RED propounded its first set of requests for production of documents and things to ARRI on March 29, 2012. These requests related to all the subjects of REDs complaint, including facts underlying each of the causes of action and related damages. Thereafter, ARRI, served its own first sets of interrogatories and requests for production of documents and things on RED on April 6, 2012. RED has been diligent in trying to move the discovery process along, including the exchange of confidential information anticipated by a lawsuit involving trade secret claims. During the 26(f) meeting the parties discussed a stipulated protective order to govern discovery and disclosure of confidential information in this case. Plaintiffs counsel provided a draft joint motion on this issue on March 29, 2012. Defendant did not send any edits for review until May 14, -4-

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2012, conveniently after it first served its responses to REDs first set of discovery requests. Counsel for RED quickly responded with edits on May 16th and then did not again hear from ARRI until June 12th. (See Nelson Decl., 4-5, Ex. 2-3) After that point in time, the parties went back and forth for several weeks until ultimately filing a joint motion of the protective order on July 25, 2012. Despite already have received, but not responded to, the draft protective order, ARRI used the excuse that document production would entail production of confidential documents to conveniently fail to cooperate in discovery while demanding that its terms for production be followed. Its responses to discovery were nothing if not evasive. Moreover, no documents were produced at all. Even after entry by this Court of the protective order to govern discovery in this case, on August 1st, ARRI still did not produced any of the documents until contemporaneous with the drafting of these motions. Indeed, in the last discussion before filing this motion, defense counsel indicated that they were in the process of gathering documents responsive to the non-trade secret claims. (Nelson Decl., 8; Weeks Decl., 6) This process should have started in March. The limited production that has occurred to date is only of documents that ARRI wants to produce and is not fully responsive to the actual requests. Attached as Exhibit 1 to the declaration of Gregory Nelson is a complete copy of ARRIs responses to REDs first set of requests for production (which also incorporates the original requests). Incorporating all 65 requests and responses at this point would be burdensome for the Court. However, in brief, Defendants responses to REDs request for production of documents basically conclude with one of five categorical responses (while acknowledging that other objections are also made): -5-

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1 ARRI further objects to this request as not reasonably calculated to lead to the discovery of admissible evidence. ARRI further objects to this request to the extent it seeks documents protected by the attorney client privilege and/or the attorney work product doctrine. Based on the foregoing objections, ARRI will not produce documents in response to this request. 2 Upon the entry of an appropriate protective order, ARRI will produce responsive, non-privileged documents in its possession, custody, and control that can be located through a reasonably diligent search of reasonably accessible sources. Discovery is ongoing. ARRI reserves the right to supplement its responses in the future. 3 After RED first discloses (i) the emails to or from Band Pro that were or could have been unlawfully obtained by Bravin during the time period alleged by RED and (ii) the asserted RED trade secret(s) that those emails allegedly contained, and upon entry of an appropriate Protective Order, ARRI will produce [responsive documents that are related to the trade secrets identified in REDs trade secret disclosure (but presumably not the full-extent of that requested by RED], if any exist, that are in its possession, custody, and control and can be located through a reasonably diligent search of reasonably accessible sources. 4 ARRI further objects to this request as overbroad and burdensome in that it would require ARRI to potentially produce documents on proprietary and commercially sensitive information regarding the development and marketing of ARRIs ALEXA camera which competes directly with REDs EPIC camera and other products. ARRI further objects that discovery is premature on this subject for the reasons set forth above and for the reasons set forth by ARRI in the Rule 26 Report. ARRI further objects to this request as cumulative and duplicative of request no. [_]. Based on the foregoing, objections, ARRI will not produce documents in response to this request, other than those it may produce in response to request no. [_]. 5 ARRI further objects to this request as overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. ARRI further objects to the time period of this request in that Mr. Bravin did not beign his employment with ARRI until January 18, 2010. Based on the foregoing objections, ARRI will not produce documents in response to this request.

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(Nelson Decl., Ex. 1) Defendant specifically agreed to produce many documents once a protective order was issued. The protective order was entered on August 1st, but Defendant did not produce anything until the exchange of drafts of these joint stipulations. Moreover, even at this point, ARRI is only responding to certain discovery requests of its choosing. Essentially, ARRI is imposing a unilateral bifurcation and scheduling of discovery despite the Federal Rules. There are other defects and deficiencies in the unwilling responses of the Defendant. RED presumes that if ARRI supplements/amends its responses and produces documents, most of these issues will disappear. Thus, at this point, RED contends that Defendant should have to produce documents in its possession and control that are responsive to REDs requests, subject to the designations of the protective order, but without withholding the documents. Accordingly, RED seeks an order compelling ARRI to immediately supplement/amend its responses and produce responsive documents. As noted in the other co-pending motion, RED has offered to answer ARRIs first interrogatory, which requests identification of the trade secret, after which the production of documents would occur sequentially according to the order of service, in conformity with the Federal Rules of Civil Procedure. ARRI rejects this position, however, instead demanding that RED not only answer interrogatories 1 and 3 (to ARRIs satisfaction), but also produce all documents responsive to the issues related to trade secrets. Only after that time, and subject to presumed motions by ARRI, will ARRI produce its responsive documents to RED and make its noticed deponent available for deposition. Their proposal is resoundingly unfair, as ARRI has already indicated its unwillingness to reciprocate with RED. Short of RED acquiescing to ARRIs unreasonable demands, ARRI is unwilling to cooperate in discovery, thus necessitating this motion. As set out below, ARRI attempts to trump Federal Rule 26 by imposing California state laws -7-

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related to trade secret cases. The position is unfounded, whereas RED has shown willingness to compromise reasonably. RED invites the Court to lay out a schedule for the production of documents. As before, RED is willing to answer Interrogatory 1 first, and believes that document productions from both sides should then proceed in their proper order on all topics. B. ARRIs Introductory Statement This case and motion principally concern REDs allegation that defendant Bravin, at the time an ARRI employee recently hired from non-party Band Pro, unlawfully accessed emails on Band Pro computers, that several of those emails contained unspecified trade secrets of RED, that Bravin shared those purported trade secrets with ARRI, and that ARRI then used the purported trade secrets to develop its ALEXA camera. (See Complaint, 15-23, 61-69; and supra at 2-3.) RED cites no source for its assertion that Bravin accessed over 7,000 Band Pro emails, and REDs claim that it is undisputed that Bravin forwarded at least some of those 7,000 emails to ARRI executives (Supra at 3) is false ARRI adamantly disputes that Bravin forwarded any Band Pro emails recognizable as such to anyone at ARRI. Band Pro was the exclusive distributor of Sonys digital cameras (a competitor of both RED and ARRI), and Band Pro neither sold nor distributed RED products. RED nonetheless asserts it sent Band Pro several emails containing its trade secrets and that those emails were among the ones unlawfully accessed by Bravin. Those emails are the sole alleged source of any RED trade secrets arguably obtained by Bravin. While Bravin ultimately pled guilty to unlawfully accessing certain Band Pro emails, ARRI was not charged with any wrongdoing, and Bravins Plea Agreement made no mention of Bravin accessing any RED trade secrets. Federal courts have repeatedly held (pursuant to either or both of C.C.P. 2019.210 or Fed. R. Civ. P. 26(c) and their inherent authority to manage discovery) -8-

