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Stipulation and Proposed Order Pursuant to Civ. L.R. 

7-12 Regarding Replacement of Docket Number 192 

and Docket Number 193 

 Case No. 5:08-CV-04990-JW 

Linda S. DeBruin 

(Admitted to this Court on September 27,1991) 

Aaron D. Charfoos (pro hac vice) 

Maria A. Maras (pro hac vice) 

Meredith Zinanni (pro hac vice) 

KIRKLAND & ELLIS LLP 

300 North LaSalle 

Chicago, Illinois 60654 

Telephone: (312) 862-2000 

Facsimile: (312) 862-2200 

Email: linda.debruin@kirkland.com 

Email: aaron.charfoos@kirkland.com 

Email: maria.maras@kirkland.com 

Email: meredith.zinanni@kirkland.com 

Marc H. Cohen (CA Bar No. 168773) 

KIRKLAND & ELLIS LLP 

950 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 859-7000 

Facsimile: (650) 859-7500 

Email: marc.cohen@kirkland.com 

Attorneys for Defendants and Counterclaim Plaintiffs

RESEARCH IN MOTION LIMITED and 

RESEARCH IN MOTION CORPORATION 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

MFORMATION TECHNOLOGIES, INC., a Case No. 5:08-CV-04990-JW 

Delaware corporation, 

 Jury Trial Demanded 

 Plaintiff and Counterclaim Defendant, 

 v. STIPULATION AND PROPOSED ORDER 

PURSUANT TO CIV. L.R. 7-12 

RESEARCH IN MOTION LIMITED, a REGARDING REPLACEMENT OF 

Canadian corporation DOCKET NUMBER 192 AND DOCKET 

NUMBER 193 

AND 

 

RESEARCH IN MOTION CORPORATION, 

a Delaware corporation, 

 

 Defendants and Counterclaim Plaintiffs. 

*E-FILED 06-15-2010* XXXXXXXX XXXXXX

Case 3:08-cv-04990-EMC Document 204 Filed 06/15/10 Page 1 of 29
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Stipulation and Proposed Order Pursuant to Civ. L.R. 

7-12 Regarding Replacement of Docket Number 192 

and Docket Number 193 

 Case No. 5:08-CV-04990-JW 

Plaintiff Mformation Technologies, Inc. (“Mformation”) filed on June 9, 2010 its Notice of 

Motion and Motion to Compel (1) Depositions of Jim Balsillie and Mike Lazaridis and (2) DeDesignation of Emails Containing Non-Confidential Information (Dkt. 192) (“Mformation’s 

Motion”) and the Declaration of Amar L. Thakur in Support of Mformation’s Notice of Motion and 

Motion to Compel (1) Depositions of Jim Balsillie and Mike Lazaridis and (2) De-Designation of 

Emails Containing Non-Confidential Information (Dkt. 193) (“Thakur Declaration”). Mformation 

designated portions of its Motion and the Thakur Declaration for filing under seal, and to be redacted 

in the publicly available versions of the documents. On June 10, 2010 Defendants Research In 

Motion Ltd. and Research In Motion Corp. (collectively, “RIM”) informed Mformation that RIM 

believes that additional text in Mformation’s Motion and the Thakur Declaration that Mformation 

had not designated for filing under seal should also be sealed. Counsel for Mformation and RIM 

discussed the issue on the morning of June 11, 2010. Mformation believes that its Motion and the 

Thakur Declaration were properly filed, and does not believe that the additional text specified by 

RIM requires sealing. But, in order to facilitate the efficient resolution of the Motion, and to avoid 

dispute, Mformation does not oppose RIM’s request as specified below. 

WHEREAS Mformation and RIM wish to avoid any further dispute regarding the scope of 

the information in Mformation’s Motion and the Thakur Declaration that has been designated as 

“CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” by RIM, Mformation 

and RIM hereby agree: 

1. Mformation and RIM request that the Court withdraw the publicly available versions 

of Mformation’s Motion and the Thakur Declaration. 

2. Mformation and RIM request that the Court file the document attached hereto as 

Exhibit A to replace Docket Number 192 as the publicly available version of its Motion. 

3. Mformation and RIM request that the Court file the document attached hereto as 

Exhibit B to replace Docket Number 193 as the publicly available version of the Thakur Declaration. 

4. Mformation and RIM request that the Court accept new highlighted versions of 

Mformation’s Motion and the Thakur Declaration to the Court to replace the previously highlighted 

versions of Docket Number 192 and Docket Number 193. 

XXXXXX

Case 3:08-cv-04990-EMC Document 204 Filed 06/15/10 Page 2 of 29
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Stipulation and Proposed Order Pursuant to Civ. L.R. 

7-12 Regarding Replacement of Docket Number 192 

and Docket Number 193 

-2- Case No. 5:08-CV-04990-JW 

 Filer’s Attestation: Pursuant to General Order no. 45, Section X(B) regarding signatures, 

Maria A. Maras hereby attests that concurrence in the filing of this document has been obtained. 

DATED: June 11, 2010 KIRKLAND & ELLIS LLP 

Respectfully submitted, 

/s/ Maria A. Maras 

Maria A. Maras 

Linda S. DeBruin 

(Admitted to this Court on September 27,1991) 

Aaron D. Charfoos (pro hac vice) 

Maria A. Maras (pro hac vice) 

Meredith Zinanni (pro hac vice) 

KIRKLAND & ELLIS LLP 

300 North LaSalle 

Chicago, Illinois 60654 

Telephone: (312) 862-2000 

Facsimile: (312) 862-2200 

Email: linda.debruin@kirkland.com 

Email: aaron.charfoos@kirkland.com 

Email: maria.maras@kirkland.com 

Email: meredith.zinanni@kirkland.com 

Marc H. Cohen (CA Bar No. 168773) 

KIRKLAND & ELLIS LLP 

950 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 859-7000 

Facsimile: (650) 859-7500 

Email: marc.cohen@kirkland.com 

 Attorney for Defendants and Counterclaim Plaintiffs 

Research In Motion Limited and Research In Motion 

Corporation 

Dated: June 11, 2010 FOLEY & LARDNER LLP

By: /s/ Amar L. Thakur Amar L. Thakur 

Shawn E. McDonald 

Gina A. Bibby 

Justin E. Gray 

Attorneys for Mformation Technologies, Inc.

