Procuring Third Party Document Discovery Under The I .

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S6107-ABTL-15-A.qxp -ABTL-No-VOL16 #2 8/1/18 8:43 AM Page 1Volume 2426 No.No. 31VolumeFall20162018SpringProcuring Third PartyDocument Discovery under theFederal Arbitration ActThe Bay Area Complex LitigationSuperior Courts Part IIate last year the Ninth Circuit Court ofAppeals issued an opinion restricting the ability tocompel document discovery from third parties in arbitration proceedings. In CVS Health Corp. v. Vividus,LLC, 878 F.3d 703 (9th Cir. 2017), the Ninth Circuitfollowed what the Second Circuit has called “theemerging majority” of courts holding that section 7 of the FederalArbitration Act (“FAA”) does notempower arbitrators to issue subpoenas to non-parties for the productionof documents.ll Judges agree that class certificationshould normally be adjudicated before summary judgment (per Fireside Bank). As part of class certificationmany Judges have the parties submit a trial plan focusing on manageability and evidentiary issues and howthe evidence presented by the class representative willprove the claims of absent classmembers, plus a discussion of howclass damages will be proven.LRelying largely on then-judgeSamuel Alito’s opinion for the ThirdCircuit in Hay Group, Inc. v. E.B.S.Acquisition Corp., 360 F.3d 404 (3dCir. 2004), the Ninth Circuit heldAdam Triggthat the “clear statutory language”limits an arbitrator’s subpoena powerto only those subpoenas that require third parties toContinued on page 2Also in This IssueSusan Page WhiteAmy BriggsOn INSURANCE .p. 5Jaideep VenkatesanDefend Trade Secrets Act .p. 7Frank CialoneRule on Attorney’s Fees.p. 9Lawrence M. CirelliLetter From the President.p. 11Class CertificationAThe Judges have different procedural requirements for schedulingclass certification deadlines and hearings. Judge Hernandez will speciallyset class certification motions as outlined in his Department 17Guidelines. Judge Smith generallydoes not determine the appropriateFrank Burketime for filing a class certificationmotion, relying on the parties todecide and alert Judge Smith during a CMC or statusconference. For Judge Seligman, prior to filing a classcertification motion, the parties should meet and confer and the motion itself should include a trial plan.Judge Kuhnle typically sets a class certification hearingwell in advance of any certification briefing and adoptsan extended briefing schedule. Judge Walsh usually setsthe time for the class certification 6 months out andencourages a longer, non-statutory briefing schedule.For Judge Weiner, the parties will discuss certificationand summary judgment timing at the CMC. JudgeGoode specially sets class certification motions afterdiscussing with counsel how much time they need forContinued on page 4

S6107-ABTL-15-A.qxp -ABTL-No-VOL16 #2 8/1/18 8:43 AM Page 2Continued from page 1Procuring Third Party Discoveryappear before the arbitrator with documents at a hearing. While the CVS ruling is a restriction on thirdparty discovery in arbitrations under the FAA, it doesnot entirely prohibit parties from obtaining documents from a non-party. As suggested in JudgeChertoff ’s concurrence in Hay Group, and discussedbelow, parties to an arbitration governed by the FAAstill maintain the ability to issue subpoenas to thirdparties to appear before an arbitrator with documentsat a hearing prior to the final arbitration hearing.Court Interpretations of FAA’s Section 7It has long been the policy of both federal andstate law to encourage and enforce contractual provisions compelling arbitration of disputes. Congresspassed the FAA in 1925. The FAA included provisions for pre-hearing discovery, including Section 7,which governs an arbitrator’s subpoena power:The arbitrators selected either as prescribedin this title or otherwise, or a majority ofthem, may summon in writing any person to attendbefore them or any of them as a witness and in a proper case to bring with him or them any book, record,document, or paper which may be deemed material asevidence in the case. . . . [I]f any person or personsso summoned to testify shall refuse or neglectto obey said summons, upon petition theUnited States district court for the district inwhich such arbitrators, or a majority of them,are sitting may compel the attendance of suchperson or persons before said arbitrator orarbitrators, or punish said person or personsfor contempt in the same manner provided bylaw for securing the attendance of witnessesor their punishment for neglect or refusal toattend in the courts of the United States.9 U.S.C. § 7 (emphasis added).Courts have disagreed whether this provision pro-2vides for arbitrators to issue subpoenas to third parties solely for the production of documents. In In reSecurity Life Insurance Co. of America, 228 F.3d 865 (8thCir. 