Anascape, Ltd v. Microsoft Corp. et al

Filing 309

ORDER on Objections to deposition designations. Signed by Judge Ron Clark on 5/2/08. (djh, )

Anascape, Ltd v. Microsoft Corp. et al

Doc. 309

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION ANASCAPE, LTD. Plaintiff, v. MICROSOFT CORPORATION, and NINTENDO OF AMERICA, INC., Defendants. § § § § § § § § § § Hon. Ron Clark Civil Action No. 9:06-CV-00158-RC

ORDER ON OBJECTIONS TO DEPOSITION DESIGNATIONS

A. Page/Line Numbers 23:20-24:1

Susan Panico--Sony Computer Entertainment America's ("SCEA") 30(b)(6) Deponent (2/20/08) Anascape's Objection Nonresponsive; speculation; not based on personal knowledge Defendants' Response Court's Ruling

39:1-40:17

Outside the scope of the 30(b)(6) designation; not based on personal knowledge; no foundation

Ms. Panico has worked for Overruled. SCEA for thirteen years in positions dealing with marketing PlayStation products. (11:7-13:10.) She testified that SCEA had a business relationship with the publisher of the U.S. Official PlayStation magazine. (22:6-16). Tends to show that SCEA may have provided information for a particular magazine issue. Ms. Panico has worked for Overruled. SCEA for thirteen years in positions dealing with marketing PlayStation products. (11:7-13:10.) Moreover, the designated testimony itself shows that the deponent is familiar

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Page/Line Numbers

Anascape's Objection

Defendants' Response with the subject matter, namely, the Sony analog joystick. (40:9-17; see also, 38:21-25.) SCEA's counsel indicated that SCEA would allow questions about Sony controllers in addition to the Dual Shock and Dual Shock 2 controllers. (9:510:8).

Court's Ruling

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Page/Line Numbers 60:21-61:16

Anascape's Objection Lack of authenticity of exhibit introduced; foundation; not based on personal knowledge

Defendants' Response Defendants believe Anascape's authenticity objection as to the underlying exhibit is now moot in view of Anascape's withdrawal of its authenticity objection to the exhibit on Defendants' joint exhibit list (see DX 290). Ms. Panico has worked for SCEA for thirteen years in positions dealing with marketing PlayStation products. Deponent provided ample foundation as to her knowledge and experience regarding Sony marketing channels and related information. (11:713:10.) Moreover, the designated testimony itself shows that the deponent is familiar with the subject matter, namely, the Sony analog joystick. (40:9-17; see also, 38:21-25.)

Court's Ruling If Plaintiff withdrew authenticity objection, then OK. If not, then sustained.

61:22-24

Lack of authenticity of exhibit introduced; foundation; not based on personal knowledge

Furthermore, the testimony is offered to show that the information contained in the document is of a type provided by SCEA. (See 60:21- 62:22.) Id. If Plaintiff withdrew authenticity objection, then OK. If not, then sustained.

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Page/Line Numbers 62:4-7

Anascape's Objection Lack of authenticity of exhibit introduced; foundation; not based on personal knowledge Lack of authenticity of exhibit introduced; foundation; not based on personal knowledge; question calls for speculation

Defendants' Response Id.

Court's Ruling If Plaintiff withdrew authenticity objection, then OK. If not, then sustained. Sustained.

63:1-8

Id. Also, Ms. Panico's responses (which are based on her relevant experience and knowledge at SCEA) as to whether information in the exhibit may have been provided from SCEA are proper and allowable.

B. Page/Line Numbers 130:1-133:7

Brian Carlson (10/04/07) Anascape's Objection Alludes to failure to provide the Cyberman reference to the PTO, tending to show inequitable conduct, and thus could prejudice the jury, also improper under FRE 403. Defendants' Response Court's Ruling

Mr. Carlson testified that Sustained as to he was involved with the jury trial. prosecution of the `525 patent (129:6-25), that he helped prepare the Information Disclosure Statements (130:1-4), that he generally discussed with Mr. Armstrong what prior art to disclose in the information disclosure statements (130:11-15), and that he and Mr. Armstrong were aware of the Cyberman controller during the prosecution of the `525 patent application (132:21-133:7). This testimony is relevant to the inequitable conduct defense. Further, should the Court deny Defendants' motion for

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Page/Line Numbers

Anascape's Objection

Defendants' Response summary judgment on non-willfulness, Defendants should be allowed to offer evidence of inequitable conduct in order to defend against a claim of willfulness. There is no prejudice.

Court's Ruling

I.

DEFENDANTS' OBJECTIONS TO ANASCAPE'S COUNTERDESIGNATIONS A. Susan Panico--Sony Computer Entertainment America's ("SCEA") 30(b)(6) Deponent (2/20/08) Defendants' Objections Rule 403 (Prejudice, Confusion, or Waste of Time)--The designated testimony is merely the witness asking for a clarification of a question. Non-responsive--As Anascape's counsel itself recognized at the time of deposition, the only substantive witness testimony cited here was nonresponsive to the question asked. Also, Anascape withdraw its objections to the underlying SCEA Press Release on Defendants' exhibit list (see DX 98). Rule 403 (Prejudice, Confusion, or Waste of Time)--The question in the designated testimony was unclear, and the deponent's response to the clarified question is available, as shown in 32:20-25. This segment, including the unclear question and a request for clarification, can only cause confusion in light of the availability of the clarified question and answer. Rule 30(b)(6) (Beyond Scope of Corporate Designation); Rule 403 (Prejudice, Confusion, or Waste of Time) -- The deponent's personal experience playing video games and opinions regarding such personal experience or preferences is beyond the scope of topics on which the deponent was Court's Ruling Sustained as to objections by Callahan. Overruled.

Anascape's Designations Page/Line Numbers 17:11-15

26:8-27:1

32:10-19

Overruled.

73:10-19; 73:22-24

Overruled.

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Anascape's Designations Page/Line Numbers

Defendants' Objections

Court's Ruling

80:24-82:3

designated as SCEA's 30(b)(6) witness, and should therefore not be construed as the testimony of SCEA. Furthermore, the deponent's individual opinion, experience, and taste is not relevant to any issue in this case, and is unduly prejudicial, and likely to confuse. Rule 403 (Prejudice, Confusion, or Waste of Sustained. Time)--Anascape withdraw its objections to the authenticity of relevant SCEA Press Releases listed on Defendants joint exhibit list (see e.g., DX 97 and 98). Thus, this testimony is prejudicial, unnecessary, and likely to confuse the jury.

So ORDERED and SIGNED this 2 day of May, 2008.

___________________________________ Ron Clark, United States District Judge

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