XXXXXX

Case 3:08-cv-04990-EMC Document 204 Filed 06/15/10 Page 3 of 29
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Stipulation and Proposed Order Pursuant to Civ. L.R. 

7-12 Regarding Replacement of Docket Number 192 

and Docket Number 193 

-3- Case No. 5:08-CV-04990-JW 

PURSUANT TO STIPULATION, IT IS SO ORDERED 

Date: , 2010 

 James Ware 

 United States District Judge 

XXXXXX June 15 XXXXXXX Howard R. Lloyd XXXX Magistrate

Case 3:08-cv-04990-EMC Document 204 Filed 06/15/10 Page 4 of 29
Exhibit A

Case 3:08-cv-04990-EMC Document 204 Filed 06/15/10 Page 5 of 29
 

Case No. 5:08-cv-04990-JW (HRL) MFORMATION’S MOTION TO COMPEL (1) DEPOSITIONS OF JIM 

BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

OF EMAILS CONTAINING PUBLIC INFORMATION

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FOLEY & LARDNER LLP 

11250 El Camino Real, Suite 200 

San Diego, CA 92130-2677 

Tel.: (858) 847-6700 

Fax: (858) 792-6773 

Amardeep (Amar) L. Thakur, CA BAR NO. 194025 

ATHAKUR@FOLEY.COM

Shawn E. McDonald, CA BAR NO. 237580 

SEMCDONALD@FOLEY.COM

FOLEY & LARDNER LLP 

975 Page Mill Road 

Palo Alto, CA 94304-1013 

Tel: (650) 856-3700 

Fax: (650) 856-3710 

Gina A. Bibby, CA BAR NO. 242657 

GBIBBY@FOLEY.COM

FOLEY & LARDNER LLP 

150 East Gilman Street 

Madison, WI 53703 

Tel: (608) 257-5035 

Fax: (608) 258-4258 

Justin E. Gray, Pro Hac Vice 

JEGRAY@FOLEY.COM

Attorneys for Plaintiff 

MFORMATION TECHNOLOGIES, INC. 

UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

MFORMATION TECHNOLOGIES, INC., a 

Delaware corporation, 

Plaintiff, 

v. 

RESEARCH IN MOTION LIMITED, a Canadian 

corporation 

AND 

RESEARCH IN MOTION CORPORATION, a 

Delaware corporation, 

Defendants. 

 Case No. 5:08-cv-04990-JW (HRL) 

MFORMATION TECHNOLOGIES, 

INC.’S NOTICE OF MOTION AND 

MOTION TO COMPEL (1) 

DEPOSITIONS OF JIM BALSILLIE AND 

MIKE LAZARIDIS AND (2) DEDESIGNATION OF EMAILS 

CONTAINING NON-CONFIDENTIAL 

INFORMATION 

Noticed Hearing Date & Time: 

July 20, 2010, at 10:00 am in Courtroom 2 

Magistrate Judge Howard R. Lloyd 

[REDACTED VERSION FOR PUBLIC 

VIEWING] 

[PORTIONS DESIGNATED 

CONFIDENTIAL-ATTORNEYS EYES 

ONLY] 

AND RELATED COUNTERCLAIMS 

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Case No. 5:08-cv-04990-JW (HRL) MFORMATION’S MOTION TO COMPEL (1) DEPOSITIONS OF JIM

BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

OF EMAILS CONTAINING PUBLIC INFORMATION

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TABLE OF CONTENTS

NOTICE OF MOTION AND MOTION .......................................................................................... 1 

I. INTRODUCTION................................................................................................................. 1 

II. FACTUAL BACKGROUND ............................................................................................... 2 

A. Background ............................................................................................................... 2 

B. Discovery At Issue .................................................................................................... 3 

1. Depositions of Jim Balsillie and Mike Lazaridis .......................................... 3 

2. Improper Designation of Documents Under the Protective Order................ 4 

III. RIM’S REFUSAL TO PRODUCE mR. BALSILLIE AND MR. LAZARIDIS FOR 

DEPOSITION IS ENTIRELY WITHOUT MERIT ............................................................. 4 

A. RIM CANNOT MEET ITS HEAVY BURDEN TO SHOW THAT THE 

“EXTRAORDINARY” REMEDY OF PROHIBITING THE 

DEPOSITIONS OF MR. BALSILLIE AND MR. LAZARIDIS IS 

WARRANTED ......................................................................................................... 4 

B. MR. BALSILLIE AND MR. LAZARIDIS POSSESS DIRECT 

PERSONAL KNOWLEDGE WHICH IS HIGHLY RELEVANT TO THIS 

ACTION.................................................................................................................... 6 

1. Mr. Basillie Has Direct Personal Knowledge Which Is Highly 

Relevant To This Action ............................................................................... 6 

2. Mr. Lazaridis Has Direct Personal Knowledge Which Is Highly 

Relevant To This Action ............................................................................... 8 

C. MR. BALSILLIE’S AND MR. LAZARIDIS’ PERSONAL KNOWLEDGE 

IS UNIQUE AND NON-CUMULATIVE................................................................ 9 

IV. RIM’s Designation of documents RIM-MF0161312-13, RIM-MF0163866, and 

RIM-MF0166244-45 as protected information is wholly without merit and the 

documents should be de-designated to non-protected information..................................... 10 

V. CONCLUSION ................................................................................................................... 13 

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BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

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TABLE OF AUTHORITIES

CASES 

Contratto v. Ethicon, Inc., 227 F.R.D. 304 (N.D. Cal. 2005) ....................................................... 12

First Nat’l Mortgage Co. v. Fed. Realty Inv. Trust, 2007 U.S. Dist. LEXIS 88625 (N.D. 

