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

Filing 84

ORDER re 82 Joint Discovery Letter Brief filed by 24/7 Customer, Inc. Signed by Judge Kandis A. Westmore on 7/29/2016. (kawlc1, COURT STAFF) (Filed on 7/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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24/7 CUSTOMER, INC.,

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Case No. 15-cv-02897-JST (KAW)

Plaintiff,
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ORDER REGARDING 7/12/16 JOINT
DISCOVERY LETTER

v.
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Re: Dkt. No. 82

LIVEPERSON, INC.,

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Defendant.

United States District Court
Northern District of California

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On July 12, 2016, the parties filed a joint letter concerning Plaintiff [24]7 Customer, Inc.’s

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Special Interrogatory No. 6, which is a non-infringement contention interrogatory. (Joint Letter,

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Dkt. No. 82 at 1.) Defendant LivePerson, Inc. asserts that the interrogatory is premature and

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unduly burdensome.1 (Joint Letter at 3.)
Upon review of the joint letter, and for the reasons set forth below, the Court finds that the

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interrogatory is premature.

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I.

BACKGROUND

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On June 22, 2015, Plaintiff [24]7 Customer, Inc. filed a lawsuit against Defendant

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LivePerson, Inc., alleging infringement on several patents pertaining to its customer engagement

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software platform.

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Claim construction deadlines have been set as follows: the deadline to exchange

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preliminary claim construction and extrinsic evidence was July 25, 2016; the joint claim

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construction statement is due August 16, 2016; claim construction discovery closes on September

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15, 2016; claim construction briefs are due in September and October 2016; and the Markman

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The parties did not attach Defendant’s response to the interrogatory, so the Court does not know
whether Defendant asserted any other objections to Interrogatory No. 6.

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hearing is on December 6, 2016. (Dkt. No. 75.)
On July 12, 2016, the parties filed a joint discovery letter, in which Plaintiff seeks to

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compel a response to its non-infringement contention interrogatory, which seeks “all factual and

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legal bases for your contention, if any, that you do not infringe and have not infringed . . . .” (Joint

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Letter at 1.) On July 15, 2016, the instant joint letter and all other discovery disputes in this case

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were referred to the undersigned.

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II.

LEGAL STANDARD

The Federal Rules of Civil Procedure broadly interpret relevancy, such that each party has
the right to the discovery of “any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Discovery need not

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United States District Court
Northern District of California

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be admissible to be discoverable. Id. The court, however, “must limit the frequency or extent of

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discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or

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duplicative, or can be obtained from some other source that is more convenient, less burdensome,

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or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the

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information by discovery in the action; or (iii) the proposed discovery is outside the scope

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permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Furthermore, “[t]he court may, for good

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cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or

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undue burden or expense,” including by precluding discovery, by conditioning disclosure or

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discovery on specified terms, by preventing inquiry into certain matters, or by limiting the scope

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of discovery to certain matters. Fed. R. Civ. P. 26(c)(1). “Rule 26(c) confers broad discretion on

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the trial court to decide when a protective order is appropriate and what degree of protection is

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required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

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Rule 33 pertains to written interrogatories. “Courts using their Rule 33(a)(2) discretion

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generally disfavor contention interrogatories asked before discovery is undertaken.” In re eBay

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Seller Antitrust Litig., No. C 07-1882 JF (RS), 2008 WL 5212170, at *1 (N.D. Cal. Dec. 11,

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2008). Indeed, “courts tend to deny contention interrogatories filed before substantial discovery

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has taken place, but grant them if discovery is almost complete.” HTC Corp. v. Tech. Properties

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Ltd., No. C08-00882 JF HRL, 2011 WL 97787, at *2 (N.D. Cal. Jan. 12, 2011)(quoting In re eBay
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Seller Antitrust Litig., No. C 07-1882 JF (RS), 2008 WL 5212170, at *1 (N.D. Cal. Dec. 11,

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2008)). A party moving to compel responses to contention interrogatories at an early stage in

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litigation must show that the responses would “contribute meaningfully” to: (1) clarifying the

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issues in the case; (2) narrowing the scope of the dispute; (3) setting up early settlement

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discussion; or (4) exposing a substantial basis for a motion under Rule 11 or Rule 56. In re

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Convergent Technologies Sec. Litig., 108 F.R.D. 328, 338-39 (N.D. Cal. 1985). Courts in this

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district place “a burden of justification” on a party seeking “answers to contention interrogatories

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before substantial documentary or testimonial discovery has been completed.” Amgen Inc. v.

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Sandoz Inc., No. 14-cv-04741-RS (MEJ), 2016 WL 913105, at *2 (N.D. Cal. Mar. 10, 2016)
(citing In re Convergent, 108 F.R.D. at 338). To meet this burden, a party seeking early answers

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United States District Court
Northern District of California

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must present “specific, plausible grounds for believing that securing early answers to its

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contention questions will materially advance the goals of the Federal Rules of Civil Procedure.” In

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re Convergent, 108 F.R.D. at 338-339.

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III.

DISCUSSION

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The parties do not dispute that the information sought is relevant, such that Plaintiff is

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entitled to a supplemental response at some point in the litigation. Rather, at issue is whether

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Plaintiff’s non-infringement contention interrogatory is premature given the early stage of

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discovery.

