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WeRide Corp. v. Huang

United States District Court, N.D. California

August 27, 2019

WERIDE Corp. f/k/a JingChi Corp., WERIDE Inc. f/k/a JingChi Inc., Plaintiffs,
v.
JING WANG, an individual, KUN HUANG, an individual, ZHONG ZHI XING TECHNOLOGY CO. LTD.. d/b/a ALLRIDE.AI, ALLRIDE.AI INC., KAIZR, INC., ZKA INC., DOES 1-10 Defendants.

          ORDER ON DISCOVERY SPECIAL MASTER AND NEUTRAL FORENSIC INSPECTION

          Honorable Nathanael Cousins United States Magistrate Judge.

         Before the Court is the request of Plaintiffs' WeRide Corp. and WeRide Inc. (collectively “Plaintiffs”) to appoint a forensic neutral and a special master in order to investigate possible spoliation of evidence pursuant to the issues raised in the August 15, 2019, letter (ECF 231) from counsel for Zhong Zhi Xing Technology Co. Ltd. and AllRide.AI Inc. (collectively “ZZX”). Having considered the submissions of Plaintiffs (ECF 260) and Defendants ZZX, Jing Wang, and Kun Huang (the “Defendants” and collectively with Plaintiffs the “Parties”) (ECF 263, 264), the Court now ORDERS as follows.

         The need for this order is the self-reported spoliation of evidence in ECF 231 and the delay in discovery by defendants. A reader desiring additional context for this order may review the orders at ECF 235 and 252 and the transcript of the August 16, 2019, discovery hearing at ECF 251. Plaintiffs' proposed order (ECF 260) also addressed several outstanding discovery issues. The Court DEFERS ruling on those issues. This order is focused on the immediate need for a forensic neutral and discovery special master. The deadlines in this order are short, but the parties have known since August 16 that the Court would be appointing experts to assist in these roles.

         I. NEUTRAL FORENSIC INSPECTOR

         The Court hereby ORDERS the appointment of a neutral forensic inspector (the “Forensic Neutral”), and further ORDERS that the Forensic Neutral complete the following tasks by the following deadlines:

         1. Choosing a Forensic Neutral. By Friday, August 30, 2019, the Parties shall meet and confer, and select a suitable third party vendor, not currently retained by any Party in relation to the above captioned action, to act as the Forensic Neutral. If the Parties are unable to agree on the Forensic Neutral, the Parties shall file a joint letter brief, not to exceed two pages, by midnight on August 30, 2019, setting forth their competing proposals for Forensic Neutral, and the Court will select the Forensic Neutral from the Parties' proposals, or will make its own selection.

         2. Engaging the Forensic Neutral. Following the selection of the Forensic Neutral in Paragraph 1, Defendant ZZX shall engage the Forensic Neutral to conduct the forensic analysis detailed in this Order. Even though the Forensic Neutral shall be engaged by ZZX, the Forensic Neutral shall be considered a neutral third-party forensic examiner, and shall not be deemed an agent, representative, or expert of any Party to this litigation. Nonetheless, ZZX shall work directly with the Forensic Neutral in order to accomplish the work to be performed pursuant to this order. The Forensic Neutral's work in connection with this litigation shall not be deemed the work product of any Party to this Litigation. The Forensic Neutral shall execute the “Acknowledgement and Agreement to Be Bound” that is attached as “Exhibit A” to the stipulated protective order entered in this litigation. See Dkt. 125-1 at 19. The Forensic Neutral shall begin the work contemplated in this Order as soon as practicable.

