Powertech Technology Inc v. Tessera, Inc.

Filing 290

ORDER by Judge Claudia Wilken DENYING DAVID SUNS 286 MOTION FOR RELIEF FROM A NONDISPOSITIVE PRETRIAL ORDER OF THE SPECIAL MASTER. (ndr, COURT STAFF) (Filed on 7/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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POWERTECH TECHNOLOGY, INC.,

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Plaintiff,

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United States District Court
For the Northern District of California

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ORDER DENYING
DAVID SUN’S MOTION
FOR RELIEF FROM A
NONDISPOSITIVE
PRETRIAL ORDER OF
THE SPECIAL MASTER
(Docket No. 286)

v.
TESSERA, INC.,

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No. C 11-6121 CW

Defendant.
________________________________/

Mr. David Sun, a director of Plaintiff Powertech Technology,

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Inc. (PTI) and Chief Financial Officer and Vice President of

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Operations of non-party Kingston,1 moves for relief from the

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Special Master’s order denying Mr. Sun’s motion to quash his

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deposition subpoena and granting Defendant Tessera, Inc.’s motion

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to compel his deposition.

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Sun, the Court denies his motion for relief.

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Having reviewed the papers filed by Mr.

Under Federal Rule of Civil Procedure 26(c)(1), “[t]he court

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may, for good cause, issue an order to protect a party or person

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from annoyance, embarrassment, oppression, or undue burden or

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expense, including” by forbidding a deposition.

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to exist, the party seeking protection bears the burden of showing

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specific prejudice or harm will result if no protective order is

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granted.”

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2002).

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“For good cause

Phillips v. GMC, 307 F.3d 1206, 1210-1211 (9th Cir.

“Rule 26's ‘good cause’ requirement is a heavy burden.”

Mr. Sun’s argument that the Special Master erred by failing
to “mention[] that Mr. Sun is a non-party,” Mot. at 3 (emphasis
omitted), is unavailing. It is undisputed that, as the Special
Master noted, Mr. Sun is an officer of PTI, the plaintiff in this
action.

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LifeScan Scotland, Ltd. v. Shasta Techs., LLC, 2012 U.S. Dist.

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LEXIS 100547, at *4 (N.D. Cal.) (citing Blankenship v. Hearst

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Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

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unusual ‘for a court to prohibit the taking of a deposition

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altogether absent extraordinary circumstances.’”

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Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (quoting

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WebSideStory, Inc. v. NetRatings, Inc., 2007 U.S. Dist. LEXIS

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20481, at *7 (S.D. Cal.)).

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“Thus, it is very

Apple Inc. v.

“When the party seeks the deposition of a high-level

United States District Court
For the Northern District of California

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executive (a so-called ‘apex’ deposition), the court may exercise

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its discretion under the federal rules to limit discovery.”

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Google Litig., 2011 U.S. Dist. LEXIS 120905 (N.D. Cal.).

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determining whether to allow an apex deposition, courts consider

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(1) whether the deponent has unique first-hand, non-repetitive

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knowledge of the facts at issue in the case and (2) whether the

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party seeking the deposition has exhausted other less intrusive

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discovery methods.”

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Google Litig., 2011 U.S. Dist. LEXIS 120905, at *10).

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witness has personal knowledge of facts relevant to the lawsuit,

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even a corporate president or CEO is subject to deposition.’”

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(quoting WebSideStory, Inc., 2007 U.S. Dist. LEXIS 20481, at *7).

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“‘A claimed lack of knowledge, by itself it is insufficient to

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preclude a deposition.’”

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U.S. Dist. LEXIS 120905, at *10).

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In re

“In

Apple, 282 F.R.D. at at 263 (quoting In re
“‘When a

Id.

Id. (quoting In re Google Litig., 2011

To the extent that Mr. Sun argues that Tessera properly bears

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the burden to show that the deposition should proceed, this is

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incorrect.

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seeking to avoid discovery, bears the burden of showing that good

As noted above, under Rule 26, Mr. Sun, as the person

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cause exists to prevent the deposition.

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apex principle is supplied by the general rule applicable to a

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party that seeks to avoid discovery in general.”

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Life Ins. Deferred Annuities Litig., 2011 WL 1304587, at *4 n.2

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(S.D. Cal.); see also Serrano v. Cintas Corp., 699 F.3d 884,

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901-02 (6th Cir. 2012) (rejecting argument that, under the apex

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doctrine, “‘harassment and abuse’ are ‘inherent’ in depositions of

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high-level corporate officers,” and reiterating that, under Rule

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26(c), the party seeking to avoid a deposition must show the harm

“The burden under the

In Re Nat’l W.

United States District Court
For the Northern District of California

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it would suffer by submitting to the deposition).

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deposition principle is not an automatic bar that [the party

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propounding the discovery] must overcome by a showing of good

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cause.”

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WL 1304587, at *4 n.2.

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selectively employed on a case by case basis when deemed

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appropriate.”

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“The apex

In Re Nat’l W. Life Ins. Deferred Annuities Litig., 2011
“Rather, it is a protective tool that is

Id.

Although Mr. Sun relies on his position at Kingston to shield

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him from a deposition here, Tessera seeks to take his deposition

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for information regarding his participation in, and business

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activities of, PTI, not for information regarding Kingston.

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if Mr. Sun is a so-called apex executive, the Court agrees with

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the Special Master that Tessera has identified relevant

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information that he may have personally and that it has already

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tried to obtain the information from other deponents, after the

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Special Master denied its first motion to compel.

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Master stated, Tessera was not required to prove that he certainly

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has such information; Tessera cannot be certain that he does or

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does not until it has taken his deposition.
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Even

As the Special

Further, although Mr.

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Sun claims that he does not have relevant information, he has

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indisputably considered and voted on matters relevant to this case

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in his capacity as a member of PTI’s board, even if he was in

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general not an active member and rarely spoke at Board meetings.

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Accordingly, the Court DENIES Mr. Sun’s motion for relief

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from a nondispositive order of the Special Master (Docket No.

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286).

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: 7/26/2013

CLAUDIA WILKEN
United States District Judge

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