282 F.R.D. 259 | N.D. Cal. | 2012
ORDER GRANTING-IN-PART PLAINTIFF’S MOTION TO COMPEL DEPOSITIONS, AND GRANTING-IN-PART DEFENDANT’S CROSS-MOTION FOR A PROTECTIVE ORDER
In this patent infringement action, Plaintiff Apple Inc. (“Apple”) moves to compel Defendants and counter-claimants Samsung Electronics Co., LTD, Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”)
I. BACKGROUND AND PROCEDURAL HISTORY
Apple originally moved to compel depositions of fourteen Samsung employees.
1. Gee Sung Choi (“Choi”);
2. Jong Kyun Shin (“Shin”);
3. Won-Pyo Hong (“Hong”);
4. Seungwhan Cho (“Cho”);
5. Dale Sohn (“Sohn”);
6. Joseph Cheong (“Cheong”).
Apple argues that it is entitled to these depositions because each SEC witness has unique, firsthand, non-repetitive knowledge of facts and events central to this litigation. The SEC witnesses acted in their authoritative, decisionmaking capacities regarding certain Samsung policies that directed other employees to consider and compare Apple products when designing or re-designing the accused products or features. The STA witnesses are personally knowledgeable of or responsible for development, marketing, and finance decisions relating to the U.S. market for the accused products. Because Samsung has not produced any discovery from these witnesses, all of the evidence it relies upon has been pieced together from other witness sources. There are no extraordinary circumstances or burdens that should prevent Apple from taking the depositions.
Samsung responds that these six witnesses hold the title of Executive Vice President or higher, oversee at a minimum entire groups or divisions of employees, and have only high-level knowledge far removed from the facts at issue in the case. Apple has not demonstrated that the information it seeks is unique, first-hand, and non-repetitive, principally because Apple has failed to obtain this information through other less burdensome means.
II. LEGAL STANDARDS
Under Rule 26(c)(1) of the Federal Rules of Civil Procedure, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,”
“In determining whether to allow an apex deposition, courts consider (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the ease and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.”
III. DISCUSSION
The “apex” doctrine exists in tension with the otherwise broad allowance for discovery of party witnesses under the federal rules. This judicially-created vehicle appropriately seeks to limit the potential for the discovery rules to serve as a tool for harassment. Yet the court finds the doctrine’s common application to the classic paradigm of a single-hierarchy corporate structure to be ill-suited to determining apex status and the resulting bounds of appropriate discovery in the case of a large, multinational corporation. A company of global proportions, like Samsung, may in a single breath identify tens of high-level executives, each in charge of what amounts to its own, significant division or sub-organization within the company. In such a case, the two-prong test for unique first-hand, non-repetitive knowledge and for the party’s attention to other, less intrusive discovery methods must form only part of a more nuaneed equation. In order that the “apex” designation as applied to multiple executives does not itself become a tool for evading otherwise relevant and permissible discovery, the court must assess not only the materiality of the proposed deponent’s knowledge of pertinent facts and the availability of other means for the party to access that knowledge, but—with apologies—the person’s degree of “apex-ness” in relation to these factors. On the proverbial sliding scale, the closer that a proposed witness is to the apex of some particular peak in the corporate mountain range, and the less directly relevant that person is to the evidence proffered in support of his deposition, the more appropriate the protections of the apex doctrine become.
It is thus Samsung’s burden to demonstrate that each “apex” witness is so entitled to that designation, and where less entitled, is even further removed from having personal, non-repetitive knowledge of discoverable information. Although not expressly set forth in its papers, at oral argument Apple did not concede the apex status of the witnesses at issue, other than Samsung’s Chief
A. SEC Chief Executive Officer—Gee Sung Choi
Apple seeks to compel the deposition of Choi by arguing that he has been deeply involved in directing Samsung’s employee to make Samsung products more like Apple’s products. To show Choi’s unique, first-hand knowledge regarding Samsung’s purported strategy of considering Apple’s products when creating new Samsung products, Apple offers two categories of documents. The first category consists of emails and meeting minutes authored by other Samsung employees that indicate Choi presided over meetings or discussions involving, for example, “product competiveness against Í-PAD2” and resulting design changes for Samsung’s own tablet product,
Samsung responds that Apple seeks to depose Choi based on nothing more than his current title as CEO and former title of President of SEC’s Telecommunications Network Business in 2007, and on comments attributed to him by others, many regarding the need to improve Samsung products not at issue in this case. Samsung argues that Apple has produced no evidence indicating Choi was involved in the creation or implementation of the strategy documents touted by Apple. Instead, the documents merely show that Samsung was at the top of the relevant corporate hierarchy.
