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Websidestory, Inc. v. Netratings

March 22, 2007


The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. Magistrate Judge United States District Court

[Doc. No. 61]

Amended Order Denying Motion For Protective Order and related counter-claims.

Plaintiff, WebSideStory, moves the Court for a Protective Order under Federal Rule of Civil Procedure 26(b)(1) to quash defendant NetRatings' deposition notice for Mr. Jeffrey Lunsford, WebSideStory's former Chief Executive Officer (CEO) and current director, or to defer the deposition until such time as NetRatings has exhausted all other means and can substantiate a basis for Mr. Lunsford's deposition. Defendant, NetRatings has filed an opposition. This motion is appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). Based upon the moving papers and for the reasons set forth herein,

Relevant Background

In the instant case, WebSideStory alleges that NetRatings infringes its patent, U.S. Patent No. 6,393,479 (hereinafter the '479 patent), which is directed to methods and systems for path analysis, which involves tracking the manner in which users navigate through a website. NetRatings has sued WebSideStory for patent infringement in a parallel matter in the Southern District of New York. The current disputes arises from NetRatings Notice of Deposition for Jeffrey Lunsford, dated January 21, 2007.

Legal Standard

I. The Federal Rules Grant the Court Broad Discretion in the Handling of Discovery Matters

The Court has broad discretion in controlling the timing of discovery. Scroggins v. Air Cargo, , 534 F.2d 1124 (5th Cir.1976). Additionally, the Federal Rules, by their plain terms, allow the court to limit discovery so as to avoid cumulation, duplication, harassment, expense and burdensomeness. See Fed. R. Civ. P. 26(b)(1). The discretion to limit discovery extends to imposing restrictions where the discovery sought "is obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(1). The court may issue a protective order responsive to the legal issues raised by the parties where it has been demonstrated to the court's satisfaction that such an order would be appropriate. Fed. R. Civ. P. 26(c).

II. Motion for Protective Order

Upon motion by a person responding to a discovery request, and for good cause shown, the Court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense. Fed. R. Civ. P. Rule 26(c). However, to obtain a protective order, the party resisting discovery or seeking limitations thereon must show "good cause" for its issuance. Id.; Jepson, Inc. v. Makita Elec. Works. Ltd., 30 F.3d. 854, 858 (7th Cir.1994)(the court must find good cause even if the parties stipulate to the protective order); Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. CA 1990). To establish good cause, the moving party must make a clear showing of a particular and specific need for the order. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Pearson v. Miller, 211 F.3d 57, 72 (3rd Cir. 2000) (a properly asserted claim of privilege is good cause for protective order); Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003) ("broad allegations of harm, unsubstantiated by specific examples or articulate reasoning, do not satisfy the Rule 26(c) test").

In determining whether good cause exists for a protective order, the Court may consider the following relevant factors such as: 1) is the information being sought for a legitimate purpose; 2) will the disclosure violate any privacy interest; 3) will disclosure cause a party embarrassment; 4) whether disclosure is important to public health and safety; 5) will sharing of the information among litigants promote fairness and efficiency in the litigation; 6) whether the party seeking the protective order is a public entity or official; and 7) whether the case involves issues of public importance. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787-791 (3rd Cir. 1994).

The burden is upon the party seeking a protective discovery order to show good cause for the order by demonstrating a specific harm or prejudice that will result from the discovery. Fed. R. Civ. P. Rule 26(c); Rivera v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 2004); Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975) (Under liberal discovery principles of the federal rules, those opposing discovery are required to carry a heavy burden of showing why discovery should be denied.). All that is required is an injury to legitimate interests in privacy, monetary injury is not required. Pearson v. Miller, 211 F.3d at

III. Apex Depositions

A party seeking to prevent a deposition carries a heavy burden to show why discovery should be denied. However, when a party seeks to take the deposition of an official at the highest level or "apex" of a corporation, the court may exercise its authority under the federal rules to limit discovery. Fed. R. Civ. P. 26(b)(1); See, e.g., Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.C. R.I.1985) (Virtually every court that has addressed deposition notices directed at an official at the highest ...

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