AGIS SOFTWARE DEVELOPMENT
`LLC,
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`v.
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`HUAWEI DEVICE USA INC.,
`HUAWEI DEVICE CO., LTD. AND
`HUAWEI DEVICE (DONGGUAN) CO.,
`LTD., HTC CORPORATION,
`LG ELECTRONICS, INC.,
`APPLE INC.,
`ZTE CORPORATION, ZTE (USA), INC.,
`AND ZTE (TX), INC.,
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`Plaintiff,
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`Defendants.
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`Case 2:17-cv-00513-JRG Document 184 Filed 08/17/18 Page 1 of 3 PageID #: 10987
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CIVIL ACTION NO. 2:17-CV-00513-JRG
`(LEAD CASE)
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`CIVIL ACTION NO. 2:17-CV-514-JRG
`CIVIL ACTION NO. 2:17-CV-515-JRG
`CIVIL ACTION NO. 2:17-CV-516-JRG
`CIVIL ACTION NO. 2:17-CV-517-JRG
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`ORDER RE: “DISCOVERY HOTLINE” HEARING
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`Participants: Vincent Rubino – Counsel for Plaintiff
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`Lionel Marks Lavenue – Counsel for Defendant ZTE (USA) (“ZTE”)
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` Date:
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`August 15, 2018
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`This case is assigned to the docket of United States Chief District Judge Rodney Gilstrap.
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`Pursuant to 28 U.S.C. § 636(b)(1) and the Local Rules for the United States District Court for the
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`Eastern District of Texas, this matter came before the undersigned United States Magistrate Judge
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`for determination of an emergency discovery dispute. The parties in this civil action contacted the
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`Court via the “Discovery Hotline” maintained by the United States District Court for the Eastern
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`District of Texas.
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`1
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`Case 2:17-cv-00513-JRG Document 184 Filed 08/17/18 Page 2 of 3 PageID #: 10988
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`On August 15, 2018, counsel for Plaintiff contacted the undersigned regarding a dispute
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`that had arisen during the deposition of Defendant ZTE’s corporate witness. Pursuant to Federal
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`Rule of Civil Procedure 30(b)(6), Defendant ZTE designated one representative to testify over all
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`30(b)(6) topics in Plaintiff’s notice. Prior to the deposition, Defendant ZTE’s corporate designee
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`prepared a notebook comprised of his personal notes to reference during the deposition. Plaintiff
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`objected to the use of such material during the deposition. The Court conduct a telephonic hearing
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`on the record and the parties argued their respective positions.
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`Plaintiff objected to the use of the notebook and argued that a Rule 30(b)(6) witness
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`referencing such material during a deposition violates Rule 30, which requires examination and
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`cross-examination of a witness in a deposition to be conducted as would be allowed during trial.
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`Defendant ZTE responded and stated that its corporate representative spent numerous hours
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`investigating issues and collecting documents pertaining the deposition’s topics and summarized
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`his findings in the notebook. The notebook, ZTE avers, was not configured to coach the corporate
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`representative through the deposition. Rather, the notebook reflects the corporate representative’s
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`personal findings and provides for more accurate and concise answers to Plaintiff’s questions.
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`Defendant ZTE further asserts that courts have maintained that such notebooks are proper
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`during the deposition of Rule 30(b)(6) corporate designees. Specifically, ZTE cites Zeng v. Elec.
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`Data Sys. Corp., No. 1:07CV310, 2007 WL 2713905, at *4 (E.D. Va. Sept. 13, 2007). In that
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`case, the defendant’s 30(b)(6) designee continuously referenced a notebook during her deposition,
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`which was prepared by defense counsel and contained a twenty-two-page summary of various
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`documents. The plaintiff insisted that the use of the notebook was improper because: (1) Rule 30
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`mandates that depositions be conducted as would be permissible at trial; and (2) the corporate
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`representative’s reliance on the notebook meant that she was not adequately prepared to testify as
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`2
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`Case 2:17-cv-00513-JRG Document 184 Filed 08/17/18 Page 3 of 3 PageID #: 10989
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`required by Rule 30(b)(6). The District Judge agreed with the Magistrate Judge’s findings and
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`held:
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`Id.
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`[G]iven the duty of a corporate designee to testify to all information reasonably known to
`the corporation, including matters beyond the designee’s personal knowledge, a well-
`prepared deposition notebook has the potential to enhance the accuracy and depth of a
`designee’s testimony. As such, use of a notebook is not [sic] indicative of a designee’s
`unpreparedness; nor is it evidence of witness coaching.
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`This Court found Zeng persuasive and agreed with the rationale explicated in the case.
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`Therefore, after considering the arguments, this Court ORDERED that Defendant ZTE’s 30(b)(6)
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`corporate representative is allowed to use the notebook during his deposition.
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`IT IS SO ORDERED.
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`3
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