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Yahoo!, Inc. v. Mymail, Ltd.

United States District Court, N.D. California

May 18, 2017

YAHOO!, INC., Plaintiff,
v.
MYMAIL, LTD., Defendant.

          ORDER ON DISCOVERY LETTER BRIEF REGARDING RULE 30(b)(6) DEPOSITION NOTICES TO YAHOO!, INC. RE: DKT., 38

          SUSAN VAN KEULEN United States Magistrate Judge

         The parties have submitted a joint discovery letter brief on a dispute regarding two Rule 30(b)(6) deposition notices served on plaintiff Yahoo!, Inc. by defendant MyMail, Ltd. ECF 38. MyMail seeks an order compelling Yahoo to produce one or more corporate representatives to appear in response to the deposition notices. Id. at 1. MyMail has agreed to limit its Rule 30(b)(6) deposition of Yahoo to one day and six topics, which it identifies in footnote 1 of the parties' joint discovery letter brief. Id. at 2 n.1. Yahoo is opposed to a Rule 30(b)(6) deposition on these topics, which Yahoo characterizes as relating to contentions, legal conclusions, and issues for expert discovery. Id. at 3-5. Yahoo argues that MyMail should pursue the disputed topics by way of “focused contention interrogatories” rather than a Rule 30(b)(6) deposition. Id.

         Pursuant to Civil Local Rule 7-1(b), the Court concludes that the issues presented in the parties' joint discovery letter brief are appropriate for determination without oral argument. Having considered the briefing, and as discussed below, the Court DENIES MyMail's request for an order compelling Yahoo to produce witnesses on the disputed topics for deposition under Rule 30(b)(6) at this time, on the condition that Yahoo respond to contention interrogatories on those topics within fifteen (15) calendar days of service. This order is without prejudice to MyMail seeking depositions on the disputed topics if warranted after MyMail's receipt and review of Yahoo's interrogatory responses.

         I. BACKGROUND

         In this lawsuit (the “California action”), Yahoo alleges that MyMail breached two online agreements governing use of certain Yahoo software. ECF 1. Yahoo filed the California action in December 2016, after being sued by MyMail for patent infringement in the Eastern District of Texas in September 2016 (the “Texas action”). See ECF 1-3, 1-4. In the Texas action, MyMail alleges that the Yahoo toolbar infringes MyMail's patents. See Id. In the California action, Yahoo's allegations that MyMail violated the terms of Yahoo's Terms of Service (“TOS”) and Toolbar Software License agreements are based upon allegations MyMail made in the Texas action. See, e.g., ECF 1 at ¶¶ 29-36. For example, Yahoo alleges that MyMail's complaint and first amended complaint in the Texas action “contain images allegedly depicting aspects of the functionality of the Yahoo Toolbar that, on information and belief, were not produced by the Yahoo Toolbar, or any other software provided by Yahoo, and do not convey information that would ordinarily be made visible or apparent to users of the Yahoo Toolbar.” Id. at ¶ 35. Yahoo then goes on to allege that MyMail has violated the TOS and Toolbar Software License Agreements by, among other things, “reverse engineering one or more versions of the Yahoo Toolbar, ” “using the Yahoo Toolbar in a manner inconsistent with the TOS and the Toolbar Software, ” “seeking to derive income from its use of Yahoo! Software, ” “copying Yahoo! Software and data obtained through Yahoo! Software and by transferring or transmitting data obtained through Yahoo! Software in the MyMail Complaint and [First Amended Complaint], ” and “obtaining and using one or more versions of the Yahoo Toolbar in the manner described above for the purpose of filing the Texas Action, and by filing the Texas Action.” Id. at ¶¶ 37-41.

         In the California action, MyMail served Yahoo with two notices of deposition pursuant to Federal Rule of Civil Procedure 30(b)(6), seeking a deposition of one or more Yahoo corporate representatives on a number of topics. In the parties' joint discovery letter brief, MyMail summarizes the disputed topics as follows:

(1) “the facts supposedly showing that ‘MyMail or an individual under MyMail's direction or control has used Yahoo's email services, and has downloaded, installed, and used at least one version of the Yahoo Toolbar in connection with Yahoo's email services, ' and that ‘MyMail agreed to' the TOS and the Toolbar Software License”;
(2) “the facts showing that MyMail sought ‘to derive income from its use of Yahoo! Software'”;
(3) “the facts showing that MyMail ‘unfairly prevented Yahoo from receiving the benefits it was entitled to receive under the Toolbar Software License and the TOS'”;
(4) “the facts showing that MyMail engaged in reverse engineering one or more versions of the Yahoo Toolbar, and by using the Yahoo Toolbar in a manner inconsistent with the TOS and the Toolbar Software License”;
(5) “MyMail has materially breached the TOS by copying Yahoo! Software and data obtained through Yahoo! Software and by transferring or transmitting data obtained through Yahoo! Software”; and
(6) “the nature and amount of any damages Yahoo! alleges it suffered as a result of any alleged breaches of the TOS and Toolbar Software License.”

ECF 38 at 2 n.1.[1]

         II. ...


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