Abaxis, Inc. v. Cepheid

Filing 218

ORDER re 148 Discovery Dispute Joint Report #3. Signed by Magistrate Judge Howard R. Lloyd on 8/20/2012. (hrllc2, COURT STAFF) (Filed on 8/20/2012)

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*E-FILED: August 20, 2012*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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ABAXIS, INC.,

No. C10-02840 LHK (HRL)

Plaintiff,

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ORDER RE DISCOVERY DISPUTE
JOINT REPORT #3

v.
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CEPHEID,

[Re: Docket No. 148]

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Defendant.
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/
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In Discovery Dispute Joint Report #3, plaintiff Abaxis, Inc. (Abaxis) seeks Cepheid’s

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deposition testimony as to the amount of fees it has paid in this litigation.1 Abaxis contends that

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the information is relevant to willfulness. Cepheid asserted that the requested information was

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protected by the attorney-client privilege and instructed the deponent not to answer on that

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basis. Although defendant apparently no longer asserts privilege, it contends that the

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information is irrelevant.

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This court concludes that the requested discovery is not relevant or reasonably

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calculated to lead to the discovery of admissible evidence. See generally In re Seagate

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Technology, LLC, 497 F.3d 1360, 1374 (Fed. Cir. 2007) (“[I]n ordinary circumstances,

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willfulness will depend on an infringer’s prelitigation conduct . . . . So a willfulness claim

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Abaxis also sought an order requiring Cepheid to produce discovery
concerning the development of defendant’s dispensing parameters and Cepheid’s decision to
pursue a design-around of the patents-in-suit. Although Cepheid initially asserted that those
matters were protected by the attorney-client privilege, defendant now advises that it has
agreed to produce this discovery. (Dkt. No. 216). Accordingly, these issues are moot.
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asserted in the original complaint must necessarily be grounded exclusively in the accused

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infringer’s pre-filing conduct.”). Abaxis argues that Cepheid should not be permitted to avoid a

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further deposition on the subject of its litigation fees by now asserting relevance objections as a

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basis for its instruction not to answer. See FED. R. CIV. P. 30(c)(2). This court, however, finds

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that the burden and expense of the proposed discovery outweighs its likely benefit. FED. R.

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CIV. P. 26(b)(2)(C). Abaxis’ request for discovery is denied.

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SO ORDERED.

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Dated: August 20, 2012

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HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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5:10-cv-02840-LHK Notice has been electronically mailed to:

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Bryan John Boyle

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Carolyn Chang

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David James Miclean [e-mail], [e-mail],
[e-mail]

[e-mail], [e-mail]
[e-mail], [e-mail]

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Jacqueline Tio

[e-mail]

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John Michael Farrell

[e-mail], [e-mail]

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Jonathan Elliot Singer

[e-mail], [e-mail], [e-mail]

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Lam Khanh Nguyen

[e-mail], [e-mail]

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Limin Zheng

[e-mail], [e-mail]

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Rebecca Charnas Grant
For the Northern District of California

United States District Court

Lynn Harold Pasahow

[e-mail], [e-mail]

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[e-mail], [e-mail]

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Ricardo Rodriguez [e-mail], [e-mail], [e-mail],
[e-mail]

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Ryan Aftel Tyz

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Steven C. Carlson

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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.

[e-mail], [e-mail]
[e-mail], [e-mail], [e-mail]

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