The opinion
1
UNITED STATES DISTRICT COURT
2
3
4 SOUTHERN DISTRICT OF CALIFORNIA
5
6 ANOKIWAVE, INC., a Delaware
7 corporation, Case No. 3:18-cv-00629-JLS-
8 MDD
9 Plaintiff,
10 ORDER ON JOINT
11 v. MOTIONS FOR
12 DISCOVERY DISPUTES
13
GABRIEL REBEIZ, an individual; [ECF Nos. 70, 74, 81, 85]
14
SPECTRABEAM, LLC, a Delaware
15
limited liability company; TUMAY
16
KANAR, an individual; SAMET ZIHIR,
17
an individual; INTEGRATED DEVICE
18
TECHNOLOGY, INC., a Delaware
19
corporation; and DOES 1-20 inclusive
20
21
Defendants.
22
23
24
25 Before the Court are four joint motions for determination of various
26 discovery disputes. At issue are approximately one hundred requests for
27 discovery propounded by both parties.
LEGAL STANDARD
1
The Federal Rules of Civil Procedure authorize parties to obtain
2
discovery of “any nonprivileged matter that is relevant to any party’s
3
4 claim or defense and proportional to the needs of the case[.]” FED. R. CIV.
5 P. 26(b)(1). “Information within the scope of discovery need not be
6 admissible in evidence to be discoverable.” Id. District courts have
7 broad discretion to limit discovery where the discovery sought is
8 “unreasonably cumulative or duplicative, or can be obtained from some
9 other source that is more convenient, less burdensome, or less
10 expensive.” FED. R. CIV. P. 26(b)(2)(C). Courts have broad discretion to
11 determine relevancy for discovery purposes. Hallett v. Morgan, 296 F.3d
12 732, 751 (9th Cir. 2002).
13
An interrogatory may relate to any matter that may be inquired of
14
under Rule 26(b). FED. R. CIV. P. 33(a)(2). The responding party must
15
answer each interrogatory by stating the appropriate objections with
16
specificity or, to the extent the interrogatory is not objected to, by
17
“answer[ing] separately and fully in writing under oath.” FED. R. CIV. P.
18
33(b). The responding party has the option in certain circumstances to
19
answer an interrogatory by specifying responsive records and making
20
those records available to the interrogating party. FED. R. CIV. P. 33(d).
21
Courts “will generally find [interrogatories] overly broad and
22
unduly burdensome on their face to the extent they ask for every fact
23
which supports identified allegations.” Hiskett v. Wal-Mart Stores, Inc.,
24
25 180 F.R.D. 403, 404-05 (D. Kan. 1998). “[T]o the extent Plaintiff seeks
26 every minute detail and narratives about the subject incident . . .,
27 written discovery is not the proper vehicle to obtain such detail.”
Bashkin v. San Diego County, No. 08-cv-1450-WQH-WVG, 2011 WL
1
109229, *2 (S.D. Cal. Jan. 13, 2011).
2
A party may request the production or inspection of any document
3
4 within the scope of Rule 26(b). FED. R. CIV. P. 34(a). “For each item or
5 category, the response must either state that inspection and related
6 activities will be permitted as requested or state an objection to the
7 request, including the reasons.” Rule 34(b)(2)(B). An objection must
8 state whether any responsive materials are being withheld on the basis
9 of that objection. Rule 34(b)(2)(C). An objection to part of a request must
10 specify the part and permit inspection or production of the rest. Id. The
11 responding party is responsible for all items in “the responding party’s
12 possession, custody, or control.” Rule 34(a)(1). Actual possession,
13
custody or control is not required. Rather, “[a] party may be ordered to
14
produce a document in the possession of a non-party entity if that party
15
has a legal right to obtain the document or has control over the entity
16
who is in possession of the document.” Soto v. City of Concord, 162
17
F.R.D. 603, 620 (N.D. Cal. 1995).
