Fujitsu Limited v. Belkin International, Inc. et al

Filing 435

ORDER Re Objections to Exhibits and Deposition Testimony for November 27, 2012. Signed by Judge Lucy H. Koh on 11/26/12. (lhklc3, COURT STAFF) (Filed on 11/26/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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FUJITSU LIMITED,

)
)
Plaintiff,
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)
v.
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BELKIN INTERNATIONAL, INC.; BELKIN, )
INC.; D-LINK CORPORATION; D-LINK
)
SYSTEMS, INC.; NETGEAR, INC.; ZYXEL )
COMMUNICATIONS CORPORATION; and )
ZYXEL COMMUNICATIONS, INC.,
)
)
Defendants.
)

Case No.: 10-CV-03972-LHK

ORDER RE: OBJECTIONS TO
EXHIBITS AND DEPOSITION
TESTIMONY FOR
NOVEMBER 27, 2012

After reviewing the parties’ briefing, considering the record in the case, and balancing the
considerations set forth in Federal Rule of Evidence (“FRE”) 403, the Court rules on the parties’
objections as follows:
A. Deposition Testimony
1. Defendant’s Objections to the Deposition Testimony of Brian Busse
(Netgear 30(b)(6))
DEPOSITION
TESTIMONY
113:14-19; 113:23;
114:8-15
Proposed counterdesignation at
4/25/12 transcript at
218:10-18

115:12-16; 115:25116:10; 116:15-20;
116:22-24

Court’s Ruling on Objections
Overruled. Fujitsu’s designations relate to Netgear’s actions upon
receiving notice of the ’769 patent and are thus relevant to Fujitsu’s claims
of willfulness and induced infringement. However, Fujitsu must include
Defendants’ proposed counter-designation for completeness and fairness,
per FRE 106 and Rule 32(a)(6) of the Federal Rules of Civil Procedure
(“Fed. R. Civ. P.”), as well as to ensure that the probative value of the
testimony outweighs any potential prejudice, per FRE 403. The video time
for Fujitsu’s designation and the ordered counter-designation will be
subtracted from Fujitsu’s trial time.
Overruled. Fujitsu has designated testimony about whether overlap exists
between consumers who buy Netgear wireless adapters and Netgear
wireless routers, as well as customers who buy Netgear wireless card
interface devices and wireless routers. The Court finds that this testimony
is relevant to direct and indirect infringement. Further, as there were no
objections on the grounds that the questions went beyond the scope of the
Rule 30(b)(6) notice, this issue is now waived. Finally, as Mr. Busse is
Netgear’s Director of Intellectual Property, there is reason to believe that he

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Case No: 10-CV-03972-LHK
ORDER RE: OBJECTIONS TO EXHIBITS AND DEPOSITION TESTIMONY FOR NOVEMBER 27, 2012

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United States District Court
For the Northern District of California

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has personal knowledge and foundation to testify about the questions asked.
Therefore, pursuant to FRE 403, the Court finds that this evidence is likely
to be more probative than prejudicial.
120:7-13; 120:15-19, Overruled. Fujitsu asks Mr. Busse whether Netgear’s ability to offer
proposed counterwireless cards, routers, and adapters aid the sale of all Netgear products.
designation at
This evidence is relevant to the issue of active inducement and is
120:20-25
circumstantial evidence of direct infringement. However, Fujitsu must
include Defendants’ proposed counter-designation for completeness and
fairness, per FRE 106 and Fed. R. Civ. P. 32(a)(6), as well as to ensure that
the probative value of the testimony outweighs any potential prejudice, per
FRE 403. The video time for Fujitsu’s designation and the ordered
counter-designation will be subtracted from Fujitsu’s trial time.
127:22-128:1,
Overruled. This testimony deals with whether Netgear sent a litigation hold
proposed counternotice prior to Fujitsu filing suit. To the extent that Fujitsu seeks to use this
designation at 128:2- evidence, however, it is opening the door to Defendants’ spoliation claims
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against Fujitsu. In addition, to the extent that Fujitsu seeks to use this
deposition testimony, Fujitsu must include Defendants’ proposed counterdesignation for completeness and fairness, per FRE 106 and Fed. R. Civ. P.
32(a)(6), as well as to ensure that the probative value of the testimony
outweighs any potential prejudice, per FRE 403. The video time for
Fujitsu’s designation and the ordered counter-designation will be subtracted
from Fujitsu’s trial time.
140:5-141:1; 141:4- Sustained. The parties will stipulate to the specifics of notice or the entire
141:8; PTX 300
exhibit will be admitted unredacted.
2. Defendant’s Objections to the Deposition Testimony of Chia-Yu Chang
(D-Link Corp. 30(b)(6))

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DEPOSITION
TESTIMONY
105:7-105:12;
105:14-105:20;
106:3-106:5; 106:22106:25; 107:2-107:8;
107:10-107:10;
107:12-107:16;
107:21-107:22;
107:24-107:25

Court’s Ruling on Objections
Overruled. D-Link Corp. objects to the designations of Mr. Chia-Yu Chang
as beyond the scope of the 30(b)(6) designation and pursuant to FRE 402
and 403. The Court already ruled that this testimony should be admitted
when it denied D-Link’s motion in limine #4 on this issue, ECF No. 365 at
5, and denies D-Link Corp.’s motion for reconsideration here.

