v. In re Ex Parte Application of Pro-Sys Consultants and Neil Godfrey

Filing 28

ORDER by Magistrate Judge Donna M. Ryu denying without prejudice 10 Motion to Quash; denying as moot 23 Discovery Letter Brief; and denying as moot 25 Motion to Strike 23 . (dmrlc2, COURT STAFF) (Filed on 10/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE EX PARTE APPLICATION OF
PRO-SYS CONSULTANTS,

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Defendant.

Case No. 16-mc-80117-DMR

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ORDER DENYING WITHOUT
PREJUDICE JOHN DOERR’S MOTION
TO QUASH SUBPOENA AND
DENYING AS MOOT JOHN DOERR’S
MOTION TO STRIKE SUR-REPLY

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Re: Dkt. Nos. 10, 23, 25

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Applicants Pro-Sys Consultants and Neil Godfrey (collectively “Applicants”) filed an ex

United States District Court
Northern District of California

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parte application seeking permission to issue a deposition subpoena pursuant to 28 U.S.C. § 1782

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to obtain testimony from John Doerr for use in Pro-Sys Consultants and Neil Godfrey v. Microsoft

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Corp. and Microsoft Canada Co./Microsoft Canada CIE, No. LO 43175. [Docket No. 1]. This

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court granted Applicants’ ex parte application, but ordered that Mr. Doerr be provided at least

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thirty days to contest the subpoena. [Docket No. 5].

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Mr. Doerr subsequently filed a motion to quash the subpoena. [Docket No. 10].

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On September 19, 2016, Justice E.M. Myers of the Supreme Court of British Columbia

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issued the following ruling:
[I]f the plaintiffs intend on doing the § 1782 deposition[] of . . . Doerr for the
purpose of [its] introduction as evidence at trial, they ought to apply to me in
advance of conducting the deposition[], otherwise the evidence is not admissible.
To be direct, the U.S. courts should not be under the impression that I would be
receptive to the evidence being introduced at trial.
To the extent the plaintiffs wish to and are entitled by the U.S. courts to conduct the
§ 1782 deposition[] as a rough equivalent of interviewing a witness under
compulsion in order to obtain information to assist in cross-examination of other
witnesses or case preparation in general, [the Court has] no comment other than to
say that [it is] not prepared to require [Plaintiffs] to obtain this Court’s
authorisation.
Pro-Sys Consultants Ltd v. Microsoft Corp., 2016 BCSC 1713 at ¶¶ 10-11 [Docket No. 22-1].
Given Justice Myers’ ruling, the court instructed Applicants to provide certain information

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regarding the Canadian action. [Docket No. 26]. Applicants responded by stating that they intend

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to file an application to the Canadian Court for leave to take Mr. Doerr’s deposition on or before

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October 11, 2016, and that they will seek to use Mr. Doerr’s deposition testimony for the “purpose

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of [its] introduction as evidence at trial,” as well as to “assist in cross-examination of other

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witnesses or case general preparation in general.” [Docket No. 27].

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In deference to Justice Myers’ ruling that Plaintiffs should apply to him first, it would be

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appropriate as well as efficient for this court to await a determination by the Canadian Court on

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Applicants’ soon-to-be-filed application. The Canadian Court’s decision may obviate or narrow

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the disputes in the motion to quash.

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RT

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ER

M. Ryu

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onna
Judge D

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R NIA

______________________________________
DERED
SO OR
IT IS
Donna M. Ryu
United States Magistrate Judge

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Dated: October 5, 2016

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IT IS SO ORDERED.

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[Docket No. 23] is also denied as moot.

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Reply [Docket No. 25] is denied as moot. Pro-Sys Consultants and Neil Godfrey’s letter brief

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filing once the Canadian Court has spoken. Mr. Doerr’s Motion to Strike Pro-Sys’s Improper Sur-

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United States District Court
Northern District of California

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Therefore, Mr. Doerr’s Motion to Quash [Docket No. 10] is denied without prejudice to re-

UNIT
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D IS T IC T
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