United States District Court, E.D. Texas, Marshall Division
MEMORANDUM AND ORDER
PAYNE UNITED STATES MAGISTRATE JUDGE.
Motion to Compel 30(b)(6) Testimony [Dkt. # 105] is before
the Court. Initially, Cray moved the Court to compel Raytheon
to designate a witness with knowledge of certain topics
identified in Cray's September 2016 Rule 30(b)(6) notice.
Cray later narrowed the scope of relief it finds sufficient
to 30(b)(6) testimony on one topic: Why certain Cray systems
were not disclosed to the USPTO during prosecution of the
asserted patents. Hr'g Tr. (Feb. 9, 2017) 45:6-11. For
simplicity, the Court refers to this topic as Topic
Court GRANTS Cray's Motion [Dkt. # 105] with respect to
Topic 16 and, in light of Cray's narrowing of the scope
of relief it seeks, DENIES the remainder of Cray's Motion
September 2016, Cray served Raytheon with a Rule 30(b)(6)
notice partly directed to the asserted patents. Kohm Decl.
[Dkt. # 105-1] ¶ 2. Specifically, Cray sought
Raytheon's testimony concerning (1) the development and
patenting of the inventions claimed in the asserted patents
(Topics 2, 6, 7, 16, and 17), and (2) prior art related to
the asserted patents (Topics 15-19). Id. ¶ 3.
Raytheon refused to provide a corporate witness for these
topics. Raytheon claimed (1) the topics were better suited
for other types of discovery, and (2) discovery on the topics
was cumulative given that Raytheon had already provided
detailed responses to Cray's interrogatories on these
issues. Stringfield Decl. [Dkt. # 115-1] ¶ 9; see
also Kohm Decl. [Dkt. # 105-1] ¶ 5.
after Cray filed its motion-Raytheon provided Mark White to
testify on these topics on its behalf. Stringfield Decl.
[Dkt. # 115-1] ¶ 4. But after White's deposition,
Cray refused to withdraw its motion as moot because it
claimed White was not adequately prepared to testify.
See, e.g., Hr'g Tr. (Feb. 9, 2017) 34:20-35:5.
As an example, Cray referred to this testimony concerning its
Red Storm system:
Q. Let me ask you this: As Raytheon's witness on this
A. Yes, sir.
Q.--knowledge of the prior art, reasons for disclosing or not
disclosing prior art to the patent office, do you have any
affirmative testimony to provide regarding Raytheon's
reasons for not disclosing Red Storm?
A. We would have disclosed it had we thought it was material
and had access to that material.
Q. And who did you talk to to support that position?
A. No, that's our standard company policy.
Q. All right. But you didn't talk to anyone involved in
the actual prosecution of the '909 patent to make that
A. No, ...