2000), the Eighth Circuit held that it does. Whilerecognizing that Section 7 “does not . . . explicitlyauthorize the arbitration panel to require the production of documents for inspection by a party,” thecourt determined that “implicit in an arbitrationpanel’s power to subpoena relevant documents forproduction at a hearing is the power to order the production of relevant documents for review by a partyprior to the hearing.” Id. at 870–71. The court determined that this interpretation furthered the goal ofefficient resolution of disputes in arbitration actions.See also Am. Fed’n of Tel. & Radio Artists v. WJBK-TV,164 F.3d 1004, 1009 (6th Cir. 1999) (considering theFAA as guidance in labor arbitration case and interpreting Section 7 as implicitly allowing pre-hearingdocument discovery from third parties).More recently, the Second, Third and FourthCircuits have held that the plain language of Section 7demonstrates that the arbitrator’s power to compel theproduction of documents is limited to production atan arbitration hearing. COMSAT Cor p. v. Nat’lSci. Found., 190 F.3d 269, 275-76 (4th Cir. 1999) (stating“[n]owhere does the FAA grant an arbitrator . . . theauthority to demand that nonparties provide the litigating parties with documents during prehearing discovery,” but opining that “a party might, under unusual circumstances, petition the district court to compel prearbitration discovery upon a showing of special needor hardship”); Hay Group, 360 F.3d at 407; LifeReceivables Tr. v. Syndicate 102 at Lloyd’s of London, 549F.3d 210, 215–16 (2d Cir. 2008) (following Hay Group’s“emerging rule” of a narrow reading of section 7). InHay Group, then-Judge Alito found that Section 7“unambiguously” limits the arbitrator’s subpoenapower to compelling a third party to appear before thearbitrator and “bring with him” documents. HayGroup, 360 F.3d at 407. Thus, the provision “appliesonly to situations in which the non-party accompaniesthe items to the arbitration proceeding, not to situations in which the items are simply sent or brought bya courier.” Id.The Third Circuit rejected the argument that it was“absurd” to empower the arbitrator to compel attendance at a hearing and bring documents, but not the“lesser power” to compel production of documents.The court reasoned that Congress had good policy reasons to restrict third-party discovery to testimony andproduction at hearings, which “actually furthers arbitration’s goal of resolving disputes in a timely and costefficient manner.” Id. at 409.The requirement that document productionbe made at an actual hearing may, in the longrun, discourage the issuance of large scalesubpoenas upon non-parties. This is sobecause parties that consider obtaining such asubpoena will be forced to consider whetherthe documents are important enough to justifythe time, money, and effort that the subpoenaing parties will be required to expend if anactual appearance before an arbitrator is needed. Under a system of pre-hearing documentproduction, by contrast, there is less incentiveContinued on page 3

S6107-ABTL-15-A.qxp -ABTL-No-VOL16 #2 8/1/18 8:43 AM Page 3Continued from page 2Procuring Third Party Discoveryto limit the scope of discovery and moreincentive to engage in fishing expeditions thatundermine some of the advantages of thesupposedly shorter and cheaper system ofarbitration. . . .Id. In his concurrence, Judge Chertoff expanded onthis reasoning, pointing to a work around that arbitrators can employ when third party document discoveryis necessary in advance of a hearing:Under section 7 of the Federal ArbitrationAct, arbitrators have the power to compel athird-party witness to appear with documentsbefore a single arbitrator, who can thenadjourn the proceedings. This gives the arbitration panel the effective ability to requiredelivery of documents from a third-party inadvance, notwithstanding the limitations of section 7 of the FAA. In many instances, ofcourse, the inconvenience of making such a personal appearance may well prompt the witnessto deliver the documents and waive presence.Id. at 413.In CVS, the Ninth Circuit followed the ThirdCircuit’s decision in Hay Group. The Court held that“[a] plain reading of the text of Section 7 reveals thatan arbitrator’s power to compel the production of documents is limited to production at an arbitration hearing.” 878 F.3d at 706. In rejecting the argument that itwould be absurd to grant an arbitrator the power tosummon a witness to an arbitration hearing withoutalso granting the power to subpoena documents, theCourt pointed to the practical reasons for doing soidentified in Hay Group. Id. at 708. Thus, the NinthCircuit became the latest court to follow Hay Group’s“emerging rule” of strictly construing Section 7’s language and limiting the ability to subpoena third partiesfor documents.The “Chertoff Strategy” as a SolutionW hile CVS and its progenitors undoubtedlyrestrict the ability of parties in an arbitration proceeding to compel document production from third parties,parties may still obtain documents from third partiesprior to the final arbitration hearing by following thesteps Judge Chertoff outlined in his concurrence inHay Group. Because Section 7 only