Cal. Nov. 19, 2007) ................................................................................................................... 9 

First United Methodist Church of San Jose v. Atl. Mut. Ins. Co., 1995 U.S. Dist. LEXIS 

22469 (N.D. Cal. Sept. 19, 1995).......................................................................................... 4, 5 

Grateful Dead Prods. v. Sagan, 2007 U.S. Dist. LEXIS 56810 (N.D. Cal. July 25, 

2007) ......................................................................................................................................... 5 

HCP Laguna Creek CA, LP v. Sunrise Senior Living Mgt., Inc., 2010 U.S. Dist. LEXIS 

21500 (M.D. Tenn. Mar. 8, 2010)............................................................................................. 9 

In re Parmalat Securities Litigation, 258 F.R.D. 236 (S.D.N.Y. 2009) ....................................... 12 

Kelley v. Microsoft Corp., 2008 U.S. Dist. LEXIS 97340 (W.D. Wash. Nov. 21, 2008)............... 5 

Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118 (D. Md. 2009) ................................................ 5 

Phillips ex. rel Byrd v. General Motors Corp., 307 F.3d 1206 (9th Cir. 2002)............................ 10 

Ray v. Bluehippo Funding, LLC, No. 06-cv-1807, 2008 U.S. Dist. LEXIS 92821 (N.D. 

Cal. 2008) .................................................................................................................................. 5 

Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98 

(S.D.N.Y. 2001) ....................................................................................................................... 5 

WebSideStory, Inc. v. NetRatings, Inc., 2007 U.S. Dist. LEXIS 20481,......................................... 5 

Zamora v. D’Arrigo Brothers Co. of Cal., 2007 U.S. Dist. LEXIS 21418 (N.D. Cal. 

Mar. 15, 2007) ...................................................................................................................... 4, 5 

OTHER AUTHORITIES 

Fed. R. Civ. P. 26(c)...................................................................................................................... 11 

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Case No. 5:08-cv-04990-JW (HRL) MFORMATION’S MOTION TO COMPEL (1) DEPOSITIONS OF JIM

BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

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NOTICE OF MOTION AND MOTION

 PLEASE TAKE NOTICE that on July 20, 2010 at 10:00 a.m. in Courtroom 2, Fifth 

Floor of the United States District Court for the Northern District of California, 280 South 1st 

Street, San Jose, California 95113, Plaintiff Mformation Technologies, Inc. (“Mformation”) shall 

and hereby does move the Court for an Order compelling Defendants Research in Motion Limited 

and Research in Motion Corporation (collectively “RIM”) to: (1) produce Jim Balsillie for 

deposition; (2) produce Mike Lazaridis for deposition; and, (3) produce certain RIM documents 

without designation under the Protective Order. This Motion is made on the grounds that RIM is 

unreasonably and improperly impeding discovery. 

 The Motion is based upon this Notice of Motion and Motion, the attached 

Memorandum of Points and Authorities, the supporting Declaration of Amar L. Thakur, and all 

exhibits thereto, the [Proposed] Order to the Motion, all the pleadings, records, and files in this 

action, matters of which the Court may take judicial notice, and on such other evidence as may be 

presented at any hearing on this Motion. 

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION 

 Despite Mformation’s proper notices of deposition, and the deposition testimony of 

several witnesses in this case as to the personal actions taken by RIM’s co-CEOs Jim Balsillie and 

Mike Lazaridis in relation to Mformation, RIM has steadfastly refused to present either for 

deposition. There can be no dispute that both Mr. Balsillie and Mr. Lazaridis have unique 

personal knowledge of facts that are highly relevant to the core issues in dispute in this case, 

including their own individual actions directing subordinates as to their dealings with Mformation. 

Mformation is entitled to depose Mr. Lazaridis about that. 

 

Mformation is also entitled to depose Mr. Balsillie on that. 

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Case No. 5:08-cv-04990-JW (HRL) MFORMATION’S MOTION TO COMPEL (1) DEPOSITIONS OF JIM

BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

OF EMAILS CONTAINING PUBLIC INFORMATION

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 Accordingly, RIM cannot meet 

its heavy burden of showing that good cause exists to deny Mformation the right to take the 

depositions of Mr. Balsillie and Mr. Lazaridis. 

 Additionally, RIM produced documents RIM-MF0161312-13; RIM-MF0163866 

and RIM-MF0166244-45 as Confidential – Attorneys Eyes Only. Thakur Decl., Exs. A-C (filed 

under seal). These eight-year-old documents contain neither “extremely sensitive” information 

nor information that appears to create “a substantial risk of serious injury that could not be avoided 

by less restrictive means,” as required for designation under the Protective Order. (Dkt. 51) In 

fact, these three straightforward e-mails contain no sensitive RIM information, technical or 

otherwise. Further, RIM has failed to demonstrate any harm that it would suffer if the documents 

were made public. Accordingly, RIM’s designation of the documents as “Confidential – 

Attorneys’ Eyes Only” is improper. 

 Mformation therefore respectfully requests that the Court enter an Order 

compelling RIM to: (1) produce Jim Balsillie for deposition; (2) produce Mike Lazaridis for 

deposition; and, (3) produce without designation under the Protective Order those documents RIM 

previously produced as RIM-MF0161312-13; RIM-MF0163866 and RIM-MF0166244-45. 