Choi’s position as CEO of Samsung Electronics Company does not automatically shield his deposition.
Because Choi represents the quintessential “apex,” however, Apple’s proffer of evidence suggesting unique knowledge is insufficient to warrant unrestricted deposition time and subject matter. The court therefore GRANTS Apple’s motion to compel Choi’s deposition, subject to the following limitations. Apple may depose Choi for no more than two hours.
B. President of SEC’s Mobile Division—Jong Kyun Shin
Apple also seeks to compel the deposition of Shin, arguing that he has directed the development of Samsung’s mobile touchscreen products at a hands-on level, including by promoting comparisons to Apple’s products. According to Apple, Shin’s instrumental role includes his time in 2007 as the former Executive VP of SEC’s R & D group for mobile phones. Apple relies on an email relaying a speech given by Shin in February 2010 in which he highlights the gap in user experience between a line of Samsung phones and the iPhone, and also explains what carriers are telling him about the need to sell a high-end phone like the iPhone.
Samsung responds that Apple’s evidence demonstrates nothing but third-party and lower-level employee input, and does not demonstrate actual involvement by Shin in the relevant design decisions. For example, the employee email summarizing Shin’s speech makes clear that his purported comments reflect input provided by third parties and do not suggest Shin’s own views, other than regarding the Omnia product not at issue in this case. Samsung also contends that Apple has failed to demonstrate it exhausted other means to obtain the information, particularly from those employees who
With respect to this lawsuit, Shin inhabits a key, high-level position for which Apple’s showing of unique knowledge and exhaustion of other means of obtaining discovery is insufficient. The court is not persuaded that Shin has unique, first-hand knowledge that implicates anything beyond the statements of a business executive voicing Samsung’s need to remain competitive and to plan its designs accordingly.
C. Executive Vice President of SEC Mobile Division’s Product Strategy Team—Won-Pyo Hong
Apple argues that as the head of the product strategy team, Hong has both the knowledge about Samsung’s strategy behind design decisions and the authority to carry out those directives, particularly the consideration and copying of Apple’s products. Apple proffers an email chain with an email from Hong his team to present product designs alongside Apple designs of a similar or corresponding product in order to engage in a “compare and contrast.”
Samsung argues that Hong is one of the highest ranking executives in the Mobile Communication Division, overseeing approximately 800 employees. Samsung contends that Apple has not traced any unique personal knowledge to Hong that Apple cannot obtain from other employees. With regard to the referenced design study, Samsung contends that Apple failed to ask Chang—the witness whom Samsung had identified to be most knowledgeable—about the purported discrepancy between his statements and the study itself. Samsung further contends that Apple has exhaustively deposed eighteen lower-level employees, three vice presidents, and a senior vice president who were involved with the day-to-day design and development of the products at issue, including Samsung’s designated 30(b)(6) witnesses on topics related to the Product Strategy Team’s activities. Samsung argues that Apple has not shown why these depositions are insufficient or how Hong will provide additional, unique information.
Apple largely relies on the design study created by Hong’s team and on his placement
D. Senior Vice President of Advanced R & D—Seunghwan Cho
Apple argues that Cho led software development for the accused Galaxy S and Galaxy Tab products and “oversaw the development of features that Apple contends infringe its utility patents.” Apple points to a series of emails in which Cho explained that the user experience of another Samsung product not at issue in this case was deficient compared to the iPhone,
Samsung responds that Cho did not have primary responsibility for the day-to-day decisions concerning the design of Samsung’s products, especially considering that he has overseen the development of 75 products in the past year alone. Samsung contends that the entirety of comments made by Cho in the referenced email chain represent only generalized observations and requests for improvements, as opposed to express or implied directions to copy Apple.
Samsung opposes largely on the ground that Apple has not exhausted less intrusive methods of discovery, specifically depositions of lower level employees.
E. President and CEO of Samsung Telecommunications America (“STA”)—Dale Sohn
Apple argues that because sales of the accused products make up more than half of STA’s sales, STA’s sales strategies, projections, marketing plans, and profits are all relevant to the remedies Apple seeks to prove. Apple argues that Sohn is responsible for the U.S. market and has unique knowledge regarding Samsung’s positioning to infringe Apple’s intellectual property. Apple argues that Sohn made decisions that contributed directly to the trademark, trade dress, and patent infringement alleged by Apple. Specifically, Apple refers to a series of emails sent by Sohn in which he outlines the goals and implementation strategy for a “Beat Apple” campaign.
Samsung asserts that Sohn oversees over 1,000 employees and three business divisions, and that his deposition is not warranted simply because he makes high-level decisions. Samsung argues that Sohn’s knowledge regarding the design, development, and marketing of the relevant products is based solely on reports received at high-level meetings.
