Straight Path IP Group v. BlackBerry Limited et al

Filing 51

ORDER GRANTING MOTION TO QUASH, DENYING MOTION TO COMPEL, AND FINDING ENTITLEMENT TO ATTORNEYS FEES AND EXPENSES by Judge Alsup re 1 Motion to Quash; re 17 Motion to Compel (whalc1, COURT STAFF) (Filed on 7/8/2014) .

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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STRAIGHT PATH IP GROUP, INC.,

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Plaintiff,

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For the Northern District of California

United States District Court

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No. C 14-80150 WHA

v.
BLACKBERRY LIMITED, et al.,
Defendants.
/
NETFLIX, INC.,

ORDER GRANTING
MOTION TO QUASH, DENYING
MOTION TO COMPEL, AND
FINDING ENTITLEMENT TO
ATTORNEY’S FEES AND
EXPENSES

Third Party.
/

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INTRODUCTION

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This miscellaneous discovery matter concerns two massively overbroad discovery

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demands against a third party, including 46 requests for production and 47 deposition topics

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embellished by lengthy “definitions” and “instructions.” For the reasons detailed herein, the

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motion to quash the deposition subpoena is GRANTED. The cross motion to compel the document

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(and deposition) subpoena is DENIED. The third party is entitled to reasonable attorney’s fees and

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expenses incurred from responding to these oppressive demands.

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STATEMENT

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This discovery matter involves four lawsuits filed in the Eastern District of Texas. These

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lawsuits, however, were not the first time these patents were asserted by Straight Path IP Group,

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Inc. In August 2013, Straight Path sued a group of defendants in Virginia, all before Judge

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Anthony Trenga. See, e.g., Straight Path IP Group, Inc. v. Bandwidth.com, Inc., No.
1:13-cv-00932-AJT-IDD (E.D. Va. Aug. 1, 2013); Straight Path IP Group, Inc. v. Telesphere

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Networks, Ltd., No. 1:13-cv-00937-AJT-IDD (E.D. Va. Aug. 1, 2013); Straight Path IP Group,

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Inc. v. Vocalocity, Inc., No. 1:13-cv-01100-AJT-IDD (E.D. Va. Aug. 1, 2013); Straight Path IP

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Group, Inc. v. LG Electronics, Inc., et al., No. 1:13-cv-00933-AJT-IDD (E.D. Va. Aug. 1, 2013);

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Straight Path IP Group, Inc. v. Vizio, Inc., et al., No. 1:13-cv-00934-AJT-IDD

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(E.D. Va. Aug. 1, 2013); Straight Path IP Group, Inc. v. Panasonic Corporation of North

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America, et al., No. 1:13-cv-00935-AJT-IDD (E.D. Va. Aug. 1, 2013); Straight Path IP Group,

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Inc. v. Sharp Corporation, et al., No. 1:13-cv-00936-AJT-IDD (E.D. Va. Aug. 1, 2013); Straight

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Path IP Group, Inc. v. Toshiba Corporation, et al., No. 1:13-cv-01070-AJT-IDD

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(E.D. Va. Aug. 2, 2013); Straight Path IP Group, Inc. v. Sony Corporation, et al.,

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For the Northern District of California

United States District Court

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No. 1:13-cv-01071-AJT-IDD (E.D. Va. Aug. 1, 2013).
Straight Path also requested that the International Trade Commission (“ITC”) investigate

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respondents AmTran Logistics, Inc., LG Electronic, Inc., Panasonic Corporation, Sony Computer

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Entertainment, Inc., Sharp Corporation, Toshiba Corporation, and Vizio, Inc., among others, for

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alleged patent infringement. See Certain Point-to-Point Communication Devices and Products

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Containing Same, Inv. No. 337-TA-892.

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Netflix was not a party to the ITC investigation (or any of the district court lawsuits

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pending at the time). Nevertheless, in October 2013, Straight Path served Netflix with an ITC

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subpoena. In January 2014, the ALJ denied Netflix’s motion to quash the ITC subpoena.

