In re Atmel Corporation Derivative Litigation

Filing 285

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 271 plaintiffs' Motion for Protective Order. Hearing set for 2/9/2010 is vacated. (hrllc2, COURT STAFF) (Filed on 2/3/2010)

1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re ATMEL CORPORATION DERIVATIVE LITIGATION No. C06-04592 JF (HRL) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PROTECTIVE ORDER [Re: Docket No. 271] / This is a shareholder derivative action for alleged improper backdating of stock options. Defendant J. Michael Ross wishes to depose 47 individuals and entities. Plaintiffs move for a protective order precluding him from doing so. Nominal defendant Atmel Corporation and other individual defendants join in plaintiffs' motion.1 Ross opposes the motion. This matter is deemed suitable for determination without oral argument, and the February 9, 2010 hearing is vacated. Civ. L.R. 7-1(b). Upon consideration of the moving and responding papers, this court grants the motion in part and denies it in part. Absent leave of court or stipulation of the parties, a party may not take more than ten depositions. FED. R. CIV. P. 30(a)(2)(A)(i). A party seeking leave to take more depositions must make a "particularized showing" why the discovery is necessary. See Archer Daniels Midland Co. v. Aon Risk Services, Inc. of Minnesota, 187 F.R.D. 578, 586 (D. Minn. 1999); *E-FILED 02-03-2010*

United States District Court

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For the Northern District of California

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Ross' request to strike the joinder is denied. Even if the joinder had not been filed, this court's decision would be the same.
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see also Authentic, Inc. v. Atrua Technologies, Inc., No. C08-1423PJH, 2008 WL 5120767 * 1 (N.D. Cal., Dec. 4, 2008) ("A party seeking to exceed the presumptive number of depositions must make a particularized showing of the need for the additional discovery."). Although the scope of discovery under the Federal Rules is broad, it is not unfettered. A court must limit the extent or frequency of discovery if it finds that (a) the discovery sought is unreasonably cumulative or duplicative or can be obtained from a source that is more convenient, less burdensome or less expensive, (b) the party seeking discovery has had ample opportunity to obtain the information through discovery; or (c) the burden or expense of the discovery sought outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the discovery in resolving those issues. FED. R. CIV. P. 26(b)(2)(C)(i)-(iii). In this case, Ross has not yet taken any depositions. While he has identified 47 individuals and entities he would like to depose, and made broad statements as to the purported relevance of their testimony, Ross has not made a particularized showing as to why he needs to depose them all, or why the discovery sought from each deponent would not be unreasonably cumulative or duplicative. Moreover, the parties advise that everyone (except Ross) has agreed to a settlement, and this court finds Ross' assertions as to the complexity of this litigation to be somewhat overstated. Nevertheless, although plaintiffs believe that Ross should be required to first exhaust the 10-deposition limit, they agree that it would be reasonable to permit him to take up to 20 depositions. After weighing competing legitimate interests and possible prejudice, this court will permit Ross to take up to 22 depositions, without prejudice to seek leave to conduct more upon a showing of particularized need. However, Ross is advised that in any such future application, he must present more than an invitation for this court to rule upon generalities rather than a solid, detailed showing. SO ORDERED. Dated: February 3, 2010 HOWARD R. LLOYD

United States District Court

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For the Northern District of California

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UNITED STATES MAGISTRATE JUDGE

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5:06-cv-04592-JF Notice has been electronically mailed to: Alan Roth Plutzik [e-mail] Amy M. Ross [e-mail] Andrew Michael Purdy [e-mail] Betsy Carol Manifold [e-mail] Brian Lawrence Levine [e-mail], [e-mail] Darryl Paul Rains [e-mail], [e-mail] Emanuel Shachmurove [e-mail] Eric L. Zagar [e-mail], [e-mail], [e-mail], [e-mail], [e-mail] Francis M. Gregorek [e-mail] James Lawrence Pagano [e-mail] Jessica Koren Nall [e-mail], [e-mail], [e-mail] John L. Cooper [e-mail], [e-mail], [e-mail] Karen Julie Stambaugh [e-mail], [e-mail] Kathryn Anne Schofield [e-mail], [e-mail] Kenneth P. Herzinger [e-mail], [e-mail] Lawrence Timothy Fisher [e-mail], [e-mail] Lily Irene Becker [e-mail] Marisa C. Livesay [e-mail] Michael David Torpey [e-mail] Nichole T. Browning [e-mail], [e-mail] Rachele R. Rickert [e-mail] Tara Puhua Kao [e-mail], [e-mail] Todd L. Burlingame [e-mail] Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court

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For the Northern District of California

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