Proofpoint, Inc. v. Vade Secure, Incorporated

Background

The court addressed a motion to compel and three jointly filed letter briefs concerning discovery. The plaintiffs sought documents and substantive answers to interrogatories. The defendants objected to producing information originating in France, arguing that French law prohibits communicating certain economic, industrial, financial, or technical information for use in foreign judicial proceedings, subject to applicable treaties or international agreements.

The court explained that foreign secrecy laws do not automatically prevent a United States court from ordering a party subject to its jurisdiction to produce evidence. Instead, courts balance several factors, including the importance of the requested information, the specificity of the requests, where the information originated, whether alternative means of obtaining it are available, and the competing interests of the United States and the foreign country. The party relying on foreign law bears the burden of showing that the law bars production.

Discovery ruling

The court found that most factors favored proceeding under the Federal Rules of Civil Procedure rather than using procedures under the Hague Convention. It found that the defendants had not shown that French or European Union law clearly barred production. The court also found that the discovery was important to the plaintiffs’ case, that the requests were sufficiently specific, that much of the information was located in or accessible from the district, and that Hague Convention procedures would add expense and delay. The court concluded that the United States’ interest in fairness in litigation and the plaintiffs’ ability to vindicate their rights outweighed the defendants’ generalized objection, while recognizing that France also had important interests in secrecy.

The plaintiffs’ motion to compel, identified as Docket Nos. 78 and 91, was GRANTED.

Rulings on the second letter brief

The defendants’ request to include proposed language concerning the European Union’s General Data Protection Regulation in the forthcoming proposed electronic-discovery order was GRANTED. Their request to include proposed language concerning the French blocking law was DENIED.

The court ordered that email production requests could cover up to 15 custodians for the defendants and up to 8 custodians for the plaintiffs.

Rulings on the third letter brief

The defendants’ request to include proposed language concerning the General Data Protection Regulation in the forthcoming proposed protective order was GRANTED. Their request to include proposed language concerning the French blocking law in that protective order was DENIED.

The plaintiffs’ requests to change the standard protective order concerning the location for inspecting protected information and the installation of particular software for evaluating protected information were DENIED. The court also ordered that, under the forthcoming proposed protective order, a producing party must provide requested source-code printouts within 10 days after the receiving party’s request.

The order stated generally that the relief sought in the motion to compel and the three letter briefs was granted in part and denied in part. Judge Robert M. Illman signed the order on January 31, 2020.