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that the plaintiff may not commence discovery on trade secret issues until it has sufficiently identified the allegedly misappropriated trade secrets. E.g., Jardin v. DATAllegro, Inc., 2011 U.S. Dist. LEXIS 84507, *10-13 (S.D. Cal. July 29, 2011); SocialApps, LLC v. Zynga, Inc., 2012 U.S. Dist. LEXIS 82767, *4-6 (N.D. Cal. June 14, 2012). RED admits it has failed to identify the alleged trade secrets as called for by ARRIs Interrogatories Nos. 1 and 3. (McCoy Decl., Ex. C.) Moreover, because RED alleges that the misappropriation occurred only through Bravins accessing of the several emails RED claims it sent to Band Pro containing its trade secrets, ARRI also requested production of those emails. (See id. Ex. D, Requests Nos. 1, 4 and 5). As REDs Complaint (at 66) describes the alleged trade secrets in the vaguest possible terms -- specifications, features and/or pricing or marketing strategies related to the [RED] EPIC camera -- it is essential that RED disclose the information sought by ARRIs preliminary requests before ARRI must undertake the burden and expense of searching for documents responsive to those of REDs overbroad requests that concern trade secret issues. In particular, it is critical that the scope of REDs document requests be limited to subjects reasonably related to the specific allegedly misappropriated trade secrets it identifies, so that RED cannot use its vague allegations as a pretext for untrammeled and unwarranted discovery into ARRIs proprietary and/or competitively sensitive information. This approach is amply supported by applicable law. REDs claim that it was rejected by Judge Carney in the Scheduling Order is incorrect. While the question whether RED may take trade secret discovery before it has adequately identified the allegedly misappropriated trade secrets was raised in the Rule 26(f) report, Judge Carney did not rule one way or the other. This is understandable, as there was no pending set of discovery requests and objections before him, and discovery matters are routinely resolved in the first instance by the Magistrate. -9-

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RED concedes that, based on the entry of a confidentiality order in this case on August 1, 2012, it has no basis to refuse to either answer ARRIs Interrogatories Nos. 1 and 3 or produce the emails sought by ARRIs Requests Nos. 1, 4 and 5. Nevertheless, RED has refused to do so unless ARRI: (i) agrees that RED has priority as to document production because it served its requests one week earlier than did ARRI; (ii) agrees to a fixed schedule for production, before RED has identified the allegedly misappropriated trade secrets (contrary to the express purpose of the preliminary disclosure requirement: to limit the scope of discovery that plaintiff may take from the defendant to those matters relevant to the identified trade secrets); and (iii) agrees to produce all responsive documents pursuant to REDs 65 demands on trade secret and other issues, thereby waiving all of ARRIs objections to those demands. REDs over-reaching is not supported by any of the cited authorities and, thus, its motion must be denied. Finally, REDs assertions that ARRI has refused to respond to any of REDs requests or produce any documents until RED both sufficiently identifies the alleged trade secrets at issue and produces all documents responsive to the issues related to trade secrets are false in numerous respects. (Supra at 4-6). First, ARRIs Responses to REDs First Request, and its meet and confer communications, make clear that ARRI did not object to proceeding with discovery on non-trade secret issues, such as REDs false advertising and negligence claims. 1 (McCoy Decl., Exs. B, E and G.) ARRI specifically stated that it would produce documents on those issues, subject to its objections, and it never refused to do so. Second, REDs accusation that ARRI has not yet produced ANY documents! (supra at 5) is patently false. ARRI has produced nearly 3,000 pages in response to more than two dozen of REDs requests, and is continuing to make a RED falsely states that ARRI is headquartered in Germany. ARRI is headquartered in New York and has its executive offices in Burbank, California. ARRIs indirect parent, which is not a party to this action, is located in Germany. - 10 -

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rolling production of additional documents. (McCoy Decl., Exs. H and I.) ARRI also substantively responded that it has no documents responsive to Requests Nos. 53, 58 or 61-64. (Id., Ex. B.) RED complains that ARRI is stonewalling discovery because its production to date is only of documents ARRI wants to produce and not fully responsive. (Supra at 5.) This is a preposterous assertion given that RED has itself not produced a single document and not yet answered the interrogatories to which it concedes it has no valid objection. Moreover, ARRIs written responses to REDs 65 overbroad demands in its First Request clearly and carefully stated ARRIs objections and its production has been scrupulously consistent with the scope of those objections, which RED simply ignores. Third, ARRI does not contend that it is excused from producing further documents until RED produces all documents responsive to the issues related to trade secrets; rather, ARRIs Requests Nos. 1, 4 and 5 focus narrowly on the specific emails by which RED claims it conveyed its alleged trade secrets to Band Pro. RED states above that there are only several such emails, so it obviously has them at the ready and could produce them with no burden whatsoever. Once those particular emails are produced, then ARRI will be positioned to conduct targeted searches of its documents related to the alleged trade secrets that Bravin could have accessed in REDs emails to Band Pro. Until RED has properly identified its alleged trade secrets and produced the emails that contained them, there is no basis to compel ARRI to do anything further with respect to REDs trade secret document requests and its motion must be denied. C. The Parties Efforts To Meet And Confer.

RED noticed the deposition of Bill Russell, one of the executives to whom RED contends Bravin forwarded at least some of the 7,000 emails he reviewed. On August 17, 2012, Gregg Weeks, counsel for RED, sent James Neale, counsel for ARRI, an email regarding coordination of that deposition. (Weeks Decl., Ex. 1) - 11 -

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On August 22, 2012, Mr. Neale sent a meet and confer letter to Gregory Nelson, counsel for RED. (McCoy Decl., Ex. E.) Mr. Nelson replied to ARRIs meet and confer letter on September 6, 2012. (Id., Ex. F.). Eleven days later, on September 17, 2012, Mr. Neale sent a responsive letter to Mr. Nelson. (Id., Ex. G.)

