24/7 Customer, Inc. v. LivePerson, Inc.

Filing 46

CASE MANAGEMENT ORDER re 42 Proposed Order filed by 24/7 Customer, Inc. Signed by Judge Jon S. Tigar on November 16, 2015. (wsn, COURT STAFF) (Filed on 11/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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24/7 CUSTOMER, INC.,

Case No. 15-cv-02897-JST

Plaintiff,
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CASE MANAGEMENT ORDER

v.

Re: ECF No. 42

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LIVEPERSON, INC.,
Defendant.

United States District Court
Northern District of California

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The parties’ Joint Proposed Dual Case Management Order, ECF No. 42, is now before the

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Court. The purposes of the proposed order are to manage the discovery in this case and to

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coordinate that discovery, to the extent possible, with the discovery in a related case pending in the

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Southern District of New York, LivePerson, Inc. v. 24/7 Customer, Inc., 1:14-cv-01559-RWS.

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The parties largely agree on the terms of an appropriate order, and the Court now adopts

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those terms on which there is agreement. The parties also have a few disputes, which the Court

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now resolves as follows.

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Employee Witnesses Located Outside the United States. Both parties have substantial

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numbers of employees outside the United States ‒ [24]7 in India, and LivePerson in Israel. 24[7]

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proposes that up to five current employee witnesses for each party be produced in the United

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States for deposition. It also proposes that depositions conducted outside the United States “shall

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be conducted in accordance with the Federal Rules of Civil Procedure, to the extent that such

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actions do not conflict with local laws, rules, and regulation.” ECF No. 42 at 5 (emphasis in

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original). LivePerson, on the other hand, proposes that the parties not now determine the number

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of employee witnesses to be produced in the United States, but that the parties meet and confer in

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good faith on that subject. Like [24]7, LivePerson also proposes that depositions conducted

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outside the United States “shall be conducted in accordance with the Federal Rules of Civil

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Procedure,” but that “[t]his provision shall not be construed as requiring any party to violate the

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local laws of any country.” Id. (emphasis added).
The Court will adopt LivePerson’s proposal in both respects. With regard to the number of

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employee witnesses to be produced in the United States, the Court believes the parties should have

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the flexibility to determine a fair exchange of burdens based on factors such as the cost of bringing

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each witness to the United States and the value of that witness’ testimony to the case. See FED. R.

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CIV. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that

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is . . . proportional to the needs of the case, considering the importance of the issues at stake in the

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action, the amount in controversy, the parties’ relative access to relevant information, the parties’

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United States District Court
Northern District of California

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resources, the importance of the discovery in resolving the issues, and whether the burden or

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expense of the proposed discovery outweighs its likely benefit.”). While it may turn out that

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having each party produce exactly five foreign witnesses in the United States is a balanced and

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sensible exchange, it may also turn out that the testimony of some witnesses is substantially more

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expensive or time-consuming than others, such that a one-to-one exchange is unfair.

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With regard to the application of the Federal Rules of Civil Procedure, the Court believes

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that the use of the word “conflict” creates needless ambiguity, and that the parties can agree to

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apply the Federal Rules as long as they do not violate local law. To the extent that application of

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the Federal Rules would merely conflict with local law ‒ but not violate it ‒ the parties can agree

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to waive any such conflict, and have done so by submitting these competing proposals for the

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Court’s consideration. See 3 Ved P. Nanda & David K. Pansius, Litig. of Int’l Disp. in U.S.

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Courts §§ 17:21 (2d ed. 2015) (“The responding party cannot rely upon the mere existence of

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conflicting foreign law, even blocking statutes, which apparently prevent or preclude discovery”),

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17:22 (“When the protections of a foreign blocking statute or secrecy law can be waived by the

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party subject to discovery, the responding party must generally waive the protections”).

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Production of Documents Located Outside the United States. The parties have a similar

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dispute with regard to the production of documents located outside the United States. [24]7

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proposes that such production “be governed by the Federal Rules of Civil Procedure, to the extent
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that such actions do not conflict with local laws, rules, and regulations.” ECF No. 42 at 6. [24]7

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also proposes a procedure for the production of documents and the taking of depositions where

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required by foreign law. In contrast, LivePerson proposes that “[d]ocuments that are within the

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possession, custody, or control of any party shall be treated as if they were located in the United

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States, regardless of their actual physical location,” id. at 8, with this Court resolving any

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discovery disputes. Similarly, with regard to depositions, LivePerson proposes that, “in response

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to a deposition notice served upon a party pursuant to Fed. R. Civ. P. 30, the party will voluntarily

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produce any noticed employees for deposition, regardless of whether the employee is located in

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the United States or a foreign country.” Id. As with its proposal regarding employee witnesses,

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LivePerson proposes that “[n]othing in [its] proposal shall be construed as requiring any party to

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United States District Court
Northern District of California

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violate the local laws of any foreign country.” Id.1
For reasons similar to those expressed above, the Court finds that LivePerson’s proposal is

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the more reasonable, and adopts it.
The parties are ordered to submit a proposed case management order within five court days

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that incorporates their agree-upon terms, as well as those terms adopted by the Court above.
IT IS SO ORDERED.

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Dated: November 16, 2015

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______________________________________
JON S. TIGAR
United States District Judge

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Both parties agree that “the physical location of a document may be taken into consideration
when assessing the burdensomeness of producing it.” ECF No. 42 at 6, 8.
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