# Spectrum Scientifics, LLC v. Celestron Acquisition, LLC > District Court, N.D. California · April 20, 2021 URL: https://www.frixlaw.com/law-library/cases/10067470 ## Case - **Court:** District Court, N.D. California - **Decided:** April 20, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10067470 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 IN RE TELESCOPES ANTITRUST Case No. 20-cv-03639-EJD (VKD) LITIGATION Case No. 20-cv-03642-EJD (VKD) 9 10 ORDER RE DISCOVERY DISPUTE RE COORDINATION OF DEPOSITIONS 11 Re: No. 20-cv-03639, Dkt. Nos. 161 12 No. 20-cv-03642, Dkt. Nos. 151 13 14 In these related cases,1 the parties ask the Court to resolve a dispute concerning whether 15 and to what extent the parties must coordinate regarding the depositions of Sylvia and Jean Shen. 16 Hightower v. Celestron Acquisition, LLC, No. 20-cv-03639, Dkt. Nos. 161 (N.D. Cal. Apr. 5, 17 2021); Spectrum Scientifics LLC v. Celestron Acquisition, LLC, No. 20-cv-03642, Dkt. Nos. 151 18 (N.D. Cal. Apr. 5, 2021). For the reasons explained below, the Court will require the parties to 19 coordinate regarding these depositions. 20 I. BACKGROUND 21 Sylvia and Jean Shen are sisters of David Shen, who owns and controls several related 22 1 The Court has ordered the relation and consolidation of the following indirect purchaser plaintiff 23 (“IPP”) cases under Hightower v. Celestron Acquisition, LLC, No. 20-cv-03639 (N.D. Cal.): Murphy v. Celestron Acquisition, LLC, No. 20-cv-04049 (N.D. Cal.); Brewer v. Celestron 24 Acquisition, LLC, No. 20-cv-04823 (N.D. Cal.); Goldblatt v. Shen, No. 20-cv-04860 (N.D. Cal.); Kaufman v. Celestron Acquisition, LLC, No. 20-cv-05285 (N.D. Cal.); Griffith v. Shen, No. 20-cv- 25 05400 (N.D. Cal.); Price v. Shen, No. 20-cv-06216 (N.D. Cal.); Moore v. Celestron Acquisition, LLC, No. 20-cv-06435 (N.D. Cal.); Riley v. Celestron Acquisition, LLC, No. 20-cv-06527 (N.D. 26 Cal.). Dkt. Nos. 55, 56, 98, 103. The Court did not consolidate these IPP actions with the direct purchaser plaintiffs’ (“DPPs”) action, Spectrum Scientifics LLC v. Celestron Acquisition, LLC, 27 No. 20-cv-03642 (N.D. Cal.), but rather ordered that the consolidated IPP actions and Spectrum 1 companies that the parties refer to as the “Synta” entities. Several Synta entities are named 2 defendants in this litigation, as is David Shen. Sylvia and Jean Shen are named defendants in the 3 Direct Purchaser Plaintiffs’ (“DPPs”) action but are not parties in the Indirect Purchaser Plaintiffs’ 4 (“IPPs”) action. See Spectrum Scientifics, No. 20-3642, Dkt. No. 54 (N.D. Cal. Oct. 19, 2020); 5 Hightower, No. 20-3639, Dkt. No. 113 (N.D. Cal. Nov. 6, 2020). In both actions, Sylvia and Jean 6 Shen are alleged to have conspired together with others to fix prices, divide the telescope market, 7 and engage in other anti-competitive activities. 8 Sylvia and Jean Shen reside in Canada. Dkt. No. 161 at 4. They have moved to dismiss 9 and to strike the operative complaints in the DPPs’ action, and those motions are pending. 10 Spectrum Scientifics, No. 20-3642, Dkt. Nos. 96, 97, 98 (N.D. Cal. Jan. 20, 2021). 11 The DPPs wish to take the Shens’ depositions now. The IPPs also wish to take the Shens’ 12 depositions, but only after relevant documents have been produced. Defendants do not object to 13 producing the Shens for deposition at some point; however, they object to producing them for 14 separate depositions by the DPPs and the IPPs, and they object to the timing of the depositions. 15 II. DISCUSSION 16 The parties’ dispute raises a number of issues, among them: (1) whether DPPs (or IPPs) 17 are entitled to take the Shens’ depositions whenever they wish and without regard to the interests 18 of other parties in the related cases or other case management considerations; (2) whether 19 deposition discovery of the Shens should be delayed pending resolution of their pending motions 20 to dismiss; and (3) whether deposition discovery of the Shens should be delayed until COVID19- 21 related travel restrictions are eased so that defense counsel may travel to Canada to defend the 22 depositions in person with the Shens. The Court addresses each of these issues. 23 A. Timing of Depositions 24 DPPs assert that they are entitled to take the Shens’ depositions at any time because Rule 25 26 of the Federal Rules of Civil Procedure provides that methods of discovery may be used in any 26 sequence and because discovery by one party does not require any other party to delay its 27 discovery. Fed. R. Civ. P. 26(d)(3)(A), (B). While DPPs are correct that the Federal Rules do not 1 on another party’s discovery, this argument overlooks other obligations DPPs have under the 2 Rules, including the obligation to use the authorized discovery procedures to secure the just, 3 speedy, and inexpensive determination of the action, and to confer with other parties on a 4 discovery plan. See Fed. R. Civ. P. 1, 26(f); see also Russell v. Maman, No. 18-cv-06691-RS 5 (AGT), 2020 WL 5943844, at *4 (N.D. Cal. Oct. 7, 2020) (“There is no legal precedent giving a 6 party the right to demand discovery in a certain order . . . . The Federal Rules of Civil Procedure 7 do not permit a party to make unilateral decisions regarding the sequence and timing of 8 depositions during discovery.”). DPPs also ignore the Court’s authority to manage discovery and 9 to require coordination in the interest of justice. See Fed. R. Civ. P. 26(d)(3); Fed. R. Civ. P. 10 26(b)(2)(c) and advisory committee’s note to 1993 amendment (“The revisions in Rule 26(b)(2) 11 are intended to provide the court with broader discretion to impose additional restrictions on the 12 scope and extent of discovery . . . . The revision also dispels any doubt as to the power of the 13 court to impose limitations on the length of depositions under Rule 30 or on the number of 14 requests for admission under Rule 36.”); Crawford-El v. Britton, 523 U.S. 574, 598–99 (1998) 15 (describing trial court’s broad discretion to dictate the timing sequence of discovery and limit the 16 time, place, and manner of discovery). 