Subsequently, on September 19, 2012, the telephonic meet and confer was held, however the outstanding discovery issues were not resolved. (McCoy Decl., 8.) II. REDS ARGUMENT A. California Code of Civil Procedure 2019.210 does not apply in federal court. Defendant supposes that it does not need to produce any responsive documents until RED first answers an interrogatory identifying its asserted trade secret and also produces all documents identifying and evidencing

misappropriation of the trade secret. This is not the law. REDs position has never been that it needs to await production from Bravin to articulate its trade secret. To the contrary, all of the parties have operated under the understanding that it would be meaningful for Bravin to produce the documents from the federal investigation, inasmuch as he unlawfully accessed and reviewed over 7,000 emails on the Band Pro server, including emails from RED, Sony, Leica and others, at least some of which were forwarded to ARRIs personnel including Glenn Kinnell, CEO and President, and Bill Russell, Vice-President. Thus, the relevance of taking Russells deposition. Where the production of these documents was imminent, and has actually now occurred, it is reasonable to review those in anticipation of identifying the trade secrets that Bravin accessed. In this manner, an accurate description can be provided, in addition to the orally communicated trade secrets. On multiple occasions, and in an effort to coordinate and resolve discovery issues, RED has represented that it stands willing to identify its trade secret for the Defendant. That can be prematurely done, and later amended, or done with more - 12 -

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precision now that the governments evidence is available for confirmation and addition to what RED would already identify. However, each time the Defendant indicates that REDs offer is insufficient unless RED also produces all of its written discovery on the trade secret and misappropriation issues at the same time. The root problem necessitating this motion, as well as ARRIs contemporaneous motion, is ARRIs attempt to impose a discovery limitation that does not exist in federal court by presuming to impose heightened standards extracted from California state law. California Code of Civil Procedure, section 2019.210, provides that the trade secret holder must identify its asserted trade secret with reasonable particularity prior to the commencement of discovery on the trade secret issues. The Ninth Circuit has never addressed whether 2019.210 applies to federal actions. Different district courts have reached different results when confronting this issue. But, contrary to ARRIs present request, none of the courts have required the trade secret holder to actually produce the appropriated trade secret documents before any other discovery takes place. Federal Rules of Civil Procedure would be frustrated if the Court were to adopt ARRIs proposal. Judge Moskowitz, of the Southern District of California, reasoned very clearly that Rule 26 sets out federal guidelines for initial disclosures, permits discovery of any nonprivileged matter that is relevant to any partys claim or defense, and provides for the opening of discovery. Hilderman v. Teksci, 2010 WL 143440, at *2 (S.D. Cal., Jan. 8, 2010) In contrast, 2019.210 would bar the otherwise open discovery provided under the federal guidelines unless complied with. Id. Holding that 2019.210 does not apply in federal actions, Judge Moskowitz stated that it imposes burdens on discovery that are not in keeping with the liberal discovery scheme of the Federal Rules of Civil Procedure. Id. at *3 (noting, however, that a party does not have free reign to try trade secret claims on which it has not provided notice). - 13 -

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As noted by the Eastern District of California, unless stipulated otherwise or ordered after stipulation pursuant to case management orders, it is not within the discretion of the court to willy nilly apply bits and pieces of the discovery civil procedure codes of the various states, even in the state in which the district court sits. Funcat Leisure Craft, Inc. v. Johnson Outdoors, Inc., 2007 WL 273949, at *2 (E.D. Cal., Jan. 29, 2007). Noting that state law is not to be invoked in order to void a federal rule, the court in Funcat compared 2019.210 to other California state laws that would bifurcate discovery in contrast to the liberal rules of discovery espoused by the federal system. Id. at *3 (holding that 2019.210 is not applicable in federal cases); see also Proven Methods Seminars, LLC v. Am. Grants & Affordable Housing Institute, 2008 WL 282374 (E.D. Cal. Jan., 31, 2008) (holding that 2019.210 does not apply because to do so has the effect of imposing an otherwise unmandated sequence to discovery). Clearly, 2019.210 does not serve a basis for bifurcating discovery in federal court, as Defendant proposes. District courts have, however, relied on the concepts of 2019.210 in forming scheduling orders. For example, some courts have required the trade secret holder to answer one interrogatory identifying the purported trade secret with particularity prior to the remainder of discovery continuing. See Jardin v.

Datallegro, 2011 WL 3299395 (S.D. Cal., July 29, 2011) (holding that 2019.210 does not apply in federal cases, but ordering trade secret holder to respond to one interrogatory identifying the misappropriated trade secret before any other discovery commenced). This is exactly what RED has proposed. But, this is insufficient to Defendant. Instead, Defendant pushes an agenda that would require RED to answer additional interrogatories and produce documents to ARRIs satisfaction while ARRI itself does not have to participate in discovery. None of the courts have espoused such a broad rewriting of the Federal Rules. ARRI was already rebuffed by the district court in its request to bifurcate - 14 -

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discovery and is now attempting to unilaterally restructure discovery to meet its goal. ARRIs discovery responses were due 30-days after being served. Even prior to service of its discovery requests, RED sent a draft protective order to ARRI for review. ARRI purposely ignored the draft protective order and instead provided written responses that refused to produce any documents. But, after delaying the protective order for months, as soon as the order is entered, ARRI then turned around and demanded that RED produce all of its trade secret information before ARRI produced, let alone searched for, responsive documents. This is a gross abuse of the Federal Rules of Civil Procedure by trying to unilaterally bully and control the flow of discovery in this case. ARRI cannot argue that it should not have to produce responsive, proprietary documents. That was the whole purpose of injecting the protective order for discovery ARRI can produce such documents in an attorneys-eyes only format. ARRI cannot condition its own production on REDs production of its emails first. RED seeks that ARRI produce its responsive documents in due course. RED served first. ARRI should respond first. B. ARRI should immediately produce those documents it already agreed to produce once a protective order was entered. In many of its responses, ARRI indicated that it will produce documents once a protective order has been entered. For example, in response to requests numbers 1, 3, 21, 25, 33-35, 46, 51, 52, 54, 57, 59, 60, Defendant indicated that it would produce non-privileged responsive documents after a protective order was entered. RED respectfully requests that the Court order production of these documents within 20-days. C. ARRIs position that it needs to review REDs documents prior to searching for its own documents is wholly unsupportable. ARRI cites no case law, and indeed RED is not aware of any, that stands for the broad assertion that the holder of a trade secret needs to disclose all documents - 15 -

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evidencing misappropriation of its trade secret before the misappropriator needs to produce responsive documents. This would be akin to relying on state law requiring discovery showing a likelihood to prevail on punitive damages, before allowing discovery from the plaintiff on punitive damages. See Funcat, 2007 WL 273949 at *3. In ARRIs world, RED has to prove the viability of its trade secret claim before ARRI ever has to participate in discovery on the issue. But, even the very case law cited by ARRI does not support its proposition. See Social Apps, LLC v. Zynga, Inc., 2012 WL 2203063, at *3 (N.D. Cal., June 14, 2012) (requiring plaintiff to first identify its trade secret with sufficient particularity but not to the finest detail or require a mini-trial on misappropriation before discovery may commence). Accordingly, on all responses to document requests where ARRI has conditioned its production on RED first producing emails, ARRI should be compelled to produce its responsive documents within 20-days. For the Courts ease, this includes ARRIs responses to requests for production numbers 4, 7, 16, 17, 19, 31, 32, 48, 50, The same is true for ARRIs objections that REDs requests are overly broad, burdensome, and not likely to lead to the discovery of admissible evidence. These are boiler plate objectsion. Essentially, in these instances, ARRI is reiterating its position that it will not produce documents until RED identifies its trade secret. Accordingly, RED requests that the Court order ARRI to supplement/amend these responses and produce documents responsive to requests numbers 2, 5-6, 8-15, 18, 22-24, 27-30, 36, 38-45, 47, 55- 56, and 65. D. REDs conclusion

