Case 3:20-cv-06754-WHA Document 447 Filed 01/12/23 Page 1 of 2
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`GOOGLE LLC,
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`Plaintiff,
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`v.
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`SONOS, INC.,
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`Defendant.
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`No. C 20-06754 WHA
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`ORDER GRANTING MOTION TO
`AMEND INFRINGEMENT
`CONTENTIONS
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`Sonos has filed a motion for leave to amend its infringement contentions as to U.S.
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`Patent No. 10,779,033 pursuant to Patent Local Rule 3-6 (Dkt. No. 407). Sonos asserts that the
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`amendments are necessary because it discovered new information during the deposition of a
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`Google 30(b)(6) witness on November 11, 2022 (Br. 2). Google opposes, arguing that Sonos
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`is using the deposition as a Trojan horse to smuggle in a broad new theory. Google further
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`argues that any amendment at this late stage would be prejudicial. This motion is suitable for
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`resolution on the papers. Civ. L.R. 7-6.
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`Patent Local Rule 3-6 states: “Amendment of the Infringement Contentions or the
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`Invalidity Contentions may be made only by order of the Court upon a timely showing of good
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`cause.” “[T]he primary question of good cause is a party’s diligence, and in considering the
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`party’s diligence, the critical question is whether the party could have discovered the new
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`information earlier had it acted with the requisite diligence.” Fluidigm Corp. v. IONpath, Inc.,
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`2020 WL 5073938, at *4 (N.D. Cal. Aug. 25, 2020) (citation omitted).
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`Case 3:20-cv-06754-WHA Document 447 Filed 01/12/23 Page 2 of 2
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`Upon review, Sonos has adequately shown diligence. Sonos served its first 30(b)(6)
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`deposition notice seeking testimony on its “stream transfer” infringement theory for the ’033
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`patent on January 5, 2022. Google first designated two different witnesses to testify on the
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`subject, both of whom Sonos objected to as not competent. After Google declined to designate
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`a third witness, Sonos moved to compel on October 14, 2022 (Dkt. No. 378). Before any
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`ruling on the motion, however, Google designated a third witness, rendering the dispute moot.
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`Sonos deposed that witness, Tavis Maclellan, on November 11, 2022. Sonos then filed the
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`instant motion on the basis that Maclellan’s testimony had “confirmed” aspects of its
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`infringement theory (Br. 2). This order finds that this sequence of events satisfies the diligence
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`requirement.
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`Google objects that Sonos could have articulated its new theory by investigating source
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`code that Google had previously provided (Opp. 6). Sonos, however, is entitled to pursue
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`discovery as to how that source code works. See, e.g., Delphix Corp. v. Actifio, Inc., No. C 13-
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`04613, 2015 WL 5693722, at *3 (N.D. Cal. Sept. 29, 2015) (Judge Howard R. Lloyd). Google
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`further objects that Sonos’s proposed amendments are overbroad because they belatedly add a
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`“completely new theory of infringement” (Opp. 12 (citing Dkt. No. 406-2 at 84–85)). The
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`amendments on those pages, however, simply cite to the new testimony and related source
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`code. Any prejudice, then, is the result of Google’s failure to timely and appropriately respond
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`to Sonos’s discovery request.
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`In sum, Sonos has good cause to amend, and the motion is GRANTED. Any motion to
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`modify the case schedule as a result of this order must be submitted within FIVE DAYS.
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`IT IS SO ORDERED.
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`Dated: January 12, 2023.
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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