AVM Technologies LLC v. Intel Corporation

Filing 684

MEMORANDUM ORDER regarding a dispute over a Rule 30(b)(6) witness for trial (see Memorandum Order for further details). Signed by Judge Richard G. Andrews on 4/29/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

AVM TECHNOLOGIES, LLC,
Plaintiff;

v.

Civil Action No. 15-33-RGA

INTEL CORPORATION,
Defendant.
MEMORANDUM ORDER
There is a dispute about AVM's request that Intel produce a Rule 30(b)(6) witness for
trial. A VM listed this witness as one of its witnesses in the pretrial order. (D.I. 614, Ex. 8). The

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witness was supposed to testify about "document retention and production." I have now
received additional submissions. (D.I. 652, 661 ). Regrettably, they are not very illuminating
about what the real dispute is here.
On the one hand, A VM' s request as to what this witness is supposed to be able to testify
about is extremely vague in the pretrial order. There are representations in A VM's submission
that the witness is supposed to be able to "sponsor and authenticate" various Intel documents that
are, for the most part not further described. (D.1. 661 at 2; see id. at 3 (identifying four specific
exhibits with brief descriptions)). The dispute about two of the four described exhibits makes no
sense. If one of A VM's experts intends to testify about PX0008 (Intel spreadsheet of data) or
PXl 122 (Intel source code), the expert presumably can use the data and source code whether or
not any Intel witness testifies about it. Fed. R. Ev id. 703. If no expert is going to testify about
the two exhibits, they will be meaningless to the jury and are therefore irrelevant. As for
PX0013 and PX0213, assuming the accuracy of A VM's characterizations of them (emails and
presentations of Intel employees), iflntd maintains an authentication objection, I would be

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surprised. Intel is directed to file a statement by 12 noon Sunday, April 30, stating whether it
maintains an authentication objection to PXOO 13 and PX02 l 3, and, if so, the basis for the
objection.
When we talk about "sponsoring an exhibit," my general understanding is that does not
mean simply having a warm body on the stand. It means having a witness who can say
something about the document relevant to some issue in the case. It is hard for me to understand
what the point would be of seeking to admit documents that no witness is going to talk about.

If Delaware counsel are not already involved in this particular dispute, I would request
that they join in. The parties are directed to meet and confer. A VM is directed to identify which
specific exhibits it seeks to authenticate and admit, whether as a statement of an Intel employee
within the scope of the employment relationship, or under some other theory. For any such
identified exhibit, Intel is either to stipulate to admissibility (preserving relevance-related
objections, including that the document is irrelevant because no witness is going to talk about it
and the document is not fairly self-explanatory). As soon as is possible, the parties are to file a
statement as to which documents remain in dispute, and to file the disputed documents with the
Court with the parties each providing brief argument to help me resolve the dispute.
I do not intend to order Intel to produce a Rule 30(b)(6) witness for some ill-defined
purpose, but I also do not intend to inhibit A VM from using documents produced in discovery by
Intel absent some good reason.

Entered this

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2-9{ day of April, 2017.