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E-filed 3/10/2017

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

AUDIO MPEG, INC,

Plaintiff,

v.

HP INC., et al.,

Defendants.

Case No.16-mc-80271-HRL 

ORDER GRANTING APPLE INC.’S 

MOTION TO QUASH SUBPOENA

ORDER GRANTING PATRICK 

MURPHY’S MOTION TO QUASH 

SUBPOENA

Re: Dkt. Nos. 1, 5

Respondent Dell, Inc. (“Dell”) is the defendant and counter-claimant in litigation before 

the Eastern District of Virginia. Dell served two subpoenas on non-parties that are the subject of

the current motions before this court; one requesting documents and testimony from Apple, Inc. 

(“Apple”), and one requesting documents and testimony from Patrick Murphy (“Murphy”), a 

current Apple employee. Both Apple and Murphy moved to quash the subpoenas. Dkt. Nos. 1, 5. 

For the reasons described below, the court grants both motions to quash.

BACKGROUND

In the underlying litigation, Dell is being sued by plaintiffs Audio MPEG, Inc., U.S. 

Philips Corporation, TDF SAS, and Institut for Rundfunktechnick GmbH (“Plaintiffs”), for patent 

infringement. Dkt. No. 15-7, Ho Decl., Ex. B. Dell has also counter-claimed against Plaintiffs 

and Societa Italiana Per Lo Sviluppo Dell’Elettronica SPA (together, “Counter-Defendants”). 

Dell alleges claims for (1) Violation of the Sherman Act § 1: Agreement in Restraint of Trade; (2) 

Violation of the Sherman Act § 1: Tying; (3) Violation of the Sherman Act § 2: Conspiracy to 

Monopolize; (4) Violation of the Sherman Act § 2: Monopolization; (5) Civil Conspiracy Under 

Virginia Va. Code. Ann. §§ 18.2-499-500; and (6) Common Law Civil Conspiracy Under Virginia 

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State Law. Dkt. No. 15-7, Ho Decl., Ex. A. Non-party Apple is a licensee of Counter-Defendants 

and an alleged un-named co-conspirator. Dkt. No. 15-3. The court is intentionally vague as to the 

details of the alleged conspiracy and antitrust violations, as these matters were subject to a sealing 

order in the Eastern District of Virginia.

1. Apple.

In August of 2016, Dell served Apple with a subpoena demanding production of 

documents in 22 categories and testimony on 19 topics. Dkt. No. 1, Cannom Decl., ¶ 2, Ex. A. 

The parties met-and-conferred in August and Apple served its objections, id., at ¶¶ 3-7, and there 

the matter remained until December as the result of a stay on discovery. In December, Apple and 

Dell resumed meet-and-confer efforts. Id. at ¶¶ 14-16. Dell agreed to narrow the scope of its 

requests and identified five Apple employees it believed possessed relevant documents. Id. 

Apple, in turn, began its document review, but asserts that it identified no documents that were 

relevant and non-privileged. Id. at ¶ 18.

Dell’s narrowed requests for documents included three categories: (1) communications 

regarding Apple’s licensing agreements with Counter-Defendants; (2) communications regarding 

Apple’s relationship with Counter-Defendants as a licensee or potential licensee; and (3) “certain 

sales data for Apple products that are relevant to damages in the E.D. Va. Litigation.” Dkt. No. 

15-5, Ho Decl., ¶ 2. Dell also narrowed its requests for deposition testimony to the following 

topics (the numbers correspond to the topic numbers in the subpoena): (2) “Apple’s licenses, 

proposed licenses, settlement agreements, proposed settlement agreements, and negotiations 

regarding the Patents-in-Suit or the SISVEL Patent Pool[;]” (5) an agreement between Apple and 

Counter-Defendants, “including but not limited to communications and negotiations regarding” 

that agreement between Apple and Counter-Defendants; (6) a 2015 amendment to the agreement 

in topic 5, “including but not limited to [related] communications and negotiations[;]” and (9) 

“Any agreements or understandings or discussions between Counter-Defendants and Apple, 

regarding the licensing of Dell for the Patents-in-Suit or the SISVEL Patent Pool, or the filing, 

status, or pursuit of litigation against Dell regarding infringement of the Patents-in-Suit or the 

SISVEL Patent Pool, including this lawsuit.” Dkt. No. 15-5, Ho Decl., ¶ 3; Dkt. No. 2-1, 

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Cannom Decl., Ex A.