II. FACTUAL BACKGROUND 

A. Background 

On October 31, 2008, Mformation filed the present action against RIM, alleging that RIM 

infringes two of Mformation’s patents, United States Patent Nos. 6,970,917 and 7,343,408 

(collectively the “Patents”). (Dkt. 1). RIM counterclaimed, asserting that it does not infringe the 

Patents, and the Patents are invalid because they fail to comply with 35 U.S.C. §§ 103, 102, 101, 

and 112. (Dkt. 33). 

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Case No. 5:08-cv-04990-JW (HRL) MFORMATION’S MOTION TO COMPEL (1) DEPOSITIONS OF JIM

BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

OF EMAILS CONTAINING PUBLIC INFORMATION

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 Mformation’s Patents generally relate to the remote, wireless management of 

handheld devices. (Dkt. 43 at 5-6). Mformation sells software solutions that enable its clients, 

mostly wireless telecommunications carriers, to remotely and wirelessly manage handheld 

devices, which are overwhelmingly blackberry devices. For example, in the event that a user’s 

BlackBerry is lost or stolen, Mformation’s products allow its customers to remotely and wirelessly 

lock the lost RIM BlackBerry device and wipe the user-created data stored on the device. All of 

Mformation’s products practice the patents-in-suit. 

 The 

parties’ relationship during these discussions was governed by RIM’s ISV Alliance Agreement, 

which was signed by Mr. Balsillie on behalf of RIM. In the course of this partnering relationship 

and licensing negotiations, pursuant to non-disclosure agreements, Mformation ultimately 

disclosed to RIM the proprietary Java object code for its products. Subsequently,

 RIM added features into its 

own software products that are covered by the Patents. 

 Mformation has approximately 300 employees worldwide, and has not previously 

asserted any patents in litigation. By contrast, RIM has approximately 8,400 employees 

worldwide. RIM is an experienced patent litigant, being a party to numerous patent infringement 

lawsuits, mostly as an accused infringer. 

B. Discovery At Issue 

1. Depositions of Jim Balsillie and Mike Lazaridis 

 RIM has refused to produce either of its co-CEOs, Jim Balsillie and Mike 

Lazaridis, for deposition in this case. Mr. Lazaridis is also the President of RIM. Mformation 

properly served notices of deposition of Mr. Balsillie and Mr. Lazaridis on March 16, 2010 and 

March 26, 2010, respectively. Thakur Decl., Exs. D and E (notices of deposition of Mr. Balsillie 

and Mr. Lazaridis). On April 2, 2010, RIM served objections to these deposition notices. Thakur 

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Case No. 5:08-cv-04990-JW (HRL) MFORMATION’S MOTION TO COMPEL (1) DEPOSITIONS OF JIM

BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

OF EMAILS CONTAINING PUBLIC INFORMATION

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Decl., Exs. F and G (RIM’s Objections and Responses). RIM objected to the deposition notices 

solely on the grounds that they (1) sought to impose obligations beyond the applicable Rules, (2) 

are “overbroad, unduly burdensome, and designed to harass RIM” because Mr. Balsillie and Mr. 

Lazaridis are co-CEO’s, (3) seek information that is irrelevant and/or not reasonably calculated to 

lead to the discovery of admissible evidence, and (4) are “cumulative and duplicative of other 

forms of discovery that are less burdensome, more convenient, and less intrusive.” Id. RIM has 

refused to produce either Mr. Balsillie or Mr. Lazaridis for their properly noticed depositions, 

based solely on these objections. 

2. Improper Designation of Documents Under the Protective Order 

 This motion also relates to RIM’s improper designation of documents under the 

protective order. Mformation met and conferred with RIM regarding RIM’s improper designation 

of documents under the protective order. However, despite the absence of any sensitive RIM 

information in these 8-year-old e-mails, RIM has refused to de-designate them. 

III. RIM’S REFUSAL TO PRODUCE MR. BALSILLIE AND MR. LAZARIDIS FOR 

 DEPOSITION IS ENTIRELY WITHOUT MERIT 

A. RIM CANNOT MEET ITS HEAVY BURDEN TO SHOW THAT THE 

“EXTRAORDINARY” REMEDY OF PROHIBITING THE DEPOSITIONS 

OF MR. BALSILLIE AND MR. LAZARIDIS IS WARRANTED 

The correct procedure for a party seeking to avoid producing a witness for a properly 

noticed deposition is to file a motion for a protective order, rather than simply refusing to produce 

the witness. RIM has ignored its duties in that regard, and has simply, and repeatedly, refused to 

make either Mr. Balsillie or Mr. Lazaridis available for deposition. But RIM’s improper tactics do 

not change the fact that, as the party seeking to avoid discovery, RIM bears the heavy burden to 

show why such discovery should be denied. First United Methodist Church of San Jose v. Atl. 

Mut. Ins. Co., 1995 U.S. Dist. LEXIS 22469, at *6 (N.D. Cal. Sept. 19, 1995); Zamora v. 

D’Arrigo Brothers Co. of Cal., 2007 U.S. Dist. LEXIS 21418, at *13-14 (N.D. Cal. Mar. 15, 

2007) (“Under the liberal discovery principles of the Federal Rules of Civil Procedure, a party 

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seeking to block a deposition must carry a “heavy burden” and make a “strong showing.””)1

(citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). Moreover, RIM must 

demonstrate a particular and specific harm or prejudice that will result from the discovery. 

WebSideStory, Inc. v. NetRatings, Inc., 2007 U.S. Dist. LEXIS 20481, at *5 (S.D. Cal. Mar. 22, 

2007). RIM cannot meet this heavy burden. 

