Inc. v. LivePerson, Inc.

          ORDER REGARDING 7/12/16 JOINT DISCOVERY LETTER RE: DKT. NO. 82

          KANDIS A. WESTMORE United States Magistrate Judge

         On July 12, 2016, the parties filed a joint letter concerning Plaintiff [24]7 Customer, Inc.'s Special Interrogatory No. 6, which is a non-infringement contention interrogatory. (Joint Letter, Dkt. No. 82 at 1.) Defendant LivePerson, Inc. asserts that the interrogatory is premature and unduly burdensome.^[1] (Joint Letter at 3.)

         Upon review of the joint letter, and for the reasons set forth below, the Court finds that the interrogatory is premature.

         I. BACKGROUND

         On June 22, 2015, Plaintiff [24]7 Customer, Inc. filed a lawsuit against Defendant LivePerson, Inc., alleging infringement on several patents pertaining to its customer engagement software platform.

         Claim construction deadlines have been set as follows: the deadline to exchange preliminary claim construction and extrinsic evidence was July 25, 2016; the joint claim construction statement is due August 16, 2016; claim construction discovery closes on September 15, 2016; claim construction briefs are due in September and October 2016; and the Markman hearing is on December 6, 2016. (Dkt. No. 75.)

         On July 12, 2016, the parties filed a joint discovery letter, in which Plaintiff seeks to compel a response to its non-infringement contention interrogatory, which seeks “all factual and legal bases for your contention, if any, that you do not infringe and have not infringed . . . .” (Joint Letter at 1.) On July 15, 2016, the instant joint letter and all other discovery disputes in this case were referred to the undersigned.

         II. LEGAL STANDARD

         The Federal Rules of Civil Procedure broadly interpret relevancy, such that each party has the right to the discovery of “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). Discovery need not be admissible to be discoverable. Id. The court, however, “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C). Furthermore, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, ” including by precluding discovery, by conditioning disclosure or discovery on specified terms, by preventing inquiry into certain matters, or by limiting the scope of discovery to certain matters. Fed.R.Civ.P. 26(c)(1). “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

         Rule 33 pertains to written interrogatories. “Courts using their Rule 33(a)(2) discretion generally disfavor contention interrogatories asked before discovery is undertaken.” In re eBay Seller Antitrust Litig., No. C 07-1882 JF (RS), 2008 WL 5212170, at *1 (N.D. Cal. Dec. 11, 2008). Indeed, “courts tend to deny contention interrogatories filed before substantial discovery has taken place, but grant them if discovery is almost complete.” HTC Corp. v. Tech. Properties Ltd., No. C08-00882 JF HRL, 2011 WL 97787, at *2 (N.D. Cal. Jan. 12, 2011)(quoting In re eBay Seller Antitrust Litig., No. C 07-1882 JF (RS), 2008 WL 5212170, at *1 (N.D. Cal. Dec. 11, 2008)). A party moving to compel responses to contention interrogatories at an early stage in litigation must show that the responses would “contribute meaningfully” to: (1) clarifying the issues in the case; (2) narrowing the scope of the dispute; (3) setting up early settlement discussion; or (4) exposing a substantial basis for a motion under Rule 11 or Rule 56. In re Convergent Technologies Sec. Litig., 108 F.R.D. 328, 338-39 (N.D. Cal. 1985). Courts in this district place “a burden of justification” on a party seeking “answers to contention interrogatories before substantial documentary or testimonial discovery has been completed.” Amgen Inc. v. Sandoz Inc., No. 14-cv-04741-RS (MEJ), 2016 WL 913105, at *2 (N.D. Cal. Mar. 10, 2016) (citing In re Convergent, 108 F.R.D. at 338). To meet this burden, a party seeking early answers must present “specific, plausible grounds for believing that securing early answers to its contention questions will materially advance the goals of the Federal Rules of Civil Procedure.” In re Convergent, 108 F.R.D. at 338-339.

         III. DISCUSSION

         The parties do not dispute that the information sought is relevant, such that Plaintiff is entitled to a supplemental response at some point in the litigation. Rather, at issue is whether Plaintiff’s non-infringement contention interrogatory is premature given the early stage of discovery.

         Plaintiff contends that Defendant should be prepared to respond by July 25, 2016, which is the date the preliminary claim constructions were scheduled to be exchanged, and requests a response by July 29, 2016. (Joint Letter at 2-3.) Defendant does not propose a response date, but claims that responding now is premature, and that it should “only be required to provide non-infringement contentions after [24]7 finalizes its own infringement positions by reducing the number of asserted claims under the scheduling order in this case.” (Joint Letter at 5.) The scheduling order, however, contains two separate deadlines for reducing the asserted claims- September 15, 2016 and 28 days before expert disclosures- so the Court is unable to definitively determine when Defendant proposes to answer the interrogatory. (See Dkt. No. 75 at 1-2). The Court is not persuaded by Plaintiff’s argument that Defendant is now equipped to meaningfully respond based only on the preliminary claim constructions. Accordingly, the Court is only able to resolve whether the contention interrogatory is premature at this juncture.

         Plaintiff argues that the non-infringement contention interrogatory “will substantially assist in clarifying and narrowing the issues in dispute, including selection of claim terms for construction and reducing the number of asserted claims.” (Joint Letter at 1.) Additionally, Plaintiff insists that a response at this stage in the litigation will both “clarify the issues and narrow the scope of the dispute.” Id. at 2. In opposition, Defendant contends that Plaintiff’s amended infringement contentions contain 122 patent claims over 1, 046 pages, and requiring it “to finalize and document responsive positions . . . at this stage ...