Although Sohn’s communications regarding the “Beat Apple” campaign do not reveal direct involvement in design decisions related to Apple’s patent infringement claims, they do reveal responsibility taken for developing and implementing details of the U.S. market approach, many of which may be relevant to Apple’s trademark claims, as well as to evidence on damages. This includes Sohn’s directive for decisions regarding such product and marketing issues as logo placement to go through STA first, before being brought to the Korea headquarters. This indicates that
F. Chief Financial Officer of STA—Joseph Cheong
Finally, Apple seeks the deposition of Cheong because has unique knowledge of the financial position, profitability, and operations of STA in relation to Samsung Electronics Company. Apple argues that Cheong has the ultimate authority to make decisions that impact STA’s profitability from the sale of the accused products. Apple further argues that because Cheong signs the financial statements and submits them to Samsung’s headquarters in Korea, he takes ultimate responsibility for each statement’s accuracy and contents, and thus is best equipped to testify about them. Apple points to the “Advanced Pricing Agreement,”
Samsung asserts the same general objections to Cheong as it did for Sohn—namely that Cheong does not have any unique, firsthand knowledge as all of his knowledge, and his deposition is not warranted simply because he makes high-level decisions. Samsung concedes that Cheong may have unique knowledge regarding the financial relationship between STA and Samsung Electronics Company, but insists that Cheong does not have unique knowledge of the particular design, development, or marketing of the disputed products that form the core of the present dispute. Samsung contends that Apple has already deposed Samsung’s 30(b)(6) damages designees, and Apply cannot gain any additional, unique information from a potential deposition of Cheong. Finally, Samsung contends that Apple’s standard would subject virtually all senior financial officers to depositions merely because they have knowledge of corporate financial information.
The court finds that the unique financial relationship between SEC and STA, and Cheong’s specific role interfacing between the two entities, supports Apple’s argument regarding unique knowledge. As the court noted earlier, in the context of a multi-na-tional company with many high-level executives, the fact that the named deponent is a chief financial officer factors alongside the relevance and materiality of his knowledge and the availability of other sources of the information being sought. Like that in Kennedy, where the court found that the CEO had relevant personal knowledge because he was identified by other employees as the main decision-maker regarding certain issues that were in dispute,
IV. CONCLUSION
Apple’s motion to compel depositions of Choi, Hong, Cho, Sohn, and Cheong is GRANTED-IN-PART in accordance with the limitations set forth above. Samsung shall offer dates for these depositions, to take
IT IS SO ORDERED.
. Docket No. 736 (PL’s Mot. to Compel Depositions of 14 of Samsung’s Purported Apex Witnesses).
. Docket No. 754 (Def.’s Mot. for Protective Order).
. See Docket No. 736.
. See Docket No. 754 at 4.
. See Docket No. 773 at 2 (Def.'s Opp’n to Pl.’s Mot. to Compel 14 Depositions).
. See Docket No. 799 at (PL's Combined Reply in Support of Mot. to Compel Depos. and Opp’n to Samsung’s Mot. for Protective Order).
. SEC is Samsung’s Korean corporation and parent of Samsung’s U.S. corporations, Samsung Electronics America, Inc. and Samsung Telecommunications America, LLC. See Docket No. 75 at 2 (PL’s Amended Compl.).
. Fed.R.Civ.P. 26(c)(1).
. See Fed.R.Civ.P. 26(c)(1)(A).
. See Fed.R.Civ.P. 26(c)(1)(B).
. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir.2004).
. Celerity, Inc. v. Ultra Clean Holding, Inc., C 05—4374MMC(JL), 2007 WL 205067, at *3 (N.D.Cal. Jan. 25, 2007). See also Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.R.I.1985).
. Fed.R.Civ.P. 26(b)(2)(C)(i).
. In re Google Litig., C 08-03172 RMW (PSG), 2011 WL 4985279, at *2, 2011 U.S. Dist. LEXIS 120905, at *10 (N.D.Cal. Oct. 19, 2011) (citations omitted).
. Celerity, 2007 WL 205067, at *3. See also Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).
. WebSideStory, Inc. v. NetRatings, Inc., 06CV408 WQH (AJB), 2007 WL 1120567, at *2 (S.D.Cal. Apr. 6, 2007).
. Id.; see also In re Google Litig., 2011 WL 4985279, at *2, 2011 U.S. Dist. LEXIS 120905, at *10 (allowing deposition of Chief Executive Officer but denying deposition of President).
. Id.
. In its opening brief, Apple argues generally that Samsung uses mere labels to “paintf] with far too broad a brush” an "apex" objection onto far more witnesses than merit the special protections afforded by the doctrine. See Docket No. 736 at 7.
