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. # 109] is before
the Court. In the Motion, Cray moves the Court to compel
Raytheon to (1) provide corporate testimony about two topics
in Cray's Rule 30(b)(6) notice to Raytheon; (2) produce
documents regarding Silicon Graphics, Inc.'s 2007 offer
to purchase the asserted patents; and (3) produce documents
identifying the architecture, features, and revenue from a
system Raytheon sold to the National Oceanic and Atmospheric
reviewing the parties' briefing and hearing arguments of
counsel, Cray's Motion [Dkt. # 109] is GRANTED-IN-PA RT.
Rule 30(b)(6) Topics 40-41
September 2016, Cray served Raytheon with a Rule 30(b)(6)
notice including topics about commercialization and
profitability of Raytheon's systems covered by the
asserted patents. Mayer Decl. [Dkt. # 109-1] ¶ 2. Topic
40 requested testimony about “Raytheon's plans or
attempts to commercialize or otherwise monetize the Alleged
Inventions claimed in the Patents-In-Suit or Related
Patents/Applications.” Id. Topic 41 requested
testimony about “Raytheon's revenues earned and
expenses incurred relating to its development and
commercialization of the Patents-in-Suit and any Covered
Products or Competing Products.” Id.
produced two designees (Jane Chappell and Mark White) who
provided testimony on these topics, but there were questions
they could not answer. Neither, for example, could provide
details about an allegedly covered system Raytheon sold to
the NOAA in 2006. See, e.g., White Dep.
174:20-175:8; Chappell Dep. 196:12-198:15. Both had
difficulty with questions about Raytheon's attempts to
license the asserted patents. See, e.g., Chappell
Dep. 78:19-79:11, 96:4-97:11, 116:3-13; White Dep. 213:14-21
(testifying he didn't know if there were any licensing
fees exchanged under two license agreements). And neither
could identify which Raytheon systems, hardware, and software
were covered by the asserted patents. See, e.g.,
Chappell Dep. 122:13-18; White Dep. 208:23- 209:1.
The Documents at Issue
addition to the 30(b)(6) issue, Cray contends Raytheon has
not produced documents related to the 2006 NOAA sale.
Cray's Mot. [Dkt. # 109] at 2. Raytheon responds that,
prior to the deposition of Chappell, Raytheon produced many
documents describing the patented technology of the NOAA
system. Stringfield Decl. [Dkt. # 116-1] ¶ 14. Following
Chappell's deposition, Raytheon searched its files again
and produced all remaining documents describing patented
technology of the NOAA system. Id. Raytheon also
provided updated financial disclosures, including revenue
numbers related to the NOAA system. Id. ¶ 15.
also contends Raytheon has not produced documents describing
the contemplated 2007 sale of certain technology to Silicon
Graphics, including several documents summarizing proposed
terms of such deal. Id. ¶ 16. Following
Chappell's deposition, Raytheon again searched its files,
but did not find additional documents describing the
contemplated 2007 sale. Id.
most part, Raytheon's most recent responses to these
document requests satisfy Cray, as these issues were not
raised during the Court's hearing on Cray's motion.
There remain, however, two outstanding issues: (1) a written
offer to purchase the asserted patents in 2007 or 2008; and
(2) documents related to Raytheon's licensing efforts.
Hr'g Tr. [Dkt. # 222] 72:8-75:24.
APPLICABLE L AW
served with a Rule 30(b)(6) deposition notice must respond in
one of two ways: (1) designate a person to testify at a
deposition, or (2) move for a protective order. Ferko v.
National Ass'n for Stock Car Auto Racing, Inc., 218
F.R.D. 125, 133 (E.D. Tex. 2003). If the deponent designates
a person to testify, the deponent must prepare that person to
answer the questions posed about the subject matter.
Brazos River Authority v. GE Ionics, Inc., 469 F.3d
416, 433 (5th Cir. 2006) (“The deponent must prepare
the designee to the extent matters are reasonably available,
whether from documents, past employees, or other
sources.”); see also Bowoto v. Chevron Texaco
Corp., No. C 99-02506 SI, 2006 WL 294799, at *1 (N.D. Cal.
Feb. 7, 2006) (“The corporation has a duty to
educate its witnesses so they are prepared to fully answer
the questions posed at the deposition.”). If a designee
is unable to adequately respond to relevant questions on
listed subjects, the responding corporation has a duty to
timely designate additional, supplemental witnesses as
substitute deponents. Marker v. Union Fid. Life Ins.
Co., 125 F.R.D. 121, 127 (M.D. N.C. 1989).
documents, a party may obtain discovery regarding any
non-privileged documents relevant to any party's claims
or defenses and proportional to the needs ...