18
DISCUSSION
19
A. ECF No. 70: Defendant SpectraBeam’s Requests for
20
Production
21
a. RFP Nos. 2, 3, 4, 5, and 6
22
Through its RFPs, SpectraBeam seeks what appear to be different
23
visual representations of the chips named in Plaintiff’s Complaint and
24
25 Trade Secret Statement (“Chips at issue”) as of August 14, 2016, the date
26 Dr. Rebeiz resigned from the Anokiwave Advisory Board. Each category
27 of document illustrates different levels of technical detail for each
individual chip. Generally, the requests seek mask works, fabrication
1
masks (in native gds file format), layouts, physical floor plans, and
2
detailed schematics.
3
4 The crux of the dispute appears to be that Plaintiff has provided
5 block diagrams of the chips at issue, which it alleges are sufficient to
6 prove or disprove its trade secrets claims. Plaintiff explains that block
7 diagrams are a high-level conceptual representation of the chips that
8 illustrate the relationship between individual components. The masks,
9 layouts, floor plans, and schematics, on the other hand, provide discrete
10 technical details of the chips.
11 Through this dispute, Plaintiff confirms that it does not allege that
12 Defendants misappropriated the technical details of its chips’ component
13
parts. Rather, Plaintiff claims Defendants misappropriated the unique
14
combination of components and features that are present on each chip
15
and that are sufficiently illustrated in the block diagrams. Thus,
16
Plaintiff claims that because technical details are not alleged as trade
17
secrets, they are therefore irrelevant and not subject to discovery.
18
Plaintiff also argues that the dismissal of its mask work infringement
19
claims renders the requests for technical data moot.
20
Defendants disagree and claim the highly detailed technical
21
documents they requested are necessary for their expert to complete a
22
technical comparison of the chips at issue. Defendants recognize that
23
Plaintiff claims its trade secrets are embodied in the combination of
24
25 features in each chip and not in the technical details of each component
26 part. However, they also claim Plaintiff has not sufficiently committed
27 to that position.
Plaintiff’s Trade Secret Statement describes 43 separate trade
1
secrets. The identified secrets relevant to these requests are clearly
2
described as chips utilizing the “Coupling Solution” and/or “Fast Beam
3
4 Steering Technology” and as having a unique architecture and
5 combination of features for use on a single microchip. (ECF No. 70-2).
6 Defendants’ motion to compel further responses is DENIED.
7 Plaintiff’s trade secret statement describes its trade secrets as single
8 microchips with a combination of specific features. Defendant fails to
9 explain how the technical details of the component parts are relevant to
10 the claims and trade secrets as alleged by Plaintiff.
11 b. RFP Nos. 9, 10, 11, 12, 13, and 14
12 SpectraBeam seeks “[d]ocuments sufficient to show the details of”
13
specific components of the chips at issue as of August 14, 2016 including
14
the phase shifter, gain control functions (or Variable Gain Amplifier),
15
RF-system lineup, packaging, temperature sensor, and temperature
16
compensation in the radio frequency lineup.”
17
Defendants’ arguments echo those made in the previous group of
18
requests as to why the technical details of the chips at issue are relevant.
19
As discussed above, a review of the Trade Secret Statement makes clear
20
that Plaintiff is not claiming the technical details of these individual
21
components as a trade secret. Defendants’ position that the technical
22
details are still relevant is not persuasive. Defendants’ motion to compel
23
production of the technical details of specific components of the chips at
24
25 issue is DENIED.
26 ///
27 ///
c. RFP Nos. 47-57
1
Through these requests, SpectraBeam seeks documents related to
2
any mask work applications filed by Plaintiff, communications with the
3
4 Copyright Officer concerning mask work applications, and documents
5 supporting Anokiwave’s mask work infringement claims. Defendants
6 argue that the mask work applications will show whether Plaintiff’s
7 mask works were found to be original or commonly known by the
8 Copyright Office. Plaintiff argues the mask works and mask work
9 applications are no longer relevant because it dismissed the mask work
10 infringement claims. Plaintiff also explains that “mask works” is a legal
11 term and is synonymous with layouts.