As Apple continued to object to Dell’s requests, and the parties were unable to reach 

agreement, Apple filed its motion to quash in late December 2016. In its motion, Apple argues:

(1) Dell identifies no relevant, non-privileged information that is not available from parties to the 

underlying litigation; (2) Dell’s requests are overly burdensome and overbroad; (3) the burden to 

Apple of complying with the subpoena outweighs the benefits to Dell; and (4) the costs of Apple’s 

compliance should be shifted to Dell, or the court should sanction Dell. Dkt. No. 1. In response, 

Dell argues that (1) it has narrowed its requests, so that Apple’s overbreadth arguments are “red 

herrings;” (2) the information it requests is relevant, not available from other parties, and 

proportional to the needs of the litigation; (3) Apple’s privilege arguments are meritless; and (4) 

Apple should bear its own costs. Dkt. No. 15.

2. Murphy.

The sequence of events described above roughly parallels that relevant to the subpoena 

Dell served upon Patrick Murphy. Murphy is an attorney currently employed by Apple. Dkt. No. 

7, Murphy Decl., ¶¶ 1, 2. Murphy also represented Cyberlink Corp. (a company to which 

Counter-Defendants declined to license the Patents at issue in the underlying litigation) on patent 

licensing matters as outside counsel in a previous position. Id. at ¶ 3. The initial subpoena served 

by Dell contained requests for (1) “Documents reflecting communications between CounterDefendants and Cyberlink USA or Cyberlink Corp.,” (2) “Documents reflecting communications 

between Counter-Defendants and Microsoft,” and (3) “Documents reflecting any negotiations or 

agreements to license the Asserted Patents,” as well as deposition testimony. Dkt. No. 6-1, 

Cannom Decl., Ex. A. Dell, however, neglected to tender witness fees with the subpoena. 

Additionally, Murphy asserted that he had “no documents” in his possession that related to the 

subpoena. Dkt. No. 7, Murphy Decl., ¶ 7. In light of this, and following additional discussions 

with Murphy’s counsel (who also represents Apple in this matter), Dell served Murphy with a 

second subpoena, accompanied by witness fees and lacking requests for production of documents. 

Dkt. No. 15-12, Ho. Decl., Exs. F, G. 

As with Apple, Murphy filed a motion to quash in late December 2016. In his motion, he 

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argues that (1) the initial subpoena should be quashed due to Dell’s failure to tender witness fees;

1

(2) the information sought is overbroad and unduly burdensome; (3) the information sought is 

available from a party or is privileged; and (4) the burden on Murphy of compliance outweighs the 

benefits to Dell. Dkt. No. 5. In response, Dell argues that (1) Murphy’s burden objections are 

meritless because Murphy fails to demonstrate any special burden; (2) the information Dell seeks 

is not available from other parties and is proportional to the needs of the underlying litigation; and 

(3) Murphy’s privilege argument is meritless. 

LEGAL STANDARD

Federal Rule of Civil Procedure 45 provides in pertinent part that “the court for the district 

where compliance is required must quash or modify a subpoena that . . . (iii) requires disclosure of 

privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to 

undue burden.” Fed. R. Civ. P. 45(d)(3)(A). The scope of discovery permitted through a Rule 45 

subpoena is “the same as” that permitted under Rule 26(b). Intermarine LLC v. Spliethoff 

Bevrachtingskantoor BV, 123 F. Supp. 3d 1215, 1218 (N.D. Cal. 2015). Thus, the court must limit 

discovery if the discovery sought can be obtained from a more convenient or less burdensome 

source, or if “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. 

