Optrics Inc v. Barracuda Networks Inc

Filing 219

Discovery Order (tshlc2S, COURT STAFF) (Filed on 2/7/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OPTRICS INC,
Plaintiff,

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Case No. 17-cv-04977-RS (TSH)
DISCOVERY ORDER

v.

Re: Dkt. Nos. 205, 206
BARRACUDA NETWORKS INC,
Defendant.

United States District Court
Northern District of California

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The Court held a telephonic hearing yesterday on the letter briefs, ECF Nos. 205 & 206,

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concerning Barracuda’s contention that Optrics is in violation of the Court’s discovery orders at

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ECF Nos. 114 and 180. This order follows.

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With respect to ECF No. 114, Optrics is in violation of paragraph 2. Optrics was supposed

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to serve a privilege log by October 15, 2019 “absent compelling circumstances demonstrated by a

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declaration(s) under penalty of perjury after meeting and conferring regarding any limited and

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necessary extension.” As of today, Optrics has still not served the log. Optrics is now way past

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any “limited” extension, there are no declarations substantiating the delay, and the circumstances

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could not be any less compelling. The long and short of it is that Optrics unjustifiably delayed

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providing documents to its ediscovery counsel at Heuristica, who have not completed privilege

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review and who for the most part have stopped working for Optrics. At the hearing, Optrics was

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unwilling to predict when it will produce the privilege log it was supposed to produce four months

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ago. The Court declines to issue another order telling Optrics to comply with the previous order.

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The previous order was already an order. This Court’s Discovery Standing Order states that “[n]o

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motion for sanctions may be filed until after the moving party has complied with the requirements

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above,” concerning discovery letter briefs. “Motions for sanctions shall be filed separately,

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pursuant to Federal Rule 37 and Civil Local Rules 7 and 37-4.” Barracuda has exhausted the

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discovery letter brief procedure and may now proceed to move for sanctions.
Paragraph 3 of ECF No. 114 required Optrics to serve a declaration within one week of

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substantially completing various items of document production explaining what steps were taken

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to locate responsive documents and why any responsive documents do not exist. Because Optrics

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does not know if it has substantially completed any of those productions, it has not served the

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required declarations, utterly defeating the purpose of paragraph 3 of the order. Under the Court’s

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Discovery Standing Order, Barracuda may now move for sanctions.

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The situation is not as bad with respect to ECF No. 180. For any discovery responses the

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Court ordered Optrics to amend, if Barracuda believes the amendment is insufficient it may file a
joint discovery letter brief. For any RFPs where Optrics says it has completed its document

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United States District Court
Northern District of California

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productions and Barracuda thinks responsive documents are missing, Barracuda may submit a

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joint discovery letter brief with exhibits to show there is reason to believe responsive documents

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are missing. For the declaration on RFPs 75, 82, 83, 84 and 86 (ECF No. 205-2), it’s not good

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enough because it doesn’t state for any of the RFPs “what steps were taken to locate responsive

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documents.” The Court orders Optrics to serve an amended declaration that contains this

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information.

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With respect to the damages 30(b)(6) deposition, the Court is persuaded that doing this by

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video is unwieldy given the number of exhibits Barracuda plans to use. The Court’s general view

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is that for a witness being deposed in an individual capacity, the lawyers should usually go to the

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witness. However, a Rule 30(b)(6) witness is someone being put up in a corporate capacity by the

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company, and the company can choose who it is. Here, it is appropriate to require the 30(b)(6)

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witness to be deposed where the case is venued rather than in Canada where he resides. The Court

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therefore orders Mr. Young to travel to the Bay Area for this deposition.

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IT IS SO ORDERED.

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Dated: February 7, 2020

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THOMAS S. HIXSON
United States Magistrate Judge

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