ARRI now asserts that it has produced some documents and thus many of these issues are moot. That is not correct. ARRI has conveniently produced at the same time as these motions, documents that it wants to produce, but not all responsive documents. Further, it is specifically trying to dictate the terms and - 16 -

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order of discovery in this case, in a manner that is not fair and does not comport with the law. RED requests that the Court issue an order that sets forth the order and dates for responses to discovery in this case. In light of the case law, RED is willing to identify its trade secret in this case. REDs proposes that it respond to interrogatory number 1 from the Defendant within 10-days of entry of this Courts order. Thereafter, ARRI should have to produce all documents responsive to request numbers 1 through 65 within 20-days. Finally, RED will produce its responsive documents 20-days after production by Defendant. III. ARRIS ARGUMENT A. RED must disclose the allegedly misappropriated trade secrets before it may take discovery from ARRI on trade secret issues, regardless of whether C.C.P. 2019.210 applies. RED concedes that it has not yet identified the allegedly misappropriated trade secrets. On that basis alone, its motion to compel must be denied as to its requests that seek trade secret-related documents. RED should not be permitted to take burdensome and broad-ranging discovery of ARRI on its commercially sensitive information -- particularly those of REDs requests that call for production of substantially all documents relating to the ARRI ALEXA camera that competes directly with REDs EPIC camera and other products -- until RED identifies the alleged trade secrets and produces the emails to Band Pro that contained them. Indeed, those emails are the best and most precise evidence of the trade secret information claimed by RED to have been misappropriated by Bravin, making their production, rather than merely some lawyers description, the most reasonably particular means of identifying the purported trade secrets in issue. Not until RED does so can the parties or this Court properly limit the scope of REDs overbroad First Requests to matters that are relevant to the particular alleged trade secrets and protect ARRIs confidential information from unnecessary disclosure to its - 17 -

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competitor and its counsel. Cal. Code Civ. Proc. 2019.210 provides that, in a trade secret case, before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity. RED contends that C.C.P. 2019.210 does not apply to actions in federal court. This argument is a red-herring. Even if 2019.210 is found not to apply, federal courts routinely use their inherent authority under Fed. R. Civ. P. 26(c) to require trade secret plaintiffs to disclose the allegedly misappropriated trade secrets before they may take discovery. E.g., N. Am. Lubricants Co. v. Terry, 2011 U.S. Dist. LEXIS 133672, *15-16 and n. 1, 2011 WL 5828232 (E.D. Cal. No. 18, 2011) (noting that ordering the listing of trade secrets [at the outset] is a common requirement); Jardin, 2011 U.S. Dist. LEXIS 84507 at *10-13. RED argues that C.C.P. 2019.210 is not directly applicable based on two district court decisions that state it is just a procedural law, so it does not apply in federal court under the Erie doctrine: Hilderman v. Enea Teksci, Inc., 2010 U.S. Dist. LEXIS 1527, *5-9, 2010 WL 143440, *2-3 (S.D. Cal. Jan. 8, 2010); and Funcat Leisure Craft, Inc. v. Johnson Outdoors, Inc., 2007 WL 273949, *2-3, 2007 U.S. Dist. LEXIS 8870, *3-5 (E.D. Cal. Jan. 29, 2007). But, neither case supports REDs claim that it may take trade secret discovery from ARRI before it has adequately disclosed the allegedly misappropriated trade secrets. Hilderman

involved an in limine motion to bar plaintiff from presenting evidence that went beyond the Trade Secret Designation it had served at the outset of the case. 2010 U.S. Dist. LEXIS 1527 at *3-4. Thus, a later Southern District decision, Jardin, held that Hilderman does not suggest that a federal magistrate judge cannot consider issues related to the policy rationale for 2019.210 or that employing discovery procedures similar to those mandated by 2019.210 as a matter of case management pursuant to Fed. R. Civ. P. 26 is actually applying state law. 2011 - 18 -

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U.S. Dist. LEXIS 84507 at *10-11. And, in Funcat, while Magistrate Judge Hollows found that section 2019.210 did not literally apply, he recognized that federal courts may use it as a guide for shaping discovery pursuant to case management orders. 2007 U.S. Dist. LEXIS 8870 at * 3-4. Indeed, in a subsequent case Magistrate Judge Hollows did just that: finding the rationale behind section 2019.210 persuasive with respect to the need for reasonably specific identification of the claimed trade secrets . . . at the outset of the litigation, he ordered the plaintiff to answer such an interrogatory. N. Am. Lubricants Co., 2011 U.S. Dist. LEXIS 133672 at *15-16 and n. 1. 2 Magistrate Judge Hollows further noted that requiring pre-discovery trade secret disclosure by the plaintiff is a common requirement in federal court actions, and cited with approval decisions explaining that such an order serves a number of purposes, including that: . . . (2) it prevents plaintiffs from using the discovery process as a means to obtain the defendant's trade secrets; [and] (3) it assists the court in framing the appropriate scope of discovery and in determining whether plaintiff's discovery requests fall within that scope . . . . Id. at *15-16 (internal citations omitted). Accordingly, even if this Court were to view Magistrate Judge Hollows decision in Funcat as persuasive regarding whether C.C.P. 2019.210 governs discovery here, the Court should, nevertheless, as Magistrate Judge Hollows himself later did in N. Am. Lubricants, require plaintiff RED to answer ARRIs preliminary discovery requests seeking to identify the allegedly misappropriated trade secrets before RED may proceed with the demands in its First Request that relate to trade secret claims. In addition, REDs briefing largely ignores the cases holding, contrary to
2

The misappropriation claim in that case was brought under Arizona law, so C.C.P. 2019.210 could not have literally applied in any event. See id. - 19 -

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Funcat, that C.C.P. 2019.210 does apply in federal courts.