R. Civ. P. 26(b).

On a Rule 45 motion to quash, “the moving party has the burden of persuasion, but the 

party issuing the subpoena must demonstrate that the discovery sought is relevant.” Lemberg Law 

LLC v. Hussin, No. 16-mc-80066-JCS, 2016 WL 3231300, at *5 (N.D. Cal. June 13, 2016) 

(quoting Pers. Audio LLC v. Togi Entm’t Inc., No. 14-MC-80025 RS (NC), 2014 WL 1318921, at 

*2 (N.D. Cal. Mar. 31, 2014)). Rule 45 “explicitly instructs that a court must quash a subpoena 

that seeks disclosure of privileged material[.]” Id., at *2. Courts disfavor blanket assertions of 

privilege, U.S. v. Martin, 278 F.3d 988, 1000 (9th Cir. 2002), but courts have quashed subpoenas 

where the issuing party has failed to explain “what non-privileged, relevant information [the 

subpoenaed witness] could offer,” Unigene Labs., Inc. v. Apotex, Inc., No. C07-80218 SI, 2007 

 

1 As Dell has served Murphy with a new subpoena accompanied by witness fees, the court deems 

the initial subpoena withdrawn and addresses the remainder of this order to the second subpoena.

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WL 2972931, at *3-4 (N.D. Cal. Oct. 10, 2007).

DISCUSSION

1. Apple.

Categories one and two and all four deposition topics each request communications 

regarding Apple’s licenses, agreements, and/or licensing relationship with the CounterDefendants. Inasmuch as these requests seek external communications, agreements, or 

negotiations between Apple and the Counter-Defendants, Dell has not established that documents 

pertaining to these requests could not be more easily obtained from parties to the litigation. 

“There is simply no reason to burden nonparties when the documents sought are in possession of 

the party defendant.” Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 577 (N.D. Cal. 2007). 

Dell maintains that it is entitled to ask Apple about its understanding of these 

communications (and, presumably, for internal communications that reflect that understanding). 

To demonstrate that it is entitled to this information, however, Dell must first show that Apple’s 

understanding of these communications is relevant to its claims in the underlying litigation. 

Lemberg Law LLC v. Hussin, No. 16-mc-80066-JCS, 2016 WL 3231300, at *5 (N.D. Cal. June 

13, 2016) (quoting Pers. Audio LLC v. Togi Entm’t Inc., No. 14-MC-80025 RS (NC), 2014 WL 

1318921, at *2 (N.D. Cal. Mar. 31, 2014)) (“the party issuing the subpoena must demonstrate that 

the discovery sought is relevant.”). Dell asserts that Apple and Counter-Defendants entered into 

anti-competitive agreements designed to raise Dell’s costs. As such, Dell argues, Apple’s 

motivations in its communications and negotiations with Counter-Defendants, and its 

understanding of those communications and negotiations, is “central to Dell’s antitrust 

counterclaims.” Dkt. No. 15-3. Dell provides the following example of a document that would be 

relevant. Documents Dell obtained from Counter-Defendants revealed that Apple pledged to draft 

a memo discussing anti-trust concerns raised by an agreement between Apple and CounterDefendants. Dell asserts that the contents of this memo are relevant to whether Apple and 

Counter-Defendants knew they were violating antitrust laws.

The court is not persuaded that Apple’s motivations for and understandings of its 

communications and relationship with Counter-Defendants are relevant to Dell’s antitrust claims 

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against Counter-Defendants.

To establish a violation of the Sherman Act Section 1 for an Agreement in Restraint of 

Trade, a plaintiff must show “(1) that the conspiracy produced adverse, anticompetitive effects 

within the relevant product and geographic market; (2) that the objects and conduct pursuant to the 

conspiracy were illegal; and (3) that the plaintiff was injured as a proximate result of the 

conspiracy.” Advanced Health-Care Servs., Inc. v. Redford Cmty. Hosp., 910 F.2d 139, 144 (4th 

Cir. 1990). But the motivations of a non-party are irrelevant to whether the parties are liable for

antitrust violations. U.S. v. Paramount Pictures, 334 U.S. 131, 161 (1948) (“There is some 

suggestion . . . that [non-parties] with whom defendants dealt fathered the illegal practices and 

forced them onto the defendants. But . . . that circumstance if true does not help the defendants. 