12 In light of the finding that Defendants have failed to demonstrate
13
the mask works are relevant and all mask work infringement claims
14
have been dismissed, Defendants’ motion to compel is DENIED.
15
B. ECF No. 74: Defendant SpectraBeam’s Interrogatories and
16
RFPs, and Defendant Rebeiz’s Interrogatories
17
a. SpectraBeam’s Interrogatories 4, 6, and 14
18
SpectraBeam’s disputed interrogatories are related and will be
19
considered together. Interrogatories Four and Six seek all documents
20
supporting the claim that the persons Plaintiff identified invented or
21
developed each claimed trade secret and ask Plaintiff to describe in
22
detail how the identified persons invented or developed each trade
23
secret. Interrogatory 14 asks Plaintiff to identify all facts supporting its
24
25 contention that each claimed trade secret is unique, novel, or otherwise
26 distinguishable from unprotected public knowledge or information
27 generally known to persons in the relevant field. Plaintiff objects on
grounds that all three requests are overbroad, unduly burdensome,
1
vague, ambiguous, and compound.
2
The Court agrees that each of the three requests are overbroad,
3
4 cumulative, and compound. Plaintiff previously designated eighteen
5 people who were involved in inventing or developing one or more of the
6 43 claimed trade secrets. Requiring Plaintiff to respond to the requests
7 as to each of the eighteen persons identified and addressing each of the
8 43 identified secrets in a single interrogatory is improper and unduly
9 burdensome. Defendants’ motion to compel further responses is
10 DENIED.
11 b. SpectraBeam’s RFP Nos. 37, 38, 43
12 RFP 37 seeks documents to show “every instance in which
13
Anokiwave, or any of its engineers, founders, or executives, has designed
14
a radio frequency integrated chip, with or without basing the design on
15
one or more pre-existing intellectual property blocks, in approximately
16
12 months or less.” Plaintiff objects on grounds that the request is
17
overbroad, vague, ambiguous, and unintelligible as to “radio frequency
18
integrated chips” and “with or without basing the design on one or more
19
pre-existing intellectual property blocks.”
20
This request is overbroad and not proportional to needs of the case.
21
A response would require Plaintiff to determine if any of its employees
22
had ever (in their career and not limited in time) designed any radio
23
frequency chip in less than 12 months. This would also necessarily
24
25 includes chips not at issue here. Defendants’ motion to compel is
26 DENIED as to RFP 37.
27
RFP 38 seeks all Anokiwave Advisory Board records, including
1
correspondence, meeting agendas, minutes, recordings and so forth, for
2
time when Rebeiz served on the board. Plaintiff agreed to produce all
3
4 non-privileged, responsive documents received by Defendant Rebeiz in
5 his role as member of advisory board, as well as communications
6 between Anokiwave and one or more of its Advisory Board Members
7 relating to “Anokiwave’s development of RF chips, claimed trade secrets,
8 and claimed proprietary information.” Defendants argue this is not
9 sufficient because they want all Advisory Board records. Defendants
10 make no argument as to why all the Advisory Board records are relevant.
11 The Court finds Plaintiff’s response is sufficient. Defendants’ motion to
12 compel is DENIED as to RFP 38.
13
RFP 43 seeks all documents to support allegations that Plaintiff
14
acted in reliance on Rebeiz’s alleged representations that “all proprietary
15
information would remain confidential and the exclusive property of
16
Anokiwave.” Plaintiff agreed to produce the Proprietary Information
17
Agreement. Defendants’ argue further response is required because it is
18
not clear whether Plaintiff relied on any other documents. Plaintiff
19
stated that it has already agreed to produce all communications it had
20
with Rebeiz and so there is nothing left to compel.
21
If Plaintiff has other documents that show its reliance on Rebeiz’s
22
agreement to not disclose confidential information or use it, it must be
23
disclosed. If they have disclosed everything as they state, then that is
24
25 sufficient. Defendants’ motion to compel is DENIED as to RFP 39.
