United States District Court, N.D. California, San Jose Division
OPTIMIZE TECHNOLOGY SOLUTIONS, LLC. Plaintiff,
STAPLES, INC., ET AL., Defendants.
ORDER RE: MOTION TO QUASH; MOTION FOR PROTECTIVE ORDER; MOTION TO COMPEL; MOTIONS TO SEAL [Re Docket Nos. 1, 6, 12, 13, 15]
HOWARD R. LLOYD, Magistrate Judge.
Third party Adobe Systems, Inc. (Adobe) filed a Motion to Quash and Motion for a Protective Order in response to plaintiff Optimize Technology Solutions, LLC's (Optimize) document and deposition subpoenas arising out of a patent infringement case in the Eastern District of Texas. Dkt. No. 1. In response, Optimize filed a Motion to Compel. Dkt. No. 12. The parties have also filed various sealing motions.
Pursuant to Civil Local Rule 7-1(b), the Court submits the motions on the papers and vacates the April 14, 2014 hearing. Having considered the briefing, the court GRANTS IN PART AND DENIES IN PART the Motion to Quash; GRANTS IN PART AND DENIES IN PART the Motion for a Protective Order; GRANTS IN PART AND DENIES IN PART the Motion to Compel; and DENIES WITHOUT PREJUDICE the sealing motions.
A. Discovery Motions
Optimize sued several defendants in the Eastern District of Texas alleging patent infringement. Optimize Tech. Solutions, LLC v. Staples, Inc. et al., 2:11-CV-419-JRG. One defendant, Recreational Equipment, Inc. ("REI"), uses Adobe's "Recommendations" product on its website www.REI.com in an allegedly infringing manner. Optimize also believes that Adobe provides or has provided web site monitoring and tracking services or "metrics" for other defendants in this case ("non-REI defendants"). These other services are not accused products in the underlying litigation.
Optimize served Adobe with two subpoenas for information and a deponent relating to the Recommendations product and metrics products that Adobe and its predecessor Omniture supplied to non-REI defendants. After several months of meet and confers and partial productions, the parties were not able come to an agreement on what additional documents Adobe must produce to satisfy Optimize's subpoenas. The parties dispute the following:
Production of technical documents explaining the design and operation of the Recommendations product.
Production of the Recommendations product source code.
Production of sale and site metrics related to REI and non-REI defendants' websites.
Production of a deponent on technical and non-technical issues.
The court addresses each issue in turn.
1. Technical Documents related to Recommendations
Optimize's subpoena requested "Any and all technical DOCUMENTS RELATING TO the operation of the ACCUSED WEBSITE(S) or any RECOMMENDED PRODUCTS FUNCTIONALITY existing on or utilized in conjunction with the ACCUSED WEBSITE(S), including, without limitation...." Motion to Compel at 6. In response, Adobe produced 12 documents which Optimize criticizes as "publicly available documents provided to customers" such as user manuals. Id. at 3, 4 n. 9. Adobe asserts that it does not have any other responsive documents and has conducted a second search in response to Optimize's specific request for "wiki" or "eroom" entries. Dkt. No. 1, Motion to Quash at 5, 12. Although Optimize finds Adobe's position "simply incredible, " Motion to Compel at 6, the court cannot order production of documents that do not exist. Adobe has certified its discovery responses are "complete and correct" in accordance with Rule ...