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`GREENBERG TRAURIG, LLP
`IAN C. BALLON (SBN 141819)
`Ballon@gtlaw.com
`1900 University Avenue, 5th Floor
`East Palo Alto, California 94303
`Telephone: 650.328.7881
`Facsimile: 650.289.7881
`
`REBEKAH S. GUYON (SBN 291037)
`GuyonR@gtlaw.com
`1840 Century Park East, Suite 1900
`Los Angeles, California 90067-2121
`Telephone: 310.586.7700
`Facsimile: 310.586.7800
`
`VISHESH NARAYEN (pro hac vice)
`narayenv@gtlaw.com
`101 E. Kennedy Blvd., Suite 1900
`Tampa, FL 33602
`Telephone: 813.318.5700
`Facsimile: 813.318.5900
`Attorneys for defendant Quora, Inc.
`
`JERI CONNOR,
`
`Plaintiff,
`
`
`
`v.
`
`
`QUORA, INC.,
`
`
`
`Defendant.
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Case No.: 5:18-cv-07597-BLF-NC
`
`Hon. Beth Labson Freeman; Hon. Nathanael
`Cousins
`
`DEFENDANT QUORA, INC.’S MOTION FOR
`RELIEF FROM NONDISPOSITIVE
`PRETRIAL ORDER OF MAGISTRATE
`JUDGE DENYING MOTION TO COMPEL
`FORENSIC INSPECTION OF PLAINTIFF’S
`DEVICES
`
`
`
`
`Case No.: 5:18-cv-07597-BLF-NC
`Quora’s Motion for Relief from Nondispositive Pretrial Order
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`Case 5:18-cv-07597-BLF Document 237 Filed 05/18/21 Page 2 of 7
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`INTRODUCTION
`Pursuant to Fed. R. Civ. P. 72(a), 28 U.S.C. § 636(b)(1)(A), and L.R. 72-2, Defendant Quora, Inc.
`moves for relief from the Magistrate Judge’s nondispositive pretrial order denying its motion to compel a
`forensic examination of plaintiff Jeri Connor’s devices used to access Quora. ECF No. 236 (“Order”).
`BACKGROUND AND PROCEDURAL HISTORY
`As detailed in the Joint Statement to the Magistrate Judge, Quora moved to compel a third-party
`forensic inspection of plaintiff’s devices to identify spyware, trojans, or other surreptitious malware that
`may have unwittingly allowed a theft of her personal information from her own devices, which would be
`directly relevant to causation in negligence (her sole remaining claim), comparative negligence, and class
`certification. ECF No. 235 at 1-3 (“Jt. St.”). Quora explained the pointed relevance of this discovery,
`including, e.g., how it is probative of plaintiff’s subjective “straw that broke the camel’s back” theory of
`causation because a failure to meaningfully protect sensitive information residing on her own devices
`shows a general indifference to data security that calls into question “the authenticity of [her] claimed
`reasons for more carefully monitoring her credit,” which the Court specifically identified as a fact issue
`that precluded summary judgment for Quora. Id. at 2; ECF 210 at 19 (Summ. J. Order).
`Quora cited specific authority for its requested discovery, including the Magistrate Judge’s own
`order in the Anthem data breach case compelling the same type of inspection—i.e., to examine “whether
`the plaintiffs’ computer systems contain malware, viruses, or other electronic indicators suggesting that
`their personally identifiable information . . . was compromised before the cyberattack on Anthem”—
`because it was “relevant to causation” and “proportional to the needs of the case.”1 Jt. St. at 1 (citing In re
`Anthem, Inc. Data Breach Litig., No. 5:15-md-02617 LHK-NC, 2016 WL 11730951, at *1 (N.D. Cal.
`Oct. 31, 2016) (“Anthem”)). Quora “recognize[d] the privacy concerns” attendant to forensic inspection
`and (despite plaintiff’s outright refusal to even confer on possible inspection protocols) expressly
`proposed to adopt the same protocol approved in Anthem, as summarized below and set forth in Quora’s
`
`
`1 Quora also noted that plaintiffs in the Yahoo case agreed to allow such an inspection. Jt. St. at 1 (citing
`In re Yahoo Inc. Customer Data Security Breach Litig., No. 16-MD-02752-LHK, ECF No. 299 at 30-32).
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`Quora’s Motion for Relief from Nondispositive Pretrial Order
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`Case 5:18-cv-07597-BLF Document 237 Filed 05/18/21 Page 3 of 7
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`Proposed Order.2 Jt. St. at 3; Anthem, at *1-2.
`In her opposition to Quora’s motion, plaintiff raised only threshold arguments that the discovery
`sought was irrelevant, cumulative, untimely, and overly intrusive. Jt. St. at 3-5; Order at 1. Plaintiff did
`not object to or even address the specifics of the Anthem protocol that Quora proposed, nor did she argue
`that any aspects of the protocol were somehow inadequate to address privacy or other concerns. Jt. St. at
`3-5. Instead, plaintiff maintained that any forensic examination, irrespective of protocol, would be
`inappropriate. Id. at 3.