26 ///
27 ///
c. Defendant Rebeiz’s Interrogatories 6, 7, and 8
1
Rebeiz’s interrogatories six, seven, and eight are similar and will be
2
discussed together. Interrogatory Six asks Plaintiff what percentage of
3
4 Anokiwave’s outstanding shares are owned by Rebeiz. Interrogatory
5 Seven asks what percentage of Anokiwave’s outstanding shares are
6 “owned by each prior or current member of the Anokiwave Advisory
7 Board.” Finally, Interrogatory Eight asks Plaintiff to identify the
8 amount and date of compensation, including stock options, shares, loans,
9 wages, stipends, and honoraria, that Anokiwave has paid or offered to
10 pay every member of Anokiwave’s Advisory Board.
11 Plaintiff answered interrogatory six stating that Rebeiz was
12 awarded 100,000 stock options and exercised 38,543 of those options.
13
Plaintiff objected to interrogatories seven and eight arguing they are
14
compound, vague, overly broad, not relevant, and implicate the privacy
15
interests of third parties.
16
Defendant argues the percentage of shares requested in numbers
17
six and seven are relevant because Plaintiff “repeatedly emphasized the
18
number of shares” Rebeiz owned in its Complaint and that a percentage
19
is needed for context and is relevant to both liability and damages.
20
Defendant also argues the information about other board members’
21
compensation gives “relevant factual context” in response to Plaintiff’s
22
claim that Rebeiz tricked Anokiwave into giving him stock.
23
The Court fails to see how the percentage of shares owned by all
24
25 former and current board members as well as their compensation is
26 relevant to either liability or damages or any other claim or defense.
27 Defendants’ motion to compel is DENIED.
C. ECF No. 81: Plaintiff’s Discovery Requests1
1
a. Plaintiff’s Interrogatories to Defendants SpectraBeam
2
and Rebeiz 1-9 and 14-22
3
4 Plaintiff propounded identical interrogatories to both SpectraBeam
5 and Rebeiz. Interrogatories 1-9 request Defendant to “identify with
6 specificity (or by your best estimate)” the number of hours spent by “any
7 and all representatives of Spectrabeam” in research and development of
8 specified chips. Interrogatories 14-22 request Defendant to describe or
9 give a timeline of research and development for specified chips.
10 The dispute underlying these requests relates to which chips are at
11 issue in this litigation and, as a result, what information can be
12 discovered about each parties’ chips. Specifically, interrogatories 1-4 and
13
14-17 ask about ku-band chips. Plaintiff’s Trade Secret Statement and
14
the operative Complaint state that only its ka-band chips are at issue.
15
Neither document mentions ku-band chips. Plaintiff argues that they
16
are still entitled to the information about ku-band chips as it could lead
17
to information about the extent of Defendants’ alleged misappropriation
18
and resulting unjust enrichment.
19
The information related to ku-band chips is not relevant. Plaintiff
20
specifically identified chips that were at issue in their Fifth Amended
21
Complaint and the Third Trade Secret Statement. Plaintiff claims that
22
the Trade Secrete Statement and Complaint do not limit discovery into
23
other unnamed chips. However, this is the exact opposite of what
24
25 Plaintiff argues in refusing to turn over certain information requested by
26
27 1 Plaintiff has propounded identical or nearly identical discovery requests to
Defendants. Plaintiff cannot have it both ways. Absent any allegation
1
that Defendants’ misappropriated Plaintiff’s trade secret information in
2
their Ku-band chips, the information is not relevant to this litigation.
3
4 Plaintiff’s motion to compel further response is DENIED.
5 Interrogatories 5-9 and 18-22, on the other hand, seek information
6 about the chips identified in Plaintiff’s pleadings. Plaintiff’s amended
7 responses lay out a timeline and rough estimate of hours spend in some
8 stages of development for the identified chips. The timelines begin in
9 2012 and include the work done during Defendant Zihir’s and Kanar’s
10 doctoral studies. Defendants explain that the development of their chips
11 happened over the course of years and that hour logs of time spent on
12 each phase or each individual chip were not kept.
