Autodesk, Inc. v. Dassault Systemes Solidworks Corporation

Filing 22

ORDER GRANTING ODA's motion for leave to file excess pages 12 , DENYING ODA's lodged motion for protective order 20 , and GRANTING Autodesk's motion to compel 1 . IT IS FURTHER ORDERED that ODA: (1) produce all documents identified in the subpoena on or before September 25, 2009 and an appropriate privilege log; and (2) designate a Rule 30(b)(6), Fed. R. Civ. P., witness to be deposed before September 25, 2009 for no more than seven hours at a location of ODA's choosing. IT IS FURTHER ORDERED that ODA pay Autodesk's reasonable expenses, including attorney's fees, incurred in moving to compel. Signed by Judge Frederick J Martone on 9/27/09.(DMT, )

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Autodesk, Inc., a Delaware corporation, ) ) ) Plaintiff, ) ) vs. ) ) D a s s a u l t S y s t è m e s S o l i d w o r k s) ) Corporation, a Delaware corporation, ) ) Defendant. ) )

No. MC-09-00096-PHX-FJM (United States District Court Northern District of California Case No. 3:08-CV-04397-WHA) ORDER

The court has before it Autodesk Inc. ("Autodesk")'s motion to compel (doc. 1), The Open Design Alliance ("ODA")'s response, motion for leave to exceed the page limit, and lodged motion for protective order (doc. 11, 12, & 20), and Autodesk's reply/response (doc. 21). We grant ODA's motion for leave to exceed the page limit only so that we may consider the merits on a timely basis. There is, however, no justification for the abusive length of the motion for protective order. Autodesk moves to compel nonparty ODA to comply with a subpoena for deposition and production of documents served on June 2, 2009. ODA contends that it did not receive proper notice of the motion to compel and that the subpoena poses an undue burden or expense under Rule 45, Fed. R. Civ. P., due to ODA's small size and its earlier discovery in a separate proceeding. ODA also moves for a protective order and to quash or modify the

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subpoena. ODA's objections are both untimely under Rule 45(c)(2)(B), Fed. R. Civ. P., and unavailing. We find that ODA received notice and that an estimated forty hours of document production and sixty hours of deposition preparation constitute neither an undue burden under the circumstances nor a justification for a three-month delay. We deny ODA's motion for protective order and grant Autodesk's motion to compel. We note that counsel held ongoing negotiations concerning earlier discovery without resolution. If ODA chooses to make its earlier discovery admissible in Autodesk's current action, it may offer it in partial response to the subpoena. Regardless, ODA must comply with the subpoena as written. We also note that there is a September 25, 2009 deadline for close of discovery. We grant Autodesk's request for Rule 37(a)(5), Fed. R. Civ. P., expenses associated with the motion to compel and we deny ODA's request for attorney's fees. ODA may move for reimbursement of significant expenses incurred in producing documents after compliance. IT IS THEREFORE ORDERED GRANTING ODA's motion for leave to file excess pages (doc. 12), DENYING ODA's lodged motion for protective order (doc. 20), and GRANTING Autodesk's motion to compel (doc. 1). IT IS FURTHER ORDERED that ODA: (1) produce all documents identified in the subpoena on or before September 25, 2009 and an appropriate privilege log; and (2) designate a Rule 30(b)(6), Fed. R. Civ. P., witness to be deposed before September 25, 2009 for no more than seven hours at a location of ODA's choosing. IT IS FURTHER ORDERED that ODA pay Autodesk's reasonable expenses, including attorney's fees, incurred in moving to compel. DATED this 17th day of September, 2009.

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