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The order, however, noted that “[i]t is expected that Straight Path will abide by its agreement to

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narrow the scope of the requested information as set forth in its briefs” (Dkt. No. 3, Coughlan

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Decl. Exh. B). Netflix thereafter “produced technical documents and made source code available

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for inspection” in the ITC investigation (Dkt. No. 3, Coughlan Decl. ¶ 7). Straight Path sent

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individuals to inspect Netflix’s source code on four occasions. Netflix also produced “technical

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documents regarding Netflix’s backend architecture and operation, and versions of Netflix’s

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content control protocol” (Dkt. No. 32, Coughlan Decl. ¶¶ 6, 7).

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In February 2014, a FRCP 30(b)(6) witness for Netflix was deposed for a full day in the
ITC investigation (Dkt. No. 3, Coughlan Decl. ¶ 11). The day before the deposition, counsel for

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Straight Path confirmed the following topics for the deposition in an email to counsel for Netflix

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(Dkt. No. 3, Coughlan Decl. Exh. C):

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Hi Jim [counsel for Netflix],

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The agreed upon topics for the deposition are related to Straight
Path’s subpoena to Netflix in the following way:

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Subject of Testimony

Subpoena ad
testificandum
Topic Number

Sending a request for streaming content from a
client with a movie ID to the server

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The server response to that request (containing a
[content delivery network (“CDN”)] URL)

3, 4, 7–9

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Connecting to a CDN, e.g., for the purpose of
obtaining streaming content

3, 4, 7–9

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For the Northern District of California

United States District Court

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General process for displaying the dynamic
Netflix UI (Gibbon and Qt WebKit)

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Determination of movie availability in response
to a client’s authorization request for streaming
content

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Assembling a response in response to a client’s
request for streaming content

3, 4

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CDN selection (generally)

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Testimony regarding the Netflix certification
process. (Netflix will not be required to provide
testimony about the certification process for any
individual accused product).

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3, 4, 7–9
2, 3

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There was no further motion practice regarding the deposition. Also, Straight Path did not

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request additional documents or code (Dkt. No. 32, Coughlan Decl. ¶ 19). Nevertheless, it is now

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Straight Path’s view that Netflix refused to provide adequate discovery on the content delivery

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network (“CDN”) servers.

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Straight Path then withdrew its ITC complaint and filed a motion to terminate the ITC

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investigation. The investigation was terminated days before the hearing was scheduled to begin.

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In June 2014, for those defendants that had not yet settled (Vizio, Sony, and Toshiba), the

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stay in the Virginia actions was lifted. See, e.g., Vizio, No. 1:13-cv-00934-AJT-IDD

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(E.D. Va. June 18, 2014) (Dkt. No. 56). The Virginia actions involve the same three patents at

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issue in the Texas actions discussed below.

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The instant subpoena arises from four actions filed in Texas in August 2013, all before

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Judge K. Nicole Mitchell. In March 2014, plaintiff Straight Path served third-party Netflix with

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the instant subpoena for documents and deposition testimony. See, e.g., Straight Path IP Group,

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Inc. v. BlackBerry Limited, et al., No. 6:13-cv-00604-KNM (E.D. Tex. Aug. 23, 2013); Straight

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Path IP Group, Inc. v. Huawei Investment & Holding Co., Ltd., et al., No. 6:13-cv-00605-KNM

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(E.D. Tex. Aug. 23, 2013); Straight Path IP Group, Inc. v. Samsung Electronics Co., Ltd. et al.,
No. 6:13-cv-00606-KNM (E.D. Tex. Aug. 23, 2013); Straight Path IP Group, Inc. v. ZTE

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For the Northern District of California

United States District Court

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Corporation, et al., No. 6:13-cv-00607-KNM (E.D. Tex. Aug. 23, 2013). According to Straight

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Path, the asserted patents cover “computer programs and methods of establishing point-to-point

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communication links over a network” (Dkt. No. 17, Br. 3).

