The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court
Order Granting Motion to Compel [Doc. No. 66] and related counter-claims.
WebSideStory moves the Court for an order compelling NetRatings to produce a witness or witnesses in response to WebSideStory's January 10, 2007 Fed. R. Civ. P. 30(b)(6) deposition notice to describe the operation of NetRatings' products that perform path analysis, either independently or though integration with NetRatings' SiteCensus product. NetRatings has filed a letter brief in Opposition to WebSideStory's request and WebSideStory filed a reply. Based upon the moving papers and for the reasons set forth herein, WebSideStory's motion is hereby GRANTED.
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 WebSideStory's second 30(b)(6) deposition notice of January 10, 2007. On November 2, 2006, WebSideStory took an initial 30(b)(6) deposition of NetRatings' Chief Technology Office, John Kleine. NetRatings contends that it initially objected to the entirety of WebSideStory's second notice based on the fact that WebSideStory had already taken a first 30(b)(6) deposition of NetRatings covering these topics. However, NetRatings did subsequently agree to produce a second witness to testify as to the topics relating to the integration of the SiteCensus products with other NetRatings products, which are covered by topics 1-2, and 13-16 of the second deposition notice. After further discussions between the parties, NetRatings further agreed to designate a witness or witnesses with respect to topics 4, 6, 8, 10 and 12. As such, the only deposition topics which remain at issue are 3, 5, 7, 9, and 11.*fn1
WebSideStory seeks additional deposition testimony from NetRatings regarding the second deposition notice topics 3, 5, 7, 9, and 11, which relate to NetRatings' NetView, MegaPanel, HomeScan, @Plan and Ad Relevance products. Specifically, WebSideStory wants to know how each of these products conducts path analysis. WebsideStory contends that this information is relevant because WebSideStory needs to understand how each of these products operates independently in order to evaluate how each of these products operate when integrated with the NetRatings' allegedly infringing SiteCensus product suite.
NetRatings objects to deposition topics 3, 5, 7, 9, and 11 from WebSideStory's second deposition notice on two grounds: (1) WebSideStory has already deposed NetRatings first 30(b)(6) witness with regard to these topics, and (2) WebSideStory is not entitled to testimony regarding these products that allegedly conduct path analysis because the path analysis functionality alone is not sufficient to make these products infringing.
1. NetRatings' Argument that WebSideStory Has Already Taken and Concluded a 30(b)(6) Deposition of a NetRatings Witness With Regard to these Topics
NetRatings contends that the Court should deny WebSideStory's motion to compel the designation of a 30(b)(6) witness with regard to deposition topics 3, 5, 7, 9, and 11 from WebSideStory's second deposition notice, because WebSideStory has already deposed NetRatings 30(b)(6) witness, Mr. Kleine, concerning these topics. However, WebSideStory argues that the topics for the initial 30(b)(6) deposition were intentionally tailored to obtain testimony only about the identity of products that perform "path analysis" not how these products actually accomplish it. Upon review of the deposition transcript submitted, the Court finds that while WebSideStory did ask Mr. Kleine about whether certain NetRatings products conducted path analysis, WebSideStory did not delve into the specifics of how each of the products performed this function. Furthermore, that Court notes that NetRatings' witness, Mr. Kleine, specifically identified other NetRatings employees as being most knowledgeable with regard to the NetView, MegaPanel, HomeScan, @Plan and Ad Relevance products path analysis functionalities. See Defendant's Exh. C, Kleine Deposition Transcript at 64-66. As such, it is clear that WebSideStory has not yet deposed NetRatings' person(s) most knowledgeable with regard to the deposition topics at issue in this motion.
2. NetRatings' Argument that Websidestory Is Not Entitled to Testimony Regarding These Products That Allegedly Conduct Path Analysis Because the Path Analysis Functionality Alone Is Not Sufficient to Make These Products Infringing
With regard to NetRatings contentions that these products aren't specifically mentioned in WebSideStory's preliminary infringement contentions, the Court notes that WebSideStory's preliminary infringement contentions accuse the SiteCensus product suite as well as "all products incorporating such technologies". See Defendant's Opp. at 2. Additionally, NetRatings has indicated that the NetView, MegaPanel, HomeScan, @Plan and Ad Relevance products integrate the SiteCensus product. In light of the broad relevancy standard applied to discovery under Rule 26 of the Federal Rules, WebSideStory would be entitled to information, such as how each of these products that incorporate the SiteCensus product operate independently, as this information may lead to the discovery of admissible evidence. As such, the Court finds that testimony on how each of these products operates independently and in conjunction with the SiteCensus product to ...