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Plaintiff contends that Defendant should be prepared to respond by July 25, 2016, which is

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the date the preliminary claim constructions were scheduled to be exchanged, and requests a

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response by July 29, 2016. (Joint Letter at 2-3.) Defendant does not propose a response date, but

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claims that responding now is premature, and that it should “only be required to provide non-

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infringement contentions after [24]7 finalizes its own infringement positions by reducing the

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number of asserted claims under the scheduling order in this case.” (Joint Letter at 5.) The

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scheduling order, however, contains two separate deadlines for reducing the asserted claims—

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September 15, 2016 and 28 days before expert disclosures— so the Court is unable to definitively

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determine when Defendant proposes to answer the interrogatory. (See Dkt. No. 75 at 1-2). The

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Court is not persuaded by Plaintiff’s argument that Defendant is now equipped to meaningfully
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respond based only on the preliminary claim constructions. Accordingly, the Court is only able to

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resolve whether the contention interrogatory is premature at this juncture.

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Plaintiff argues that the non-infringement contention interrogatory “will substantially assist
in clarifying and narrowing the issues in dispute, including selection of claim terms for

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construction and reducing the number of asserted claims.” (Joint Letter at 1.) Additionally,

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Plaintiff insists that a response at this stage in the litigation will both “clarify the issues and narrow

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the scope of the dispute.” Id. at 2. In opposition, Defendant contends that Plaintiff’s amended

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infringement contentions contain 122 patent claims over 1,046 pages, and requiring it “to finalize

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and document responsive positions . . . at this stage of the litigation is unreasonably burdensome,

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inconsistent with the practice of this District, and unfairly shifts [24]7’s burden to LivePerson.”

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United States District Court
Northern District of California

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(Joint Letter at 3.)

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The Court agrees with Defendant, and finds HTC Corp. particularly instructive in

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determining that a response to the contention interrogatory is premature. Here, as in HTC Corp.,

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discovery is ongoing, as no party depositions have taken place and a discovery cut-off date has not

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been set. 2011 WL 97787, at *2. Indeed, “it is difficult to clarify substantially the issues in the

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case or narrow the scope of the dispute before important discovery—such as party depositions—

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have been conducted.” Id. In support of its position, Plaintiff cites HTC Corp. in claiming that

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“HTC agreed to produce non-infringement contentions 30 days after service of the parties’ joint

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claim construction statement.” (Joint Discovery Letter at 3.) While true, the court only ordered

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HTC to provide the responses on the timeline it had originally proposed, rather than based solely

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on the claim construction briefing schedule. HTC Corp., 2011 WL 97787, at *3.

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Moreover, despite its protestations to the contrary, Plaintiff has not shown how responding

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to the contention interrogatory before substantial discovery has been conducted will contribute

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meaningfully to clarifying the issues in the case or narrowing the scope of the dispute. See Amgen

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Inc. v. Sandoz Inc., No. 14-cv-04741-RS (MEJ), 2016 WL 913105, at *3 (N.D. Cal. Mar. 10,

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2016). Plaintiff also does not argue that settlement discussions, Rule 11 or Rule 56 motions

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support a response to the interrogatory before significant discovery is undertaken. HTC Corp.,

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2011 WL 97787, at *2-3; see also In re Convergent, 108 F.R.D. at 338-39. Indeed, Defendant’s
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“positions will likely rely on expert discovery.” (Joint Letter at 4.) Accordingly, and considering

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Rule 26’s proportionality requirement, any response to the non-infringement contention

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interrogatory is premature at this juncture, as the benefit is not only minimal, but is surely

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outweighed by the burden imposed by responding to 122 claims when the claims are in the

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process of being whittled down. See Fed. R. Civ. P. 26(b)(1).

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To aid the parties in their meet and confer efforts, the undersigned is persuaded by the

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reasoning in Audatex, which compelled a supplemental response after the completion of claim

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construction briefing,2 the exchange of written discovery, and at least one deposition. Audatex N.

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Am. Inc. v. Mitchell Int'l, Inc., No. 13-cv-1523-BEN (BLM), 2014 WL 4961437, at *4 (S.D. Cal.
Oct. 3, 2014), reconsideration denied, No. 13-cv-1523-BEN (BLM), 2014 WL 6469425 (S.D. Cal.

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United States District Court
Northern District of California

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Nov. 14, 2014). The Court cannot, however, without further briefing, determine whether

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Defendant requires the benefit of a claim construction order to meaningfully respond. See Amgen

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Inc. v. Sandoz Inc., No. 14-cv-04741-RS (MEJ), 2016 WL 913105, at *3 (N.D. Cal. Mar. 10,

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2016).

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IV.

CONCLUSION

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In light of the foregoing, the Court DENIES WITHOUT PREJUDICE Plaintiff’s request to

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compel a response to Interrogatory No. 6 on the grounds that a response is premature. The parties

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shall meet and confer regarding when a response would be appropriate given the claim

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construction briefing schedule, and the undersigned is confident, given the guidance provided

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above, that the parties can resolve this issue without further court intervention.
IT IS SO ORDERED.

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Dated: July 29, 2016
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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Plaintiff erroneously states that the parties in Audatex “had merely exchanged ‘preliminary and
responsive claim construction contentions’ at the time non-infringement contentions were
ordered.” (Joint Letter at 3.) To the contrary, claim construction briefing was complete when the
order granting the motion to compel was filed, and the claim construction hearing occurred less
than two weeks later. See Claim Construction Order, Audatex N. Am. Inc. v. Mitchell Int'l, Inc.,
No. 13-cv-1523-BEN (BLM) (S.D. Cal. Nov. 6, 2014), ECF No. 115.
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