Tessera, Inc. v. Sony Corporation

Filing 113

DISCOVERY ORDER by Magistrate Judge Howard R. Lloyd allocating 107 deposition time. (hrllc1, COURT STAFF) (Filed on 11/6/2012)

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1 *E-FILED: November 6, 2012 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 TESSERA, INC., Plaintiff, 12 No. C11-04399 EJD (HRL) DISCOVERY ORDER v. 13 [Dkt. 107] SONY CORP., 14 15 16 Defendant. ____________________________________/ In this breach of contract case Plaintiff Tessera, Inc. (“Tessera”) sues Defendant Sony 17 Corporation (“Sony”) for alleged failure to pay royalties under a Master License Agreement 18 (“Agreement”) between the parties. The dispute arose when Tessera arranged for Connor Group 19 NV, LLC to audit records of Sony that bear on Sony’s royalty obligations under the Agreement. 20 The parties dispute the audit process and its results. Tessera claims that the audit reveals 21 underpayment of royalties under the Agreement and that Sony withheld information from Connor 22 Group. Sony counterclaims that Tessera breached the implied covenant of good faith and fair 23 dealing by causing to be prepared an audit report that is not independent and then using the audit 24 report as a basis to demand payment for more than it’s entitled to under the Agreement. 25 The parties bring to the Court a dispute over whether and for how long Tessera may depose 26 or cross examine the Connor Group, Nigel Shepherd, and Edgar Ooms. Shepherd is the managing 27 director of Connor Group and he authored the audit report that spawned this litigation. Ooms is a 28 manager at Connor Group. Sony properly noticed and served subpoenas for these depositions well 1 before the October 19, 2012 close of discovery. When the schedules of these third parties prevented 2 Sony from taking the depositions before the close of fact discovery, the parties filed a stipulation 3 with the Court, requesting an extension on expert discovery deadlines and seeking the Court’s 4 permission to conduct these three depositions beyond the close of fact discovery. The Court granted 5 the requested extensions. 6 After getting the extensions, and after the parties and third parties negotiated a schedule for 7 the depositions (which involved combining the 30(b)(6) deposition of Connor Group and the 8 individual deposition of Shepherd into seven total hours of deposition), Tessera issued its own 9 notices of depositions for the days and times arranged through Sony’s notices. The materials For the Northern District of California United States District Court 10 submitted to the Court show that sharing the deposition time was not originally contemplated by the 11 parties and that the Court’s extension of the time to depose Connor Group and these individuals was 12 based on Sony’s timely notices of the depositions. It appears as though Tessera, as a result of an 13 oversight or as a strategy, is attempting to usurp the limited time allotted to Sony for depositions. 14 In spite of this history, however, Tessera is entitled to cross-examine the deponents. In light 15 of the disagreement between the parties over how to allocate the deposition time, the Court has 16 determined that at least 45 minutes of the combined deposition of Connor Group and Shepherd 17 should be allotted to Tessera for cross-examination. And, at least 45 minutes of the deposition of 18 Ooms shall be allotted to Tessera for cross-examination. 19 20 IT IS SO ORDERED. Dated: November 6, 2012 21 22 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2 1 C11-04399 EJD (HRL) Notice will be electronically mailed to: 2 Melissa McCormick Benjamin Hattenbach Brian Ledahl Morgan Chu Nathan Lowenstein Richard Krebs Eileen Ridley Aaron Moore Matthew Lowrie Ruben Rodrigues 3 4 5 6 mmccormick@irell.com bhattenbach@irell.com bledahl@irell.com mchu@irell.com nlowenstein@irell.com rkrebs@irell.com eridley@foley.com amoore@foley.com mlowrie@foley.com rrodrigues@foley.com 7 8 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. 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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