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In April 2014, Netflix served written objections and produced “over 800 pages of

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documents responsive to the [instant] Texas Subpoena. The production include[d] sensitive

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technical documents” (Dkt. 2, Chen Decl. ¶¶ 8–9). Netflix’s content control protocol versions 2.4

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to 2.16, 3.0, and 3.1 were produced (Dkt. No. 33, Chen Decl. ¶ 6). Currently, the discovery

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deadline is in December 2014, and the final pretrial conference will occur in October 2015

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(BlackBerry, Dkt. No. 82).

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While these four actions were underway and this third-party subpoena issue was

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percolating, in May 2014, Straight Path sued Netflix in a separate action for infringing the same

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three patents and two others. See Straight Path IP Group, Inc. v. Netflix, Inc.,

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No. 6:14-cv-00405-KNM (E.D. Tex. May 2, 2014). The actions were related and assigned to the

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same judge, Judge Mitchell. Counsel for Straight Path has stated that “Straight Path would

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consider consolidating the cases so long as consolidation did not impact the set discovery

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schedule in those cases” (Dkt. No. 17-1, Newman Decl. ¶ 27).

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In May 2014, third-party Netflix filed the instant motion to quash the deposition
subpoena. Netflix did not move to quash the document subpoena, stating (Dkt. No. 1, Br. 4, n.3):
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Netflix believes that its substantial existing document production
and agreement to produce additional document[s] pending the entry
of a modified protective order in the Eastern District of Texas is
likely to resolve any dispute between the parties regarding Straight
Path’s subpoena duces tecum. Because the parties continue to meet
and confer about Netflix’s production of documents, Netflix only
move[s] to quash Straight Path’s subpoena ad testificadum at this
time.

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On June 3, plaintiff Straight Path Group, Inc. filed an opposition and a separate motion to compel
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(Dkt. Nos. 15, 17). Straight Path sought documents, source code, and FRCP 30(b)(6) testimony.
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This order follows full briefing on both motions and oral argument.
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To be precise, the instant subpoena matter arises out of the actions not involving Netflix
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action against Netflix in Texas. Accordingly, this order will be true to the actual procedural
For the Northern District of California

United States District Court

as a party. Evidently, no effort has been made to obtain discovery from Netflix in the May 2014
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history and will treat Netflix as a third party.
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ANALYSIS
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FRCP 45(d)(1) states (emphasis added):
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A party or attorney responsible for issuing and serving a subpoena
must take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoena. The court for the
district where compliance is required must enforce this duty and
impose an appropriate sanction — which may include lost earnings
and reasonable attorney’s fees — on a party or attorney who fails to
comply.

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1.

MOTION TO QUASH THE DEPOSITION SUBPOENA.

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Straight Path’s deposition subpoena is massively overbroad. It is too much to impose a
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subpoena with 47 overbroad deposition topics (some with sub-parts) on a third party. Again, in
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the posture of the instant proceeding, Netflix is a mere third party, not a defendant. For example,
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the subpoena includes the following expansive deposition topics (Dkt. No. 2, Chen Decl. Exh. A):
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4. The discovery provided by You to Straight Path or any
respondent in the ITC Investigation.
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17. For each Defendant, the process(es) by which any Defendant
retrieves and integrates error or bug fixes into Source Code for each
version of each Netflix Program.
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21. The methodology, process or steps taken by routers, switches,
gateways, or other network equipment or computers owned, leased
or controlled in any way by Netflix to route or direct packets
between Defendant Networked Devices and any server.

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43. The structure, function, operation, Source Code and
implementation of the versions of Netflix Programs installed on,
accessible by, executed by, and/or compiled onto the Defendant
Networked Devices, including, but not limited to, the following:
a. The structure, function, operation, and implementation of the
Source Code for each version of Netflix Program installed on,
accessible by, and/or executed by the Defendant Networked
Devices;

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For the Northern District of California

