Tessera, Inc. v. Sony Corporation

Filing 51

ORDER by Magistrate Judge Howard R. Lloyd Denying 45 Motion for Protective Order.(hrllc1, COURT STAFF) (Filed on 7/9/2012)

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** E-filed July 9, 2012**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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TESSERA, INC.,
Plaintiff,

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v.

No. C11-04399 EJD (HRL)
ORDER DENYING SONY’S MOTION
FOR A PROTECTIVE ORDER

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SONY CORP.,

[Re: Docket No. 45]

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Defendant.
____________________________________/

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Plaintiff Tessera, Inc. (“Tessera”) sued defendant Sony Corporation (“Sony”) for breach of

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contract, alleging that Sony failed to pay royalties owed under a license agreement between the

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parties. Tessera noticed an individual deposition of Sony employee Etsujiro Katsushima and Sony

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then designated Katsushima to act as one of its Fed. R. Civ. P. 30(b)(6) 1 witnesses. The depositions

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are scheduled to begin in Osaka, Japan on July 9, 2012. The Case Management Scheduling Order in

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this action states that “deposition[s] of witnesses who require translation will be allotted two (2)

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times the normal seven (7) hour limit.” Dkt. No. 30. Katsushima is a Sony employee who lives in

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Japan and will require translation. Katsushima will be deposed at the American Consulate General

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Osaka-Kobe, where depositions may only occur during business hours, 9:00am-12:00pm, and

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1:30pm to 5:00pm. Dkt. No. 49 (Declaration of Richard Krebs, hereinafter “Krebs Decl.”), Exh. 13.

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Pursuant to Fed. R. Civ. P. 30(b)(6), a party may issue a subpoena to an organization, and the
organization “must then designate one or more officers, directors, or managing agents . . . to testify
on its behalf.” In this case, Sony designated Katsushima as one of two 30(b)(6) witnesses after
Tessera had noticed an individual deposition of Katsushima.

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Sony moves for a protective order limiting Katsushima’s deposition to two days, rather than

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the four seven-hour days that would otherwise be permitted under the Scheduling Order. Tessera

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opposes the motion. As this court noted in its Order Denying Sony’s Motion to Shorten Time, the

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motion for a protective order is deemed suitable for determination without oral argument pursuant to

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Civil L. R. 7-1(b), and the court issues this written ruling despite Sony’s failure to comply with the

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undersigned’s Standing Order re: Civil Discovery Disputes. The parties are once again reminded

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that all further discovery disputes must be presented to the court in compliance with that Standing

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Order. Based on the moving papers and all applicable authority, the court rules as follows.

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For the Northern District of California

United States District Court

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LEGAL STANDARD
Under Fed. R. Civ. P. 16(b)(4), a scheduling order such as the one issued in this case “may

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be modified only for good cause and with the judge’s consent.” Rule 16(b)’s “‘good cause’ standard

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primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth

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Recreations, 975 F.2d 604, 609 (9th Cir. 1992). “Although the existence or degree of prejudice to

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the party opposing the modification might supply additional reasons to deny a motion, the focus of

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the inquiry is upon the moving party's reasons for seeking modification. Id. (citing Gestetner Corp.

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v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)).

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DISCUSSION

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As the referral discovery judge in this action, the undersigned will resolve all discovery

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disputes, even though the presiding judge entered the scheduling order. Here, Sony seeks a

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protective order limiting the time Tessera may spend deposing Kastsushima by slightly more than

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half. In the United States, a full day of deposition lasts seven hours. The Scheduling Order in this

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action states that for each deposition that requires translation, the parties shall have twice the normal

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time, or, two seven-hour days. Katsushima is to be deposed both as an individual and as one of the

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30(b)(6) witnesses designated by Sony. At the American Consulate in Osaka, Japan, where

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Katsushima will be deposed, depositions may only be conducted during office hours, 9:00am-

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12:00pm, and 1:30pm-5:00pm, a total of 6.5 hours per day. Therefore, under the plain wording of

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the Scheduling Order, Tessera should be able to depose Katsushima for a total of 28 hours, 14 for

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his individual testimony and another 14 for his corporate testimony. Under the Consulate’s

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schedule, this would amount to slightly more than four full days. Tessera opposes Sony’s request,

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arguing that it is an impermissible attempt to substantially limit Tessera’s time in advance of the

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depositions themselves.