E.g., Computer

Economics, Inc. v. Gartner Group, Inc., 50 F.Supp. 2d 980, 985-992 (S.D. Cal. 1999); TelSwitch, Inc. v. Billing Solutions, Inc., 2012 U.S. Dist. LEXIS 127043, *78 (N.D. Cal. Aug. 10, 2012); SocialApps, LLC v. Zynga, Inc., 2012 U.S. Dist. LEXIS 82767, *4-6, 2012 WL 2203063 (N.D. Cal. June 14, 2012); Gabriel Tech. Corp. v. Qualcomm Inc., 2012 U.S. Dist. LEXIS 33417, *13-14, 2012 WL 849167 (S.D. Cal. March 13, 2012). The recent SocialApps decision holds that it is essential for plaintiffs to identify the trade secrets at issue before they are allowed to take discovery because without a sufficiently detailed designation neither the defendant nor the Court can determine whether any given discovery request by the plaintiff is within the scope of relevant discovery. 2012 U.S. Dist. LEXIS 82767 at *5-6. Specifically, the SocialApps court explained that: The nature of a trade secrets claim is such that pleading is necessarily general. To require more detail would be to force a plaintiff to disclose, in a publicly filed pleading, the very secrets it seeks to protect. However, the countervailing concern is that discovery must be limited to those matters that the plaintiff truly contends are secret. Otherwise the discovery mechanism . . . could become a tool to force a defendant to reveal its own trade secrets in defense against unfounded or specious claims. The 2019.210 disclosure defines the trade secrets at issue in the litigation with sufficient specificity that the defendant, as well as the court, is notified of the scope of the matters relevant to the claims. Id. at * 6 (emphasis added). Further, C.C.P. 2019.210 aside, numerous California federal courts have required under Rule 26 that plaintiffs make similar disclosures of the alleged trade secrets at issue before they may take discovery. See, e.g., id. at *7; Jardin, 2011 U.S. Dist. LEXIS 84507 at *12-15 (affirming Magistrates order that plaintiff must disclose the allegedly misappropriated trade secrets before commencing discovery); - 20 -

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Applied Materials, Inc. v. Advanced Micro-Fabrication Equipment (Shanghai) Co., Ltd., 2008 U.S. Dist. LEXIS 82530, *2-3 and n. 2, 2008 WL 183520 (N.D. Cal. Jan. 18, 2008); Proven Methods Seminars, LLC v. Am. Grants & Affordable Hous. Inst., 2008 U.S. Dist. LEXIS 10714, * 10-12 and n. 4 (E.D. Cal. Jan. 30, 2008) (ordering plaintiffs to answer an interrogatory requesting the same information as C.C.P. .2019.210, based on Rule 26 and the courts inherent authority, before defendants would have to respond to document requests having some relation to plaintiffs trade secret claims). Whether they require trade secret disclosure directly pursuant to C.C.P. 2019.210 or based on their power to manage discovery under Fed. R. Civ. P. 26, California federal courts uniformly recognize the sound policy purposes served by requiring such disclosure before the plaintiff is permitted to take discovery on trade secret issues: First, it promotes well-investigated claims and dissuades the filing of meritless trade secret complaints. Second, it prevents plaintiffs from using the discovery process as a means to obtain the defendant's trade secrets. . . . Third, the rule assists the court in framing the appropriate scope of discovery and in determining whether plaintiff's discovery requests fall within that scope. . . . Fourth, it enables defendants to form complete and well-reasoned defenses, ensuring that they need not wait until the eve of trial to effectively defend against charges of trade secret misappropriation. Computer Economics, 50 F.Supp.2d at 985 (internal citations omitted; emphasis added); Jardin, 2011 U.S. Dist. LEXIS 84507 at *9 (same); N. Am. Lubricants, 2011 U.S. Dist. LEXIS 133672 at *15-16 (same); TelSwitch, 2012 U.S. Dist. LEXIS 127043 at *7; SocialApps, 2012 U.S. Dist. LEXIS 82767 at *5-6; Applied Materials, 2008 U.S. Dist. LEXIS 82530 at *2-3 and n. 3 (requiring plaintiff make initial disclosure of the allegedly misappropriated trade secrets before taking discovery because it will assist both the parties and the court in determining the - 21 -

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appropriate scope of discovery and in determining whether particular discovery requests fall within that scope, or if plaintiff is engaging in a fishing expedition.) That this is the proper approach to managing discovery in a trade secret case is confirmed by federal decisions from outside California (which, thus, do not involve C.C.P. 2019.210 at all) that also require plaintiffs to identify the trade secrets at issue with reasonable particularity before they can begin taking discovery. E.g., Switch Communs. Group v. Ballard, 2012 U.S. Dist. LEXIS 85148, * 10-12 (D. Nev. June 19, 2012) (collecting cases); DeRubeis v. Witten Technologies, Inc., 244 F.R.D. 676, 680-681 (N.D. Ga. 2007); Porous Media Corp. v. Midland Brake Inc., 187 F.R.D. 598, 600 (D. Minn. 1999). Those courts require pre-discovery disclosure by trade secret plaintiffs for essentially the same policy reasons that support C.C.P. 2019.210, including that: (2) until the trade secret plaintiff has identified the trade secrets at issue with some specificity, there is no way to know whether the information sought [by its discovery requests] is relevant; . . . and (4) requiring the plaintiff to state its claimed trade secrets prior to engaging in discovery ensures that it will not mold its cause of action around the discovery it receives. Switch Communs. Group, 2012 U.S. Dist. LEXIS 85148 at *12, quoting DeRubeis, 244 F.R.D. at 680-681(emphasis added). Accordingly, all of these authorities counsel that REDs motion must be denied given that RED concedes it has not identified the allegedly misappropriated trade secrets. Under either C.C.P. 2019.210 or Rule 26, until RED has identified the trade secrets at issue with some specificity, there is no way to know whether REDs requests that bear on trade secret issues are within the scope of relevant discovery, let alone whether such requests must be narrowed due to ARRIs breadth, burden and vagueness objections. REDs First Request is rife with requests that are patently overbroad, unduly - 22 -

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burdensome, reach far into matters beyond the scope of relevant discovery and, indeed, are plainly an impermissible effort by RED to obtain ARRIs own proprietary information so that RED can mold its cause of action around ARRIs documents. Just some of the most egregious examples are REDs demands for: all documents discussing or related to (or to any changes in) the pricing (Nos. 11 and 16), features (Nos. 12 and 17), marketing or advertising (Nos. 13 and 19), forecasts, business proposals or business strategies related to (No. 44) or profits from the sale of (Nos. 49-50), the ARRI Alexa camera; all documents discussing RED or any of its products (No. 8), or any RED employee or consultant (Nos. 9 and 10); all documents related to competition between the RED Epic and ARRI Alexa cameras (No. 15); all of Bravins emails (No. 48) or, at least all emails to or from Bravin related to RED (Nos. 7, 40 and 43); all communications [with] any current or former Band Pro employee, on any subject (Nos. 22 and 23); and all marketing, advertising, forecasts, business proposals or business strategies, . . . prepared or presented by Bravin. (No. 45) (McCoy Decl, Ex. A.) In short, REDs First Requests seek production of substantially all of ARRIs business records having anything to do with any of (i) RED, (ii) Bravin, (iii) Band Pro, and/or (iii) the ALEXA camera. Thus, REDs motion must be denied because it attempts to put the cart before the horse. It is precisely to protect defendants from this type of overbroad, invasive and expensive fishing expedition that courts require plaintiffs to properly identify the allegedly misappropriated trade secrets before they may begin to take discovery on trade secret matters. Only after RED has - 23 -