When confronted with certain improprieties, such as harassment or gamesmanship, courts 

will shield a high-level corporate officer from deposition where that officer lacks any personal 

knowledge of facts relevant to the case. But, as here, where a high-level executive of a corporate 

party has personal knowledge of relevant facts—including his or her own actions that are relevant 

to the case—that person’s deposition should be allowed.2

 The doctrine limiting so-called “apex” 

depositions is meant to prevent harassment of a high-level corporate officer who lacks personal 

knowledge; it is narrowly applied, and the law strongly favors permitting the deposition where the 

witness has personal knowledge of relevant facts. Ray, 2008 U.S. Dist. LEXIS at *7-8; see also 

Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 126 (D. Md. 2009) (emphasizing that “the 

apex deposition rule is bottomed on the apex executive lacking any personal knowledge of 

relevant facts” and does not apply unless the deposition is “sought simply because he is the 

CEO”). Moreover, “[i]t is very unusual...for a court to prohibit the taking of a deposition 

altogether absent extraordinary circumstances, as such an order would likely be error.” 

WebSideStory, 2007 U.S. Dist. LEXIS at *7. 

 

1

 All emphasis is added, unless otherwise noted. 

2 See, e.g., First United Methodist Church of San Jose v. Atlantic Mutual Ins. Co., No. 95-cv-2243 

1995 U.S. Dist. LEXIS 22469, at *7-8 (N.D. Cal. Sept. 19, 1995); Zamora v. D’Arrigo Bros. Co. 

of California, No. 04-cv-00047, 2007 U.S. Dist. LEXIS 21418, at *14-15 (N.D. Cal. March 15, 

2007); WebSideStory Inc. v. NetRatings, Inc., No. 06-cv-408, 2007 U.S. Dist. LEXIS 20481, at 

*16 (S.D. Cal. March 22, 2007); Ray v. Bluehippo Funding, LLC, No. 06-cv-1807, 2008 U.S. Dist. 

LEXIS 92821, at *7-8 (N.D. Cal. 2008), Grateful Dead Prods. v. Sagan, 2007 U.S. Dist. LEXIS 

56810, at *8 (N.D. Cal. July 25, 2007) (“[W]here a corporate officer may have any first hand 

knowledge of relevant facts, the deposition should be allowed.”); see also Six West Retail 

Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 102-06 (S.D.N.Y. 2001) 

(compelling deposition of CEO of Sony Corporation when plaintiff “presented sufficient evidence 

to infer that [the CEO] had some unique knowledge on several issues related to its claims”); Kelley 

v. Microsoft Corp., No. 07-cv-0475, 2008 U.S. Dist. LEXIS 97340, at *6 (W.D. Wash. Nov. 21, 

2008) (ordering deposition of Microsoft’s CEO where he might have relevant personal 

knowledge). 

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Case No. 5:08-cv-04990-JW (HRL) MFORMATION’S MOTION TO COMPEL (1) DEPOSITIONS OF JIM

BALSILLIE AND MIKE LAZARIDIS AND (2) DE-DESIGNATION 

OF EMAILS CONTAINING PUBLIC INFORMATION

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B. MR. BALSILLIE AND MR. LAZARIDIS POSSESS DIRECT PERSONAL 

KNOWLEDGE WHICH IS HIGHLY RELEVANT TO THIS ACTION 

There is no question that both Mr. Balsillie and Mr. Lazaridis individually have personal 

knowledge of facts that are highly relevant to this dispute. The deposition testimony and 

documents produced in this case suggest that both Mr. Balsillie and Mr. Lazaridis were heavily 

involved in RIM’s interactions and relationship with Mformation. 

 Moreover, Mr. Balsillie and Mr. Lazaridis of course have the best, and indeed 

unique, knowledge regarding their own discussions with Mformation as RIM’s representatives. 

1. Mr. Basillie Has Direct Personal Knowledge Which Is Highly Relevant 

To This Action 

Demonstrating the highly relevant nature of Mr. Balsillie’s knowledge, the very first 

substantive contact between RIM and Mformation appears to have been through Mr. Balsillie, 

when he communicated via e-mail with Mformation’s co-founder Upal Basu on August 2, 2000. 

Thakur Decl., Ex. J 

Following Mr. Basu’s email, Mr. Balsillie had at least two separate inperson meetings with Mformation representatives, including a meeting with Craig Wolfson on 

June 14, 2001 at which Mr. Wolfson discussed Mformation’s technology with Mr. Balsillie in 

detail. Thakur Decl., Ex. R (June 14, 2001 e-mail from C. Wolfson to P. Donald summarizing 

technical information about Mformation’s product that he shared with Mr. Balsillie); see also

Thakur Decl., Ex. O (Wolfson Dep. Tr. at 86:13-90:7 and 164:17-167:18.) 

 As Mr. Basu testified: 

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Thakur Decl., Ex. P (Basu Dep. Tr. at 180:6-25.) 

 As Mr. Wolfson testified: 

Thakur Decl., Ex. O (Wolfson Dep. Tr. at 107:16-108:8.) 

 

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In addition, Mr. Balsillie has highly relevant, first-hand knowledge regarding each of the 

three ISV Alliance Agreements between RIM and Mformation, which he personally approved and 

signed on behalf of RIM. Thakur Decl., Ex. S (excerpts from ISV Alliance Agreements reflecting 

Mr. Balsillie’s signature). These agreements are central to the issues in dispute here, because the 

ISV Alliance Agreements set forth the parameters of the relationship between Mformation and 

RIM. And it is especially significant that Mr. Balsillie personally signed these agreements, 

because it is atypical for the co-CEO of a company as large as RIM to sign such a contract. 

