United States District Court

For the Northern District of California

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NOT FOR CITATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

MFORMATION TECHNOLOGIES, INC.,

Plaintiff,

 v.

RESEARCH IN MOTION LIMITED and

RESEARCH IN MOTION CORPORATION,

Defendants. /

No. C08-04990 JW (HRL)

ORDER GRANTING PLAINTIFF’S

MOTION TO COMPEL DEFENDANT’S

30(b)(6) DEPOSITION TESTIMONY

[Re: Docket No. 161]

In this patent case, plaintiff Mformation Technologies, Inc. (Mformation) moves for an

order compelling defendants Research in Motion Limited and Research in Motion Corporation

(collectively, RIM) to produce a Fed. R. Civ. P. 30(b)(6) designee for continued testimony on

Topics 14(a), (c) and (d). The three subtopics in question concern the structure, operation, and

functionality of BlackBerry relating to the BlackBerry Enterprise Server, BlackBerry

Professional Software and use of an ITAdminQueue—testimony which Mformation says is

critical to its infringement claims. On Friday, May 7, 2010, RIM produced Carl Cherry to

testify as to these matters (among others). After deposing Cherry for nearly one day,

Mformation claims that, for various reasons, it needs several more hours to complete its

examination re the subtopics in question. Plaintiff points out that the parties have agreed that

each side may take up to 42 hours of Fed. R. Civ. P. 30(b)(6) testimony. (To be clear,

*E-FILED 08-03-2010*

Case 3:08-cv-04990-EMC Document 268 Filed 08/03/10 Page 1 of 4
United States District Court

For the Northern District of California

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Mformation is not, by this motion, seeking to increase its 42-hour allotment). RIM opposes the

motion. Upon consideration of the moving and responding papers, as well as the arguments of

counsel, this court grants the motion.

“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7

hours.” FED. R. CIV. P. 30(d)(1). Nevertheless, “[t]he court must allow additional time

consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent,

another person, or any other circumstance impedes or delays the examination.” Id. Pursuant to

Fed. R. Civ. P. 26(b)(2), the court must limit the extent or frequency of discovery if it finds that

(a) the discovery sought is unreasonably cumulative or duplicative or can be obtained from a

source that is more convenient, less burdensome or less expensive, (b) the party seeking

discovery has had ample opportunity to obtain the information through discovery; or (c) the

burden or expense of the discovery sought outweighs its likely benefit, considering the needs of

the case, the amount in controversy, the parties’ resources, the importance of the issues at stake,

and the importance of the discovery in resolving those issues. FED.R.CIV.P. 26(b)(2)(C)(i)-(iii).

Here, neither side’s characterization of the deposition proceedings is particularly

persuasive. It does not seem that plaintiff’s counsel was as inefficient as RIM contends. Nor

was Cherry was as obstreperous as Mformation claims. Putting aside whether RIM’s offer to

have the examination continue into Friday evening or the next day was reasonable, the record

presented indicates that it was not feasible since the court reporter was not available at those

times. The subtopics at issue appear to be important to key issues in dispute. Moreover,

Mformation is asking for only a few more hours—which RIM apparently was willing to give,

but just not on a day other than Friday, May 7 or Saturday, May 8, 2010. Having weighed

competing legitimate interests and possible prejudice, this court finds no undue burden in

having RIM produce a witness for 3 more hours on these topics.

Accordingly, Mformation’s motion to compel is granted as follows: RIM shall produce

a Fed. R. Civ. P. 30(b)(6) designee for further testimony as to Topic 14(a), (c) and (d). The

continued deposition shall last no more than 3 hours and shall take place at a date, time and 

Case 3:08-cv-04990-EMC Document 268 Filed 08/03/10 Page 2 of 4
United States District Court

For the Northern District of California

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location agreed to by the parties.

SO ORDERED.

Dated:

 

HOWARD R. LLOYD

UNITED STATES MAGISTRATE JUDGE

August 3, 2010

Case 3:08-cv-04990-EMC Document 268 Filed 08/03/10 Page 3 of 4
United States District Court

For the Northern District of California

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5:08-cv-04990-JW Notice has been electronically mailed to:

Aaron D. Charfoos acharfoos@kirkland.com

Amardeep Lal Thakur athakur@foley.com, dgrimes@foley.com

Bradford John Black bradford.black@kirkland.com

Carl John Blickle carl.blickle@kirkland.com

Eugene Goryunov egoryunov@kirkland.com

Gina Ann Bibby gbibby@foley.com, cphillips@foley.com, mlagdameo@foley.com

Justin E. Gray jegray@foley.com, pwunsch@foley.com

Linda S. DeBruin ldebruin@kirkland.com, bridgett.ofosu@kirkland.com,

kathleen.cawley@kirkland.com, margaret.burke@kirkland.com

Marc Howard Cohen marc.cohen@kirkland.com, frank.carlow@kirkland.com,

julie.bueno@kirkland.com

Maria A. Maras maria.maras@kirkland.com

Michael Anthony Parks mparks@kirkland.com

Shawn Edward McDonald SEMcDonald@foley.com

Counsel are responsible for distributing copies of this document to co-counsel who have not

registered for e-filing under the court’s CM/ECF program.

Case 3:08-cv-04990-EMC Document 268 Filed 08/03/10 Page 4 of 4