For acquiescence in an illegal scheme is as much a violation of the Sherman Act as the creation 

and promotion of one.”); Virginia Vermiculite, Ltd. v. W.R. Grace & Co., 156 F.3d 535, 541 (4th 

Cir. 1998) (“it is not necessary that [defendants] have shared [their counterpart’s] alleged 

anticompetitive motive in entering into a proscribed restraint; it is sufficient that [defendant], 

regardless of its own motive, merely acquiesced in the restraint with the knowledge that it would 

have anticompetitive effects.”); Duplan Corp. v. Deering Milliken Inc., 594 F.2d 979, 982 (4th 

Cir. 1979) (“Where [defendants] were knowing participants in a scheme whose effect was to 

restrain trade, the fact that their motives were different from or even in conflict with those of the 

other conspirators is immaterial.”). 

To prevail on a monopolization claim pursuant to Section 2 of the Sherman Act, a plaintiff 

must show “possession of monopoly power in a relevant market, willful acquisition or 

maintenance of that power in an exclusionary manner, and causal antitrust injury.” Advanced 

Health-Care Servs., Inc., 910 F.2d at 147. A non-party’s motivations and understanding of its 

relationship with a party accused of monopolization has no bearing on any of these elements.

To prevail on a conspiracy to monopolize claim, a plaintiff must show “concerted action, a 

specific intent to achieve an unlawful monopoly, and commission of an overt act in furtherance of 

the conspiracy.” Id. at 150. Again, Dell has failed to show how a non-party’s motivations and 

understandings are relevant to whether Counter-Defendants had the requisite intent to achieve an 

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unlawful monopoly.

The examples provided and materials cited by Dell do not persuade the court that the 

information it seeks is relevant. To take the example of the Apple memo discussing antitrust 

concerns mentioned above, if this memo was sent to the Counter-Defendants, it would be 

available from parties to the litigation and there would be no need to get it from Apple. If it had 

never been sent to Counter-Defendants, it would not provide any information about CounterDefendants’ knowledge or motivations. In either case, Dell does not show how Apple’s 

understandings of the memo have any relevance to establishing Counter-Defendants’ liability. Of 

course, the communication from Apple stating that the agreement may raise antitrust concerns is

itself relevant to Counter-Defendants’ knowledge; but Dell already has that communication.

As for the authority cited by Dell, respondent cites two articles, one discussing the antitrust 

implications of “Contracts that Reference Rivals,” and one discussing the antitrust implications of 

Patent aggregators’ making agreements to raise rivals’ costs. Fiona Scott-Morton, U.S. Dept. of 

Justice, Contracts That Reference Rivals, https://www.justice.gov/atr/file/518971/download; Mark 

Popofsky & Michael Laufert, Antitrust Attacks on Patent Assertion Entities, 79 Antitrust L.J. 445, 

459-60 (2014). Neither article suggests that the subjective motivations of a non-party to a 

litigation is relevant to establishing the antitrust liability of a party. Similarly, the case cited by 

Dell, U.S. v. Blue Cross Blue Shield of Michigan, discusses the elements for establishing a 

violation of Section 1 of the Sherman Act: “1) an agreement 2) affecting interstate commerce 3) 

that unreasonably restrains trade.” 809 F. Supp. 2d 665, 671 (E.D. Mich. 2011). The third 

element concerns the effects of the agreement—it must suppress or destroy competition rather 

than promote it. Id. Nothing in this case suggests that the motivations and understandings of a 

non-party are relevant.

