Case 2:19-cv-00118-JRG Document 31 Filed 07/15/19 Page 1 of 5 PageID #: 299
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`QUEST NETTECH CORPORATION,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`APPLE INC.,
`
`
`Defendant.
`
`
`
`Case No. 2:19-cv-00118-JRG
`
`
`JURY TRIAL DEMANDED
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`JOINT MOTION FOR ENTRY OF OPPOSED DISCOVERY ORDER
`
`
`
`Pursuant to this Court’s Order on June 5, 2019 (Dkt. No. 17), Plaintiff Quest Nettech
`
`Corporation (“Plaintiff” or “Quest”) and Defendant Apple Inc. (“Defendant” or “Apple”)
`
`(collectively, the “Parties”) hereby submit competing forms of Proposed Discovery Order.
`
`Plaintiff’s Proposed Discovery Order is attached as Exhibit 1 and Defendant’s Proposed
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`Discovery Order is attached as Exhibit 2. The Parties were able to reach agreement on almost all
`
`provisions of the Discovery Order, but one provision remains in dispute: limits on party
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`depositions (section 5(c)).
`
`Plaintiff’s Position
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`
`
`Plaintiff proposes that each party be permitted to conduct 35 hours of party depositions
`
`exclusive of expert and third-party depositions. In a previous case involving Defendant, AGIS
`
`Software Dev. LLC v. Apple, Inc., Case No. 2:17-CV-0516-JRG (Dkt. 45), Defendant agreed to
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`70 hours of party depositions exclusive of experts and third parties. However, given that this
`
`case is less complex than the AGIS case because it involves one asserted patent, Plaintiff believes
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`QUEST NETTECH CORPORATION,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`APPLE INC.,
`
`
`Defendant.
`
`
`
`Case No. 2:19-cv-00118-JRG
`
`
`JURY TRIAL DEMANDED
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`JOINT MOTION FOR ENTRY OF OPPOSED DISCOVERY ORDER
`
`
`
`Pursuant to this Court’s Order on June 5, 2019 (Dkt. No. 17), Plaintiff Quest Nettech
`
`Corporation (“Plaintiff” or “Quest”) and Defendant Apple Inc. (“Defendant” or “Apple”)
`
`(collectively, the “Parties”) hereby submit competing forms of Proposed Discovery Order.
`
`Plaintiff’s Proposed Discovery Order is attached as Exhibit 1 and Defendant’s Proposed
`
`Discovery Order is attached as Exhibit 2. The Parties were able to reach agreement on almost all
`
`provisions of the Discovery Order, but one provision remains in dispute: limits on party
`
`depositions (section 5(c)).
`
`Plaintiff’s Position
`
`
`
`Plaintiff proposes that each party be permitted to conduct 35 hours of party depositions
`
`exclusive of expert and third-party depositions. In a previous case involving Defendant, AGIS
`
`Software Dev. LLC v. Apple, Inc., Case No. 2:17-CV-0516-JRG (Dkt. 45), Defendant agreed to
`
`70 hours of party depositions exclusive of experts and third parties. However, given that this
`
`case is less complex than the AGIS case because it involves one asserted patent, Plaintiff believes
`
`
`
`Case 2:19-cv-00118-JRG Document 31 Filed 07/15/19 Page 2 of 5 PageID #: 300
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`that 35 hours of deposition time will permit sufficient discovery into matters of infringement,
`
`validity, damages, and any defenses Defendant may assert.
`
`
`
`Plaintiff’s proposal expressly does not contain a limitation that each deposition must be
`
`limited to seven hours because defendants frequently designate a single witness to testify
`
`pursuant to Rule 30(b)(6) on topics that require more than seven hours of testimony. Rather than
`
`have to burden the Court with a motion to permit a deposition to extend past seven hours should
`
`Defendant choose to designate a single witness to address a broad range of deposition topics,
`
`Plaintiff requests that the Court decline to incorporate the provisions of Rule 30 of the Federal
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`Rules relating to the duration of depositions. Limiting party depositions only by total hours
`
`provides the flexibility needed to obtain discovery without involving the Court in needless
`
`motions practice.