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properly identified the claimed trade secrets at issue by, among other things, producing the emails to Band Pro that allegedly contained them, can the parties and the Court determine how to refine and limit the scope of these types of overbroad and unduly burdensome requests to match the scope of relevant discovery that is tied to whatever specific allegedly misappropriated trade secrets RED may identify. See, e.g., Applied Materials, 2008 U.S. Dist. LEXIS 82530, at *2-3. B. As RED alleges its trade secrets are contained in emails it sent to Band Pro, REDs production of those emails is also a pre-requisite for the parties and Court to determine the proper scope of REDs document requests to ARRI. This case is unusual for a trade secret action in that RED alleges it emailed its trade secrets to a third party, Band Pro, and the misappropriation occurred when Bravin improperly accessed Band Pros emails. Thus, unless the alleged trade secrets were contained in REDs emails, they could not have been misappropriated by Bravin, let alone passed on to ARRI. ARRIs initial discovery requests

therefore seek not only identification of the alleged trade secrets (Interrogatories Nos. 1 and 3), but production of those emails (McCoy Decl., Ex. B, Requests Nos. 1, 4 and 5.) 3 As set out in ARRIs concurrently-filed motion to compel, RED asserted no real objection to these requests, agreeing to produce the emails upon entry of a confidentiality order. Indeed, it appears RED faces essentially no burden in producing the requested emails -- according to REDs briefing herein, there were only several such emails, and RED obviously knows which ones it is referring to in its briefing. Yet, despite the entry of the confidentiality order on August 2, 2012, RED continues to refuse to produce the emails, on several specious grounds. First, RED repeatedly misrepresents the scope of ARRIs document requests,
3

ARRIs Interrogatory No. 3 seeks identification of the emails RED sent to Band Pro containing its trade secrets; REDs response stated it would produce the emails in lieu of separately drafting an answer to the interrogatory. (McCoy Decl., Ex. A.) - 24 -

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claiming they require RED to disclose all documents evidencing misappropriation of its trade secrets or produce all its written discovery on the trade secret and misappropriation issues. (Supra at 13 and 16.) Nonsense. ARRIs Requests Nos. 1, 4 and 5 are extremely narrowly tailored all they seek are the specific emails RED contends it sent to Band Pro containing its alleged trade secrets. Second, RED asserts that its preliminary trade secret disclosure obligations are limited to answering Interrogatory No. 1 (although, as RED admits it still has not even done that). RED has made it clear in meet and confer discussions, however, that it does not plan to identify the allegedly misappropriated trade secrets with sufficient particularity to enable ARRI and the Court to determine how to limit the scope of REDs overbroad and burdensome document requests that relate to the trade secret claims to only those matters relevant to the identified trade secrets. Such a deficient designation by RED would necessitate additional motions requiring RED to supplement its trade secret designation with appropriate detail, further delaying the commencement of substantive discovery. Several federal cases reflect just such circumstances, with multiple collateral motions needed to flesh out an adequate trade secret disclosure by the plaintiff. N. Am. Lubricants, 2011 U.S. Dist. LEXIS 133672 at * 15-16 (ordering detailed supplemental responses to initial interrogatory response that contained plaintiffs trade secret designation); Switch Communs., 2012 U.S. Dist. LEXIS 85148 at *6-7 (finding plaintiffs initial trade secret designation inadequate because it just identified the categories of [plaintiffs] trade secrets, but did not describe the trade secrets themselves, and ordering plaintiff to identify the specific trade secrets that it alleges [defendant] misappropriated, before defendant need respond to plaintiffs discovery requests); SocialApps, 2012 U.S. Dist. LEXIS 82767 at *10-12 and 14; Gabriel Tech. Corp., 2012 U.S. Dist. LEXIS 33417 at * 7, 9 and n. 5 (denying plaintiffs motion to compel discovery where the description of the trade - 25 -

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secret has not been adequately articulated to meet the sufficient particularity standard, despite plaintiffs having had seven separate opportunities to do so). For example, SocialApps held plaintiffs amended trade secret designation insufficiently detailed to identify what it is that [plaintiff] claims is secret, as it largely just listed broad categories of alleged trade secret information, such as computer source code for a particular version of a computer game, and technical aspects of [the game] including server architecture, client architecture, database architecture, statistic recording and reporting, [etc.] . . . and gameplay items, icons, and interface artwork . . . . 2012 U.S. Dist. LEXIS 82767 at *10-11. The court held that these types of category or subcategory descriptions did not comply with the requirement to identify the actual matter that is claimed to be a trade secret, and that there is no substitute for specifically identifying and describing the actual [alleged trade secret] or pointing to where it might be found, so ordered plaintiff to serve a further amended trade secret designation that did so. Id. at *11-12 and 14. (emphasis added). If, however, RED produces the emails to Band Pro that it contends contained the trade secrets along with its answer to Interrogatory No. 1 that may obviate any further dispute requiring court intervention over the adequacy of the detail of REDs trade secret designation. Production of the emails will leave no dispute over their contents and likely clarify what documents in ARRIs possession, if any, relate to REDs allegedly misappropriated trade secrets. Courts have, in similar situations required either production of (or, identification of) the documents containing the alleged trade secrets as part of the plaintiffs initial trade secret disclosure before the defendant must respond to discovery requests, recognizing that production of those specific documents would assist the court and parties in limiting the scope of plaintiffs requests to the particular alleged trade secrets actually at issue. See, e.g., Switch Communs. Group, - 26 -

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2012 U.S. Dist. LEXIS 85148 at * 6-11 and 16-17 (holding that plaintiff had to both identif[y] the specific trade secrets that it alleges [defendant] misappropriated . . . [and] identify the documents that contain or describe the particular trade secrets before the defendant need respond to plaintiffs discovery requests and, therefore, denying plaintiffs motion to compel) (emphasis added); SocialApps, 2012 U.S. Dist. LEXIS 82767 at *14 (ordering plaintiff to serve an amended identification of the trade secrets it alleges were misappropriated, stating the trade secret with particularity and including diagrams, exhibits or specific locations where [such] information can be found) (emphasis added). Most telling in this regard is N. Am. Lubricants, where the plaintiff initially identified the allegedly misappropriated trade secrets as: [its] customer database, [its] Constant Contact database (approximately 3,500 email addresses of customers, suppliers and prospects); [its] business model; [certain] marketing materials [and] downloaded files; [along with a] boilerplate list, including [its] customer lists, business plans, [and] formulas. 2011 U.S. Dist. LEXIS 133672 at *17. In response to defendants assertion that this did not sufficiently identify the alleged trade secrets, the court held that because plaintiff had stated it would provide defendants with a copy of the Constant Contact database subject to . . . a protective order, and because that file would provide defendants with adequate notice of the trade secrets plaintiff claims with respect to the database at this early stage in the litigation, plaintiff was therefore ordered to produce the database as part of its initial trade secret designation. Id. at *18. For the same reason, here RED should be required to produce the very emails it alleges were the means by which it communicated its purported trade secrets to Band Pro as part of its initial trade secret designation, and before it may proceed with discovery against ARRI on trade secret issues, as production of those emails will enable the parties and the Court to limit the scope of REDs First Requests to only the particular - 27 -