`
`ORDER OBJECTED TO AND APPEALED FROM
`In a terse order less than one page, the Magistrate Judge denied Quora’s motion to compel on the
`ground that Quora’s “discovery brief is short on details as to what it is proposing,” Order at 2. The Order
`notably did not find the discovery irrelevant, instead faulting Quora for not addressing a series of specific
`questions—“What does [Quora] want to search for?”; “Using what methods?”; “Who would do the
`search?”; “Where?”; “Who would pay for it?”; and “What access and control will plaintiff have over the
`search?” Id. The Magistrate Judge concluded that without these answers to “limit the burden and
`expense” of the discovery, it could turn into “a fishing expedition that is not proportional to the needs of
`the case.” Id. In essence, the Magistrate Judge denied Quora’s motion for failing to include a detailed
`inspection protocol within Quora’s allotted 2 ½ pages. Quora objects to the Order’s findings as clearly
`erroneous and to the lack of reasoning in the Order as contrary to law.
`STANDARD OF REVIEW
`A magistrate judge’s nondispositive pretrial order may be modified or set aside if it is “clearly
`erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. 636(b)(1)(A). “[T]he magistrate’s
`factual determinations are reviewed for clear error”; “legal conclusions are reviewed de novo to
`determine whether they are contrary to law.” Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal.
`2010). “The implicit abuse of discretion standard does not apply to portions of a magistrate judge’s
`
`
`2 Due to the Magistrate Judge’s 2 ½ page limitation, Quora could not recite the entirety of the detailed
`Anthem protocol in the Joint Statement. Nonetheless, Plaintiff acknowledged in her opposition that Quora
`“volunteer[ed] to adopt” the Anthem protocol. Jt. St. at 5.
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`Quora’s Motion for Relief from Nondispositive Pretrial Order
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`Case 5:18-cv-07597-BLF Document 237 Filed 05/18/21 Page 4 of 7
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`discovery order not concerned with relevance.” EEOC v. Peters’ Bakery, 301 F.R.D. 482, 485 (N.D. Cal.
`Sept. 17, 2014) (Freeman, J.). “A decision may be contrary to law if it fails to apply or misapplies
`relevant statutes, case law, or rules of procedure.” Rojas v. Bosch Solar Energy Corp., No. 18-cv-05841-
`BLF, 2020 WL 6557547, at *2 (N.D. Cal. July 20, 2020) (Freeman, J.).
`ARGUMENT
`The Order was clearly erroneous because Quora plainly addressed all the “details” the Magistrate
`Judge believed important to “limit the burden and expense” of the discovery, and those particulars were
`consistent with, and supported by, the most apt authority in the record—indeed, the only authority in any
`jurisdiction—on forensic examinations of plaintiff’s devices in the context of data breach cases. To wit:
`
`“What does [Quora] want to search for?” Id. Quora explained in the second sentence of
`the Joint Statement that it sought to forensically examine plaintiff’s devices for “[t]he presence of
`spyware, trojans, or other surreptitious malware that may unwittingly allowed a theft of her personal
`information” from her own devices, matching the level of detail accepted by the Magistrate Judge for the
`inspection in Anthem. Jt. St. at 1; Anthem, at *1 (a “forensic scan of device data for the limited purpose of
`identifying malware or malicious files” and a “root cause analysis of select malware when identified”).
`
`“Using what methods?” Order at 2. Methods “like those adopted in the Anthem case.” Jt.
`St. at 3 (citing Anthem as “providing parameters for inspection”). Assuming the Magistrate Judge had
`agreed with Quora’s proposal to adopt the same protocol as in Anthem, a third-party forensic examiner
`would create images of plaintiff’s devices, conduct an initial scan for the presence of malware or other
`indicators of compromise, and conduct a further root cause analysis, if necessary, before providing a
`summary to both parties. Anthem, at *1-2.
`
`“Who would do the search?” Order at 2. “[A] third-party forensic examiner,” as Quora
`explained in the Joint Statement. Jt. St. at 3. Just like in Anthem, which Quora cited for this point, the
`forensic examiner would comply with National Institute of Standards and Technology (NIST) standards
`for acquiring, preserving, and forensically reviewing plaintiff’s devices, and plaintiff would choose the
`examiner from a roster offered by Quora (which obviated identifying a specific person at the time of
`Quora’s motion). See id.; Anthem, at *1.
`
`“Where?” Order at 2. Like the Anthem protocol, which Quora proposed to follow, plaintiff
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`Quora’s Motion for Relief from Nondispositive Pretrial Order
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`would choose where the forensic imaging of her devices would take place. Jt. St. at 3; Anthem, at *1.
`
`“Who would pay for it?” Order at 2. Quora would pay the costs of the forensic examiner,
`as in Anthem, which Quora proposed to follow. Jt. St. at 3; Anthem, at *1.
`
`“What access and control will plaintiff have over the search?” Order at 2. Under the
`Anthem protocol Quora volunteered to adopt, the examiner would control all forensic images, and neither
`party would control the search itself. Jt. St. at 3; Anthem, at *1-2.
`In other words, all the “details” Quora was faulted for not addressing were in fact addressed, and
`matched the protocol used in Anthem—because Quora expressly proposed to adopt that protocol here.