United States District Court

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b. The structure, function, operation, and implementation of the
Source Code for each version of Netflix Program installed on,
accessible by, and/or executed by the Defendant Networked
Devices;
c. The structure, function, operation, and implementation of
Streaming Services on Netflix Program and/or the ability to provide
the function of Streaming Services, including the identity and
functionality of Source Code for each version of Netflix Program
installed on, accessible by, and/or executed by the Defendant
Networked Devices for providing Steaming Services and/or for
providing the function of Streaming Services;
d. The structure, function, operation, and implementation of
communications between Netflix Program running on a client and a
program, an application, or software running on a piece of
hardware, e.g., a computer, processor, or microcontroller, including
the identity and functionality of Source Code for each version of
Netflix Program that enables, supports, performs and/or embodies
said structure, function, operation, or implementation;
e. The ability for Netflix Program running on a client to
instantiate, accept, and/or participate in communications with a
program, an application, or software running on a piece of
hardware, e.g., a computer, processor, or microcontroller, including
the identity and functionality of Source Code for each version of
Netflix Program that enables and/or supports this ability;

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f. The structure, function, operation, and implementation of
communications between the Netflix Program client and a server
(e.g., a Netflix Server-Side Program) and/or the function of
enabling or supporting communications between a Defendant
Networked Device that runs and/or executes a Netflix Program
client and a server that runs and/or executes a Netflix Server-Side
Program, such communications including registering the Netflix
Program client's online status and its associated network protocol
address with the server, sending a query to the server for the online
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status of a second process, and receiving from the server the
network protocol address of the second process.

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g. The structure, function, operation, and implementation of
Source Code for communications between a Defendant Networked
Device that runs a Netflix Program client and a server (e.g., a
Netflix Server-Side Program), and/or the function of providing
communications between the Netflix Program client and a server
(e.g., a Netflix Server-Side Program) as further described in subpart
f of this Topic.

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It is disingenuous for Straight Path to argue that this deposition subpoena is reasonable because
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“the burden on Netflix is minimal” (Opp. 1, 7). Responding to this subpoena, collecting and
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locating materials, and preparing one or more FRCP 30(b)(6) deponents would certainly cost
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third-party Netflix tens of thousands of dollars, probably into the hundreds of thousands. It is
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topics. Dozens of deponents would be required.
For the Northern District of California

United States District Court

also hard to imagine what deponent would be competent to respond to such largely ambiguous
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To further broaden the horizons of this oppressive subpoena, the subpoena included
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exhaustive definitions for various phrases, including “Documents,” “Things,” “Technical
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Documents,” and “Communications.” Straight Path defined “Networked Device” to mean “any
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electronic device or piece of equipment, such as a smartphone handset, tablet computer, eReaders,
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smart TV, gaming console, Blu-ray player, VoIP phone, or set-top box, capable of sending or
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receiving data over a telecommunications or electronic network.” The phrase “Defendant
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Networked Device” was not restricted to specific accused products but spanned:
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all Networked Devices branded for sale in the United States,
imported into the United States, and/or sold in the United States by
or on behalf of any Defendant since 2006, and/or that are or that
will be under development by or on behalf of any Defendant during
the course of this litigation.

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Defendant was defined to cover eleven entities:
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Blackberry, Ltd; Blackberry Corporation; Huawei
Investment & Holding Co.; Huawei Technologies Co., Ltd.;
Huawei Technologies USA Inc.; Huawei Device USA, Inc.;
Samsung Electronics Co., Ltd.; Samsung Electronics
America, Inc.; Samsung Telecommunications America, LLC;
ZTE Corporation; and ZTE USA, Inc.

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This deposition subpoena is unduly burdensome for a third party and will not be enforced.

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In opposition, Straight Path argues that it needs a deponent to authenticate certain

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unidentified documents presumed to be authentic in the ITC proceeding (Opp. 14). This is a

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costly proposal and a weak justification for such an expansive subpoena. Had Straight Path

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served only a request to authenticate a few dozen specifically identified documents, the subpoena

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would likely have been enforced. But the subpoena served was exponentially more burdensome.

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The swath of the subpoena is so burdensome that it would be bad policy to now whittle it back to

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something narrow and reasonable. Instead, the baby should go out with the bath water — the

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entire defective subpoena will be quashed in its entirety. To do otherwise would encourage

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litigants to demand the moon thinking they can always fall back to something reasonable.
They should be reasonable from the start. Accordingly, Netflix’s motion to quash the deposition

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For the Northern District of California

United States District Court

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subpoena is GRANTED.

