Implicit Networks, Inc. v. F5 Networks, Inc.

Filing 108


Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 No. C 10-03365 SI IMPLICIT NETWORKS INC, ORDER DENYING MOTION TO COMPEL AND GRANTING MOTION TO QUASH Plaintiff, v. F5 NETWORKS INC, Defendant. / 16 17 Currently before the Court is F5 Networks’ motion to compel plaintiff Implicit to resume the 18 deposition of Implicit’s prosecution counsel – Randy Gard – as well as Implicit’s motion to quash a 19 Rule 30(b)(6) deposition subpoena served on Gard’s law firm, Gard & Kaslow, LLP. In a motion filed 20 April 11, 2012, F5 asked this Court to order Implicit to produce a range of documents identified on Mr. 21 Gard’s privilege log for review by a magistrate judge to determine whether a member of plaintiff’s 22 litigation counsel team, Spencer Hosie, violated the “patent prosecution bar” imposed by the Court’s 23 Patent Local Rule 2-2 Model Protective Order. Docket No. 100. The Court denied that request, finding 24 that F5 had not produced sufficient evidence to suggest that a violation of the patent prosecution bar had 25 occurred after February 11, 2011 - the date on which the prosecution bar took effect. The denial was 26 without prejudice, and the Court noted that if F5 accepted plaintiff’s proffer to resume the deposition 27 of Mr. Gard about the substance of a conversation he had with Mr. Hosie and others (the proffer 28 including a limited waiver as to attorney-client privilege for the contents of that conversation only), F5 could resubmit its request for referral by noticed motion. 1 F5 now seeks this Court’s assistance in order to depose Mr. Gard on privileged matters outside 2 of the limited proffer offered by Implicit. Docket No. 106. The Court sees no grounds to do so and F5’s 3 motion to compel is DENIED. F5 has also served a Rule 30(b)(6) deposition subpoena on Gard & Karlow seeking to compel 5 the person most knowledgeable from that firm – presumably Mr. Gard – to testify on a range of 6 subjects, including all communications, notes and documents exchanged with the Hosie, Rice firm 7 relating to the patents in suit as well as related patents and patent applications. See Ex. A to Docket No. 8 106. Implicit objects to and moves to quash the deposition subpoena, arguing that the subpoena is an 9 attempt to secure access to the same attorney-client communications F5 unsuccessfully sought to have 10 United States District Court For the Northern District of California 4 produced to a magistrate judge on its prior motion. The Court agrees and finds that the deposition 11 subpoena should be quashed. Moreover, the subpoena is fatally overbroad (attempting to delve into 12 communications that occurred prior to the imposition of the patent prosecution bar in February 2011) 13 and seeks production of clearly privileged information (information exchanged between the two law 14 firms as to the patents in suit here, the ‘786 application, all related patents and applications, and all 15 related litigation). 16 17 For the foregoing reasons, F5’s motion to compel is DENIED. Implicit’s motion to quash is GRANTED. 18 19 20 IT IS SO ORDERED. 21 22 23 Dated: May 23, 2012 SUSAN ILLSTON UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?