Robocast, Inc v. Microsoft Corp

Filing 13

ORDER by Judge Elizabeth D Laporte granting 1 Motion to Compel (knm, COURT STAFF) (Filed on 6/21/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBOCAST, INC.,
Plaintiff,

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United States District Court
For the Northern District of California

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No. C -13-80124 RS (EDL)
ORDER

v.
MICROSOFT CORP.,
Defendant.

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This is an action for patent infringement regarding automated web browsing tools and

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technology covered by U.S. Patent No. 7,155,451 (the “451 patent”). Pending before the Court is

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Plaintiff’s Motion to Compel Rule 30(b)(6) Deposition of Miomni Corporation (“Miomni”), a third

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party believed to have information concerning the design, development, and functionality of the

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alleged infringed product. Miomni has not objected to the subpoena, designated a witness, or

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otherwise substantively replied to the subpoena. Plaintiff seeks an order compelling Miomni to

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prepare and produce a witness for deposition. Judge Seeborg referred the case to the Court for

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discovery purposes. Docket No. 6. The Court grants Plaintiff’s motion to compel Miomni to

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designate, prepare, and produce a witness for Plaintiff’s noticed topics.

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On December 6, 2010, Plaintiff Robocast filed a complaint against Defendant Microsoft for

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infringement of the “451 patent.” Declaration of Justin Gray, hereafter “J. Gray Decl.,” Exh. A.

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Among the accused products was a feature incorporated into Microsoft’s Windows Media Center for

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Windows Vista known as the Sports Channel. J. Gray Decl. Exh. B. Defendant has denied that it
possesses relevant information concerning the Sports Channel but confirmed that a Miomni-related

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entity called Miomni Ltd. designed and developed the Sports Channel software for Microsoft. J.

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Gray Decl Exh. D.

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On March 12, 2013, Plaintiff properly served a deposition subpoena pursuant to Federal Rule

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of Civil Procedure 30(b)(6) on Miomni, requesting information known to Miomni Corp. and any

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related parent, subsidiary, or otherwise affiliated companies concerning seventeen topics related to

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the Sports Channel. J. Gray Decl. Exh. I. On March 14, 2013, Mr. Andy Watt, director and

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shareholder of Miomni Ltd. and Miomni Holdings, informed Plaintiff that Miomni Ltd. had

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dissolved and all documents, including source code, relating to the Sports Channel “went” during

United States District Court
For the Northern District of California

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the liquidation. J. Gray Decl. Exh. E at 4. Mr. Watt would not confirm that the documents had been

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destroyed, but stated that Miomni did not hold any documentation or code. J. Gray Decl. Exh. E at

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3-44. Despite evidence to the contrary, including representations on Miomi Holdings’ website, Mr.

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Watt asserted that Miomni Corp. had nothing to do with the Sports Channel and Miomni Corp. does

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not have any employees in the United States. Id. at 1. Moreover, although Mr. Watt did express his

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unwillingness to sit for the deposition himself (J. Gray Decl. Exh. E at 1-2, 4-5), he at no point

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objected or formally responded to Robocast’s deposition subpoena.

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Federal Rule of Civil Procedure 26 states that parties may obtain discovery regarding any

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non-privileged information that is relevant to its claims and the court may order discovery of any

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information relevant to the action. F.R.C.P. 26(b)(1). Here, Defendant Microsoft argues that all

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remaining information concerning the alleged infringed product appears to be in the possession of

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Miomni Holdings and its U.S. office known as Miomni Corp. Defendant further argues that Miomni

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Corp. has waived any objections that it may have had as the subpoena was served more than two

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months ago and Miomni Corp. has yet to formally object or substantively respond. “A nonparty’s

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failure to timely make objections to a Rule 45 subpoena generally requires the court to find that any

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objections have been waived.” Prescott v. County of Stanislaus, No. 1:10-cv-00592 JLT, 2011 U.S.

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Dist. LEXIS 134137, at *13 (E.D. Cal. Nov. 21, 2011) (internal quotations omitted).

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Miomni has neither objected to the subpoena nor mentioned any grounds that would justify not

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complying with it. In responding to a deposition subpoena, a third party’s options are to: (1)

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comply with the subpoena; (2) move to quash or modify the subpoena pursuant to Federal Rule of

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Civil Procedure 45 (c)(3)(A); or (3) move for a protective order pursuant to Rule 26(c). Union Bank

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of California 401(k) Plan v. Hansen (In re Coan), No. C 066-80350 MISC SI, 2007 U.S. Dist.

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LEXIS 6288, at *6 (N.D. Cal. Jan. 12, 2007); see also 9-45 Moore’s Federal Practice – Civil § 45.30

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(2006). Miomni has failed to pursue any of these options, and the Court hereby grants Plaintiff’s

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motion to compel Miomni to designate, prepare, and produce a witness for Plaintiff’s noticed topics.

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: June 21, 2013
ELIZABETH D. LAPORTE
Chief United States Magistrate Judge

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