13
Defendants state that detailed hour logs do not exist and are not
14
generally kept in academia. Defendants cannot produce what does not
15
exist. The lengthy explanations describe the general process and include
16
some rough hours estimate. These responses are sufficient given
17
Defendants verification that nothing more exists. Plaintiff’s motion o
18
compel is DENIED.
19
b. Plaintiff’s RFPs to Defendants Zihir, Kanar, Rebeiz,
20
and SpectraBeam
21
i. RFP Nos. 13-16 as to Individual Defendants and
22
SpectraBeam
23
Through identical interrogatories to the individual Defendants and
24
25 SpectraBeam, Plaintiff seeks all documents and communications
26 regarding the founding or plans to found a company with goods or
27 services relating to RF chips, including SpectraBeam. Defendants
initially stated they are withholding documents based on their lengthy
1
standard objections.
2
It appears from this motion that after the amended responses were
3
4 served, lengthy meet and confers took place and Plaintiff’s Trade Secret
5 Statement was amended. Through that process, various limitations were
6 proposed and accepted that limited these disputed requests in time and
7 breadth. It also appears that after these negotiations, Defendants served
8 responsive documents as to SpectraBeam and stated that it does not
9 have any responsive documents concerning other entities. Plaintiff’s
10 concern appears to be that it is not confident that Defendants have in
11 fact turned over all responsive documents subject to the limitations the
12 parties agreed upon. If Defendants have produced all responsive
13
documents in their possession, the responses are sufficient. If Defendant
14
is withholding responsive documents, it must produce them.
15
ii. RFP Nos. 21-22 as to Individual Defendants
16
RFP No. 21 seeks documents sufficient to identify past, present, or
17
future ownership interest in any company. Through the meet and confer
18
process, and in response to Defendants’ objections, Plaintiff proposed
19
limiting the request to “documents relating to the founding or plans to
20
found a company with goods or services related to RF chips, including
21
SpectraBeam or any other entity that could utilize information obtained
22
from Anokiwave commercially and in which you expected to be an owner,
23
founder, shareholder, or other financial beneficiary.” Plaintiff claims
24
25 Defendant accepted the limitation but failed to amend its response.
26 RFP No. 22 seeks all documents relating to communications
27 relating to any past, present, or future ownership interest in any
company owned or founded by Kanar or Zihir. Plaintiff proposed the
1
same limitations as discussed in RFP No. 21, which Defendant accepted.
2
The Court fails to see how these requests as amended differ from RFP
3
4 Nos. 13-16 discussed above. If documents are being withheld, they must
5 be produced as agreed upon. Plaintiff’s motion to compel is GRANTED.
6 iii. RFP Nos. 25-26 as to Rebeiz and SpectraBeam
7 RFPs 25 and 26 seek all documents and communications relating to
8 the purchase, sale, funding or funding for development of RF chips.
9 Defendants object on grounds of relevance and proportionality. To the
10 extent Plaintiff’s requests seek all documents and information about RF
11 chips that are not at issue in this litigation, the request is fatally
12 overbroad. Plaintiff’s motion to compel further responses is DENIED.
13
iv. RFP No. 27 as to Individual Defendants and
14
SpectraBeam
15
RFP No. 27 seeks all documents relating to communications
16
relating to any merger, purchase, sale, or investment between
17
SpectraBeam and IDT, including any offers to engage in similar
18
transactions or negotiations. Defendants object on general grounds but
19
agreed to produce: (1) the due diligence files SpectraBeam provided to
20
IDT; (2) the acquisition contract between IDT and SpectraBeam; and (3)
21
documents to demonstrate what each individual Defendant received in
22
connection with the sale of substantially all of SpectraBeam’s assets to
23
IDT.
