1297730 

Jo W. Golub 

(415) 773-6691

jgolub@keker.com 

September 7, 2018 

VIA ECF 

Magistrate Judge Nathanael M. Cousins 

United States District Court 

Northern District of California 

280 South 1st Street 

Courtroom 5, 4th Floor 

San Jose, CA 95113 

Re: In re Yahoo! Inc. Customer Data Security Breach Litigation 

Case No. 16-MD-02752-LHK 

Dear Magistrate Judge Cousins: 

Pursuant to the Court’s April 20, 2018 Civil Standing Order, counsel for plaintiffs and 

non-party Ronald Bell have met and conferred and hereby submit this joint statement regarding 

the deposition of Mr. Bell, currently scheduled for September 12-13. Mr. Bell, who is the 

former General Counsel for defendant Yahoo! Inc., respectfully requests that the Court issue a 

protective order to allow his deposition to be continued until the resolution of the pending 

disputes between the parties regarding the assertion of the attorney-client privilege. I am 

available for a conference should the Court find that helpful. 

Respectfully submitted, 

KEKER, VAN NEST & PETERS LLP 

Jo W. Golub 

JWG:srg 

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I. Non-Party Ronald Bell’s Position 

A. Summary of the Discovery Dispute 

Over the past several months, non-party Ronald Bell—the former General Counsel of defendant 

Yahoo! Inc. (“Yahoo”)—and Plaintiffs have negotiated dates for Mr. Bell’s deposition. 

Throughout this process, counsel for Mr. Bell have made clear to Plaintiffs that Mr. Bell, a nonparty, would only sit for deposition once. However, counsel for Mr. Bell have learned that 

Plaintiffs and Yahoo are engaged in a dispute over the production of documents relevant to Mr. 

Bell that Yahoo has withheld on grounds of attorney-client privilege, and that this dispute is set 

to be heard in this Court on September 12—the same day Mr. Bell’s deposition is set to begin. 

Seeking to avoid the risk that Plaintiffs may demand Mr. Bell be deposed twice, counsel for Bell 

requested that his deposition be rescheduled until after resolution of the current privilege dispute 

and offered alternative dates in October and November. Plaintiffs have categorically refused, 

however, to reschedule the deposition. Moreover, Plaintiffs have reserved their “right” to re-call 

Mr. Bell a second time after the privilege dispute is resolved. Having been unable to persuade 

Plaintiffs to delay the deposition until the privilege dispute is resolved and all documents are 

produced, Mr. Bell now turns to the Court for relief. 

B. Background Facts and Relief Sought 

On July 26, counsel for Plaintiffs issued a subpoena on Mr. Bell, which initially noticed the 

deposition for August 17 and included 35 document requests. Upon learning that the Plaintiffs 

in the related state court proceeding would need a separate day with Mr. Bell, on August 8, Mr. 

Bell and Plaintiffs reached agreement to reschedule the deposition for both the federal and state 

plaintiffs, setting it on September 12-13 (dates that Plaintiffs’ counsel selected from ten sets of 

dates provided by Mr. Bell). Counsel for Mr. Bell reviewed and identified non-privileged1

documents responsive to Plaintiffs’ many document requests, and Mr. Bell produced responsive, 

non-privileged documents pursuant to these requests on August 31, 2018.2

After Plaintiffs selected September 12 and 13 for Mr. Bell’s deposition, his counsel learned that 

this Court already had set a hearing for September 12. More recently, Mr. Bell’s counsel 

learned that the Court had expressed concerns that that September 12th hearing could result in 

additional document production and had continued the deposition of former Yahoo CEO 

Marissa Mayer based, among other things, on “the possibility of having additional documents 

compelled from [Yahoo’s] privilege log”: 

 

1

 Because Yahoo, not Mr. Bell, is the holder of the attorney-client privilege with respect to Mr. 

Bell’s role as counsel for Yahoo, potentially privileged documents were initially provided to 

counsel for Yahoo to make initial calls on the application of the attorney-client privilege. 

2

 Plaintiffs have been silent on Mr. Bell’s production since it was served. 