Mformation is entitled to question Mr. Balsillie regarding the ISV Alliance Agreements, including 

his reasons for deciding to personally sign them. 

2. Mr. Lazaridis Has Direct Personal Knowledge Which Is Highly 

Relevant To This Action 

Like Mr. Balsillie, Mr. Lazaridis was highly involved in the relationship between RIM and 

Mformation. 

 

 

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 These facts are highly relevant to 

Mformation’s claims. Mformation is entitled to depose Mr. Lazaridis as to his personal 

knowledge regarding these facts. 

C. MR. BALSILLIE’S AND MR. LAZARIDIS’ PERSONAL KNOWLEDGE IS 

UNIQUE AND NON-CUMULATIVE 

Finally, this is not a situation where it would be appropriate to postpone the depositions at 

issue. As discussed above in section III(B), it has already become clear from discovery, including 

the deposition of Craig Wolfson that was conducted on April 21, 2010 and both parties’ document 

productions, that Mr. Balsillie and Mr. Lazaridis have direct personal knowledge of facts relevant 

to the core issues in this dispute—facts which Mformation was not able to obtain in the deposition 

of RIM pursuant to Federal Rule of Civil Procedure 30(b)(6) nor in the five personal depositions 

of other RIM employees completed to date. Mr. Balsillie and Mr. Lazaridis chose to involve 

themselves directly in RIM’s relationship with Mformation, and they should not be permitted to 

shield themselves from deposition based solely on the seniority of their positions. 

Furthermore, the law is clear that where, as here, a high-level executive’s testimony 

involves conversations and interactions in which he himself participated, his deposition would not 

be repetitive even if other lower-level participants from the company also had knowledge of such 

interactions. HCP Laguna Creek CA, LP v. Sunrise Senior Living Mgt., Inc., 2010 U.S. Dist. 

LEXIS 21500, at *13-14 (M.D. Tenn. Mar. 8, 2010) (“When three people are present during a 

conversation, one may remember or choose to remember certain portions of the conversation that 

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conflict with the memory of one or two of the other participants.”); see also First Nat’l Mortgage 

Co. v. Fed. Realty Inv. Trust, 2007 U.S. Dist. LEXIS 88625, at *6 (N.D. Cal. Nov. 19, 2007) 

(“The mere fact, however, that other witnesses may be able to testify as to what occurred at a 

particular time or place does not mean that a high-level corporate officer’s testimony would be 

‘repetitive.’”); Blankenship, 519 F.2d at 429 (allowing deposition of highest corporate officer of 

defendant even where his testimony might be repetitive of that from lower-level employees). 

Because Mr. Balsillie’s and Mr. Lazaridis’ knowledge here is unique and based on their direct 

interactions with and regarding Mformation, their testimony would not be repetitive and there is 

no reason to delay their depositions. Minter, 258 F.R.D. at 127 (holding that a “wait and see” 

approach to apex depositions is inappropriate where the high-level executive possesses unique or 

personal knowledge). 

The documents and deposition testimony show that both Mr. Balsillie and Mr. Lazaridis 

have significant personal knowledge regarding the interactions between RIM and Mformation. 

Both Mr. Balsillie and Mr. Lazaridis were directly involved in RIM’s internal discussions and 

decision-making relating to Mformation, and both had significant direct communications with 

Mformation representatives. RIM cannot credibly dispute that these interactions between RIM 

and Mformation are highly relevant to this dispute, as RIM itself included seven topics—nearly 

25% of the total—relating to such interactions in its Notice of Deposition of Mformation pursuant 

to Fed. R. Civ. P. 30(b)(6). Thakur Decl., Ex. Q (RIM’s notice of deposition of Mformation). 

 

RIM has not satisfied its burden of showing why it the depositions of Mr. Balsillie and Mr. 

Lazaridis should not be permitted, nor can it. 

IV. RIM’S DESIGNATION OF DOCUMENTS RIM-MF0161312-13, RIM-MF0163866, 

AND RIM-MF0166244-45 AS PROTECTED INFORMATION IS WHOLLY 

WITHOUT MERIT AND THE DOCUMENTS SHOULD BE DE-DESIGNATED TO 

NON-PROTECTED INFORMATION 

As the Ninth Circuit has repeatedly noted, “[i]t is well-established that the fruits of pre-trial 

discovery are, in the absence of a court order to the contrary, presumptively public.” See Phillips 

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ex. rel Byrd v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (citing San Jose 

Mercury News, Inc. v. United States Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999) Only where 

there is “good cause,” may a protective order restrict access to discovery materials. See id., 307 

F.3d 1206, 1210 (9th Cir. 2002). See id.; Fed. R. Civ. P. 26(c). Consistent with this standard, the 

Protective Order governing this case only allows information which constitutes or contains “trade 

secrets or other confidential research, development, commercial, or other information” to be 

designated as “Confidential Information.” (Dkt. No. 51 at 4.) Further, only information that is 

“extremely sensitive” and if disclosure of that information “would create a substantial risk of 

serious injury that could not be avoided by less restrictive means” may be designated 

“Confidential – Attorneys Eyes Only” in this case. (Id.) Most importantly, because of RIM’s 

designation, these documents cannot be viewed by anyone at Mformation. 

 

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Because RIM has designated these three e-mails under the Protective Order, Mformation’s 

management team and Board of Directors cannot see them, or know of their contents. This has 

significantly hindered the ability of Mformation’s management and Board of Directors to develop 

a fully accurate understanding of many of the critical facts at issue in this case. These eight-yearold documents contain neither “extremely sensitive” information nor information that appears to 

create “a substantial risk of serious injury that could not be avoided by less restrictive means.” See 

In re Parmalat Securities Litigation, 258 F.R.D. 236, 250 (S.D.N.Y. 2009) (finding seven-year-old 

strategic planning documents improperly designated as confidential without a showing of 

continued value of the information and striking the Defendant’s confidential designation). 