24
25 In its position statement, Plaintiff explains the communications
26 between SpectraBeam and IDT regarding the acquisition and
27 negotiations leading up to the actual sale are probative to its claims that
IDT was aware that Defendants had incorporated one or more of
1
Anokiwave’s trade secrets into its products. Defendant’s position
2
statement claims it is producing the relevant non-privileged documents
3
4 identified in Plaintiff’s position statement. To the extent that Defendant
5 has in fact done so, its response is sufficient. If Defendant has failed to
6 produce communications as discussed in Plaintiff’s position statement, it
7 must do so now.
8 v. RFP Nos. 31-33 as to Individual Defendants and
9 Nos. 38-40 as to SpectraBeam
10 RFPs 31-33 seek “all documents relating to technology, trade
11 secrets, or know how that [Drs. Zihir, Kanar, and Rebeiz] transferred to
12 IDT.” To the extent the requests seeks all documents relating to any
13
technology or “know how” and is without a time limitation, it is
14
overbroad. Plaintiff’s motion to compel is DENIED.
15
vi. RFP Nos. 34-35, and 49-50 as to Individual
16
Defendants and Nos. 41-42 and 56-57 as to
17
SpectraBeam
18
RFPs 34-35 and 41-42 seek all documents and communications
19
relating to the design, manufacturing, specification, development, or
20
testing of RF chips by the individual defendants or SpectraBeam. RFPs
21
49-50 and 56-57 seek all documents and communications relating to the
22
funding of RF chips similar to Anokiwave RF chips. Defendants object
23
arguing the requests are overbroad in that they seek information about
24
25 all RF chips and that the phrase “RF chips similar to Anokiwave RF
26 chips” is overbroad as to time.
27
The Court agrees that both requests are overbroad to the extent the
1
seek all documents and seek information about RF chips not at issue in
2
this litigation. Defendants’ amended responses agreed to produce all
3
4 responsive non-privileged documents relating to the chips at issue. This
5 is sufficient. Plaintiff’s motion to compel further responses is DENIED.
6 vii. RFP Nos. 54, 56 as to Individual Defendants and
7 Nos. 61 as to SpectraBeam
8 RFP Nos. 54 and 61 seek documents to identify all employees,
9 consultants, or contractors who have worked on the research,
10 development, design, or manufacturing of SpectraBeam’s RF chips.
11 Defendants’ amended responses state that only Dr. Kanar and Dr. Zihir
12 designed and developed the chips and SpectraBeam did not have any
13
employees. Plaintiff was not satisfied with this response. In Defendants’
14
position statement it confirms that Drs. Kanar and Zihir were the only
15
members of the design team and no consultants or contractors were
16
involved. This is sufficient. Plaintiff’s motion to compel further
17
responses is DENIED. Defendants should consider whether a deposition
18
of Plaintiff under Rule 30(b)(6) is the better vehicle to obtain this
19
information.
20
RFP No. 56 seeks all employment or contractor agreements
21
between Defendant Rebeiz and IDT. In its amended response,
22
Defendant agreed to produce his consulting agreement with IDT.
23
Plaintiff argues that this response is incomplete because it does not
24
25 identify whether any other consultant or contractor agreements exist.
26 The Court fails to see how other agreements would be responsive to this
27
request. Defendant produced the agreement. This response is sufficient.
1
Plaintiff’s motion to compel further responses is DENIED.
2
///
3
4 c. RFP Nos. 29 and 33-36 as to Defendant SpectraBeam
5 RFP Nos. 29, 33, 34, and 35 are similar and will be discussed
6 together. RFP No. 29 seeks communications relating to offers or
7 potential offers from third parties for the merger or acquisition of
8 SpectraBeam. RFP Nos. 33 and 34 seek all formal or informal valuations
9 relating to the sale of SpectraBeam to IDT. And RFP No. 35 seeks all
10 agreements relating to IDT’s assumption of either the assets or liabilities
11 of SpectraBeam.
12 Defendants have agreed and confirmed through this joint motion
13
that they are producing all responsive documents that are not subject to
14
a non-disclosure agreement. This is sufficient. Plaintiff’s motion to
15
compel is DENIED.
