Case 6:21-cv-00916-ADA Document 121 Filed 12/22/22 Page 1 of 5
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`RFCYBER CORP.,
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`v.
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`APPLE, INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:21-cv-00916-ADA
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`Defendant.
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`ORDER REGARDING THE DECEMBER 13, 2022 DISCOVERY DISPUTE HEARING
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`Pursuant to the Standing Order Governing Proceedings (OGP) 4.2 - Patent Cases, the
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`Minute Entry for proceedings held (ECF No. 119), and to the Court’s Standing Order for Discovery
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`Hearings in Patent Cases, the parties jointly submit the below proposed order reflecting the Court’s
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`rulings at the December 13, 2022 discovery hearing regarding Apple’s November 29, 2022,
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`Objections and Responses to RFCyber’s November 2, 2022, 30(b)(6) Deposition Notice.
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`Issue: Apple’s objections and responses to RFCyber’s 30(b)(6) topics
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`RFCyber’s Position
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`Apple refuses to designate a witness for virtually any of RFCyber’s 30(b)(6) topics.
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`Apple either refuses to designate a witness entirely (for over 30 topics) or refuses to
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`designate a witness for the full scope of RFCyber’s topics. Where it provides any designation,
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`Apple crafted a small number of narrowed designations which it copy-pastes throughout its
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`response. Apple’s objections are a clear refusal to prepare a witness to testify without a protective
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`order, in violation of Fed. R. Civ. P. 30(b)(6). Even had Apple sought such an order, it could not
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`Case 6:21-cv-00916-ADA Document 121 Filed 12/22/22 Page 2 of 5
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`meet its burden because RFCyber’s topics are proper. RFCyber respectfully requests that Apple
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`be compelled to provide a designee for each topic.
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`Apple baselessly objects to many Topics based on scope, relevance, or privilege. RFCyber
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`has accused devices including iPhones, Apple Watches, and Macs based on their implementation
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`of Apple Wallet, and related hardware and software. Apple generally attempts to limit designations
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`to the accused software, ignoring that the accused hardware, and other issues related to finances,
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`marketing and distribution, are all relevant to infringement and damages. For example, Apple
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`refuses to provide a witness regarding monetization of user information obtained through Accused
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`Services (see Topic 25), and appears to take the untenable position that every aspect of information
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`related to its patent monitoring is privileged.
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`Many of Apple’s objections are also based on purported ambiguity of readily
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`understandable terms. For example, in response to Topics 5, 11, 12, 13, 14, and 18, Apple variously
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`objects based on the terms “install base,” “transfer pricing,” “Apple’s business case and/or
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`business plan,” “derive value,” “average dollar value attributed by Apple to each [install and/or
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`activation]/[transaction],” “value… to Apple.” Apple itself uses many of these terms, and they are
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`directly relevant damages issues.
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`Even where Apple provides designations, they are largely unresponsive to the
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`corresponding topic. For example, in response to topic 22 regarding “[a]ny agreements between
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`Apple and banks, card-issuers, token service providers, and/or financial institutions … related to
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`the Accused Services (e.g., Apple Pay, Apple Cash, Apple Wallet, passkit, and/or passbook), and
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`any revenue derived by Apple in connection with any such agreements,” Apple only designates a
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`witness “to testify regarding the financial metrics related to Apple Card.” Apple proceeds
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`similarly with virtually every topic in the notice, and merely copy-pastes most of these
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`Case 6:21-cv-00916-ADA Document 121 Filed 12/22/22 Page 3 of 5
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`designations even for very different topics. For example, Apple’s 30(b)(6) witness on twelve
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`marketing topics was only prepared for four designations under Apple’s narrowed responses,
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`rather than the topics RFCyber noticed.
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`Apple also limits the scope of every designation exclusively to “functionality specifically
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`identified in RFCyber’s infringement contentions.” It is unclear exactly what Apple attempts to
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`exclude with this language. But Apple’s exclusion is improper, as the scope of relevant and
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`discoverable material is not limited to infringement contentions.
