United States District Court, D. Kansas
JAMES P. O'HARA, District Judge.
In these consolidated cases, Sprint Communications Company, L.P. has brought patent-infringement claims against various defendants who provide Voice over Internet Protocol ("VoIP") services to local cable companies. In Case No. 11-2686, defendant Time Warner Cable, Inc. ("TWC") has filed a motion to compel Sprint to produce witnesses under Fed.R.Civ.P. 30(b)(6) to testify on eleven noticed topics (ECF doc. 717). Sprint objects that the topics are irrelevant, overly broad, and/or cumulative of topics on which it has "already provided ample testimony." For the reasons stated below, TWC's motion is granted in part and denied in part.
In response to Sprint's claims that the VoIP services TWC offers infringe Sprint patents, TWC raised the defenses of laches and equitable estoppel. With respect to laches, TWC maintains that Sprint delayed suing TWC for infringement until 2011, despite the fact that as early as 2003 Sprint had available all the information necessary to bring suit. With respect to equitable estoppel, TWC maintains that since 2003, Sprint (1) has known that TWC was offering VoIP services to its customers, (2) had a duty to inform TWC that it believed TWC was infringing, and (3) breached that duty by deliberately remaining silent for years. Sprint, on the other hand, asserts that TWC's equitable defenses fail because, among other things, Sprint did not learn of TWC's intent to infringe until 2009.
TWC served a number of deposition notices to Sprint under Rule 30(b)(6), listing topics that ostensibly relate to TWC's equitable defenses, such as the timing of Sprint's knowledge of certain activities by TWC and the context of TWC's decision to "go it alone." TWC now moves to compel Sprint to produce a witness on the following eleven topics: in TWC's First Rule 30(b)(6) Deposition Notice, Topic 23; in TWC's Second Rule 30(b)(6) Deposition Notice, Topics 32-34, 36, 62, and 70; and in TWC's Third Rule 30(b)(6) Deposition Notice, Topics 3-6.
Timing of Sprint's Objections
Before addressing the substance of Sprint's objections to the topics, the court will consider TWC's argument that Sprint waived the objections, either by failing to comply with deadlines agreed upon by the parties or by serving the objections six minutes after the discovery deadline. The court rejects both waiver arguments.
In January 2015, the parties began discussing ways to streamline fact discovery remaining in this case. Over the course of a telephonic meet-and-confer discussion and follow-up e-mails, the parties agreed that by February 19, 2015, each would offer dates for depositions of noticed Rule 30(b)(6) topics and that the depositions would be scheduled by February 25, 2015. They further agreed that depositions that could not be scheduled to take place before the close of fact discovery on March 13, 2015, would be scheduled to occur as soon as possible after that date.
There is no dispute that Sprint did not offer witnesses or deposition dates for TWC's noticed Rule 30(b)(6) topics by February 19, 2015, nor even by February 25, 2015. Nevertheless, the court cannot say that Sprint wholly waived its objections to the noticed topics. The court certainly does not discount the use of informal agreements and the value of parties attempting to adhere to them, but the agreement at issue is completely silent as to the consequence of a party's failure to meet the targeted deadlines. TWC has cited no case to support its argument that a party may waive its discovery objections by breaching an informal agreement where the parties to the agreement never discussed the possibility of waiver.
Moreover, the actions of both parties indicate that the parties did not view the deadlines as firm. On February 27, 2015, TWC sent an e-mail to Sprint criticizing Sprint's failure to offer deposition dates by the February 19, 2015 deadline, but then asking Sprint to provide the dates by March 2, 2015. And although TWC offered a date on February 19, 2015, for Howard Pfeffer's deposition,  it did not designate the noticed topics that Mr. Pfeffer would testify about until March 10, 2015.
Sprint, for its part, began complaining about the "cumulative nature" of TWC's noticed topics by February 27, 2015. Sprint sent an e-mail to TWC on that date, asserting that "TWC's Second and Third 30(b)(6) Notices consist of cumulative topics addressed by prior topics on which Sprint has already designated witnesses." Sprint repeated this sentiment in an e-mail on March 2, 2015, stating that Sprint was "working diligently to get [TWC] the deposition dates, " but that the process was hindered by TWC's "last-minute decision to serve ~50 30(b)(6) topics-many if not most of which have already been covered-both in 30(b)(6) deposition and many, many 30(b)(1) depositions." Counsel for the parties met on March 9, 2015, and Sprint informed TWC that it "took issue with the cumulative and duplicative nature of many topics in TWC's Second 30(b)(6) Notice, " and that its formal objections to certain topics were forthcoming. In none of its communications did Sprint consent to presenting a witness on every noticed topic, and the underlying tone of the communications instead indicated the opposite.
