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Broadband Itv, Inc. v. Hawaiian Telecom

United States District Court, N.D. California, San Jose Division

April 17, 2015

BROADBAND iTV, INC., Plaintiff,
HAWAIIAN TELECOM; et al., Defendants.


HOWARD R. LLOYD, Magistrate Judge.

Before the court in this miscellaneous action is non-parties Unified Patents Inc. and Kevin Jakel's motion to quash subpoenas issued by Plaintiff Broadband iTV, Inc. Dkt. No. 1. The matter is deemed suitable for determination without oral argument, and the April 21, 2015 hearing is vacated. Civ. L.R. 7-1(b). Upon consideration of the moving and responding papers, this court grants Unified and Jakel's motion to quash.


In April 2014, Broadband iTV, Inc. sued Hawaiian Telecom, Inc., Oceanic Time Warner Cable, Inc., Time Warner Cable, Inc., and Time Warner Entertainment Company, LP in the District of Hawaii for infringing U.S. Patent No. 7, 631, 336.

In July 2014, non-party Unified Patents Inc. filed a petition for Inter Partes Review ("IPR") against the 336 patent, challenging the validity of certain claims. Unified was created in order to "deter [non-practicing entity ("NPE")] litigation by protecting technology sectors, like content delivery, the technology at issue in the 336 patent." Mot. at 2. Unified is a member-based organization in which members subscribe to a particular technology sector. In return, "Unified performs many NPE-deterrent activities, such as analyzing the technology sector and monitoring patent activity (including patent ownership and sales, NPE demand letters and litigation, and industry companies). Unified's monitoring activities allow it to identify patents, perform prior art research, analyze invalidity, and sometimes file reexams or IPRs against some patents." Id.

In November 2014, Broadband filed a Preliminary Response to the IPR petition, in which it argued that the petition was deficient and the 336 patent was valid. In January 2015, the Patent Trials and Appeals Board ("PTAB") issued a decision denying the institution of the IPR.

In January 2015, Broadband served subpoenas on Unified and Jakel, Unified's CEO, seeking documents and testimony. The Unified subpoena demands production of eighteen categories of documents and deposition testimony. The Jakel subpoena demands production of the same eighteen categories of documents and deposition testimony along with five additional categories. Concurrent with the filing of the present motion, Unified and Jakel served Broadband with responses and objections to the subpoenas. Unified and Jakel objected to the subpoenas on multiple grounds, including that the requests: (1) sought information protected by the attorney-client privilege; (2) sought Unified's highly confidential business information; (3) sought irrelevant information; (4) sought information that was publicly available from Defendants in the patent litigation; and (5) sought information duplicative to that which Unified had already produced in the IPR proceeding.

Here, in this miscellaneous action, Unified and Jakel move to quash the subpoenas issued by Broadband.


Rule 45 of the Federal Rules of Civil Procedure authorizes the issuance of a subpoena commanding a non-party to attend and testify; produce designated documents, electronically stored information, or tangible things in that non-party's possession, custody or control; or permit the inspection of premises. Fed.R.Civ.P. 45(a)(1)(A)(iii). The scope of discovery through a Fed.R.Civ.P. 45 subpoena is the same as that applicable to Fed.R.Civ.P. 34 and the other discovery rules. Fed.R.Civ.P. 45 advisory committee's note (1970).

Parties may obtain discovery about any nonprivileged matter that is relevant to any party's claim or defense. Fed.R.Civ.P. 26(b)(1). "Relevance under Rule 26(b)(1) is construed more broadly for discovery than for trial." Truswal Sys. Corp. v. Hydro-Air Eng'g, Inc., 813 F.2d 1207, 1211 (Fed. Cir. 1987). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). "A district court whose only connection with a case is supervision of discovery ancillary to an action in another district should be especially hesitant to pass judgment on what constitutes relevant evidence thereunder. Where relevance is in doubt... the court should be permissive.'" Gonzales v. Google, Inc., 234 F.R.D. 674, 681 (N.D. Cal. 2006) (quoting Truswal Sys. Corp., 813 F.2d at 1211-12).

Discovery is not unfettered, however. A court must limit the extent or frequency of discovery if it finds that (a) the discovery sought is unreasonably cumulative or duplicative or can be obtained from a source that is more convenient, less burdensome or less expensive; (b) the party seeking discovery has had ample opportunity to obtain the information through discovery; or (c) the burden or expense of the discovery sought outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the discovery in resolving those issues. Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii).

Fed. R. Civ. P. 45(d)(3)(B) provides that the court may quash or modify a subpoena if it requires: "(i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party." Additionally, ...

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