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I say that without a finding that I’m going to do it, just that it’s possible that there 

could be additional documents that would be relevant to [Ms. Mayer’s] 

deposition and it would be more pragmatic to have everything on the table for the 

deposition, rather than have the possibility of a second round of deposition. 

8/22/2018 Tr. at 30:24-25. After reviewing the briefing for Plaintiffs’ motion to compel 

regarding Yahoo’s privilege log, which is set to be heard on September 12, it became apparent 

that the pending privilege dispute concerns thousands of documents that—if ordered produced—

would likely be relevant to Mr. Bell’s deposition. See, e.g., Dkt. 276 at 10 (arguing for 

production of attachments sent to in-house counsel, including Mr. Bell, as not necessarily 

privileged); Dkt. 276 at 11 (arguing that 4,300 documents logged as “non-responsive privileged 

family members” should be produced, which includes multiple communications with Mr. Bell, 

including, for example, 42392, 42393, 42394, 42397, 7256.0001-7552.0002); Dkt. 276 at 14-15 

(arguing that vague descriptions of communications with in-house counsel—like Mr. Bell—are 

insufficient in light of the presumption that communications with in-house counsel reflect 

business advice); Dkt. 283 at 6 (revealing that the dispute regarding log entries that identify 

Yahoo as the custodian also relate to Mr. Bell because “[t]he majority of these entries indicate 

the specific involvement of in-house attorneys such as Chris Madsen or Ron Bell in the 

document, or otherwise identify Yahoo’s in-house counsel as being involved with the 

procurement of legal advice”); Dkt. 283 at 12-13 (arguing that entries stating that 

communication reflects legal advice are sufficient where subject matter of the advice is included, 

such as MDL_Priv_00191, from attorney Chris Madsen to Bob Lord, describing a withheld 

document as “Communication among in-house counsel and employees reflecting legal advice 

from C Madsen* and R Bell* re: draft press release about cyber security”). 

Thus, consistent with the Court’s instructions to the parties to be efficient, not to depose the 

same witnesses twice, and “to allow for conclusion of the document process and the privilege 

process” before deposing relevant deponents, see 8/22/18 Tr. at 28:20-25, counsel for Mr. Bell 

requested by email on September 5 that the parties reschedule the two-day deposition of Mr. 

Bell, in order to allow the Court to rule on the pending privilege dispute, and to provide time for 

any previously withheld documents to be produced and reviewed. The next morning, Mr. Bell’s 

counsel provided five sets of alternative deposition dates in October and November that worked 

for both Mr. Bell and Yahoo. 

In response, Lead Counsel for Plaintiffs, John Yanchunis, stated that Plaintiffs “will not agree to 

postpone the deposition from its present setting,” while at the same time “reserv[ing] all rights” 

to seek a second deposition from Mr. Bell. Despite multiple requests from counsel for Mr. 

Bell,3

 Mr. Yanchunis did not articulate any reason why Plaintiffs would be prejudiced by the 

brief delay that Mr. Bell proposed. Indeed, shifting Mr. Bell’s deposition by a few weeks to 

allow for complete production of relevant documents could not prejudice Plaintiffs, as fact 

discovery does not close until March 2019. 

 

3

 Counsel for Bell have attempted to reach Mr. Yanchunis by telephone to discuss this dispute 

further, leaving voicemail messages that have so far gone unanswered. 

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Plaintiffs’ portion of this joint letter brief states, for the first time, that their reply in support of 

the class-certification motion is somehow affected by potential testimony from Mr. Bell, though 

they provide no explanation for what Mr. Bell could possibly say that would be relevant to the 

class-certification dispute. (Nor do Plaintiffs explain how they properly could rely upon new 

evidence on reply that was not provided in their original motion.) As the Court previously 

observed with regard to Ms. Mayer’s deposition, the “need for the deposition to be done before 

the class reply” does not “outweigh[] the pragmatism of getting the deposition done once and 

completely.” 8/22/18 Tr. At 31:12-14. Moreover, Plaintiffs appear to be available for at least 

some of the dates that Mr. Bell has suggested for his rescheduled deposition in October and 

November, as there has been no mention of unavailability. 

