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In re Subpoenas to Intel Corp

United States District Court, N.D. California

February 23, 2018



          KANDIS A. WESTMORE United States Magistrate Judge

         On December 18, 2017, non-party Intel Corporation filed a motion to quash compliance with the deposition subpoenas noticed by Plaintiff TQ Delta. (Dkt. No. 1.) The subpoenas were issued in November 2017 in connection with four patent infringement cases pending in the District of Delaware: TQ Delta, LLC v. Adtran Inc., Case Nos. 14-cv-00964-RGA, 15-cv-00121-RGA; TQ Delta, LLC v. Zhone Technologies, Inc., 13-cv-01836-RGA; and TQ Delta, LLC v. ZyXel Communications, et al., 13-cv-02013-RGA. Id. at 1.

         On February 15, 2018, the Court held a hearing concurrently with TQ Delta's motion to compel in the related case, 17-mc-80099. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendant's motion to quash.

         I. BACKGROUND

         TQ Delta filed complaints against defendants Adtran, Inc., Zhone Technologies, Inc., ZyXEL Communications, Inc., and 2Wire, Inc. (“Defendants”) in the District of Delaware, alleging infringement of up to 32 U.S. patents. See TQ Delta v. Adtran, Inc., Case Nos. 14-cv-00954 and 15-cv-00121 (“Adtran case”); TQ Delta v. Zhone, Case No. 13-cv-01836 (“Zhone case”); TQ Delta v. ZyXEL, Case No. 13-cv-02013 (“ZyXEL case”); and TQ Delta v. 2Wire, Inc., Case No. 13-cv-01835 (hereinafter collectively referred to as the “Delaware Cases”). The asserted patents and accused products relate to digital subscriber line (“DSL”) technology, which is used to provide high-speed broadband Internet access and video services via copper wires of a local telephone network.

         The Delaware Defendants make, use, sell, offer for sale, and/or import products that operate in accordance with one or more of the DSL Standards, such as DSL modems, gateways, and routers, and DSLAMs (devices used at a service provider's central office to provide broadband service) (collectively “DSL Products”). TQ Delta has accused Defendants' DSL Products of infringing TQ Delta's patents-in-suit based, in part, on the fact that Defendants' DSL Products perform and/or are capable of performing patented functions related to the DSL Standards.

         Defendants' DSL Products include and utilize semiconductor chips or chipsets that are designed to perform at least a portion of the relevant DSL functions of the DSL Products. Some of the chips utilized by Defendants in the Accused Products are manufactured and/or supplied by Lantiq, which Intel purchased in 2015. (Mot. at 3 n. 3.)

         In January 2016, TQ Delta served three subpoenas duces tecum (one in each Delaware case) on Intel, seeking specific technical and financial information about the Intel chips that are used in Defendants' accused products (“Identified Chips”). These are the subject to TQ Delta's motion to compel in the related, miscellaneous matter, 17-mc-80099, which was heard concurrently on February 15, 2018. TQ Delta and Intel have been in communication since January 2016, and the parties have entered into a protective order in the Delaware cases. In November 2017, TQ Delta served four identical deposition subpoenas on Intel. (See Decl. of Rene E. Mai, “Mai Decl., ” Dkt. No. 3 ¶ 4.) The depositions were noticed for December 18, 2017. (Mai Decl., Ex. A.)

         On December 18, 2017, Intel filed a motion to quash compliance with the deposition subpoenas. (Mot., Dkt. No. 1.) On January 9, 2018, TQ Delta filed an opposition. (Opp'n, Dkt. No. 10.) On January 23, 2018, Intel filed a reply. (Reply, Dkt. No. 12.)


         Federal Rule of Civil Procedure 45 governs discovery propounded by subpoena. The subpoena must state the place where compliance is required, which must be within 100 miles of where the subpoenaed party resides, is employed, or regularly transacts business in person. Fed.R.Civ.P. 45(a)(1)(A)(iii). Rule 45 requires that a subpoena be issued by the court where the underlying action is pending, but that challenges to the subpoena are to be heard by the district court where compliance with the subpoena is required. Fed.R.Civ.P. 45(a)(2), (d)(3)(A).


         A. The Subpoenas at Issue

         As an initial matter, Intel contends that two subpoenas are moot. (Mot. at 1, 6.) Specifically, the Zhone Technologies subpoena, on the grounds that that case was dismissed, and the 2Wire subpoena, on the grounds that there are no Intel products at issue. Id. In its opposition, TQ Delta withdrew the Zhone subpoena, because that case has since settled and has been dismissed. (Opp'n at 5.) With respect to the remaining subpoenas, TQ Delta only seeks a single deposition of Intel to be used in all three cases. Id. While TQ Delta acknowledges that 2Wire did not use Intel chips, it believes that some of the information in the subpoena is relevant, such as the financial forecast information, which may be used for the damages calculation. Id. Intel objects to the use of its financial information to calculate a 2Wire royalty. (Reply at 4.) While the Court is sympathetic that Intel's testimony may be representative of the industry, its chips were not used by 2Wire. Thus, the 2Wire subpoena is quashed in its entirety.

         Intel further argues that the Adtran and ZyXEL subpoenas may be mooted by the pending motions for summary judgment, which are the only remaining cases involving Lantiq chips. (Mot. at 6.) The Court is not persuaded, even given the recent extension of the fact discovery deadline to October 1, 2018. (Opp'n at 2; Dkt. Nos. 60 & 61.) While Intel claims that it would not object to having the discovery go forward after the close of fact discovery should the motions for summary judgment not be granted, as TQ Delta argues, Intel is not a party to the Delaware cases, and, therefore, is not subject to those deadlines. (Mot. at 6; Opp'n at 4 n. 6.) Despite Intel's non-party status, TQ Delta will be relying on evidence in Intel's possession to make their case against ...

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