Dell makes one additional argument related to relevance. Dell assert that Apple’s 

understanding of its competitors (and who they are) is relevant to establishing that the licensing 

agreements are an effort to target Apple’s rivals. But, as discussed above, Dell has failed to show 

that Apple’s understandings are relevant to Counter-Defendants’ liability. It seems to be CounterDefendants’ understandings of Dell’s and Apple’s competition that would be relevant—and that

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information could be more easily obtained from Counter-Defendants. The court declines to 

impose a burden on Apple to provide this information, considering the more readily available 

sources. See Fed. R. Civ. P. 26(b)(2). Because Dell has, for the most part, failed to show 

relevance, and because what relevant material there is could be more easily obtained from other 

sources without causing a burden to non-party Apple, the court grants the motion to quash the 

subpoena as to categories one and two and all four deposition topics.

The remaining category of information requested by Dell concerns “certain sales data for 

Apple products that are relevant to damages” in the underlying litigation. Dkt. No. 15-5, Ho 

Decl., ¶ 2. Dell asserts that Apple “never objected to the third category,2and indicated that it 

routinely provides such information to parties in patent litigation.” Id. In response, Apple argues 

that Dell fails to explain “how worldwide sales requests from a sixteen-year period relate to the 

present litigation which involves the infringement of three U.S. patents.” Dkt. No. 23-4. Apple 

further denies that it has produced such “overly broad sales information,” even as a party to 

litigation.

Dell does not provide any additional information about how the Apple sales information is 

relevant to damages in the underlying litigation. It does not explain for which claim the 

information is relevant (damages are sought with respect to Counter-Defendants’ patent 

infringement claim, Dell’s antitrust counterclaims, and Dell’s Virginia statutory counterclaim), or 

why a non-party’s sales data is relevant. Dell merely states that the sales data is “relevant to 

damages.” Such conclusory statements fail to satisfy a party’s burden to show relevance. 

AngioScore, Inc. v. TriReme Med., Inc., No. 12-cv-03393-YGR (JSC), 2014 WL 6706873, at *3 

(N.D. Cal. Nov. 25, 2014) (“Defendants’ conclusory statements regarding the relevance of the 

documents sought fail to satisfy their burden to demonstrate relevance.”).

Additionally, the court is not persuaded that the burden to Apple of producing this large 

amount of sales data—15 years’ worth of monthly and annual sales information, domestic and 

 

2

The court reads this assertion as referring to the meet-and-confer discussions between Apple and 

Dell, as Apple’s objections to the subpoena object to providing this information. Dkt. No. 2, 

Cannom Decl., Ex. B.

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international, for Apple iPods, iPads, iPhones, MacBooks, and iMacs—is outweighed by the 

benefit to Dell of obtaining this information. First, as mentioned above, Dell has not sufficiently 

established this information’s relevance. Second, Dell has not stated why 15 years’ worth of data 

is necessary, especially given the fact that the Apple-and-Counter-Defendant negotiations and 

agreements that form the subject of Dell’s antitrust claims occurred in 2006. Finally, Dell has 

indicated to Apple that this damages information may be available from other sources. Dkt. No. 2, 

Cannom Decl., ¶ 15. In light of these considerations, the court concludes that the burden to Apple 

of producing this information outweighs its likely benefit to Dell, especially given that it may be 

available from other less expensive sources. See Fed. R. Civ. P. 26(b)(2). 

The court next addresses Apple’s request to shift the costs of its compliance to Dell and/or 

to sanction Dell for refusing to reduce the burden of its subpoena. The Ninth Circuit has long held 

that non-party witnesses subject to discovery requests deserve “extra protection” from the courts. 

U.S. v. Columbia Broad. Sys., Inc., 666 F.2d 364, 371 (9th Cir. 1982); High Tech Med.

Instrumentation Inc. v. New Image Indus., Inc., 161 F.R.D. 86, 88 (N.D. Cal. Mar. 17, 1995). 

Following the decision in Legal Voice v. Stormans Inc., the rule in this Circuit is that FRCP 45 

requires the court to shift the costs of a non-party’s compliance with a subpoena “if those costs are 

significant.” 738 F.3d 1178, 1184-85 (9th Cir. 2013). In determining whether costs are 

significant, the court may “consider the ability of the producing non-party to bear the costs of 

production.” U.S. v. McGraw-Hill Co., Inc., 302 F.R.D. 532, 536 (C.D. Cal. 2014).