Mr. Bell is a third party in this litigation, and should not be made to bear the risk of a second 

deposition due to Plaintiff’s unilateral decision to proceed on the same day as the hearing on the 

privilege-log dispute. Plaintiffs have not articulated any prejudice that outweighs the interests in 

efficiency and completeness that would be served by briefly delaying this deposition until the 

privilege dispute has been resolved and the document productions are complete. Especially in 

light Mr. Bell’s position as former General Counsel of Yahoo, the privilege issues and disputes 

over the privilege logs should be resolved before he is deposed. 

Accordingly, for the reasons set forth above, non-party Ronald Bell respectfully requests that the 

Court issue a protective order to continue his deposition until after the resolution of the 

outstanding discovery issues, and grant all other just and proper relief. 

II. Plaintiff’s Position 

The deposition of Mr. Bell—Yahoo’s General Counsel during the time when the largest 

data breaches in history occurred, and the sole senior executive to lose his job in the wake of the 

breach announcements—has been set for months; the associated document request has been 

propounded and documents have been produced; yet, Mr. Bell’s counsel now, at the proverbial 

eleventh hour, insists on delay. Plaintiffs have previously agreed to delay this deposition—

originally set for August 17th—but cannot volunteer to do so again now. 

A. Background 

In July, Plaintiffs and counsel for Mr. Bell agreed to a deposition date of August 17, 

2018. Then, on August 6, 2018, Mr. Bell’s counsel stated that the deposition needed to be 

continued because (1) to the extent the MDL and state court Plaintiffs each needed their own day 

of questioning, it needed to occur on consecutive days, and (2) privilege issues were currently 

pending in the MDL case which should be resolved prior to the deposition. In light of the need 

for counsel in the parallel state and federal cases to have their own day of questioning, on 

August 8, 2018, Plaintiffs agreed to continue the August 17th date, and the deposition was 

rescheduled to September 12 and 13, dates offered by Mr. Bell’s counsel. 

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B. The Deposition Should Proceed

Again seizing on Plaintiffs’ privilege challenge, Mr. Bell now suggests that the 

deposition should be delayed again. However, as noted, the deposition has been scheduled and 

re-scheduled once already, and re-scheduling again now will involve juggling the intensely full 

schedules of Mr. Bell, his counsel, MDL Plaintiffs’ counsel, State Plaintiffs’ counsel, and 

defense counsel. Mr. Bell has insisted that to the extent plaintiffs in the MDL and in the state 

case each need their own day of questioning (and they each do), such days must be consecutive, 

thus necessitating Plaintiffs’ counsel to clear their schedules for the better part of a week to 

allow for travel and both days of testimony. 

Plaintiffs’ reply in support of their motion for class certification is due September 21st

. 

Yet, the alternative dates Mr. Bell’s counsel has provided are all long after that critical deadline 

and the ability to utilize information from Mr. Bell’s testimony in the reply will be lost. 

Plaintiffs have not insisted that re-deposition of Mr. Bell will necessarily be required if 

their privilege challenges are successful. Rather, they have simply reserved their right to seek 

one should it be needed. This is, of course, a necessary position; Plaintiffs do not know what the 

privileged documents say and hence cannot predict now whether questioning of Mr. Bell 

regarding them will be required. And, even if additional questioning is needed, such questioning 

by both the federal and state court counsel can likely be cabined to a single day—or portion of a 

day—reducing the intense scheduling issues. 

Finally, Plaintiffs fully appreciate they run the risk of a second deposition being denied 

by this Court. This is a risk they are willing to accept. 

Dated: September 7, 2018 KEKER, VAN NEST & PETERS LLP 

 By: /s/ Jo. W. Golub 

 Jo W. Golub 

Attorneys for Ronald Bell 

Dated: September 7, 2018 MORGAN & MORGAN 

 By: /s/ John Yanchunis 

 John Yanchunis 

Plaintiffs’ Lead Counsel 

Case 5:16-md-02752-LHK Document 316 Filed 09/07/18 Page 5 of 5