requires the thirdparty to “appear before” a single arbitrator, JudgeChertoff concluded that arbitrators can issue a subpoe-na summoning a third party to appear before an arbitrator with documents in advance of the final arbitration hearing, and the arbitrator can then adjourn thehearing, giving the parties the time to review the documents prior to the final merits hearing.Although conducting a hearing for the sole purposeof receiving documents is less efficient than a simplethird party subpoena for documents that parties canemploy in court cases, there are several positive aspectsof proceeding in this manner. Most importantly,because courts have been regularly interpreting Section7 to prohibit document discovery subpoenas, this strategy is the only viable method of receiving documentsfrom a third party prior to the merits hearing. Also, asJudge Chertoff noted, the inconvenience to a thirdparty of sending a witness to appear before an arbitrator with documents may cause the third party to simplyprovide documents rather than going to the trouble ofappearing before the arbitrator. Indeed, the subpoenaingparty could use the California Judicial Council form for asubpoena for personal appearance and the production ofdocuments (SUBP-002), which provides for the optionof producing the documents requested along with a declaration of custodian of records in lieu of appearing at ahearing with the documents. Essentially, employing thisstrategy invites the parties to negotiate the scope of thedocument production, much like the process that partiesundergo in any litigation in court.One objection to this strategy may be that Section 7is meant to be limited to the final arbitration hearing onthe merits, not a hearing held solely for the purpose ofreceiving documents. The Second Circuit has explicitlyrejected this argument. Stolt-Nielsen Transp. Group, Inc. v.Celanese AG, 430 F.3d 567, 578 (2nd Cir. 2005)(“Nothing in the language of the FAA limits the pointin time in the arbitration process when the subpoenapower can be invoked or says that the arbitrators mayonly invoke this power under Section 7 at the time ofthe trial-like final hearing.”). And the CVS opinionrepeatedly states that Section 7 requires “a hearing,”implying that the hearing need not be the final meritshearing. 878 F.3d at 706, 707, 708.Surprisingly, parties to arbitrations—and even arbitrators themselves—are often unaware of this methodfor obtaining discovery from a third party. For example, in a recent arbitration (prior to CVS), we issued athird party subpoena for the production of documentsto a large international company whose dedicated subpoena counsel promptly objected, citing several casesholding that the FAA does not provide for third partydiscovery, including Hay Group. When we respondedby asking the arbitrator to set a hearing and issue a subContinued on page 113

S6107-ABTL-15-A.qxp -ABTL-No-VOL16 #2 8/1/18 8:43 AM Page 4Continued from page 1Complex Superior Courts Part IIresponse and reply, and whether they need to exceedthe usual page limits. He prefers to have 2-4 weeksbetween the reply brief and the hearing depending onthe filing volume. Judges Walsh and Hernandez have asimilar approach. Judge Wiss asks the parties to giveher 10 days between the filing of the last paper and thehearing date.Judge Karnow provides parties with a documententitled “Complex Litigation – Class Action Materials,”available on the Court’s website, which provides achecklist for class certification issues and also a checklist for obtaining preliminary approval of class settlements. Judge Smith also has separate procedural guidelines for preliminary approval andfinal approval of class action settlements.The types of evidence the Judgesfind compelling on class certificationdepends on the case. But, regardingdeclarations, Judges Seligman, Walsh,and Weiner view quality as moreimportant than quantity, and findmultiple identical declarations lesspersuasive. Deposition transcriptsand documents, on the other hand,Chandra Russellcan be quite helpful. Several Judgesnote that statistics or surveys can behelpful in certain circumstances, though Judge Weinernotes they are more commonly appropriate for damages purposes than liability. Judge Weiner also statesthat experts proffering statistics or surveys are likely tobe subject to a Section 402 pretrial hearing. JudgesKarnow and Smith are likely to subject the statisticalevidence to the standards set forth in Duran.Related CasesAll Judges prefer to address related cases as soon aspossible, both because the existence of related casesfactors into whether a case will be treated as complex,and so that the related cases can be adequately coordinated in different jurisdictions. Related cases are joinedupon notice and motion and are governed by CCP1048 and CRC 3.350 and 3.500 for consolidation andCCP 403-404 and CRC 3.501-3.550 for coordination.The procedure varies depending on whether the casesare non-complex or complex and whether the actionsare pending in the same or different