Further, a party seeking protection must demonstrate specific harm, supported by concrete 

examples. See Contratto v. Ethicon, Inc., 227 F.R.D. 304, 307 (N.D. Cal. 2005). RIM has not met 

its burden to establish that relevant information should be kept from the public and from 

Mformation’s management and Board of Directors. In fact, RIM has provided nothing more than 

conclusory statements that the information is “extremely sensitive.” (Dkt. 114, ¶ 3.) This 

conclusory allegation is insufficient to satisfy the standards of Rule 26. See id. at 308 (finding a 

single attorney declaration which did not identify any “specific secret or otherwise show the 

specific harm that [would] result from disclosure”). 

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V. CONCLUSION 

For the reasons stated herein, Mformation respectfully requests that the Court grant its 

Motion to Compel. 

Dated: June 9, 2010 FOLEY & LARDNER LLP

By: /s/ Amar L. Thakur 

Amar L. Thakur 

Shawn E. McDonald 

Gina A. Bibby 

Justin E. Gray 

Attorneys for 

Mformation Technologies, Inc. 

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Case No. 5:08-cv-04990-JW (HRL) PROOF OF SERVICE

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PROOF OF SERVICE

I am employed in the County of Santa Clara; I am over the age of eighteen years and not a 

party to the within entitled action; my business address is 975 Page Mill Road, Palo Alto, CA, 

94304. 

On June 9, 2010, I am causing to be served the following document described as: 

MFORMATION TECHNOLOGIES, INC.’S NOTICE OF MOTION AND 

MOTION TO (1) DEPOSITIONS OF JIM BALSILLIE AND MIKE LAZARIDIS 

AND (2) DE-DESIGNATION OF EMAILS CONTAINING NONCONFIDENTIAL INFORMATION 

on the interested parties and non-parties in this action as follows: 

Marc H. Cohen, Esq. 

KIRKLAND & ELLIS LLP 

777 South Figueroa, Suite 3700 

Los Angeles, CA 90017 

Telephone: (213) 680-8558 

Fax: (213) 680-8500 

E-mail: mcohen@kirkland.com

(Counsel for Research in Motion Limited and 

Research in Motion Corporation) 

Via E-mail (per agreement of the 

parties) 

 BY MAIL: I am readily familiar with the firm’s practice of collection and processing 

correspondence for mailing. Under that practice it would be deposited with the U.S. Postal 

Service on that same day with postage thereon fully prepaid at San Francisco, California in 

the ordinary course of business. I am aware that on motion of the party served, service is 

presumed invalid if postal cancellation date or postage meter date is more than one day 

after date of deposit for mailing in affidavit. 

 BY OVERNIGHT DELIVERY: I caused such envelope or package to be delivered on 

the same day to an authorized courier or driver authorized by the overnight service carrier 

to receive documents, in an envelope or package designated by the overnight service 

carrier. 

 BY FACSIMILE: I served said document to be transmitted by facsimile pursuant to Rule 

2.306 of the California Rules of Court. The telephone number of the sending facsimile 

machine was 415-434-3947. The names and facsimile machine telephone numbers of the 

persons served are set forth in the service list. The sending facsimile machine (or the 

machine used to forward the facsimile) issued a transmission report confirming that the 

transmission was complete and without error. Pursuant to Rule 2.306(g)(4), a copy of that 

report is attached to this declaration. 

 BY HAND DELIVERY: I am causing such envelope(s) to be delivered by hand to the 

office of the addressee(s) as indicated above. 

: BY ELECTRONIC MAIL: I am causing to be served said document(s) by transmitting 

such by electronic mail to the addressees as follows: 

 rim mformation correspondence@kirkland.com

 

 STATE: I declare under penalty of perjury under the laws of the State of California that 

the foregoing is true and correct. 

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Case No. 5:08-cv-04990-JW (HRL) PROOF OF SERVICE

CHIC_4824900.4 

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: FEDERAL: I declare that I am a member of the bar of this Court. I declare under penalty 

of perjury under the laws of the United States of America that the foregoing is true and 

correct. 

Executed on June 9, 2010, at Palo Alto, California. 

 /s/ Gina A. Bibby 

 Gina A. Bibby 

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Exhibit B

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Case No. 5:08-cv-04990-JW (HRL) Declaration of Amar L. Thakur in Support of Mformation’s Motion to

Compel Depositions of Jim Balsillie and Mike Lazaridis and (2) DeDesignation of Emails Containing Public Information CHIC_4826636.1 

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FOLEY & LARDNER LLP 

11250 El Camino Real, Suite 200 

San Diego, CA 92130-2677 

Tel.: (858) 847-6700 

Fax: (858) 792-6773 

Amardeep (Amar) L. Thakur, CA BAR NO. 194025 

ATHAKUR@FOLEY.COM

Shawn E. McDonald, CA BAR NO. 237580 

SEMCDONALD@FOLEY.COM

FOLEY & LARDNER LLP 

975 Page Mill Road 

Palo Alto, CA 94304-1013 

Tel: (650) 856-3700 

Fax: (650) 856-3710 

Gina A. Bibby, CA BAR NO. 242657 

GBIBBY@FOLEY.COM

FOLEY & LARDNER LLP 

150 East Gilman Street 

Madison, WI 53703 

Tel: (608) 257-5035 

Fax: (608) 258-4258 

Justin E. Gray, Pro Hac Vice 

JEGRAY@FOLEY.COM

Attorneys for Plaintiff 

MFORMATION TECHNOLOGIES, INC. 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

MFORMATION TECHNOLOGIES, INC., a 

Delaware corporation, 

Plaintiff, 

v. 