Finally, the court will not deny Sprint the opportunity to develop the merits of its arguments based on a seven-minute filing delay. Sprint concedes that it e-mailed TWC its formal objections to TWC's Second and Third Rule 30(b)(6) Notices on March 14, 2015, at 12:06 a.m.-seven minutes after the March 13, 2015 close of fact discovery. This court has long expressed its preference for resolving disputes on their merits, however, rather than on technicalities. "Generally the court has few occasions and little time to devote to a detail like the one here raised...." TWC has not demonstrated that it has been prejudiced by the seven-minute, middle-of-the-night filing delay; and there is no indication that Sprint's negligible delay was the result of bad faith or an attempt to seek an unfair advantage against TWC.
Finding no waiver of Sprint's objections to the noticed topics, the court proceeds to address the objections on their merits.
Notice One, Topic 23; Notice Two, Topic 70
Topic 23 of TWC's First Rule 30(b)(6) Deposition Notice and Topic 70 of TWC's Second Rule 30(b)(6) Deposition Notice both seek testimony regarding "Sprint's beliefs as to when and how TWC infringed its patents." Specifically, Topic 23 requests testimony about:
When and how Sprint first learned or received information supporting its belief that TWC was allegedly infringing each asserted claim of the Patents-in-Suit, including when and how it determined that TWC was allegedly infringing each asserted claim on an element-by-element basis.
Sprint objected to Topic 23 as overly broad and unduly burdensome to the extent that it sought information on an element-by-element basis (objections that TWC does not challenge), but agreed to designate a corporate witness to testify generally as to "[w]hen and how Sprint first learned or received information supporting its belief that TWC was allegedly infringing the Patents-in-Suit."
Topic 70 requests testimony about:
Sprint's consideration as to whether or not any of the following TWC systems or activities infringed any of its Patents-in-Suit, and its reason for such consideration: (1) TWC's offering of VoIP service at any time using Pine Tree Networks (a/k/a/CRC Communications of Maine), (2) TWC's offering of VoIP in New Hampshire from around 2005-2007 as part of its New Hampshire Go-It-Alone undertaking, (3) TWC's offering of VoIP as a Go-It-Alone initiative in South Carolina around 2006-2007 as part of the Wildcat migration, (4) TWC's offering of VoIP service at any time using MCI/Verizon, (5) TWC's offering of VoIP service at any time using Sprint, (6) TWC's offering of VoIP as part of its Go-It-Alone initiative beginning in 2010.
TWC argues that these topics "go to the heart of TWC's laches and equitable estoppel defenses in demonstrating that Sprint knew TWC was offering allegedly infringing services, for years, and yet did not file suit until 2011." TWC further contends that these topics are relevant to Sprint's damages' analysis because Sprint's expert used October 2010 as a commencement date for the alleged infringement and if the alleged infringement actually commenced earlier, the expert's reasonable-royalty analysis is fatally flawed.
Sprint does not contest the relevancy of Topics 23 and 70, but instead argues that the topics seek information cumulative and duplicative of other topics upon which Sprint has already provided witnesses. Under Fed.R.Civ.P. 26(b)(2)(C)(i), the court must limit otherwise relevant discovery that is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." "Thus, in certain circumstances, if one discovery request seeks information duplicative of another, the Court must limit the discovery even if both are relevant requests." "The purpose of this rule is to guard against redundant or disproportionate discovery; however, the court must be careful not to deprive a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case." In other words, "the principles outlined in Rule 26(b)(2)(C) involve balancing the benefit of the proposed discovery with its likely burdens." Where a party is questioned on a topic in a Rule 30(b)(6) deposition, a second deposition of the same topic "would most likely be unreasonably cumulative and therefore not allowed under Rule 26(b)(2)(C)(i)."
Sprint states that it has produced its Vice President of Intellectual Property, Harley Ball, as a Rule 30(b)(6) witness on topics that subsume Topics 23 and 70. The court agrees. Mr. Ball testified, for example, on Topic 27 of ...