Nevro Corp v. Boston Scientific Corporation et al

Filing 408

REDACTED ORDER by Judge Maria-Elena James denying 335 Motion for Leave to File. (mejlc2S, COURT STAFF) (Filed on 6/5/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NEVRO CORP,
Plaintiff,

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v.

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Case No. 16-cv-06830-VC (MEJ)

BOSTON SCIENTIFIC CORPORATION, et
al.,

ORDER RE: MOTION FOR LEAVE TO
FILE MOTION FOR
RECONSIDERATION OR TO
PRECLUDE
Re: Dkt. No. 335

United States District Court
Northern District of California

Defendants.
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INTRODUCTION

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Plaintiff Nevro Corp. seeks leave to file a motion for reconsideration of the Court‟s

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January 24, 2018 discovery order denying Nevro‟s request for discovery from Defendants Boston

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Scientific Corporation and Boston Scientific Neuromodulation Corporation (together, “BSC”).

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Mot., Dkt. No. 335. In the alternative, Nevro requests the Court preclude BSC from challenging

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Nevro‟s infringement or damages theories pursuant to Federal Rule of Civil Procedure 26(g). Id.

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BSC filed an Opposition (Dkt. No. 353), and Nevro filed a Reply (Dkt. No. 362). Pursuant to

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Federal Rule of Civil Procedure 78 (b) and Civil Local Rules 7-1(b) and 7-9(d), the Court finds

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this matter suitable for disposition without oral argument. Having considered the parties‟

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arguments, the relevant legal authority, and the record in this case, the Court issues the following

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order.

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DISCUSSION

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Prior to the entry of judgment adjudicating all claims, a party may seek leave to file a

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motion for reconsideration of any interlocutory order. Civ. L.R. 7-9(a). As is relevant here, the

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moving party must demonstrate reasonable diligence in bringing the motion and show “[t]hat at

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the time of the motion for leave, a material difference in fact or law exists from that which was

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presented to the Court before entry of the interlocutory order for which reconsideration is sought.”

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Civ. L.R. 7-9(b)(1).

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The Court previously found Nevro‟s request for discovery regarding BSC‟s commercial

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programming parameters was unduly burdensome and not proportional to the needs of the case.

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Disc. Order at 2, Dkt. No. 273; see Jt. Ltr., Dkt. No. 235. Nevro argues two of BSC‟s expert

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rebuttal reports contradict the representations BSC made in the Joint Letter: (1) a report by Dr.

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Richard T. Mihran, BSC‟s technical expert; and (2) a report by John R. Bone, BSC‟s damages

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expert. Mot. at 4-7; see Mihran Rep., Dkt. Nos. 334-8 (unredacted) & 335-3 (redacted); Bone

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Rep., Dkt. Nos. 334-5 (unredacted) & 335-2 (redacted). BSC served both reports on Nevro on

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February 14, 2018. Kuwayti Decl. ¶¶ 2-3, Dkt. No. 335-1.

United States District Court
Northern District of California

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The Court DENIES the Motion for Leave to File a Motion for Reconsideration. The

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Mihran and Bone reports do not constitute a material difference in fact since the January 24

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discovery order. BSC has never denied that it collects the requested data; rather, the issue has

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been whether producing this data is proportional to the needs of the case. See Jt. Ltr. at 4

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(explaining “

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.”).

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Nevro relies on Mr. Bone‟s opinion that “BSC‟s main purpose was

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” to argue “BSC must already have in its possession

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the data which it represented to the Court it could not collect.” Mot. at 7-8; Bone Rep. ¶ 133; see

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id. ¶ 60. This does not constitute new facts showing that the data is readily accessible. Mr.

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Bone‟s opinion does not contradict BSC‟s prior representation that
, renders it unduly

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burdensome to produce this information to Nevro. Notably, BSC represents its own “experts had

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access to the same discovery regarding the issue as did Nevro and its experts.” Opp‟n at 5

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(quoting Dkt. No. 334-16 at 1 (email from BSC counsel to Nevro counsel)). Nevro does not
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dispute this representation.
The Court also DENIES Nevro‟s Motion to Preclude. Nevro‟s request is premature.

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Briefing on the parties‟ motions for summary judgment has only just concluded, and the hearing

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on those motions and claims construction is not until July 13, 2018. See Dkt. No. 370. It is

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unclear at this point what, if any, claims will proceed to trial, let alone whether BSC will offer

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arguments that take advantage of its refusal to produce the programming data. However, this does

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not preclude Nevro from seeking such relief in the future. If Nevro seeks to exclude this evidence

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at trial, it may do so in a motion in limine before the presiding judge.
CONCLUSION

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No later than May 24, 2018, BSC shall file a declaration under penalty of perjury

United States District Court
Northern District of California

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confirming the representation that its experts had access to the same discovery regarding the

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programming parameters as did Nevro and its experts. Upon the Court‟s confirmation that this

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representation is accurate, the Court will DENY Nevro‟s Motion.

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IT IS SO ORDERED.

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Dated: May 17, 2018
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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