counties.Special Procedural Requirements4Most of the Judges stated that they recognize thatthe complex litigation cases present cutting edge issueswhich may require briefing beyond the statutory pagelimits. On the other hand, Judge Goode stated that he“appreciates concision. Do not repeat things and donot bury adverse authority or difficult points in footnotes. Double space your briefs.” Judge Hernandeznoted that counsel is doing something wrong if he orshe cannot get it under the page limit. Judge Walshnotes that brevity is the best way to keep the reader’sattention. “Get it down to the heart of the issues. Putyour best arguments up front, and keep them conciseand clean. Footnotes are fine and have a differentgrammatical purpose than text.” Judge Weiner requestsa table of contents and a table of authorities in everybrief, even if less than 10 pages. Judge Smith urges parties to be reasonable in seeking extended briefs, do notsneak in extra pages, and notes that footnotes with longstring cites are ineffective.Because most of the complex litigation Judges holdCMCs periodically and frequently, there appears to beless of a need for ex parte discovery motion practice.Judge Walsh notes that Santa Clara County has a 24hour rule on expedited motions, and complex courtpractitioners must secure a time for an expedited hearing. Judge Weiner sets aside two afternoons per weekfor potential ex partes, on Tuesdays and Thursdays,with notice by 10 a.m. the previous day.Most of the Courts, except Alameda County, havee-filing in the complex litigation courts. In cases with avoluminous record, Judge Goode may request hyperlinked briefs. The Alameda County Judges requestcourtesy copies to be delivered to chambers. E-filing ispermissive but encouraged by Judge Weiner, who alsorequires courtesy copies to be e-mailed to the ComplexCivil Department.Judge Goode is unlikely to grant a motion to excludeexpert testimony under Kennemur unless the movingparty can show that the expert was asked for all of hisor her opinions and the bases for them. On apex depositions, Judge Walsh requires that the party seeking thedeposition must show that they have exhausted discovery of subordinates, and that the apex deponent is critical on a central issue. He sometimes also imposes timelimits.Judges Goode and Hernandez report that they areamenable to special hearings or “science days” to educate them on technology issues or environmental issuesin their cases.Motions for Summary Judgment/AdjudicationThe Judges all encourage parties to avoid voluminous statements of fact which are likely to raise factualdisputes. They also strongly discourage scattershotContinued on page 6

S6107-ABTL-15-A.qxp -ABTL-No-VOL16 #2 8/1/18 8:43 AM Page 5Susan Page WhiteAmy BriggsOn INSURANCEChallenging the Hourly RatesImposed by Insurers on Independent CounselWhen a liability insurer agrees to defend itsinsured after the insured has been sued, this is often causefor celebration, as the insured believes its defense will bepaid. The insurer may reserve its rights to deny coverage,and advise that such reservation creates a “conflict ofinterest” entitling the insured to “independent” counsel.Thus, instead of the insurer selecting the insured’s defensecounsel, which is common under a duty to defend policy,the insured gets to choose its owncounsel. Still reason to celebrate, right?But, as you may suspect, this selectionright comes with a catch. The insureradvises that while the insured canchoose its own counsel, the insureronly agrees to pay a very low hourlyrate, maybe 225 or 250 per hour (itvaries, sometimes dramatically so),which is much less than what is beingcharged by the insured’s independentcounsel. If the litigation against theinsured is significant, the delta betweenthe rate the insurer agrees to pay andAmy Briggscounsel’s actual rate can add up to millions of dollars.An insurer claims it need only pay these low hourlyrates pursuant to the requirements set forth inCalifornia Civil Code section 2860(c), which governsthe financial relationship between an insurer and aninsured’s independent counsel. Section 2860(c) states:The insurer’s obligation to pay fees to the independent counsel selected by the insured is limitedto the rates which are actually paid by the insurer toattorneys retained by it in the ordinary course ofbusiness in the defense of similar actions in thecommunity where the claim arose or is beingdefended.While section 2860(c) allows an insurer to only payindependent counsel the same rates it pays to otherlawyers to defend similar actions in the same locale, aninsured should not simply accept the insurer’s say so onthis. There are several ways to both challenge an insurer’s unilaterally imposed rates. This article addresses afew such ways.First, an insured should demand that the insurerproduce detailed information about the counsel towhom it is paying these low rates. An insurer oftenimposes “panel counsel rates” in these situations,which are rates that an insurer pays to certain law firmsthat have special