3. Defendant’s Objections to the Deposition Testimony of David Henry
(Netgear 30(b)(6))

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DEPOSITION
TESTIMONY
35:9-35:14; 35:2436:3, proposed
counter-designation
at 34:18-22

Court’s Ruling on Objections
Overruled. These deposition excerpts relate to testimony regarding the
purchase of routers and adapter cards. The Court finds that this testimony
is relevant because it is circumstantial evidence of infringement by end
users. However, Fujitsu must include Defendants’ proposed counter-

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Case No: 10-CV-03972-LHK
ORDER RE: OBJECTIONS TO EXHIBITS AND DEPOSITION TESTIMONY FOR NOVEMBER 27, 2012

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78:22-78:24; 79:179:6

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United States District Court
For the Northern District of California

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94:3-94:16; 95:995:12, 95:14-95:14
proposed counterdesignation at 94:1795:7

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119:9-119:14

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141:24-142:13;
142:16-142:20,
proposed counter
designation at 130:916.

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157:9-157:12

designation for completeness and fairness, per FRE 106 and Fed. R. Civ. P.
32(a)(6), as well as to ensure that the probative value of the testimony
outweighs any potential prejudice, per FRE 403. The video time for
Fujitsu’s designation and the ordered counter-designation will be subtracted
from Fujitsu’s trial time.
Overruled. The Court finds this testimony to be highly relevant to the issue
of inducement, particularly as it comes from Netgear’s Vice President of
Product Management and relates to Netgear’s marketing practices.
Moreover, Defendants fail to state any compelling reason why this
testimony is misleading, prejudicial, or a waste of time. Pursuant to FRE
403, the Court finds this testimony to be more probative than prejudicial.
Overruled. Defendants object to an internal Netgear document which
allegedly describes interoperability of a Netgear adapter with third party
routers. Defendants argue that this evidence violates the Court’s ruling
excluding any evidence related to third party cards. However, the
document about which Mr. Henry is testifying is covered by the
admissibility stipulation and appears on Defendants’ own exhibit list. The
Court finds that this evidence is relevant to Fujitsu’s claim of induced
infringement.
However, Fujitsu must include Defendants’ proposed counter-designation
for completeness and fairness, per FRE 106 and Fed. R. Civ. P. 32(a)(6), as
well as to ensure that the probative value of the testimony outweighs any
potential prejudice, per FRE 403. The video time for Fujitsu’s designation
and the ordered counter-designation will be subtracted from Fujitsu’s trial
time.
Overruled. Defendants seek to exclude Mr. Henry’s testimony about an
internal Netgear document discussing sales forecasts and the ratio between
sales of cards and external devices. However, the parties have stipulated to
the admissibility of the document about which Mr. Henry is testifying. The
Court finds that Netgear’s sales are relevant to the case, see FRE 401 &
402, and that the probative value of this testimony outweighs any potential
for prejudice, see FRE 403.
Overruled. The Court finds this testimony—describing Netgear’s strategy
for persuading consumers to purchase wireless adapters and routers to be
used together—to be relevant to inducement issues. Further, the document
being discussed is admissible for all purposes by agreement of the parties.
However, Fujitsu must include Defendants’ proposed counter-designation
for completeness and fairness, per FRE 106 and Fed. R. Civ. P. 32(a)(6), as
well as to ensure that the probative value of the testimony outweighs any
potential prejudice, per FRE 403. The video time for Fujitsu’s designation
and the ordered counter-designation will be subtracted from Fujitsu’s trial
time.
Overruled. Defendants object to excerpted testimony that “Netgear markets
CardBus cards and routers, PCI adapters and USB adapters” under its
RangeMax brand. The Court finds this testimony to be relevant as one of
the accused products (WPN511) is depicted in the exhibit. Defendants
provide no compelling justification for finding that the testimony would be

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ORDER RE: OBJECTIONS TO EXHIBITS AND DEPOSITION TESTIMONY FOR NOVEMBER 27, 2012

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confusing or a waste of time, and therefore should not be shown to a jury.
Therefore, pursuant to FRE 403, the Court finds that the probative value of
this evidence outweighs any potential prejudice.