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MOTION TO COMPEL.

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Although Netflix did not move as to the document subpoena, Straight Path did move to

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enforce it. But it is likewise so overbroad and burdensome that it will not be enforced. For

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example, the document subpoena containing 46 requests for production seeks, inter alia, the

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following from third-party Netflix (Dkt. No. 2, Chen Decl. Exh. A):

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11. All Source Code for each version of each Netflix Program
installed on, executed by, accessible by, and/or compiled onto any
Defendant Networked Device, including Source Code for each
Netflix Program that enables or supports access to or interaction
with Streaming Services and/or the instantiation, acceptance, and/or
participation in communication between a Netflix Program running
on a client and a program, an application, or software running on a
piece of hardware, e.g., a computer, processor, or microcontroller.

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30. All development plans, product roadmaps, Source Code, and
Technical Documents that describe the structure, function,
operation, and/or implementation (or anticipated structure, function,
operation, and/or implementation) of Future Netflix Programs,
including Future Netflix Programs that provide and/or enable
Streaming Services, and/or that the instantiate, accept, and/or
participate in communications between a Netflix Program running
on a client and a program, an application, or software running on a
piece of hardware, e.g., a computer, processor, or microcontroller.

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35. Documents and Things sufficient to show the revenue
associated with the Netflix Programs on each Defendant Network
Device on a program-by-program basis.

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45. Documents and Things sufficient to evince all nomenclature
that Netflix uses to refer to each Netflix Program and each Netflix
Server-Side Program, including, but not limited to (a) all sales,
marketing, finance, engineering, or Netflix departmental names or
identifications for each Netflix Program and each Netflix ServerSide Program; and (b) all marketing, engineering, design, or Netflix
department names used in the development process for each Netflix
Program and each Netflix Server-Side Program.

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After propounding such oppressive requests, Netflix and Straight Path conferred via telephone.
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When the parties were unable to resolve their disputes, Straight Path filed its own motion to
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These requests were still overbroad and unduly burdensome. Straight Path seeks:
For the Northern District of California

United States District Court

compel seeking documents responsive to a series of so-called “narrowed” discovery requests.
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Documents and testimony produced in the International Trade
Commission Investigation No. 337-TA-892 (the “892
Investigation”):

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A copy of all source code printouts produced by Netflix in
the ITC Investigation

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A source code computer that has all source code that Netflix
made available for inspection to Straight Path or any
respondent in the 892 Investigation

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A copy of the deposition transcript of Netflix’s corporate
representative, Mr. Philip Fisher-Ogden, including all
exhibits marked at the deposition, from the 892
Investigation.

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Documents and source code describing the structure, function, and
operation of Netflix content delivery network servers (“CDNs”)
(current production version), including documents and source code
describing the following:

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Selection of which CDN(s) to provide the requested media
(NCCP source code and associated documentation)

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Signaling between the CDNs and the NCCP server and/or
between the CDNs and the client related to streaming and
CDN selection (including source code and functional
description documents of function and operation of CDN
servers and processes running thereon)

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Streaming, load balancing and health reporting processes on
CDNs (including source code and functional description
documents)

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The process of connecting to a CDN (e.g., for the purpose of
obtaining streaming content) (including server-side code and
functional description documents)

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Documents and source code related to the structure, function, and
operation of the Netflix Content Control Protocol (“NCCP”) servers
(current production version), specifically including documents and
source code describing the following:

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Content and meaning of the NCCP messages, including
registration, authorization, and query messages

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The variation, if any, of the NCCP messages (including
registration, authorization, and query messages) depending
on the version of Netflix, NRDP, or Netflix Stub
Application

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Signaling and messaging between the NCCP server and the
Netflix client (including source code and functional
description documents)

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Signaling and messaging between the NCCP server and the
CDNs (including source code and functional description
documents)

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For the Northern District of California

United States District Court

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Documents relating to marketing, sales, revenue, customer demand,
customer surveys and/or customer preferences, as requested in the
subpoena.