17 With respect to the Shens’ depositions, DPPs’ portion of the joint submission contains no 18 explanation regarding what information DPPs hope to obtain from the Shens or how their 19 depositions are relevant and proportional to the needs of the case. When pressed for an 20 explanation at the hearing, DPPs responded that Sylvia Shen is a decisionmaker for defendant 21 Celestron Acquisition, LLC and is expected to have information about the acts constituting the 22 alleged conspiracy, and that Jean Shen is expected to at least have knowledge of the alleged 23 conspiracy. Hightower, No. 20-3639, Dkt. 167 at 13:6–16:8. IPPs also want to take the Shens’ 24 depositions, and it appears from the discussion at the hearing that DPPs and IPPs intend to cover 25 substantially the same subject matter with these two witnesses. See id. at 16:15–17:19. Although 26 DPPs say their interests in the Shens’ depositions conflicts with IPPs’ interests, the only conflict 27 appears to be a disagreement regarding when the depositions should be taken. As to the question 1 depositions of the Shens are required. At the hearing, DPPs argued with respect to Sylvia Shen as 2 follows: 3 [I]t would be very important to take her deposition right now. And when the documents come in, they will confirm whether or not she’s 4 been telling the truth or not. And so we don’t need the documents to take her deposition. And sometimes taking a witness’s deposition 5 under these circumstances is an advantageous strategy. 6 Id. at 13:23–14:4. 7 DPPs appear to contend that they are entitled to the Shens’ testimony based on the 8 witnesses’ unrefreshed recollections of events that happened years ago. The Court infers that 9 DPPs hope or expect to obtain deposition testimony that may be used for impeachment purposes at 10 trial, and that they will lose the opportunity to obtain such testimony if the witnesses have 11 occasion to refresh their recollections by reviewing relevant documents in advance of their 12 depositions. If this is indeed DPPs’ justification for seeking the Shens’ depositions now, DPPs 13 have not provided an adequate justification for their demand. See Malek v. Green, No. 17-cv- 14 0263-BLF (VKD), 2018 WL 4026989 (N.D. Cal. Aug. 23, 2018). 15 The Court does not suggest that a particular showing must always be made as a 16 prerequisite for taking a witness’s deposition before production of documents. However, in these 17 related and coordinated cases, where another set of plaintiffs wishes to take depositions of the 18 same witnesses covering the same subject matter, DPPs do not have an absolute right to notice and 19 take these depositions without at least attempting to coordinate with other parties regarding the 20 timing of the depositions. Rather, the Court will require the parties to coordinate regarding the 21 taking of the Shens’ depositions, as they must all other depositions where more than one party 22 seeks testimony of the same witness. 23 B. Pending Motion to Dismiss 24 Sylvia and Jean Shen have moved to dismiss under Rule 12(b)(6) and to strike the 25 operative complaint in the DPP action. Spectrum Scientifics, No. 20-cv-03642, Dkt. Nos. 96, 97, 26 98 (N.D. Cal. Jan. 20, 2021). Those motions are pending. Defendants suggest that depositions 27 should proceed only after the presiding judge decides the pending motions. DPPs object. 1 these motions. 2 C. COVID19-Related Constraints 3 Defendants suggest that the Shens’ depositions should be delayed until COVID19-related 4 || travel restrictions are lifted to permit defense counsel to travel to Canada to defend the depositions 5 || in person. DPPs object. 6 The Court appreciates the difficulties parties and counsel experience in taking and 7 defending depositions during the pandemic. However, because it is not possible to predict when 8 || restrictions will be lifted (or reinstated), depositions cannot simply be delayed until a time when 9 || in-person depositions or defense of depositions will be feasible. Rather, the parties should 10 || endeavor to agree in advance on procedures for conducting depositions via videoconference so 11 that discovery may proceed, taking into account COVID19-related constraints. 12 || I. CONCLUSION 5 13 For the reasons stated above, the Court denies DPPs’ demand that Sylvia and Jean Shen be 14 || ordered to sit for depositions within 14 days. The parties must coordinate with respect to these 3 15 || depositions as with other discovery. a 16 IT IS SO ORDERED. 2 17 |) Dated: April 20, 2021 . □ 19 UnigininE, Meare VIRGINIA K. DEMARCHI 20 United States Magistrate Judge 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10067470. Public record. Not legal advice.