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Rule 16(b)(4)’s “good cause” standard is not a stringent one. Rather, it is intended to allow

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modifications that facilitate advancement of litigation when such modifications are necessary

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despite the “due diligence” of the parties to comply with the applicable Scheduling Order. See

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Johnson, 975 F.2d 604, 609 (stating that “if the [moving] party is not diligent, the inquiry should

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end”). Here, Sony’s arguments in favor of the modification it seeks do not illustrate any diligence on

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its part to comply with the Scheduling Order as it stands. In addition, Sony has failed in its Motion

For the Northern District of California

United States District Court

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and Reply to address whether its efforts meet the good cause standard.
Sony contends that the full time allotted for Katsushima’s depositions is excessive because:

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(1) “his personal knowledge and the information he would offer as a 30(b)(6) witness are

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coincident;” (2) the topics Tessera intends to cover “are not broad enough” to fill the entire

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permitted time; and (3) “the American deposition process will be unfamiliar and highly intrusive” to

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Katsushima, a Japanese citizen. Dkt. No. 44, p. 3. Sony offers no legal authority in support of these

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contentions, and indeed, fails even to offer any factual support for its arguments.

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To address Sony’s first contention, the fact that the same person is designated to testify as an

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individual and as an agent pursuant to Rule 30(b)(6) does not create a presumption that the

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testimonies will be coincident. See Mitchell Eng'g v. City & County of San Francisco, 2010 U.S.

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Dist. LEXIS 20782, *3-4 (N.D. Cal. Feb. 2, 2010) (citing Sabre v. First Dominion Capital, LLC,

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2001 U.S. Dist. LEXIS 20637, *1 (S.D.N.Y. Dec. 12, 2001) (“Even if the general topics to be

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addressed at the 30(b)(6) deposition will overlap to some extent [with the individual deposition

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topics], the questions asked and the answers given might not.”). Sony argues that Mitchell

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Engineering is distinguishable because it involves individual depositions taken in a state court action

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and a 30(b)(6) deposition taken in federal court. The court finds that this difference does not render

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the proposition inapplicable to the present motion, where the issue is whether one person can be

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deposed twice, once in his individual capacity and once as the designated agent of defendant Sony.

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Sony’s second and third arguments lack support and are not persuasive. As Tessera argues in

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its Opposition, if there is not enough material to fill the full time allotted for Katsushima’s

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depositions, the parties can end early. See Dkt. No. 48. Sony has not presented any information that

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Tessera will actually have far more time than it needs. Neither has it offered any evidence that

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suggests to this court that there is a risk associated with Tessera potentially having more time than it

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will ultimately need to conduct its depositions. Finally, Sony’s contention that Katsushima will not

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enjoy the “American deposition process” for cultural reasons is not particularly relevant to the

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inquiry. Not only has Sony offered no factual support whatsoever for this contention, it also has not

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given the court any authority that a deposition should be limited due only to a deponent’s slight

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cultural discomfort with the kind of questioning that depositions entail. Indeed, had Sony believed

For the Northern District of California

United States District Court

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that Katsushima would suffer significant discomfort as a result of being deposed, it could have

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chosen to designate a different agent to testify under Rule 30(b)(6). Sony has failed to satisfy the

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“good cause” standard required for modifying a Rule 16 Scheduling Order.

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Accordingly, Sony’s motion for a protective order is DENIED. Tessera shall have two

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seven-hour periods, or fourteen hours in total, for each of its depositions, as permitted under the

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Scheduling Order.

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IT IS SO ORDERED.
Dated: July 9, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C11-04399 EJD (HRL) Notice will be electronically mailed to:

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Melissa McCormick
Benjamin Hattenbach
Brian Ledahl
Morgan Chu
Nathan Lowenstein
Richard Krebs
Eileen Ridley
Aaron Moore
Matthew Lowrie
Ruben Rodrigues

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

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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.

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For the Northern District of California

United States District Court

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