United States District Court, N.D. California
ORDER ON MOTION FOR RELIEF FROM NONDISPOSITIVE
PRETRIAL ORDER RE MOTION TO QUASH AND ADMINISTRATIVE MOTION
TO FILE UNDER SEAL
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
On June
6, per the discovery referral in this action, Magistrate
Judge Thomas Hixson denied defendant Juniper Network,
Inc.'s motion to quash plaintiff Finjan, Inc.'s
noticed deposition of Shlomo Touboul (Finjan's founder
and named inventor of certain patents-in-suit). Juniper now
moves for relief from that order regarding the interpretation
of paragraph 32(b) of the undersigned's Supplemental
Order To Order Setting Initial Case Management Conference In
Civil Cases pursuant to Civil Local Rule 72 (Dkt. No. 544).
Finjan opposes thereto (Dkt. No. 556). The motion is Granted
to the extent stated below.
Under
FRCP 72, a district judge considering timely objections to a
magistrate judge's nondispositive order must defer to the
order unless it is “clearly erroneous or contrary to
law.” Grimes v. City & Cty. of San
Francisco, 951 F.2d 236, 241 (9th Cir. 1991). “The
reviewing court may not simply substitute its judgment for
that of the deciding court.” Ibid. (citing
United States v. BNS Inc., 858 F.2d 456, 464 (9th
Cir. 1988)).
Juniper
argued before Judge Hixson that, inter alia,
Finjan's deposition of Touboul would put Finjan above its
10-deposition limit imposed by Rule 30. At that point, Finjan
indisputably had already deposed eight individual witnesses.
Finjan had also additionally deposed two Rule 30(b)(6)
witnesses, with each deposition lasting less than three and a
half hours. Judge Hixson ruled that, under the
undersigned's standing order, these latter two
depositions did not count toward the deposition limit and
thus Finjan could depose Touboul (Dkt. No. 518 at 2). In so
holding, the discovery order looked to paragraph 32(b) of the
standing order, which stated as follows (Standing Order
¶ 32(b) (emphasis added)):
(b) Each witness-designee deposed for one half-day or
more in a FRCP 30(b)(6) deposition shall count as a
single deposition for purposes of the deposition limit under
FRCP 26 or under any case management order setting a limit on
the number of depositions. A corporate designee may,
immediately after being deposed on the stated subject, be
deposed in his or her individual capacity. Both such sessions
shall count together as a single deposition (although they
should be separately transcribed). If two designees, to take
another example, are interrogated, each for one half-day
or more, then they count as two depositions.
Because
the two depositions at issue each lasted just under three and
a half hours, Judge Hixson interpreted the standing order to
mean that neither of those two depositions counted at all as
a single deposition for the purposes of the deposition limit
(ibid.). He further looked to paragraph 32(a) of the
standing order, which limited parties to 10 subject matters
for the entire case, to overrule Juniper's concern that
this reading of the standing order could lead to a large
numbers of short 30(b)(6) depositions (ibid.).
Juniper
now argues that Judge Hixson failed to combine the total
amount of time Finjan spent deposing the two witnesses for
purposes of the deposition limit (Dkt. No. 544 at 1-2). It
contends that Judge Hixson's interpretation of paragraph
32(b) of the standing order allows for an excessive number of
additional short Rule 30(b)(6) depositions, none of which
would count towards the deposition limit (id. at
2-3). This order agrees. The combination of the Rule 30(b)(6)
depositions in this manner is hardly “arbitrary”
or “illogical, ” as Finjan contends (Dkt. No. 556
at 2). Rather, as Juniper points out, a limit of over thirty
hours of Rule 30(b)(6) testimony that do not count towards
the 10-deposition limit simply because each testimony lasted
just short of three and a half hours, even if within the
10-subject matter limit, fails to provide a meaningful limit
under these circumstances. As such, simply because the
undersigned's standing order explicitly limits Rule
30(b)(6) depositions by topic does not mean that the
undersigned would not further limit depositions by the total
number of hours as well.
Finjan
attempts to sidestep Juniper's concern by arguing that
Juniper assumes that each witness will be designated on a
single topic and deposed for less than three and a half
hours. But, according to Finjan, Juniper has already
designated multiple topics for one of its employee witness,
thereby giving Finjan seven hours to depose that employee
both in his personal capacity and on five 30(b)(6) topics
(id. at 2-3). Finjan thus contends that Juniper has
“consolidated half of the topics permitted” under
the standing order “into a single deposition, which, in
turn, will likely cut into” that witness's time in
his personal capacity (id. at 3). Finjan further
asserts that Juniper's interpretation “is ripe for
abuse” inasmuch as it could incentivize a party to put
“numerous people on their initial disclosures, thereby
requiring the other party to depose them as fact witness,
there will be no depositions left over for 30(b)(6)
witnesses” (ibid.).
In
light of Juniper's real concern, however, Finjan's
opposing concerns are outweighed here. (This is, of course,
without prejudice to whether such abuse by Juniper does in
fact occur.) Accordingly, for clarity, both sides shall each
be limited to 70 hours total for all depositions, including
Rule 30(b)(6) witnesses and all other witnesses, in the
instant action. That is, all depositions shall count towards
the 70-hour limit. The 10-deposition limit under Rule 30 is
hereby suspended in favor of the total 70-hour limit.
Finjan
filed an administrative motion to file under seal portions of
its response and exhibit attached thereto to the underlying
motion pursuant to Juniper's confidentiality designation
(Dkt. No. 555). No supporting declaration by Juniper,
however, has been filed. Accordingly, Finjan's motion to
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