`Plaintiff did not even contest the adequacy of Quora’s proposed protocol. Jt. St. at 3-5. To fault Quora for
`putatively insufficient responses to specific issues plaintiff did not even raise (indeed, details about a
`possible protocol that plaintiff refused to even confer on) is not just clearly erroneous but manifestly
`unfair, especially given the strict page constraints imposed by the Magistrate Judge for discovery
`disputes. The finding that Quora’s motion was “short on details” was thus clearly erroneous.
`The Order’s finding that, absent answers to the above inquiries, a forensic inspection could in
`theory turn into “a fishing expedition that is not proportional to the needs of the case” is clearly erroneous
`given that Quora proposed a detailed protocol based on that approved in Anthem. Order at 2; Jt. St. at 3.
`Moreover, Quora’s request is far narrower than what was permitted in Anthem—and thus well-supported
`by the only apposite authority on forensic examination of plaintiffs’ devices in this context. The Anthem
`defendants requested inspection of nearly 100 named plaintiffs’ devices, which the Magistrate Judge
`narrowed to 30, whereas Quora here requests forensic examination of just one person’s devices—
`plaintiff. See In re Anthem, 162 F. Supp. 3d 953, 970 (N.D. Cal. 2016) (98 named plaintiffs); compare
`id., 5:15-md-02617-LHK-NC, ECF No. 549 (Joint Discovery Brief) at 1, with 2016 WL 11730951, at *1.
`To the extent the Order implicitly relied on a finding of disproportionality, which is not clear, it
`provided no reasoning, prejudicing Quora’s ability to seek review. Rule 72(a) “calls for a written order of
`the magistrate’s disposition to preserve the record and facilitate review.” Rojas, 2020 WL 6557547, at *3.
`An order devoid of reasoning is contrary to law. Id. (“[S]ome reasoned decision clearly is required.”). For
`example, Quora cannot assess whether the Magistrate Judge properly placed the burden on “the party
`resisting relevant, non-privileged discovery” (plaintiff), see 21X Capital Ltd. v. Werra, No. C06-04135
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`JW (HRL), 2007 WL 2852367, at *2 (N.D. Cal. Oct. 2, 2007), or considered the proportionality factors
`under Rule 26(b)(1). In any event, this discovery is plainly proportional. Plaintiff cannot credibly claim
`that the small inconvenience of a forensic examination under a protocol that protects her privacy and
`minimizes the associated burden and expense is disproportionate to the very “importan[t] . . . issues at
`stake” in a case where she purports to represent a class of 30+ million individuals with alleged common
`damages. See Fed. R. Civ. P. 26(b)(1); ECF No. 85 ¶ 64; In re Outlaw Labs., LP Litig., Case No.:
`18CV840 GPC (BGS), 2020 WL 1083403 (S.D. Cal. Mar. 5, 2020) (discovery into damages proportional
`where “critical” to class certification).The requested discovery bears on outcome-determinative questions
`of negligence causation, comparative negligence, and class certification. Jt. St. at 1-2; Belcastro v. United
`Airlines, Inc., No. 17 C 1682, 2019 WL 7049914, at *4 (N.D. Ill. Dec. 23, 2019) (ordering forensic exam
`where information went to “heart of plaintiff’s claim”). Faced with the same question and the same
`objections in a case requesting a far broader forensic examination, the Magistrate Judge found inspection
`appropriate under the very protocol Quora proposed to adopt here. See Anthem, at *2; see also Playboy
`Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1054 (S.D. Cal. 1999) (rejecting categorical privacy
`objection, finding nonmovant would be sufficiently protected by proposed protocol); Belcastro, 2019 WL
`7049914, at *3 (same).
`Finally, the Magistrate Judge’s unelaborated finding that “[l]ess burdensome discovery methods
`could have been used to learn the information Quora now seeks” is likewise clearly erroneous. Order at 2.
`Fact discovery is over.3 ECF No. 208. Plaintiff did not even argue that other means existed to obtain this
`discovery, for the obvious reason that a forensic examination requires tools and techniques she obviously
`does not have. Belcastro, 2019 WL 7049914, at *3 (permitting third-party forensic inspection, noting lay
`plaintiff “lack[ed] the expertise to carry out” ESI examination). The Order’s finding that other means
`existed, which “cannot be meaningfully reviewed” because it lacks any explanation, is clearly erroneous
`for overlooking this fact. Rojas, 2020 WL 6557547, at *3.
`The Court should overrule the Order and compel plaintiff to submit her devices for a third-party
`forensic inspection according to the Anthem protocol set forth in Quora’s Proposed Order.
`
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`3 The deadline for motions to compel was extended by stipulation to May 21, 2021. ECF No. 231 ¶ 3.
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`Case No.: 5:18-cv-07597-BLF-NC
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`DATED: May 18, 2021
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`GREENBERG TRAURIG, LLP
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`
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`By: /s/ Ian C. Ballon
`
`Ian C. Ballon
`Attorneys for defendant Quora, Inc.
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`Quora’s Motion for Relief from Nondispositive Pretrial Order
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