Unreported / Non-Citable
Background
Vintage 99 Label Mfg., Inc. sued Brian Lloyd and other defendants in the Northern District of California. The case is at an early stage: a preliminary injunction request is pending, and the Court has already addressed a temporary restraining order. The parties filed statements (ECF Nos. 71 and 72) with competing proposals on three case-management questions: the content of a protective order, whether to enter an evidence preservation order, and when to file the Rule 26(f) report.
Plaintiff proposed a protective order modeled on the district's model order for trade secrets. It dropped the source-code tier, since no source code is at issue, and substituted a Highly Confidential – Outside Attorneys' Eyes Only tier usable for all discovery. Plaintiff said the tier would let it produce sensitive material immediately and keep the dispute from being relocated to before production. Defendants objected because Plaintiff said it does not know whether it will use the designation, and any dispute over particular materials could be resolved individually later. Defendants submitted no separate order; this tier was their only identified disagreement.
Plaintiff also sought forensic preservation of devices mostly in its own possession, arguing that some iCloud backups of deleted files may be nearing the end of their retention periods and that the Apple accounts must be imaged immediately. Separately, it asked that the Rule 26(f) report be due by the earlier of the ordinary deadline or two weeks after the preliminary injunction ruling.
The Court’s Holding
Judge Jon S. Tigar entered Defendants' proposed protective order, which in practice is Plaintiff's proposed order without the Outside Attorneys' Eyes Only tier. Because Plaintiff identified no documents currently in its possession that require the designation, the Court found no present basis for it. Within seven days, the parties must jointly submit Plaintiff's proposed protective order with that designation deleted.
The Court denied the evidence preservation request. It recognized its authority to issue preservation orders where appropriate and recited the factors courts consider: whether the movant can show the other side will destroy necessary evidence absent an order, whether the movant will suffer irreparable harm without one, and the burden an order would impose. Consistent with its earlier temporary restraining order ruling, the Court explained that such an order should not issue when there is no evidence that relevant information has been destroyed or lost, or that the non-movant's preservation steps are inadequate. Plaintiff's concern about iCloud retention periods did not change that result, because the Court found there remained no evidence of ongoing evidence destruction.
The Court also declined to tie the Rule 26(f) report to the preliminary injunction ruling, finding no justification for doing so. The report remains due within 14 days after the Rule 26(f) conference, as Rule 26(f)(2) provides. This is an interlocutory case-management order. The case continues, the preliminary injunction remains to be decided, and the revised protective order is still to be filed.
Key Takeaways
- A party seeking an extra confidentiality tier should identify documents it actually holds that need it; Plaintiff's uncertainty about whether it would ever use the tier was not enough.
- Preservation orders turn on evidence of destruction, loss, or inadequate preservation steps, not on concern about retention periods alone.
- The Court applied a multi-factor preservation test drawn from other district court decisions and relied on its own earlier ruling in the same case.
- Rule 26(f) timing stayed at the Federal Rules default of 14 days after the conference, with no reason found to link it to the injunction ruling.
- Because this is an unreported district court order resolving interim case-management disputes, it is persuasive at most and does not decide the merits.
Why It Matters
The order shows how a Northern District of California judge handles early disputes over discovery infrastructure: ask what is needed now, and defer speculative provisions and extraordinary relief until the facts support them. Disagreement over the protective order ended with a model-form order that omits the contested tier rather than a bespoke provision.
The ruling is narrow and tied to the present record. It does not decide the merits or the preliminary injunction, and the Court's reasoning, that no documents currently require the tier and that no evidence of destruction has been shown, leaves room for a party to return with concrete facts. Practitioners seeking similar relief should identify specific documents and concrete evidence of loss at the outset.