Verinata Health, Inc. et al v. Ariosa Diagnostics, Inc et al

Filing 345

ORDER RE:DISCOVERY #338 . (Illston, Susan) (Filed on 2/27/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VERINATA HEALTH, INC., et al.,

Case No. 12-cv-05501-SI

Plaintiffs,
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v.

ORDER RE: DISCOVERY

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ARIOSA DIAGNOSTICS, INC, et al.,

Re: Dkt. No. 336, 341

Defendants.

United States District Court
Northern District of California

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The Court is in receipt of two joint discovery statements from the parties. Dkt. Nos. 336,

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341. In their first joint letter, the parties dispute whether plaintiffs should be entitled to take

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additional depositions of two Ariosa scientists, Drs. Zahn and Wang. Dkt. No. 336. In their

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second joint letter, the parties disagree as to where Ariosa should depose Dr. Fan, one of

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Illumina’s 30(b)(6) designees – California or Hong Kong. Dkt. No. 341.

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I.

Zahn and Wang Depositions

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The parties first dispute whether plaintiffs should be able to re-depose Drs. Zahn and

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Wang, two of Ariosa’s scientists. Joint Statement (Dkt. No. 336). Plaintiffs argue that when they

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previously deposed Drs. Zahn and Wang, they had no discovery regarding Ariosa’s newer

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microarray Harmony test, which Ariosa released shortly before the Court stayed this case.

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Plaintiffs would now like an opportunity to depose Drs. Zahn and Wang as scientists directly

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involved in developing the microarray test. Ariosa opposes repeat depositions of Drs. Zahn and

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Wang because the company will be producing a corporate representative to testify, as Ariosa’s

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30(b)(6) designee, regarding technical details of the microarray-based Harmony test. Ariosa’s

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position is, essentially, that plaintiffs had their chance. According to Ariosa, plaintiffs knew about

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the microarray test and asked questions about it in the previous depositions of Drs. Zahn and

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Wang.

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“A party must obtain leave of court, and the court must grant leave to the extent consistent

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with [Federal] Rule [of Civil Procedure] 26(b)(1) and (2)” if “the deponent has already been

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deposed in the case[.]” Fed. R. Civ. P. 30(a)(2)(A)(ii). “[T]he court must limit the frequency or

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extent of discovery otherwise allowed . . . if it determines that:” (i) “the discovery sought is

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unreasonably cumulative or duplicative, or can be obtained from some other source that is more

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convenient, less burdensome, or less expensive”; (ii) “the party seeking discovery has had ample

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opportunity to obtain the information by discovery in the action”; or (iii) the proposed discovery is

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beyond the scope of Rule 26(b)(1). Id. 26(b)(2)(C).
Although plaintiffs inquired about the microarray test in their previous depositions of Drs.

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United States District Court
Northern District of California

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Zahn, Wang, and Oliphant, the questioning was fairly superficial and geared towards

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understanding Ariosa’s shift from the sequencing-based version to the microarray. In light the

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time that has passed since Drs. Zahn and Wang were last deposed1 and Illumina’s new discovery

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regarding the microarray test, the Court finds that plaintiffs’ request to depose Drs. Zahn and

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Wang regarding the microarray test is reasonable. Ariosa is hereby ordered to make Drs. Zahn

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and Wang available for deposition for a maximum of four hours each. Plaintiffs shall be limited

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to asking about the microarray test and may not use this opportunity to reopen old topics.

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II.

Fan Deposition

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The parties next dispute where Ariosa should conduct the deposition of Dr. Fan, one of

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Illumina’s 30(b)(6) designees. Joint Statement (Dkt. No. 341). Ariosa would like to depose Dr.

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Fan in person in California “or as a compromise, another convenient U.S. location.” Id. at 3.

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Illumina insists that Ariosa should either travel to Hong Kong, where Dr. Fan is located, or

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conduct the deposition from the United States via videoconference. Dr. Fan no longer works for

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Illumina and he “is not being compensated for his time working on this case.” Id.

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Dr. Zahn was last deposed in Fall 2014 and Dr. Wang in January 2015. Following those
depositions, the case was stayed for approximately nineteen months, a stay obtained on Ariosa’s
motion, over plaintiffs’ objection.
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The Court has read the parties’ joint statement in detail. Because plaintiffs filed this action

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in the Northern District of California and plaintiffs designated Dr. Fan, who resides in Hong

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Kong, as a 30(b)(6) witness, Ariosa should be able to depose Dr. Fan, in person, in Northern

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California. Although undoubtedly an inconvenience for Dr. Fan, asking one witness to travel

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rather than numerous lawyers is sensible.

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The Court hereby orders Dr. Fan to appear for deposition in a “convenient U.S. location”

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of the parties’ choosing. If the parties cannot agree on an alternative U.S. location, it shall be San

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Francisco. Because Ariosa will benefit from the convenience of deposing Dr. Fan in the United

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States, Ariosa is hereby ordered to pay Dr. Fan’s roundtrip, business-class airfare for the journey.

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United States District Court
Northern District of California

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This order resolves Dkt. Nos. 336, 341.

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IT IS SO ORDERED.
Dated: February 27, 2017
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SUSAN ILLSTON
United States District Judge

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