Doe 1 et al v. Xytex Corporation et al

Filing 40

ORDER SETTING EVIDENTIARY HEARING Evidentiary Hearing set for 9/28/2016 09:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on 8/31/16. (whalc1, COURT STAFF) (Filed on 8/31/2016)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JANE DOE 1 and JANE DOE 2, 11 For the Northern District of California United States District Court 10 12 13 14 15 16 No. C 16-02935 WHA Plaintiffs, v. XYTEX CORPORATION, a Georgia Corporation, XYTEX CRYO INTERNATIONAL, LTD., a Georgia Corporation, MARY HARTLEY, an individual, J. TODD SPRADLIN, an individual, and DOES 1–25, inclusive, ORDER SETTING EVIDENTIARY HEARING Defendants. 17 / 18 In this product-liability action involving an Internet purchase of human semen for use in 19 20 artificial insemination, defendants moved to transfer the action to the District of Georgia based 21 on a forum-selection clause in a site-usage agreement buried within a menu on defendant 22 Xytex’s website when plaintiffs’ used defendants’ services in 2004. A prior order rejected 23 defendants’ argument that the website reasonably communicated the existence of the agreement 24 (much less its terms). That order held defendants’ motion in abeyance pending jurisdictional 25 discovery relating to plaintiffs’ actual notice of the site-usage agreement (Dkt. No. 27).* At the deposition of plaintiff Jane Doe 1, plaintiffs’ counsel made numerous speaking 26 27 objections that effectively coached the witness and rendered the deposition a fruitless exercise. 28 * The order also provided for discovery into the appearance of Xytex’s website in 2004. As stated in the prior order, judicial notice of the Wayback Machine is DENIED. Nevertheless, the deposition testimony of defendant J. Todd Spradlin confirmed that the website appeared as described in the prior order. 1 Indeed, while Doe 1 generally testified that she could not recall which parts of the Xytex 2 website she read, she averred she was certain she had not viewed the site-usage agreement 3 (Doe 1 Dep. at 121, 125). (Jane Doe 2 testified that she deferred to Doe 1 on the procurement 4 of the semen for the procedure.) 5 For their part, defense counsel ambushed Doe 1 with questions regarding the site-usage 6 agreement that purportedly governed use of Xytex’s services in 2015, although defendants 7 made no mention of that agreement in their motion to transfer. Yet, defendants failed to cite or 8 quote any provision of the 2015 agreement in their supplemental materials, so there is no 9 indication that agreement has any relevance here. An additional deposition would be liable to the same pitfalls as the first. Thus, this 11 For the Northern District of California United States District Court 10 order hereby SETS an evidentiary hearing for WEDNESDAY, SEPTEMBER 28 AT 9:00 A.M. 12 Defendants, who bear the burden of proof on their motion to transfer, may conduct direct 13 examination of both Doe 1 and Doe 2. Each side shall have up to one hour of examination time. 14 In addition to addressing plaintiffs’ use of the Xytex website in 2004, the examination may 15 address plaintiffs’ general Internet-browsing practices at that time for the purpose of 16 establishing circumstantial evidence of their actual notice of the agreement on Xytex’s website. 17 This hearing shall not address the 2015 agreement, which defendants never addressed in their 18 motion. 19 20 IT IS SO ORDERED. 21 22 Dated: August 31, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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