Microsoft Corporation v. A&S Electronics, Inc. et al

Filing 70

ORDER RE:DISCOVERY DISPUTE. Signed by Judge Yvonne Gonzalez Rogers on 9/1/16. (fs, COURT STAFF) (Filed on 9/1/2016)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6

MICROSOFT CORPORATION,

Case No. 15-cv-03570-YGR

Plaintiff,
ORDER RE: DISCOVERY DISPUTE

7
v.

DKT. NO. 67

8
9

A&S ELECTRONICS, INC., ET AL.,
Defendants.

10

United States District Court
Northern District of California

11

The parties submitted their joint discovery letter on August 30, 2016, seeking resolution of

12

a dispute concerning the scope of discovery authorized by the Court in connection with the

13

parties’ cross-motions for summary judgment on the issue of whether the initial transfer of the two

14

software product keys alleged in the Third Amended Complaint (“TAC”) was license, not a sale

15

for purposes of the first sale doctrine. The Court reviewed the dispute and exhibits, and conducted

16

a phone conference with counsel on September 1, 2016.

17

As a general matter, and based upon the limited early summary judgment motions

18

authorized by the Court on the issue of whether the software at issue in this action was obtained by

19

the initial holder under a license or a sale for purposes of the first sale doctrine, the Court ORDERS

20

that discovery at this phase of the case is limited to Defendants’ purchase and/or acquisition of the

21

two particular products alleged in the TAC at paragraphs 19-29, 30-36, and Exhibits 9 and 11.

22

(1) Microsoft has agreed to limit its requests stated in its Rule 30(b)(6) Deposition notice,

23

request for production of documents, and interrogatories to these two transactions, and the Court

24

so orders. Thus, for example, in the Rule 30(b)(6) deposition notice, Topics 1 and 2 are

25

appropriate to the extent they are limited to A&S’s purchase of the product key/software, while

26

Topics 3-19 are overbroad and not authorized at this point in the case to the extent they inquire

27

about the stated subjects beyond the two specific transactions and identified product keys as

28

alleged in the TAC.

(2) With respect to the subpoena directed to FBT/Flashback Technologies, the

1
2

deposition may proceed as to Topics 1, 2, 4, 5, 6, 7, 12, and 13. The deposition with respect to

3

Topics 3, 8, 9, 10, and 11 is limited to such topics to the extent they pertain to the purchase and/or

4

acquisition, sale and/or distribution of the “Microsoft Office 2013 Professional Plus 32/64-Bit

5

Promo Full Version DVD with Product Key” alleged in Paragraphs 19-29 and Exhibit 9 of the

6

TAC, specifically key card 9NR4X-RW376-B7FG9-HDFKT-BPXKQ (“Product Key 1”).

7

Likewise, the document requests may proceed as to Requests 1, 2, 4, 5, 6, 7, 12 and 13, but are

8

permitted with respect to Requests 3, 8, 9, 10, and 11 only to the extent they pertain to Product

9

Key 1.

10

(3) With respect to the subpoena directed to Jon Cossin, the deposition inquiry is limited

United States District Court
Northern District of California

11

to the purchase and/or acquisition, sale and/or distribution of Product Key 1. The document

12

requests may proceed as to Requests 1, 2, 4, 5, 6, 7, 12, and 13, but are permitted with respect to

13

Requests 3, 8, 9, 10, 11, 14, 15, and 16 only to the extent they pertain to Product Key 1.

14

(4) With respect to the subpoena directed to FBT/Flashback Technologies World

15

Trading Inc., the deposition may proceed as to Topics 1, 2, 4, 5, 6, 7, 12, and 13. The deposition

16

with respect to Topics 3, 8, 9, 10, and 11 is limited to such topics to the extent they pertain to the

17

purchase and/or acquisition, sale and/or distribution of the “Microsoft Office Professional 2010

18

Product Key” alleged in Paragraphs 30-36 and Exhibit 11 of the TAC, product key 2KMPF-

19

7CYYW-6WQRR-Q6QJM-BQ8H3 (“Product Key 2”). Likewise, the document requests may

20

proceed as to Requests 1, 2, 4, 5, 6, 7, 12 and 13, but are permitted with respect to Requests 3, 8,

21

9, 10, and 11 only to the extent they pertain to Product Key 2.

22

Therefore, the Court ORDERS that discovery is limited as set forth above. This order is

23

without prejudice to any party seeking such discovery later in the case, after the initial summary

24

judgment on the license issue has been decided.

25
26
27
28

IT IS SO ORDERED.
Dated: September 1, 2016
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
2