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`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`WARSAW ORTHOPEDIC, INC.,
`et al.,
`
`v.
`
`NUVASIVE, INC.,
`
`Plaintiffs,
`
`Defendant.
`
`CASE NO. 12cv2738-CAB (MDD)
`ORDER ON JOINT MOTION
`FOR DETERMINATION OF
`DISCOVERY DISPUTE
`[ECF NO. 130]
`
`On November 4, 2013, the parties filed a joint motion for
`determination of discovery dispute. (ECF No. 130). A hearing was held
`on November 15, 2013. In dispute were four topics noticed for deposition
`by Defendant of Plaintiffs under Fed.R.Civ.P. 30(b)(6). At the start of
`the hearing, counsel for Defendant withdrew the notice for three of the
`topics. Remaining was topic 39.
`Topic 39 requested Plaintiffs to produce a witness to testify
`regarding:
`“[N]egotiations from 1993 to present with Gary K. Michelson
`and/or Karlin Technology Inc., related to any medical
`instrument, device, or medical procedure that you claim to be
`related to [Plaintiff’s Direct Lateral Interbody Fusion
`
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`12cv2738-CAB (MDD)
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`Case 3:12-cv-02738-CAB-MDD Document 138 Filed 11/15/13 PageID.5241 Page 2 of 2
`
`technique].”
`Plaintiffs challenged the topic for relevance and overbreadth.
`Defendant, prior to the hearing, asserted relevance based almost
`exclusively upon the fact that Dr. Michelson is the named inventor on
`one of Plaintiffs’ patents in suit (the “696" patent). Plaintiffs countered
`that the 696 patent is subject to review and the parties will be filing a
`joint motion to stay the litigation related to that patent. At the hearing,
`Defendant also offered that the testimony may be relevant to claims of
`obviousness raised by Plaintiffs regarding certain patents asserted by
`Defendant in this litigation.
`The Court finds that the topic, as written, is overbroad and does
`not provide sufficient notice to Plaintiffs to prepare a witness. The Court
`cannot enforce it as written and will not rewrite it to meet the new
`theory advanced by Defendant.
`Defendant’s motion to compel, as contained within the instant joint
`motion, is DENIED.
`IT IS SO ORDERED.
`DATED: November 15, 2013
`
`
` Hon. Mitchell D. Dembin
` U.S. Magistrate Judge
`
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`- 2 -
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`12cv2738-CAB (MDD)
`
`
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