agreements with the insurer, often inwriting. In these agreements, the panel counsel oftenagree to charge the insurer reduced hourly rates,regardless of the type of case, or location of the litigation, typically in exchange for the anticipation of a largevolume of work from the insurer. Under such a situation, an insured can argue that there is no “similarity”of actions as mandated by the statute. Instead, thepanel counsel’s rates are unaffected by the complexity,sophistication, nature of the allegations, legal claims,factual circumstances, location, or any other factors ofthe cases in which they are appointed. Thus, such ratesprovide no support under the § 2860 requirements.Second, an insured should demand that the insurerprovide detailed information about the specific casesthat the insurer is touting as “similar actions in thecommunity where the claim arose or is being defended,” to support the low hourly rates imposed. With thisinformation, an insured can ascertain whether suchcases are, in fact, “similar” or not. For example, arethese purported “similar” actions lesscomplex than the lawsuit against theinsured? Do they involve differentlegal and/or factual issues? Whatabout the amounts in controversy –are they dramatically less and thus,the exposure potentials are not evencomparable? Also, where are theseother actions pending? Are they indifferent communities? The more aninsured can demonstrate dissimilarities the better to demonstrate thatthe insurer cannot support the hourlyrate it seeks to impose pursuant to §Susan Page White2860.Third, if the parties cannot informally agree on anacceptable hourly rate for independent counsel, eitherparty can seek to resolve the dispute through final andbinding arbitration pursuant to § 2860. And, in any arbitration, if the Arbitrator determines that insurer’s evidence does not satisfy the § 2860 requirements, theinsured should argue that a “reasonableness” standardshould be applied to determine the appropriate rate forthe insured’s independent counsel (with evidence to support that independent counsel’s actual rates are “reasonable”). Indeed, a “reasonableness” standard is a ubiquitous standard for attorneys’ fees in insurance litigationand other contexts. See, e.g., California Rules ofProfessional Conduct Rule 4-200 (setting forth factors indetermining the reasonableness of attorneys’ fees);Hartford Cas. Ins. Co. v. J.R. Marketing, L.L.C., 61 Cal.4th988, 1001 (2015) (insurer’s obligation to finance itsinsured’s defense is “the duty to pay the reasonable costsof defense.”).An insured need not simply accept its insurer’s wordwhen it imposes inappropriately low hourly rates on aninsured’s independent counsel. Instead, an insuredshould challenge such rates, when appropriate, eitherinformally or in arbitration.Susan Page White is a Partner at Manatt, Phelps & Phillips, LLPAmy Briggs is a partner at Manatt, Phelps & Phillips, LLP,who represents policyholders in commercial coverage disputesand counsels clients on the interplay between risk management, coverage, and emerging legal issues. 5

S6107-ABTL-15-A.qxp -ABTL-No-VOL16 #2 8/1/18 8:43 AM Page 6Continued from page 4Complex Superior Courts Part IIobjections to every statement of fact submitted,whether or not material and in dispute, which areunlikely to be dispositive and are extremely time consuming for the Judges. They may be stricken or lead tosanctions if abused. Judge Smith encourages parties touse excerpts of exhibits where possible, and discourages including arguments in briefs that are not necessary for decision.There is an assigned settlement Judge in San Mateowhom Judge Weiner may send the parties to if theycannot reach agreement before trial.TJhe San Francisco Superior Court has a panel of judicial mediators and there are about 12 Judges on the panel.If Judge Wiss determines a settlement conference is needed, Judge Wiss will try to facilitate a settlement conferencewith a sitting Judge of the parties’ choice.Judge Goode will not normally act as a settlementJudge on matters he oversees, asking other colleaguesto sit in if needed, except in rare cases upon request ofall parties.udge Seligman encourages the parties to meet andconfer before filing a dispositive motion. JudgesHernandez and Weiner have no unique rules aroundpage limits, and if a party requests to file an overlength brief, it is generally granted.udges Hernandez, Goode, Karnow, Wiss, andWeiner view CCP 437c(t), stipulations to adjudicatesub-issues, as an underutilized statute that can be highly effective as part of the summary judgment/adjudication process.Judge Walsh believes that the complex departmentis more open to motions for summary judgment/adjudication than typical unlimited jurisdiction courts,although Judge Goode observes that few motions forsummary judgment are granted. Motions for summaryadjudication fare slightly better, but not much. JudgeKarnow expects the parties to understand the shiftingburdens of proof, as well as the sometimes technicalprocedures required for such