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alleged trade secrets embodied in those emails.4 RED quotes from SocialApps that the requisite reasonable particularity for a trade secret disclosure does not require a party to define its trade secret down to the finest detail . . . before discovery may commence. 2012 U.S. Dist. LEXIS 82767 at *9-10. But, this proposition is of no assistance to RED. First, RED has not yet made any trade secret designation, so assessing whether a designation it has not yet served will or will not satisfy the requirement for reasonable particularity before it can begin to take discovery is wholly speculative. Certainly, there is no justification to now order ARRI to produce all documents responsive to REDs overbroad Requests Nos. 1 through 65, within a specific number of days after RED will, in the future, serve a trade secret designation, based solely on the unsupported assumption that REDs not-yet-served interrogatory answers will identify the allegedly misappropriated trade secrets with the requisite particularity. Second, as noted above, SocialApps held that plaintiff had, with two small exceptions, failed in both its initial and amended designations to sufficiently identify the alleged trade secrets, so could not begin taking discovery. Id. at *1112; see TelSwitch, Inc. v. Billing Solutions, Inc., 2012 U.S. Dist. LEXIS 127043, *8-9 (N.D. Cal. Aug. 10, 2012) (while reasonable particularity does not require plaintiff to define its trade secret down to the finest detail . . . before [it] is allowed discovery, plaintiff nevertheless must identify its alleged trade secret in a manner that will allow the trial court to control the scope of subsequent discovery, and courts regularly reject disclosures that do not delineate the

Moreover, as to the remainder of the trade secret designation in N. Am. Lubricants, the court held that generalized references to plaintiffs business model, business plan, marketing materials or any of the other boilerplate items were inadequate and, instead, they must be described with particularity (e.g., by author(s), date of creation, subject matter, [and] basis for trade secret claim). . . . Id. at *19. - 28 -

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boundaries of [plaintiffs] trade secrets.)5 Accordingly, SocialApps supports the process urged here by ARRI: to try to avoid wasteful collateral litigation over whether REDs interrogatory answers identify its alleged trade secrets with sufficient particularity, RED should be required to also produce the several emails it states contain those alleged trade secrets, before RED is permitted to begin taking discovery from ARRI on trade secret issues. The content of those emails will set the parameters for the outer bounds of possible misappropriation based on Bravins improper accessing of Band Pro emails and will, therefore, enable the Court and parties to determine the relevance of REDs document requests and to set reasonable limits on the scope of ARRIs search and production obligations that match the scope of the actual allegedly misappropriated trade secrets. C. REDs motion is frivolous to the extent it seeks to compel production of documents ARRI has already produced or is in the process of producing. As RED notes, for certain of the requests that do not bear on trade secret issues (but, instead, relate to REDs false advertising or negligence claims, etc.), ARRI stated in its Responses that it would produce documents after entry of a confidentiality order. (Supra at 15.) RED requests an order compelling production of such documents. In this regard, REDs motion is frivolous. ARRI has made substantial production of documents in response to those requests without awaiting REDs trade secret designation or its production of the
5

REDs strawman assertion that In ARRIs world, RED has to prove the viability of its trade secret claim before ARRI ever has to participate in discovery on the issue (supra at 16) is also false. All RED must do, as set forth in TelSwitch, is sufficiently identify its alleged trade secret in a manner that will allow the trial court to control the scope of subsequent discovery, which under the circumstances here includes producing the several emails that RED asserts contain the allegedly misappropriated trade secrets. See 2012 U.S.C. Dist. LEXIS 127043 at *8-9. - 29 -

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emails that contain its allegedly misappropriated trade secrets, including producing almost 3,000 pages of documents responsive to REDs Requests Nos. 1, 3, 5, 6, 20, 21, 25, 33, 34, 35, 36, 38, 39, 41, 42, 46, 51, 52, 54, 57, 59, and 60, and continues to review documents for additional rolling production. (McCoy Decl., Exs. B, H and I.) There is nothing for this Court to compel as to those requests. D. RED is not entitled to enforce its overbroad document requests, and to skip the requisite pre-discovery trade secret disclosure, merely because it served its First Request one week before ARRI served its initial discovery requests. RED argues that because it served its First Request one week before ARRI did, it therefore has priority as to document production, such that ARRI should be required to produce all documents responsive to [REDs] request numbers 1 through 65, before RED need produce any documents at all. (Supra at 6-7 and 1617.) While RED claims, obliquely, that the Federal Rules call for production of documents to occur sequentially in the order of service, RED cites no such rule or any other authority for this proposition. (Id. at 7.) RED cites no such authority for such a right to priority of production because there is none. Court Degraw Theatre, Inc. v. Loews, Inc., 20 F.R.D. 85, 86-87 (E.D.N.Y. 1957) (service of discovery requests first does not establish priority of production). Indeed, contrary to REDs unsupported assertion, the 1970 Advisory Committee Notes to Fed. R. Civ. P. 26(d) state that the Federal Rules do not recognize any right of priority due to the order of service of discovery requests.6 Moreover, in trade secret cases federal courts routinely require plaintiffs to make the trade secret disclosure before the defendant must respond to discovery
6

While the 1970 revision to Rule 26 was aimed primarily at certain local rules that had previously granted priority based on the service of deposition notices, the amendments to Rule 26(d) eliminate any fixed priority in the sequence of discovery, unless specifically ordered by the court in a given case. - 30 -

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irrespective of the order in which the parties served discovery requests. See N. Am. Lubricants, 2011 U.S. Dist. LEXIS 133672 at *15-18 (see discussion above); Proven Methods Seminars, 2008 U.S. Dist. LEXIS 10714, at *11-12 (requiring plaintiff to answer interrogatory identifying the alleged trade secrets before defendants had to substantively respond to those of plaintiffs previously-served document requests that have some relation to plaintiffs trade secret claims.); Switch Comms., 2012 U.S. Dist. LEXIS 85148 at * 6-7, 10-11 and 16-17. E. REDs proposal that conditions its future disclosure of the allegedly misappropriated trade secrets on (i) RED being granted priority of production and (ii) ARRI waiving all objections to the 65 demands in REDs First Requests must be rejected. RED concedes that it has not yet provided the trade secret disclosure that, as detailed above, a legion of federal authorities require trade secret plaintiffs to provide before they may begin taking any discovery. Instead, during the meet and confer process, and by this motion, RED seeks to leverage an offer to do what it is indisputably required to do -- identify the alleged trade secrets with sufficient particularity to allow the Court to control the scope of REDs discovery and tailor it to those specific trade secrets -- into an order that (i) awards RED a priority of document production to which it is not entitled, and (ii) strips ARRI of all of its objections to the 65 demands in REDs First Request. Specifically, RED proposes that the Court issue an order under which: (a) RED would answer ARRIs Interrogatory No. 1; (b) 20 days thereafter, ARRI would be compelled to produce all documents responsive to [REDs] requests numbers 1 through 65; and (c) only after ARRI has completed all such production to REDs satisfaction, would RED then produce its responsive documents 20-days after production by ARRI. deficient in numerous respects. - 31 (Supra at 17.) This proposed order is woefully