         3. The Forensic Neutral's Work. The Forensic Neutral shall be charged with:

(i) quantifying and qualifying the scope of the document destruction outlined in the letter submitted to the Court by counsel for ZZX at ECF 231 (the “Letter”), including investigating the specific claims made within that letter; (ii) recovering, to the extent possible using commercially reasonable efforts, any documents destroyed pursuant to the events described in the Letter, or otherwise destroyed by ZZX, its agents, employees, or individuals acting in concert with ZZX, at any time between the date the duty to preserve attached and the date of the Letter; and (iii) as it relates to Paragraphs 1 & 2 above, describing, to the extent possible, the nature and contents of any destroyed documents that cannot be recovered using commercially reasonable efforts. The Forensic Neutral's work shall be carried out as follows.
a. The Forensic Neutral may, but is not required to, interview ZZX's third party vendor and consultant, KL Discovery, ZZX's head of information technology (“IT”), or any other IT personnel the Forensic Neutral deems reasonably necessary, in order to gain an understanding of: (i) the architecture of ZZX's networks, computer systems, email systems, source code repositories, and any other electronic document repositories in the possession, custody, or control of ZZX; (ii) ZZX's document retention and/or backup policies and procedures; and (iii) any findings or determinations already made by IT employees of ZZX regarding the destruction of documents as outlined in the Letter. The interview(s) may last a total of up to 7 hours, and may take place via a video conference if necessary. ZZX shall make its IT personnel available to the Forensic Neutral in order to facilitate this interview(s). By September 9, 2019, the Forensic Neutral shall provide a report to all Parties regarding its findings regarding the subjects of the interview(s).
b. The Forensic Neutral may, but is not required to interview the custodians (“Custodians”) identified in the Declaration of Thomas Barce in Response to Court's Order Granting Motion to Compel dated August 23, 2019 regarding the subjects identified in Paragraph 3 above. The interviews may, but need not be, up to 2 hours per custodian. The Forensic Neutral may conduct its interviews of the Custodians by video conference if necessary. Using reasonable efforts, ZZX shall make the preceding individuals available to the Forensic Neutral in order to facilitate these interviews. If ZZX is unable to make one or more of these individuals available to the Forensic Neutral for an interview, ZZX shall provide all Parties to the Litigation with a declaration, signed under penalty of perjury, attesting as to why the particular individual(s) cannot be made available to the Forensic Neutral.
c. During the Custodian interviews conducted pursuant to the preceding paragraph, the Forensic Neutral may, in the sole discretion of the Forensic Neutral, attempt to ascertain: (i) the locations where any hard copy documents potentially relevant to this litigation, and in the possession, custody, or control of ZZX or the Custodians, may be found, (ii) the locations where electronically stored information potentially relevant to this litigation, and in the possession, custody, or control of ZZX or the Custodians, may be found, (iii) the identities of any additional individuals who should be added to the list of Custodians because they may have unique knowledge regarding the location of information potentially relevant to this litigation, and in the possession, custody, or control of ZZX or the Custodians, (iv) the dates the notices or instructions were sent to the Custodians and other non-privileged information related to, the actions the Custodians did or did not take, to preserve evidence potentially relevant to this litigation, and (v) the extent to which the Custodians deleted, destroyed, or lost (willfully or inadvertently) any evidence potentially relevant to this litigation as encompassed under FRCP 26.
d. ZZX agrees to provide to the Forensic Neutral all images of any computers or devices performed to date containing electronically stored information related to the matter. Thereafter, the Forensic Neutral shall provide a report to all Parties regarding its findings as to each of the subjects of the Custodian interviews, including a determination as to what, if any, additional steps are necessary.

         4. Deposition of the Forensic Neutral. A representative of the Forensic Neutral who is adequately prepared to testify regarding the Forensic Neutral's work and reports shall appear for deposition at 9:00 a.m., on October 1, 2019, (or an earlier date if agreed to be all parties, the Special Master, and deponent) at the Redwood City offices of Quinn Emanuel Urquhart & Sullivan, LLP, located at 555 Twin Dolphin Drive, 5th Floor, Redwood City, California 94065. The deposition shall last for 8 hours, with Defendants and Plaintiffs each receiving 3.5 hours to question ...


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