motions.Several of the Judges suggest that counsel look forother methods to resolve dispositive issues, such asbench trials on stipulated facts, early motions in limineon key expert issues, early jury instructions to settle thelaw, or expedited jury trials.Settlement ConferencesGenerally, the complex Judges do not act as settlement Judges in their own cases, but some may act as asettlement Judge for other cases in the complex litigation department. Most Judges observe private mediation as the most common ADR approach among complex litigants.In Alameda there are 3-4 settlement Judges. Allasbestos and other types of cases go to them, unlessthe parties use an outside mediator, which they oftendo. If the parties request a judicial settlement conference, they are sent to one of the dedicated settlementdepartments utilized in Alameda County.In Santa Clara, a Mandatory Settlement Conference6mediators who have been involved previously in thecases, and other sitting Judges. Judges Kuhnle andWalsh may be involved in a settlement conference ifthe case involves a jury trial and the parties agree totheir involvement, but typically do not participate incases going to bench trial.occurs 1-2 weeks prior to trial, usually on a Wednesday.MSCs are typically handled by Temporary Judges,JTrial Management IssuesMany complex litigation Judges conduct final pretrial conferences 2-3 weeks before trial. Santa Clara andContra Costa Counties have the most specific rules.The Santa Clara County Complex LitigationGuidelines require a joint statement of the case andcontroverted issues, stipulation to all facts amenable tostipulation, and exchange of in limine motions,exhibits, voir dire questions, proposed jury instructions,deposition designations, and a grid listing all proposedwitnesses with estimated times for direct and crossexamination and redirect examination and subject matter. Contra Costa County local rules require a finalIssue Conference. Judge Goode’s Issue ConferenceOrder requires a statement of the case, voir dire questions, filed motions in limine, and exhibit numberingbefore the conference. It also includes a list of suasponte rulings for which in limine motions need not befiled. Judge Goode also uses a mandatory witness gridsystem. In both Santa Clara and Contra Costa, a finalwitness time estimate is established, which the Judgesuse to keep counsel on track for the trial end date provided to the jury.Judges Seligman, Karnow and Weiner also establishtime limits for each side at trial, pursuant to discussionswith counsel. Judge Smith only asks for a time estimate. Judge Karnow strongly encourages the parties todevelop a trial management plan. Once the time limitsare established, he uses a chess clock and strictlyenforces the total time limit. When a party’s time is up,it is deemed to have rested.Judges Wiss, Weiner and Seligman also report usingfinal pretrial conferences to cover witness and exhibitContinued on page 10

S6107-ABTL-15-A.qxp -ABTL-No-VOL16 #2 8/1/18 8:43 AM Page 7Jaideep VenkatesanThe Defend Trade Secrets ActTwo Years LaterEnacted on May 11, 2016, the Defend TradeSecrets Act (“DTSA”) created a federal cause of actionfor trade secrets misappropriation, with the hope ofunifying the patchwork of state laws governing tradesecret misappropriation claims. It also gave plaintiffs aweapon unavailable under state trade secrets laws: theability to obtain a court order to immediately seizetrade secret materials from defendants. Federal courtshave since issued several important decisions that haveshaped the application of the DTSA.I.Seizure Actions under the DTSAUnder the DTSA, a plaintiff can request an order“providing for the seizure of property necessary to prevent the propagation or dissemination of the trade secretthat is the subject of the action.” 18 U.S.C.§1836(b)(2)(A)(i). A court can issue a seizure order“only in extraordinary circumstances,” and where injunctive relief under F.R.C.P. 65 is inadequate to protect theplaintiff ’s trade secrets. 18 U.S.C. §1836(b)(2)(A)(ii)(I). Aseizure order authorizes law enforcement to seize tradesecret information from the defendant, including mediacontaining such information.Federal courts have taken the “extraordinary circumstances” requirement seriously and have rarelygranted seizure orders. In OOO Brunswick Rail Mgmt. v.Sultanov, No. 5-17-cv-00017-EJD, 2017 U.S. Dist. Lexis2343 (N.D. Cal. January 6, 2017), the Northern Districtof California denied the plaintiff ’s request for a seizureorder because other remedies were sufficient to protectits trade secrets. Two employees had emailed confidential documents to their personal email accounts andretained company devices after terminating theiremployment. The court granted the plaintiff ’s requestfor a preservation order, but found a seizure ord

2 Continued from page 1 Procuring Third Party Discovery Continued on page 3 appear before the arbitrator with documents at a hear-ing. While the CVS ruling is a restriction on thi

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