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First, as detailed above, RED should not be permitted to even begin taking discovery until it has adequately identified the allegedly misappropriated trade secrets. REDs proposed order, in contrast, simply assumes that whatever answers it deigns to provide in response to Interrogatory No. 1 will satisfy its obligation to identify the alleged trade secrets, and thus trigger a requirement by ARRI to produce all responsive documents 20 days later. But, there is no basis for such an assumption. The Court cannot set a fixed schedule for ARRI to produce documents that is triggered by a contingent future event. Only after RED serves its trade secret designation will the parties and Court be in a position to begin considering a schedule for production of trade-secret related documents by ARRI. Second, REDs proposal ignores the fact that, until RED identifies the allegedly misappropriated trade secrets with sufficient particularity neither the parties nor the Court can even begin to know how the scope of REDs document requests will need to be tailored once it identifies the trade secrets at issue. To now issue an order requiring ARRI to produce all responsive documents would be grossly unfair, as REDs requests will need to be substantially narrowed in scope to match whatever allegedly misappropriated trade secrets it might actually identify. Third, REDs proposed schedule freezes in place a priority of production for which RED cites no authority. As detailed above and in its concurrently-filed motion, ARRI respectfully submits that in this case, since REDs entire claim is based on the allegation that it emailed its trade secrets to Band Pro and they were misappropriated when Bravin unlawfully accessed Amnon Bands email account, RED should be required to produce those specific emails as part of the trade secret disclosure it must make before it can begin taking discovery. E.g., N. Am.

Lubricants, 2011 U.S. Dist. LEXIS 133672 at *15-16. Indeed, depending on the specificity of REDs as-yet-unserved answers to Interrogatory No. 1, it may not even be possible for ARRI to reasonably search for documents responsive to REDs - 32 -

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trade-secret related requests without RED first producing those specific emails. But, even if this Court does not agree with that proposition, there is no justification for ordering staggered document production as RED requests, which would allow RED to produce nothing at all until after it is satisfied with ARRIs production. Finally, REDs proposal that ARRI be ordered to produce all responsive documents disregards and assumes away all of ARRIs objections to REDs tradesecret related document requests, in particular Requests Nos. 2, 4-19, 22-24, 27-32, 36, 38-45, 47-48, 50, 55-56 and 65. (Supra, at 16-17; McCoy Decl., Ex B.) While RED breezily dismisses those objections as boilerplate, they are anything but. RED has made no attempt in either meet and confer discussions or its briefing, to limit the scope of its overbroad and unduly burdensome requests in accordance with those objections or demonstrate that the objections are unfounded. For example, RED demands production of all documents discussing RED or any of its products [or] any RED employee (Nos. 8, 9 and 10), and all documents related to competition between, or any comparison of, the RED Epic and ARRI Alexa cameras (Nos. 14, 15 and 56). (Id.) Even assuming RED had provided an adequate trade secret designation, these requests are so broad, so unduly burdensome and so untethered from the relevant scope of discovery that ARRI cannot be compelled to simply produce all responsive documents.7 Equally absurd are REDs demands for all documents discussing or related to (or to any changes in) the pricing (Nos. 11 and 16), features (Nos. 12 and 17), marketing or advertising (Nos. 13 and 19), forecasts, business
7

Similarly overbroad are REDs demands for all of Bravins emails (or, at least, all emails to or from Bravin related to RED), and all communications between ARRI and Amnon Band or any current or former Band Pro employee, on any subject. (Nos. 7, 22-23, 40, 43 and 48.) Simply filing a lawsuit that has something to do with RED, ARRI, Bravin and Band Pro does not license RED to rummage through all of ARRIs emails in this manner. At a minimum, RED must limit its requests to matters relevant to the actual claims and allegations in this case. - 33 -

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proposals or business strategies related to (No. 44) or profits from the sale of (Nos. 49-50), the ARRI Alexa camera. (Id.) REDs requests for, in effect, substantially all of ARRIs business records that have anything to do with the Alexa camera are patently overbroad and unduly burdensome. Moreover, it is precisely to prevent a competitor like RED from using vague, generalized allegations of trade secret misappropriation as a pretext for a fishing expedition into this type of highly confidential and proprietary information that the courts require plaintiffs to identify the allegedly misappropriated trade secrets with reasonable particularity before they commence discovery so that the scope of discovery requests to the defendant can be limited to matters relevant to the identified trade secrets. Lastly, RED demands all documents related to the Criminal Lawsuit against Bravin, including all documents related to or evidencing any investigations or corrective measures taken by ARRI, and any documents or evidence seized by the United States government. (McCoy Decl., Ex. B, Requests Nos. 2, 4, 28, 30 and 47.) The Criminal proceedings against, Bravin, however, had nothing to do with RED. Moreover, given the nature of a criminal investigation and the exigency required to respond to a search warrant or a grand jury subpoena, the scope of materials produced to or seized by the Government far exceeds what could possibly be relevant to REDs not-yet-identified allegedly misappropriated trade secrets. Merely because a broader scope of materials was produced to or seized by the Government in a different context does not automatically render all such materials discoverable in this far narrower proceeding.

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F.

ARRIs Conclusion

RED concedes it has not yet disclosed the allegedly misappropriated trade secrets. RED is, therefore, precluded from taking discovery on trade secret matters until it identifies its alleged trade secrets with the requisite specificity and, ARRI submits, until it produces the emails by which it asserts it conveyed those trade secrets to Band Pro such that they could be unlawfully accessed by Bravin. As ARRI has properly responded to all of REDs non-trade secret document requests, and has produced documents responsive to those requests, REDs motion should be denied. Dated: October 29, 2012 WEEKS, KAUFMAN, NELSON & JOHNSON

By____/s/ Gregory K. Nelson GREGORY K. NELSON Attorneys for Plaintiff Red.com, Inc.

Dated: October 29, 2012

JAMES H. NEALE JOSHUA D. LICHTMAN RYAN MCCOY ROSARIO DORIOTT DOMINGUEZ FULBRIGHT & JAWORSKI L.L.P.

By

/s/Joshua D. Lichtman JOSHUA D. LICHTMAN Attorneys for Defendant ARRI, Inc.

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