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4. Defendant’s Objections to the Deposition Testimony of Steven Lin
(Belkin 30(b)(6))

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DEPOSITION
TESTIMONY
255:8-255:24

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For the Northern District of California

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258:24-259:13

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442:1-442:10

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DEPOSITION
TESTIMONY
29:5-29:11

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Sustained. Defendants contend that the answers to the questions posed in
this section of Mr. Lin’s deposition were corrected pursuant to Fed. R. Civ.
P. 30(e). Consequently, the original responses are no longer operative.
Therefore, Fujitsu must read the corrected testimony directly after playing
the designated videotaped testimony. The time for Fujitsu’s video
designation and reading of the correction will be subtracted from Fujitsu’s
trial time.
Sustained. Belkin provided another corporate witness, Chris Flower, to
address “Defendant’s investigation or analysis prior to September 3, 2010
regarding the infringement or non-infringement, validity or invalidity,
and/or enforceability or unenforceability of the Fujitsu Patent,” and Belkin
has not objected to any of Fujitsu’s designations for Chris Flower.
Therefore, the Court finds that this excerpt of attorney colloquy during Mr.
Lin’s deposition testimony could waste time.
Overruled. The Court encourages the parties to stipulate that Belkin is not
raising any defenses about procedural defects regarding service or
jurisdiction, and that it will not challenge the premise that both corporate
entities may be treated as one company for the purposes of this litigation.

5. Defendant’s Objections to the Deposition Testimony of Alexander Mack
(Belkin 30(b)(6))

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Court’s Ruling on Objections

172:17-173:5;
184:11-185:6

Court’s Ruling on Objections
Overruled. To the extent that Fujitsu seeks to use this evidence, however, it
is opening the door to Defendants’ spoliation claims against Fujitsu.
Overruled. The Court finds Mr. Mack’s testimony regarding Belkin’s
limited role in the design and manufacture of the accused products to be
relevant to Georgia-Pacific factor 13 (the portion of the realizable profit
that should be credited to the invention as distinguished from any
nonpatented elements, the manufacturing process, business risks or
significant features or improvements added by the infringer). Further, it
does not appear that this testimony suggests that Belkin is not an innovator.
Therefore, the Court agrees with Fujitsu that, pursuant to FRE 403, the
probative value of this testimony outweighs any potential prejudice.

6. Defendant’s Objections to the Deposition Testimony of Gordon Mattingly
(Netgear 30(b)(6))
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DEPOSITION
TESTIMONY
104:10-13

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131:12-20; 131:2223

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Sustained. It is unclear how the location of Netgear’s manufacturing is
related to damages, since it does not appear that Fujitsu’s damages expert
based his royalty rate on the location of Netgear’s manufacturing. Further,
the fact that Netgear manufactures its products overseas may be more
prejudicial than probative. Accordingly, pursuant to FRE 403, the Court
agrees that it should be excluded.
Overruled. The Court finds Mr. Mattingly’s testimony regarding Netgear’s
outsourcing of manufacturing operations relevant to Georgia-Pacific factor
13 (the portion of the realizable profit that should be credited to the
invention as distinguished from any nonpatented elements, the
manufacturing process, business risks or significant features or
improvements added by the infringer). Therefore, the Court agrees with
Fujitsu that, pursuant to FRE 403, the probative value of this testimony
outweighs any potential prejudice.

7. Defendant’s Objections to the Deposition Testimony of Peter Newton
(Netgear 30(b)(6))

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Court’s Ruling on Objections

DEPOSITION
TESTIMONY
42:14-18; 43:4-5;
43:20-44:5

62:1-9, proposed
counter-designation
at 62:10-17

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Court’s Ruling on Objections
Overruled. These designations relate to Netgear’s document collection
practices in this case. To the extent that Fujitsu seeks to use this evidence,
however, it is opening the door to Defendants’ spoliation claims against
Fujitsu.
Overruled. The document about which Mr. Newton was testifying is
included in the parties’ admissible trial exhibit stipulation and is relevant to
damages issues in this case. However, Fujitsu must include Defendants’
proposed counter-designation for completeness and fairness, per FRE 106
and Fed. R. Civ. P. 32(a)(6), as well as to ensure that the probative value of
the testimony outweighs any potential prejudice, per FRE 403. The video
time for Fujitsu’s designation and the ordered counter-designation will be
subtracted from Fujitsu’s trial time.

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B. Exhibits
1. Defendant’s Objections to Exhibits for Brian Busse

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EXHIBIT
NUMBER
PTX 299

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PTX 300

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Court’s Ruling on Objections
Sustained. The parties will stipulate to the specifics of notice or the entire
exhibit will be admitted unredacted.
Sustained. The parties will stipulate to the specifics of notice or the entire
exhibit will be admitted unredacted.
2. Defendant’s Objections to Exhibits for Robert Lin

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EXHIBIT
NUMBER
PTX 70

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Court’s Ruling on Objections
Overruled. This is a product manual for an accused D-Link card that has
been selected for this trial. In addition, the parties have stipulated to its
admissibility.

IT IS SO ORDERED.

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Dated: November 26, 2012
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_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No: 10-CV-03972-LHK
ORDER RE: OBJECTIONS TO EXHIBITS AND DEPOSITION TESTIMONY FOR NOVEMBER 27, 2012