. See, e.g., Docket No. 736, Ex. 3 (Mazza Deck), Exs. 11, 12 (under seal).
. See, e.g., Mazza Deck Exs. 8, 10 (under seal).
. See id., Ex. 6 (under seal).
. See id., Ex. 6 at 45-52, Ex. 7 at 101-04, Ex. 40 at 89-91 (under seal).
. See Docket No. 799, Ex. 6 at 41 (Depo. Tr. Seogguen Kim) (under seal).
. See Docket No. 819, Ex. 4 (Kassabian Reply Deck), Ex. B at 33-38 (Depo. Tr. Yunjung Lee) (under seal).
. See In re Google Litig., 2011 WL 4985279, at *2, 2011 U.S. Dist. LEXIS 120905, at *11.
. See id.
. See id. at *1, 2011 U.S. Dist. LEXIS 120905, at *8-9.
. See Doble v. Mega Life & Health Ins. Co., C 09-1611 CRB (JL), 2010 WL 1998904, at *3 (N.D.Cal. May 18, 2010).
. Cf. Kennedy v. Jackson Nat’l Life Ins. Co., 2010 WL 1644944, at *2-3, 2010 U.S. Dist. LEXIS 47866, at *7-8 (N.D.Cal. Apr. 22, 2010) (court allowed deposition of CEO because he was the main decision maker in numerous relevant, discrete areas of the company).
. The hours of deposition are subject to the agreement of the parties regarding the calculation of deposition time for translated depositions. See, e.g., Docket No. 683 ¶ 16 (Mazza Deck in Support of Pl.'s Mot. to Compel).
. See Mazza Deck, Ex. 9 (under seal).
. See id., Ex. 17 at 8 (under seal).
. See Docket No. 799, Ex. 4 (Mazza Reply Deck), Ex. 7 at 127, 146-48 (under seal).
. See id., Ex. 15 at 2 (under seal).
. See Mazza Reply Deck, Ex. 12 (under seal).
. See id.., Ex. 7 at 74-77 (under seal).
. Cf. Affinity Labs of Texas v. Apple, Inc., C 09-4436 CW JL, 2011 WL 1753982, at *15 (N.D.Cal. May 9, 2011) (the fact that the witness is a CEO by itself is insufficient to justify taking his deposition); Groupion, LLC v. Groupon, Inc., 11-0870 MEJ, 2012 WL 359699, at *3 (N.D.Cal. Feb. 2, 2012) (denying opportunity to depose CEO and other apex witnesses because evidence that 30(b)(6) witness had not verified his information with them was insufficient to demonstrate their unique, non-repetitive, firsthand knowledge).
. See Mazza Deck, Ex. 22 (under seal).
. See Mazza Reply Deck, Ex. 19 (under seal).
. See id., Ex. 7 at 124-25, 136-37,148-51, 154-55 (under seal).
. See id., Ex. 40 at 88.
. See Mazza Decl., Ex. 34 (under seal).
. See id., Ex. 35 at 4-5 (under seal).
. See Mazza Reply Decl., Ex. 28 (under seal).
. See id.
. See id., Ex. 28 (under seal) ("[s]ince the Galaxy Tab is currently inferior in effect [sic] and emotional aspects compared to the iPad, please show your interest and give ideas on these aspects as well”)
. See Affinity Labs of Texas, 2011 WL 1753982, at *6-7 (the court "required that depositions of lower-level employees must first be taken to establish whether there was a need to depose high-level executives”); Groupion, LLC, 2012 WL 359699, at *4 (plaintiff did not show "that it even attempted less intrusive means of discovery, such as interrogatories or depositions of lower-ranking employees”).
. See First United Methodist Church of San Jose v. Atl. Mut. Ins. Co., No. C-95-2243 DLJ, 1995 WL 566026, at *3, 1995 U.S. Dist. LEXIS 22469, at *8 (N.D.Cal. Sept. 19, 1995).
. See Mazza Decl., Ex. 39 (under seal).
. See Mazza Reply Decl., Ex. 29 (under seal).
. See id., Ex. 41 (under seal).
. See id., Ex. 7 at 36:16-37:6 (under seal).
. See Docket No. 754, Ex. 10 ¶ 5 (Sohn Decl.).
. See Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 103 (S.D.N.Y.2001); Kennedy, 2010 WL 1644944, at *2-3, 2010 U.S. Dist. LEXIS 47866, at *7-8 (the court allowed the deposition of the CEO where other employees testified that the CEO was the person most likely to have the information).
. See Mazza Deck, Ex. 44 (under seal).
. See Kennedy, 2010 WL 1644944, at *2-3, 2010 U.S. Dist. LEXIS 47866, at *7-8.