In Re Aceellion Inc Data Breach Litigation

Key Facts

Issues

• The court resolved a dispute over the necessity of a deposition of WA SAO, determining whether it is required to confirm that a spreadsheet can be reliably created from the produced data despite WA SAO's prior declaration outlining reconstruction limitations and its status as a third-party public agency.
• The court addressed the scope of two subpoenas served on WA SAO: (i) files collected during its investigation that were on the FTA at the time of the data breach, and (ii) documents already produced in the related Stone Action. The dispute primarily focused on the first category and the need for a deposition to validate data reliability.
• The court ruled that cost-shifting is appropriate due to WA SAO's status as a third party and public agency, ordering plaintiffs to reimburse WA SAO for deposition-related costs and fees, not exceeding $5,000, to address the burden on the agency.

Holdings

• WA SAO must make a corporate witness available for deposition on topics 11 and 12 (b)-(c) by February 27, 2026. The Court notes that WA SAO can only testify about information in its custody and control, and the witness may not confirm a reliable spreadsheet can be created from the data.
• Plaintiffs must reimburse WA SAO for costs and fees, including attorneys' fees, associated with the deposition, not exceeding $5,000. This cost-shifting is justified due to WA SAO's status as a third party and its prior declaration.
• The Court orders that the production of documents will be subject to the Protective Order (Dkt. 189) with specific requirements: (i) Plaintiffs must store the information on an air-gapped, encrypted hard drive maintained by their expert, and (ii) Plaintiffs' Counsel may not create copies or handle the information independently of their expert.

Remedies

• The Court orders cost shifting, requiring Plaintiffs to reimburse WA SAO for costs and fees, including attorneys' fees, associated with the deposition, not exceeding $5,000. This is due to WA SAO's status as a third party and the prior declaration provided.
• WA SAO must make a corporate witness available for deposition on topics 11 and 12 (b)-(c) identified in Plaintiffs' January 17, 2025 submission by February 27, 2026. The Court cautions that the witness can only testify to information in their custody and may not confirm the spreadsheet's reliability.
• The Court orders that the production of documents will be subject to the Protective Order in this action (Dkt. 189), requiring Plaintiffs to store the information on an air-gapped, encrypted hard drive maintained by their expert and prohibiting Counsel from creating copies or handling the information independently.

Legal Principles

• The court ordered cost-shifting, requiring plaintiffs to reimburse WA SAO for up to $5,000 in costs and fees associated with the deposition, citing the third-party status of WA SAO and its prior declaration.
• The court applied proportionality standards under Rule 26 and the scope of discovery through subpoenas under Rule 45, noting that the scope of discovery via subpoena is the same as under Rule 34. These principles informed the decision regarding the necessity of a deposition and cost-shifting.

Precedent Name

Cited Statute

• Federal Rule of Civil Procedure 26
• Federal Rule of Civil Procedure 45

Judge Name

Passage Text

• The Court has reviewed the Parties submissions and the relevant law, including Federal Rule of Civil Procedure 45 and determines that this matter may be resolved without oral argument. Civ. L.R. 7-1(b).
• 3. Before February 27, 2026, WA SAO shall make a corporate witness available to be deposed on only topics 11 and 12 (b)-(c) identified in Plaintiffs' January 17, 2025... The Parties are cautioned that WA SAO can only testify as to what information is in its custody and control...
• 2. The production will be subject to the Protective Order in this action (Dkt. 189): (i) Plaintiffs will store this information on an air-gapped (i.e., not connected to the internet), encrypted hard drive maintained by Plaintiffs' expert. (ii) Plaintiffs' Counsel will not create a copy of the information or handle the information independently of their expert.