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`Apple has not moved for a protective order, and even if it had, cannot meet its burden to
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`show any objection should be sustained.
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` Relief Sought: An order compelling Apple to “provide a witness for the full scope of each of
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`RFCyber’s noticed 30(b)(6) topics”
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`Apple’s Position
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` RFCyber’s complaint that “Apple refuses to designate a witness for virtually any of
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`RFCyber’s 30(b)(6) topics” is wrong. RFCyber has already deposed two Apple 30(b)(6) witnesses
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`designated on 19 of the 80 topics, RFCyber refused to take the offered December 13 deposition of
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`a third 30(b)(6) witness on another 18 topics before he goes out on parental leave, and Apple has
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`offered dates for six more deponents (four of whom RFCyber has confirmed) who will cover the
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`remainder of RFCyber’s non-objectionable topics. RFCyber should complete the remaining
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`depositions, then the parties can discuss whether there are any proper deposition topics that have
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`not been addressed. RFCyber’s request to compel Apple to provide witnesses for RFCyber’s
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`improperly broad topics is therefore premature.
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`It is unclear what RFCyber means when it complains that Apple’s Global Marketing
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`Director for Payments and Commerce, was “only prepared for four designations,” but the witness
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`Case 6:21-cv-00916-ADA Document 121 Filed 12/22/22 Page 4 of 5
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`was prepared on all designated topics and notably RFCyber (a) never said he was unprepared
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`during the deposition and (b) cannot articulate which topics he was purportedly not prepared on.
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`RFCyber may not have liked the witness’s testimony, but that does not mean he was unprepared.
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`Many of RFCyber’s topics are overbroad because they request information that has nothing
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`to do with any claim or defense in this case. RFCyber takes the untenable position that it is entitled
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`to information regarding all components and functionalities of all accused products, such as iPhone
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`camera or LTE functionality, most of which are irrelevant to this case. RFCyber has told the Court
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`that “[t]he Asserted Patents … are directed to various aspects of a mobile payment system” (ECF
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`54 at 1), so the scope of Apple’s corporate testimony should be commensurate with the scope of
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`RFCyber’s alleged inventions. Apple’s witnesses were and are prepared to testify about the
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`features implicated by RFCyber’s infringement allegations.
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`To be clear, Apple has refused to provide testimony for only five topics, discussed below.
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`For the remaining topics, Apple agreed to provide a witness or requested a narrower, non-
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`objectionable scope.
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`1. 25 (monetization of user information)—whether Apple “monetizes” user information has
`nothing to do with the claims and defenses in this case, which relate to the operation of a
`“mobile payment system,” and RFCyber cannot articulate a cognizable infringement or
`damages theory based on this information.
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`2. 38 (average salary of Apple employees/contractors)—employee salaries are private and
`irrelevant to any issue in this case, including alleged witness bias.
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`3. 66 and 67 (underlying facts regarding invalidity and pre-suit damages contentions)—
`these topics call for expert testimony, and no Apple fact witness has firsthand knowledge
`of third-party prior art or Apple’s “damages contentions.” Apple has offered 30(b)(6)
`testimony on more proper topics, such as financial information.
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`4. 73 (Apple’s policies and practices relating to its investigation or monitoring of patents)—
`this topic calls for privileged information and Apple has properly asserted the privilege.
`RFCyber provides no valid reasons why it is entitled to such irrelevant or privileged
`information.
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`Case 6:21-cv-00916-ADA Document 121 Filed 12/22/22 Page 5 of 5
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` Relief Sought: Order that RFCyber’s motion to compel witnesses for the full scope of each of
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`RFCyber’s noticed 30(b)(6) topics is DENIED as premature.
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`The Court’s Ruling:
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`It is hereby ORDERED that RFCyber’s motion to compel witnesses for the full scope of
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`each of RFCyber’s noticed 30(b)6) topics is DENIED WITHOUT PREJUDICE. In addition,
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`Apple is not required to present a witness regarding the following topics: 38, 66, 67 and 73.
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`SIGNED this 22nd day of December, 2022
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`_______________________________
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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