BladeRoom Group Limited et al v. Facebook, Inc.

Filing 301

ORDER denying 295 Administrative Motion for Leave to Take Additional Depositions. Signed by Judge Edward J. Davila on 6/12/2017. (ejdlc1S, COURT STAFF) (Filed on 6/12/2017)

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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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BLADEROOM GROUP LIMITED, et al.,

Case No. 5:15-cv-01370-EJD

Plaintiffs,
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v.
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FACEBOOK, INC., et al.,

United States District Court
Northern District of California

Defendants.

ORDER DENYING PLAINTIFF’S
ADMINISTRATIVE MOTION FOR
LEAVE TO TAKE ADDITIONAL
DEPOSITIONS
Re: Dkt. No. 295

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Presently before the court is administrative motion filed by Plaintiffs Bladeroom Group

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Limited and Bripco (UK) Limited (collectively, “Plaintiffs”) through which they seek the

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following relief: (1) an order increasing the number of deposition Plaintiffs may take from 20 to

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24, (2) an order extending the deadline to complete any additional depositions from June 30th to

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July 28, 2017, and (3) an order precluding Defendants Emerson Electric Co., Emerson Network

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Power Solutions, Inc., and Liebert Corporation (collectively, “Emerson”) from presenting the

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testimony of any witnesses at trial who have not yet been disclosed in response to interrogatories

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as knowledgeable about particular issues. Dkt. No. 295. Defendant Facebook, Inc. (“Facebook”)

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and Emerson have filed written opposition to the motion.

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Having reviewed the relevant pleadings, the court finds, concludes and orders as follows:

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1.

Plaintiffs’ three requests are governed by three different standards. Taking them in

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order, analysis of the request for additional depositions starts by observing that parties may

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generally take up to ten depositions without leave of court. Fed. R. Civ. P. 30(a). Federal Rule of

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Civil Procedure 26(b)(2)(A) permits upward alteration of this limit if the requesting party makes a

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Case No.: 5:15-cv-01370-EJD
ORDER DENYING PLAINTIFF’S ADMINISTRATIVE MOTION FOR LEAVE TO TAKE
ADDITIONAL DEPOSITIONS

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“‘particularized showing’ of the need for the additional depositions.” Century Aluminum Co. v.

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AGCS Marine Ins. Co., No. 11-cv-02514 YGR (NC), 2012 WL 2357446, at *2 (N.D. Cal. June

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14, 2012). But at the same time, the court must limit the frequency or extent of discovery if: (1)

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the information sought is “unreasonably cumulative or duplicative, or can be obtained from some

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other source that is more convenient, less burdensome, or less expensive; (2) “the party seeking

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discovery has had ample opportunity to obtain the information by discovery in the action; or (3)

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“the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.

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26(b)(2)(C).

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2.

Plaintiffs’ second request to modify the deadline for completion of fact discovery

requires them to demonstrate sufficient “good cause” for the relief. Fed. R. Civ. Proc. 16(b)(4)

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United States District Court
Northern District of California

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(“A schedule may be modified only for good cause and with the judge’s consent.”); Johnson v.

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Mammoth Recreations Inc., 975 F.2d 604, 607-608 (1992).

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3.

The third request to exclude trial witnesses appears to be governed by Federal

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Rules of Civil Procedure 26(e)(1) and 37(c)(1), given Plaintiffs’ reliance on Elion v. Jackson, 544

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F. Supp. 2d 1 (D.D.C. 2008). Rule 26(e)(1) requires parties to “supplement or correct” disclosures

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and discovery responses “in a timely manner if the party learns that in some material respect the

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disclosure or response is incomplete or incorrect, and if the additional or corrective information

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has not otherwise been made known to the other parties during the discovery process or in

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writing.” Parties who fail in that duty become subject to Rule 37(c)(1), which states: “If a party

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fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not

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allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a

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trial, unless the failure was substantially justified or is harmless.”

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4.

Consistent with the “particularized showing” standard that applies to a request for

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additional depositions, this court required any such motion to “detail who Plaintiffs propose to

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depose, explain why the depositions are necessary, and estimate when the depositions can be

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completed.” Dkt. No. 278. Plaintiffs have complied with the first requirement by identifying the

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Case No.: 5:15-cv-01370-EJD
ORDER DENYING PLAINTIFF’S ADMINISTRATIVE MOTION FOR LEAVE TO TAKE
ADDITIONAL DEPOSITIONS

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witnesses they seek to depose: individual employees of Facebook (Jay Parikh, T.S. Khurana, Ilker

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Esener, Joel Kjellgren and Bill Jia), and a third-party company, Alfatech. They have also

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complied with the third requirement by estimating the depositions can be completed by July 28,

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2017.

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Plaintiffs have not, however, made the showing necessary to comply with the

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second requirement. They provide some information in a footnote explaining topics on which

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Parikh, Khurana and Alfatech may have information. Plaintiffs also claim that Esener and

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Kjellgren possess knowledge concerning Facebook data center construction and design, and that

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Jia has knowledge about OpenCompute. But their motion also reveals that Plaintiffs have deposed
or have noticed the depositions of no less than eight other individual Facebook employees, and

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United States District Court
Northern District of California

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Facebook’s opposition demonstrates that Plaintiffs have received significant discovery involving

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Parikh, Khurana, Esener, Kjellgren and Alfatech. Under these circumstances - where the court has

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doubled the deposition limit, a significant number of one party’s witnesses have or will be

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deposed under the current cap, and the requesting party has received extensive disovery - Plaintiffs

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must do more than merely identify witnesses with potentially relevant information. Indeed, the

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legal standard requires Plaintiffs to explain why the depositions of these additional witnesses

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would not be cumulative or duplicative, why the information could not have been otherwise

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obtained from another witness or through a different discovery method, and why the depositions

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are permissible under Rule 26(b)(1). This explanation is missing.

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Nor is the court convinced that potential surprise is a valid reason to increase the

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deposition limit, at least at this time. Plaintiffs want to avoid “the possibility that Defendants

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bring witnesses to trial to offer surprise testimony.” That “possibility” is not the sort of

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“particularized showing” justifying additional depositions. And in any event, there are still other

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mechanisms to account for “surprise” witnesses as trial approaches and the presentation of

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evidence becomes more concrete, which could include leave to take additional depositions of

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specific witnesses disclosed in the parties’ materials prior to trial.

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Case No.: 5:15-cv-01370-EJD
ORDER DENYING PLAINTIFF’S ADMINISTRATIVE MOTION FOR LEAVE TO TAKE
ADDITIONAL DEPOSITIONS

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Furthermore, Plaintiffs invite misuse of Rules 26(e)(1) and 37(c)(1) through their

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premature request to limit Emerson’s witness presentation. Plaintiffs complain that Emerson

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listed too many witnesses in initial disclosures but identified too few knowledgeable ones in

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response to interrogatories. But without knowing who Emerson intends to call as trial witnesses -

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which information need not be provided at this stage of the litigation - the court cannot assess

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whether Plaintiffs have made the precursor showing required for a Rule 37 sanction. Instead,

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Plaintiffs can renew this request in limine since by then all of the information necessary to the

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analysis will be available.

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In sum, Plaintiffs’ motion fails to demonstrate either a need for additional depositions or a
valid reason to limit Emerson’s trial evidence. Consequently, all of the requested relief is

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United States District Court
Northern District of California

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DENIED.

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IT IS SO ORDERED.
Dated: June 12, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cv-01370-EJD
ORDER DENYING PLAINTIFF’S ADMINISTRATIVE MOTION FOR LEAVE TO TAKE
ADDITIONAL DEPOSITIONS