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NOT FOR CITATION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 IN PART AND

DENYING IN PART PLAINTIFF’S

MOTION TO (1) COMPEL

DEPOSITIONS AND (2) DE-DESIGNATE

EMAILS

[Re: Docket No. 192]

Plaintiff Mformation Technologies, Inc. (Mformation) moves for an order

(1) compelling defendants Research in Motion Limited and Research in Motion Corporation

(collectively, RIM) to produce their co-Chief Executive Officers Jim Basillie and Mike

Lazaridis for deposition; and (2) de-designating certain emails that RIM has designated

“Confidential–Attorneys’ Eyes Only.” RIM opposes the motion. Upon consideration of the

moving and responding papers, as well as the arguments of counsel, this court grants the motion

in part and denies it in part.

A. Motion to Compel Basillie and Lazaridis Depositions

Mformation wants to depose Basillie and Lazaridis with respect to the parties’ prior

business negotiations, as well as certain statements re Mformation and its technology made by

Basillie and Lazaridis during the course of those negotiations. RIM contends that Basillie and

*E-FILED 08-09-2010*

Case 3:08-cv-04990-EMC Document 275 Filed 08/09/10 Page 1 of 5
United States District Court

For the Northern District of California

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28 1 Discovery as to the other patent-in-suit, U.S. Patent No. 7,343,408, has been

stayed.

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Lazaridis are busy executives who have no unique or superior knowledge about facts at issue in

this litigation.

“A party seeking to prevent a deposition carries a heavy burden to show why discovery

should be denied.” Websidestory, Inc. v. Netratings, Inc., C06cv408, 2007 WL 1120567 *2

(S.D. Cal., Apr. 6, 2007). When a party seeks the deposition of a high-level executive (a socalled “apex” deposition), the court may exercise its discretion under the federal rules to limit

discovery. See id.; FED. R. CIV. P. 26(b)(1)-(b)(2). In determining whether to allow an apex

deposition, courts consider (1) whether the deponent has unique first-hand, non-repetitive

knowledge of facts at issue in the case and (2) whether the party seeking the deposition has

exhausted other less intrusive discovery methods. Websidestory, Inc., 2007 WL 1120567 at *2. 

Absent extraordinary circumstances, it is very unusual for a court to prohibit the taking of a

deposition. Id. Additionally, “when a witness has personal knowledge of facts relevant to the

lawsuit, even a corporate president or CEO is subject to deposition.” Id. A claimed lack of

knowledge, by itself, is insufficient to preclude a deposition. Id. “Moreover, the fact that the

apex witness has a busy schedule is simply not a basis for foreclosing otherwise proper

discovery.” Id.

The parties’ prior (and ultimately, unsuccessful) business negotiations took place years

before the U.S. Patent No. 6,970,917 issued.1 Nevertheless, under Fed. R. Civ. P. 26’s broad

standard of relevance, the discovery sought is relevant or reasonably calculated to lead to the

discovery of admissible evidence of, for example, RIM’s knowledge re Mformation and its

technology. As for Basillie’s and Lazaridis’ roles in those negotiations, they apparently briefly

met or spoke with Mformation’s CEO on one or two occasions during those negotiations. But

the record indicates that, for the most part, Basillie and Lazaridis were not actual participants in

those negotiations, and instead supervised others who dealt directly with Mformation. 

Mformation says that it has not been able to obtain the subject discovery through other means,

such as RIM’s Fed. R. Civ. P. 30(b)(6) deposition. However, RIM says that it has designated

Case 3:08-cv-04990-EMC Document 275 Filed 08/09/10 Page 2 of 5
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For the Northern District of California

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David Castell—who apparently had a hands-on role in the parties’ prior business

negotiations—to testify about RIM’s knowledge of Mformation and its technology, but

Mformation simply has not gotten around to deposing Castell. (Indeed, this court is told that,

after having turned down RIM’s proposed May and June 2010 deposition dates, Mformation

has agreed to depose Castell on September 15-16, 2010).

Nevertheless, Basillie and Lazaridis did make certain statements about Mformation and

its technology. Mformation says that it has, so far, been unsuccessful in obtaining testimony

from others about those statements; and indeed, plaintiff says that others will probably not be

able to testify about them. Although the parties sharply disagree as to the import of those

statements, this court will permit Mformation to conduct a limited deposition of Basillie and of

Lazaridis. However, to alleviate the burden on Basillie and Lazaridis, Mformation shall first

complete its examination of Castell in his capacity as RIM’s Fed. R. Civ. P. 30(b)(6) designee. 

Additionally, the depositions of Basillie and Lazaridis shall be limited to one hour each.

B. Motion to De-Designate Three Emails

The three email strings at issue are appended as Exhibits A, B and C to the Thakur

Declaration. They contain messages exchanged between Basillie, Lazaridis and Castell re

Mformation during the prior Mformation-RIM business negotiations. RIM has designated them

“Confidential–Attorneys’ Eyes Only.” Claiming that the emails contain no confidential

information whatsoever, Mformation argues that they should be de-designated entirely.

Neither side’s arguments are very compelling. The emails do not appear to be public

information, and this court declines to de-designate them entirely, as Mformation requests. 

However, this court sees no basis for the “Attorneys’ Eyes Only” designation; and, it finds that

a “Confidential” designation should suffice. RIM confirmed the same at the hearing. 

Accordingly, the emails in question shall be de-designated “Confidential” under the parties’ 

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stipulated protective order (Docket No. 51).

SO ORDERED.

Dated:

 

HOWARD R. LLOYD

UNITED STATES MAGISTRATE JUDGE

August 7, 2010

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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, dgrimes@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

Meredith Zinanni meredith.zinanni@kirkland.com, cassandra.milleville@kirkland.com,

kimberly.davenport@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 275 Filed 08/09/10 Page 5 of 5