Here, Apple asserts that has spent more than $20,000 in its attempts to comply with the 

subpoena. Dkt. No. 2, Cannom Decl., ¶ 19. $20,000 was found to be a “significant” expense in 

Legal Voice. 738 F.3d at 1185. In that case, however, the non-party incurring that expense was a 

non-profit legal advocacy group. Apple, on the other hand, is one of the world’s largest and most 

profitable corporations. As a result, the court is not persuaded that the costs cited by Apple are 

“significant,” and declines to shift Apple’s costs of compliance to Dell. Further, to the extent that 

Apple’s opening brief suggests that the court should sanction Dell for its failure to avoid imposing 

an undue burden, the court will not impose sanctions in light of Dell’s cooperative efforts to 

narrow the scope of discovery requested in its subpoenas. 

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2. Murphy.

Dell seeks to depose Murphy because of his first-hand knowledge on topics including 

communications between Counter-Defendants and Cyberlink, communications between CounterDefendants and Microsoft, and negotiations or agreements to license the Patents-in-Suit. Murphy, 

as outside counsel for Cyberlink and an attorney for Apple, was involved in negotiations related to 

licensing (or not licensing) the Patents. Dell asserts that it needs testimony on this information for 

several reasons: (1) to shed light on Apple’s state of mind and its role in the antitrust conspiracy 

alleged by Dell, and to determine why Apple requested the terms it requested in its negotiations 

with Counter-Defendants; (2) to know why Counter-Defendants declined to license Cyberlink, 

which Dell states is relevant to damages calculations; and (3) to determine the appropriate royalty 

rate for calculating damages, which depends in part “on the Counter-Defendants’ licensing 

practices with respect to other licenses.”

As an initial matter, the reasons Dell cites for requiring Murphy’s testimony indicate that 

most of the information sought is available from parties to the litigation. Regarding reasons (2) 

and (3) above, Counter-Defendants should be in a better position than Murphy to explain their 

own reasons for declining to license Cyberlink and to discuss their own licensing practices with 

respect to other licenses. To the extent that Murphy has information on these topics, his 

information would likely be duplicative. See Intermarine, LLC v. Spliehoff Bevrachtingskantoor, 

B.V., 123 F. Supp. 3d 1215, 1218 (N.D. Cal. 2015) (determining that testimony would be 

duplicative since a party could provide the answers sought).

As for Dell’s remaining reason for requiring Murphy’s testimony, as discussed with 

respect to the subpoena served upon Apple, Dell has not shown that Apple’s motivations and state 

of mind in the alleged antitrust conspiracy are relevant to Dell’s claims in the underlying lawsuit.

While Murphy does not show any particularly compelling burden—though the court 

acknowledges that sitting and preparing for a deposition is always somewhat burdensome, Amini 

Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 405, 412 (C.D. Cal. 2014) 

(“Prearing and sitting for a deposition is always a burden, even when documents are not requested, 

particularly for a non-party”)—the court is nevertheless persuaded that the burden to Murphy 

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outweighs the benefit to Dell considering the needs of the underlying litigation. As the 

information requested from Murphy is available from other sources and/or irrelevant, even the 

usual burden associated with sitting and preparing for a deposition would be undue. In re 

Subpoena to Produce Documents of Clapp, Moroney, Bellagamba, Vicinich, & Beeman, No. 14-

mc-80191-RS (JCS), 2014 WL 3784112, at *2 (N.D. Cal. July 31, 2014) (quoting Compaq 

Computer Corp. v. Packard Bell Elecs., 163 F.R.D. 329, 335-36 (N.D. Cal. 1995)) (if documents 

requested are not relevant, “any burden whatsoever imposed . . . would be by definition undue.”).

CONCLUSION

The court grants Apple’s and Murphy’s motions to quash the subpoenas. The court 

declines to shift Apple’s costs to Dell or to sanction Dell.

IT IS SO ORDERED.

Dated: 3/10/2017

HOWARD R. LLOYD

United States Magistrate Judge

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