16
Plaintiff’s RFP No. 36 seeks “all final agreements between
17
[SpectraBeam] and IDT.” Defendant states it is withholding documents
18
based on its objections that the request is overbroad. Defendant
19
confirms that it produced the final acquisition agreement between
20
SpectraBeam and IDT. Plaintiff argues further response is required
21
because there may be other final agreements between SpectraBeam and
22
IDT. Plaintiff fails to provide insight as to what types of agreements it
23
seeks or the relevance of other agreements to its claims. Defendant
24
25 claims to have produced what was requested. If that is the case,
26 Defendant’s response is sufficient and no further response is required.
27
D. ECF No. 85: Defendant Spectrabeam’s RFPs and Defendant
1
IDT’s Interrogatories
2
a. RFP No. 73
3
4 RFP No. 73 seeks “documents sufficient to identify alleged beginning
5 and end dates of secrecy of claimed trade secrets.” Plaintiff has or will
6 produce documents to identify alleged end dates of secrecy for each
7 claimed trade secret. However, Plaintiff objects to identifying a
8 beginning date on grounds that it assumes that there are specific dates
9 on which alleged secrecy of any information sprang into existence.
10 Plaintiff further argues that the beginning of secrecy is not relevant to
11 any claim or defense because all it must prove is whether the
12 information was secret at the time of the alleged misappropriation.
13
Defendants argue Plaintiff’s response is not sufficient because the
14
beginning date is essential to show that the information was public or
15
readily ascertainable.
16
Plaintiff’s response is sufficient. Even if a beginning date of secrecy
17
were relevant, Plaintiff has explained that the claimed trade secrets
18
developed over a significant period of time through the collaboration of
19
many individuals rendering them incapable of identifying specific dates
20
that the information became secret. Plaintiff is correct regarding its
21
burden. No further response is required.
22
b. RFP No. 76 and 77
23
Through these RFPs, Defendant seeks all “communications, including
24
25 but not limited to public announcements, job listings, and person to
26 person communications, disclosing engineering skill sets required for
27
Anokiwave engineering positions [RFP No. 76] and describing
1
Anokiwave’s business [RFP No. 77] from 2013-2017.”
2
Plaintiff objects on grounds that the requests seek information that is
3
4 publicly available and overbroad because they conceivably include every
5 communication Anokiwave had from 2013-2017. The Court agrees the
6 requests as worded are fatally overbroad. However, Defendants clarify
7 in this motion that they are seeking “non-confidential external job
8 announcements [for Anokiwave engineering positions and job
9 announcements describing Anokiwave’s business plans] from 2013 to
10 2017.” Plaintiff does not object to producing these documents. Plaintiff
11 must produce documents responsive to Defendants’ narrowed request.
12 c. RFP No. 78
13
Defendants seek “all due diligence documents Anokiwave provided to
14
any company or individual, including but not limited to IDT, from
15
January 1, 2013 to the present.”
16
Plaintiff objects on grounds that the request is overbroad and
17
disproportionate to the needs of the case. Plaintiff also states that it did
18
not make any disclosure of any of its claimed trade secrets with the
19
protection of a nondisclosure agreement. Defendants argue this
20
information is relevant because the disclosures are likely to include
21
information about Plaintiff’s claimed trade secrets and if that
22
information as disclosed with or without confidentiality it may show
23
whether Plaintiff suffered harm.
24
25 Plaintiff states it has agreed to produce all documents demonstrating
26 when trade secret information was made publicly available prior to
27 Rebeiz’s resignation. Plaintiff also attested that no documents exist
showing disclosures of trade secrets that were not made subject to a
1
confidentiality agreement. Plaintiff has also agreed to produce profit and
2
loss statements, and documents to calculate damages in response to
3
4 other RFPs. To the extent this RFP requests the same documents, it is
5 duplicative. To the extent it seeks complete disclosures of unrelated
6 financial and technical information, it is overbroad. No further response
7 is required.
8 d. RFP No. 79
9 Defendants seek documents “sufficient to show all versions of
10 Anokiwave’s complete external website from January 1, 2013 to the
11 present, including but not limited to the content and timing of all
12 changes, revisions, additions, and deletions.”