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These requests — amplified by Straight Path’s lengthy definitions and instructions — are too

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oppressive to be enforceable. It is also not even clear which requests in the subpoena map to

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these new requests.

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The same applies to the “compromises” Netflix said it was willing to offer (but which

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Straight Path was unwilling to accept). This order will not require Netflix to produce anything

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because of the severe overreaching by Straight Path. Again, the baby should go out with the bath

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water. For example, in the parties’ correspondence, Netflix offered to produce 1066 pages of

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source code print-outs from the ITC investigation and no more. (The protective order in the

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Texas actions states that “printed portions of Source Code Material that exceed eighty (80)

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continuous pages or that exceed 900 pages or more of an entire Source Code Material software

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release shall be rebuttably presumed to be excessive” (Dkt. No. 15, Cole Decl. Exh. A,

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Attachment A at 16).) Straight Path argues that these 1066 pages do not suffice because then

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“Straight Path [will be] unable to rely on any additional source code in the Texas Actions, and it
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would not have the printouts to use as evidence” (Dkt. No. 17, Br. 12). This is too much.

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Unsatisfied with the one thousand pages of source code Netflix would be willing to produce in

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print-out form, Straight Path wants more. Third-party Netflix should not be forced to incur tens

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of thousands of dollars collecting, reviewing, producing, and printing documents and source code

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potentially responsive to Straight Path’s expansive requests.

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Moreover, Straight Path has now twice propounded oppressive discovery requests only to

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ask for a broad subset once briefing is required. In the ITC, after Netflix incurred the expense of

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a motion to quash, Straight Path “narrowed” its requests. Documents were produced, source code

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was made available for review, and a FRCP 30(b)(6) witness was deposed. This time around,
Straight Path cast 46 broad requests seeking to capture everything produced before and testified

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For the Northern District of California

United States District Court

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to in the ITC, as well as large categories of additional documents and source code. This is a

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fishing expedition too burdensome to impose on a third party. Straight Path will not be allowed

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to so abuse the discovery process.

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Finally, Netflix argues that it faces a parade of overbroad discovery abuse in four actions

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involving the same patents: the ITC investigation (discovery was taken); the Virginia actions

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(stay lifted in June 2014); the Texas actions (this subpoena); and the Netflix action. So far,

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Straight Path has propounded massive subpoenas in the ITC investigation and Texas actions.

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Netflix is not a party to those proceedings. To subject third-party Netflix to such repeated

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overbroad discovery abuse is unduly burdensome.

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For the reasons stated herein, the document subpoena will not be enforced.

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3.

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It is appropriate to impose sanctions for serving an unreasonable and unduly burdensome

ATTORNEY’S FEES AND EXPENSES.

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subpoena. See FRCP 45(d)(1). Here, Straight Path failed to make a good-faith effort to take

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reasonable steps to serve a subpoena that avoids imposing undue burden and expense on third-

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party Netflix. Indeed, there was no substantial justification for Straight Path’s massive demands.

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This order finds, following oral argument, that no other circumstances make the award of fees and

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expenses unjust. Accordingly, Netflix is entitled to reasonable attorney’s fees and expenses

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incurred from making and responding to these motions. A companion order sets forth the special
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master’s procedure for determining the amount of fees and expenses. Once an award is

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determined, counsel for Straight Path, Mintz Levin Cohn Ferris Glovsky and Popco P.C., and

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Straight Path shall be jointly and severally liable for the award.

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CONCLUSION
Straight Path’s oppressive subpoena will not be enforced. For the reasons stated herein,

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Netflix’s motion to quash the deposition subpoena is GRANTED. Straight Path’s cross motion to

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compel is DENIED. The entire subpoena is QUASHED. This, of course, is without prejudice to

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reasonable, narrowly-tailored requests properly propounded in the Netflix action.

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In addition, Netflix is entitled to reasonable attorney’s fees and expenses incurred from
making and responding to these cross motions. A companion order sets forth the special master’s

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For the Northern District of California

United States District Court

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procedure for determining the amount of fees and expenses to be paid by Straight Path and its

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counsel.

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IT IS SO ORDERED.

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Dated: July 8, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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