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Raytheon Co. v. Cray, Inc.

United States District Court, E.D. Texas, Marshall Division

June 19, 2017

RAYTHEON COMPANY, Plaintiff,
v.
CRAY, INC., Defendant.

          MEMORANDUM AND ORDER

          ROY S. PAYNE UNITED STATES MAGISTRATE JUDGE.

         Cray's 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 Administration (NOAA).

         After reviewing the parties' briefing and hearing arguments of counsel, Cray's Motion [Dkt. # 109] is GRANTED-IN-PA RT.

         I. BACKGROUND

         A. Rule 30(b)(6) Topics 40-41

         In 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.

         Raytheon 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.

         B. The Documents at Issue

         In 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.

         Cray 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.

         For the 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.

         II. APPLICABLE L AW

         A party 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).

         Concerning documents, a party may obtain discovery regarding any non-privileged documents relevant to any party's claims or defenses and proportional to the needs ...


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