13
Plaintiff objects that the request is overbroad. Defendant contends
14
that information that Anokiwave publicly displayed cannot have been
15
secret. At a minimum it will show end date of trade secrets. It is
16
undisputed that Anokiwave publicly posted “spec sheets” disclosing most
17
of its claimed trade secrets about the chips at issue. This is the end date
18
of secrecy and Plaintiff has agreed to produce this information in
19
response to other RFPs. Defendants state this request is “designed to
20
test the accuracy of Anokiwave’s interrogatory response against
21
Anokiwave’s promotional website materials, which may have
22
inadvertently signaled its product line or business plans to the relevant
23
field.”
24
25 Although some archived information on the website could be relevant,
26 seeking documents to show every change or update to a website for six
27 years is massively overbroad. No response is required.
e. IDT Interrogatories 2, 3, and 4 (damages)
1
IDT propounds contention interrogatories asking Plaintiff to
2
identify “all facts” that support Plaintiff’s claims that it suffered damage
3
4 as a result of Defendants’ conduct, to identify the dates any alleged
5 damaged was suffered, and to identify all facts that support any ongoing
6 claims of damage.
7 Plaintiff objects to the interrogatories to the extent that they seek
8 “all facts” resulting in each request being unduly burdensome. Plaintiff
9 also argues the requests are premature because substantial discovery
10 remains to be conducted. Defendants contend that during meet and
11 confers, the parties limited the requests to “material facts” about
12 Anokiwave’s claimed damages although Plaintiff maintains that the
13
limitation to “material facts” does nothing to render the interrogatory
14
less burdensome.
15
Rule 33 of the Federal Rules of Civil Procedure governs contention
16
interrogatories which seek to discover the factual basis for allegations in
17
a complaint. Rule 33(a)(2) provides that an interrogatory is not
18
objectionable merely because it asks for contentions that relate to fact or
19
the application of law to fact. Rule 33(a)(2). A court may order that a
20
party does not need to answer a contention interrogatory until
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designated discovery is complete or at some later time. Rule 33(a)(2).
22
Courts generally disfavor contention interrogatories asked before
23
discovery is undertaken. Tennison v. City & County of San Francisco,
24
25 226 F.R.D. 615, 618 (N.D.Cal.2005). In fact, courts tend to deny
26 contention interrogatories filed before substantial discovery has taken
27
place, but grant them if discovery almost is complete. See, e.g., Fischer &
Porter Co. v. Tolson, 143 F.R.D. 93, 95 (E.D.Pa.1992).
3 Defendants’ contention interrogatories are premature at this stage
4 ||of discovery in that they seek support for Plaintiffs claim of damages.
5 || Additionally, pursuant to Rule 26, because the contention interrogatories
6 ||seek “all facts” supporting Plaintiffs allegations, they are overly broad
7 ||and unduly burdensome on their face. See FED.R.CIV.P. 26(b)(2)(C)
8 (stating that the court must limit discovery if the burden of the proposed
9 || discovery outweighs its likely benefit).
10 There is no dispute that Plaintiff must disclose this information.
11 |) The Federal Rules require Plaintiff in its initial disclosures to provide “a
12 computation of each category of damages claimed... and to make
13 available documents or other evidentiary material, unless privileged or
4 protected from disclosure, on which each computation is based.”
'? Pup.R.Civ.P. 26(a)(1)(A)(iii). It may be more appropriate to explore the
16 validity of such disclosures through a Rule 30(b)(6) deposition. However,
" any compelled response to an interrogatory at this early stage will most
certainly be incomplete. For the foregoing reasons, Defendants’ motion
50 to compel is DENIED without prejudice.
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9 IT IS SO ORDERED.
93 Dated: August 19, 2019 Mitel » : [>
24 Hon. Mitchell D. Dembin
25 United States Magistrate Judge
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28 51 Ni, 18 ay.NNG90.1T □□□□□□