`
`Defendant’s Position
`
`Apple propose that the default limits in Fed. R. Civ. P. 30 govern party depositions in this
`
`case (i.e. 10 depositions limited to 7 hours each). Unlike AGIS Software Dev. LLC v. Apple,
`
`Inc.—where the plaintiff asserted five patents—this case involves a single expired patent that
`
`covers a damages period of less than one year. Case No. 2:17-CV-0516-JRG, Dkt. 32 (First
`
`Amended Complaint). If there is any reason to deviate from the deposition limits in the Federal
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`Rules of Civil Procedure in this case, it would be to further limit the number of party depositions,
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`not to allow an open-ended number of party depositions. Nettech does not even argue that it will
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`need to depose more than 10 Apple witnesses in this case and offers no reason whatsoever for its
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`open-ended proposal that provides no cap on the number of party witnesses. Allowing an
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`unlimited number of depositions exposes Apple to excessive costs and time commitments
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`required for witness preparation.
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`2
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`
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`Case 2:19-cv-00118-JRG Document 31 Filed 07/15/19 Page 3 of 5 PageID #: 301
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`The Federal Rules of Civil Procedure limit party depositions to seven hours. See Fed. R.
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`Civ. P. 30(d)(1). Rule 30(d) provides important protections for the party witnesses. See id.,
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`Committee Notes on Rules—2000 Amendment (imposing “a presumptive durational limitation
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`of one day of seven hours for any deposition … overlong depositions can result in undue costs
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`and delays in some circumstances.”). Nettech offers nothing beyond speculation that Apple may
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`designate a single 30(b)(6) witness to justify deviating from the standard 7-hour deposition limit
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`of the Federal Rules. But this rationale would apply to any case involving a corporate witness
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`and should not be sufficient justification for changing the 7-hour limit of Fed. R. Civ. P. 30.
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`
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`Dated: July 15, 2019
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`
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`Respectfully submitted,
`
`
`
`
`
`
`
` /s/ Peter Lambrianakos
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: (212) 209-4800
`Facsimile: (212) 209-4801
`
`Justin Kurt Truelove
`Texas Bar No. 24013653
`Email: kurt@truelovelawfirm.com
`TRUELOVE LAW FIRM, PLLC
`100 West Houston
`Marshall, Texas 75670
`Telephone: (903) 938-8321
`Facsimile: (903) 215-8510
`
`ATTORNEYS FOR PLAINTIFF
`QUEST NETTECH CORPORATION
`
`3
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`
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`Case 2:19-cv-00118-JRG Document 31 Filed 07/15/19 Page 4 of 5 PageID #: 302
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`
`
`
`
` /s/ Travis Jensen
`Claudia Wilson Frost – LEAD COUNSEL
`State Bar No. 21671300
`ORRICK, HERRINGTON & SUTCLIFFE
`LLP
`609 Main, 40th Floor
`Houston, TX 77002
`Telephone: 713.658.6400
`Facsimile: 713.658.6401
`cfrost@orrick.com
`
`Travis Jensen
`CA Bar No. 259925
`ORRICK, HERRINGTON & SUTCLIFFE
`LLP
`1000 Marsh Road
`Menlo Park, CA 94025
`Telephone: 650.614.7400
`Facsimile: 650.614.7401
`tjensen@orrick.com
`
`Tyler S. Miller
`NY State Bar No. 5122262
`ORRICK, HERRINGTON & SUTCLIFFE
`LLP
`51 West 52nd Street
`New York, NY 10019
`Telephone: 212.506.5338
`Facsimile: 212.506.5151
`tmiller@orrick.com
`
`Melissa Richards Smith
`State Bar No. 24001351
`GILLAM&SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`Tel: (903) 934-8450
`Fax: (903) 934-9257
`melissa@gillamsmithlaw.com
`
`ATTORNEYS FOR DEFENDANT APPLE
`INC.
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`4
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`Case 2:19-cv-00118-JRG Document 31 Filed 07/15/19 Page 5 of 5 PageID #: 303
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on July 15, 2019, all counsel of record who are
`deemed to have consented to electronic service are being served with a copy of this document via
`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Peter Lambrianakos
` Peter Lambrianakos
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`5
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