RESEARCH IN MOTION LIMITED, a Canadian 

corporation 

AND 

RESEARCH IN MOTION CORPORATION, a 

Delaware corporation, 

Defendants. 

 Case No. 5:08-cv-04990-JW (HRL) 

DECLARATION OF AMAR L. THAKUR 

IN SUPPORT OF MFORMATION 

TECHNOLOGIES, INC.’S NOTICE OF 

MOTION AND MOTION TO COMPEL (1) 

DEPOSITIONS OF JIM BALSILLIE AND 

MIKE LAZARIDIS AND (2) DEDESIGNATION OF EMAILS 

CONTAINING PUBLIC INFORMATION 

Magistrate Judge Howard R. Lloyd 

AND RELATED COUNTERCLAIMS 

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DECLARATION OF AMAR L. THAKUR

I, Amar L. Thakur, state and declare as follows: 

1. I am an attorney in the law firm of Foley & Lardner LLP, counsel of record for 

Mfromation Technologies, Inc. (“Mformation”) in the above-captioned case. I am over twentyone years of age and not under any legal disability. I submit this declaration in support of 

Mformation’s Motion to Compel (1) Depositions of Jim Balsillie and Mike Lazaridis and (2) DeDesignation of Emails Containing Public Information. I have personal knowledge of the 

following facts and, if called as a witness, could and would testify competently thereto. 

2. Pursuant to Civil Local Rule 37-1(a), the undersigned counsel for Mformation 

represents that counsel for Mformation have conferred with counsel for RIM with respect to the 

issues raised in this motion, and that, after conferring, the parties were unable to reach resolution. 

3. Mformation sent correspondence to counsel for RIM on November 5, 2009 asking 

RIM to de-designate documents RIM-MF0161312-13; RIM-MF0163866 and RIM-MF0166244-

45 so that the documents could be filed publicly in connection with Mformations’ Reply Claim 

Construction Brief which RIM refused. 

4. Following the Technology Tutorial, counsel for Mformation had a conversation 

with Linda DeBruin, counsel for RIM, regarding RIM’s designation of documents RIMMF0161312-13; RIM-MF0163866 and RIM-MF0166244-4 as “Confidential – Attorneys’ Eyes 

Only.” Counsel for Mformation expressed Mformation’s belief that nothing in the emails is 

confidential and that the technical information contained therein is publicly available

5. Attached as Exhibit A to this declaration is a document bearing production 

numbers RIM-MF0161312-13. 

6. Attached as Exhibit B to this declaration is a document bearing production number 

RIM-MF0163866. 

7. Attached as Exhibit C to this declaration is a document bearing production numbers 

RIM-MF0166244-45. 

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8. Attached as Exhibit D to this declaration is Notice of Deposition of Jim Balsillie. 

9. Attached as Exhibit E to this declaration is a Notice of Deposition of Mike 

Lazaridis. 

10. Attached as Exhibit F to this declaration is RIM’s Objections and Responses to the 

Notice of Deposition of Jim Balsillie. 

11. Attached as Exhibit G to this declaration is RIM’s Objections and Responses to the 

Notice of Deposition of Mike Lazaridis. 

12. Attached as Exhibit H to this declaration is a document bearing production number 

RIM-MF0157553. 

13. Attached as Exhibit I to this declaration is a document bearing production numbers 

RIM-MF0157800-802. 

14. Attached as Exhibit J to this declaration is a document bearing production number 

M0066684. 

15. Attached as Exhibit K to this declaration is a document bearing production 

numbers RIM-MF0161405-06. 

16. Attached as Exhibit L to this declaration is a document bearing production numbers 

RIM-MF0166143-145. 

17. Attached as Exhibit M to this declaration is a document bearing production number 

RIM-MF0166220. 

18. Attached as Exhibit N to this declaration is a document bearing production number 

RIM-MF0160450. 

19. Attached as Exhibit O to this declaration is excerpts from the deposition of Craig 

H. Wolfson taken April 21, 2010. 

20. Attached as Exhibit P to this declaration is excerpts from the deposition of Upal 

Basu taken May 14, 2010. 

21. Attached as Exhibit Q to this declaration is RIM’s February 17, 2010 Notice of 

Deposition Pursuant to Federal Rule of Civil Procedure 30(b)(6). 

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22. Attached as Exhibit R to this declaration is a document bearing production numbers 

UBA0006650-51. 

23. Attached as Exhibit S to this declaration is a document bearing production numbers 

M0635994, -999, -636037, and -636041-43. 

24. Attached as Exhibit T to this declaration is a document bearing production numbers 

RIM-MF0164754-55. 

25. Attached as Exhibit U to this declaration is a document bearing production 

numbers RIM-MF0165838-39. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct and that this declaration was executed in San Diego, California on June 9, 2010. 

/s/Amar L. Thakur 

Amar L. Thakur 

Case 3:08-cv-04990-EMC Document 204 Filed 06/15/10 Page 28 of 29 Case5:08-cv-04990-JW Document193 Filed06/09/10 Page4 of 5
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Case No. 5:08-cv-04990-JW (HRL) PROOF OF SERVICE

CHIC_4826636.1 

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CERTIFICATE OF SERVICE

I hereby certify on this 9th day of June, 2010 that a copy of the foregoing was filed 

electronically through the Court’s CM/ECF system, with notice of case activity automatically 

generated and sent electronically to all parties. 

Dated: June 9, 2010 FOLEY & LARDNER LLP

By: /s/ Justin E. Gray 

Justin E. Gray 

Attorney for 

Mformation Technologies, Inc. 

Case 3:08-cv-04990-EMC Document 204 Filed 06/15/10 Page 29 of 29 Case5:08-cv-04990-JW Document193 Filed06/09/10 Page5 of 5