Microsoft Corporation v. A&s Electronics, Inc. et al

Northern District of California, cand-4:2015-cv-03570

ORDER RE: DISCOVERY DISPUTE. Signed by Judge Yvonne Gonzalez Rogers on 9/1/16.

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 MICROSOFT CORPORATION, 6 Case No. 15-cv-03570-YGR Plaintiff, 7 ORDER RE: DISCOVERY DISPUTE v. 8 DKT. NO. 67 A&S ELECTRONICS, INC., ET AL., 9 Defendants. 10 11 The parties submitted their joint discovery letter on August 30, 2016, seeking resolution of 12 a dispute concerning the scope of discovery authorized by the Court in connection with the Northern District of California United States District Court 13 parties' cross-motions for summary judgment on the issue of whether the initial transfer of the two 14 software product keys alleged in the Third Amended Complaint ("TAC") was license, not a sale 15 for purposes of the first sale doctrine. The Court reviewed the dispute and exhibits, and conducted 16 a phone conference with counsel on September 1, 2016. 17 As a general matter, and based upon the limited early summary judgment motions 18 authorized by the Court on the issue of whether the software at issue in this action was obtained by 19 the initial holder under a license or a sale for purposes of the first sale doctrine, the Court ORDERS 20 that discovery at this phase of the case is limited to Defendants' purchase and/or acquisition of the 21 two particular products alleged in the TAC at paragraphs 19-29, 30-36, and Exhibits 9 and 11. 22 (1) Microsoft has agreed to limit its requests stated in its Rule 30(b)(6) Deposition notice, 23 request for production of documents, and interrogatories to these two transactions, and the Court 24 so orders. Thus, for example, in the Rule 30(b)(6) deposition notice, Topics 1 and 2 are 25 appropriate to the extent they are limited to A&S's purchase of the product key/software, while 26 Topics 3-19 are overbroad and not authorized at this point in the case to the extent they inquire 27 about the stated subjects beyond the two specific transactions and identified product keys as 28 alleged in the TAC. 1 (2) With respect to the subpoena directed to FBT/Flashback Technologies, the 2 deposition may proceed as to Topics 1, 2, 4, 5, 6, 7, 12, and 13. The deposition with respect to 3 Topics 3, 8, 9, 10, and 11 is limited to such topics to the extent they pertain to the purchase and/or 4 acquisition, sale and/or distribution of the "Microsoft Office 2013 Professional Plus 32/64-Bit 5 Promo Full Version DVD with Product Key" alleged in Paragraphs 19-29 and Exhibit 9 of the 6 TAC, specifically key card 9NR4X-RW376-B7FG9-HDFKT-BPXKQ ("Product Key 1"). 7 Likewise, the document requests may proceed as to Requests 1, 2, 4, 5, 6, 7, 12 and 13, but are 8 permitted with respect to Requests 3, 8, 9, 10, and 11 only to the extent they pertain to Product 9 Key 1. 10 (3) With respect to the subpoena directed to Jon Cossin, the deposition inquiry is limited 11 to the purchase and/or acquisition, sale and/or distribution of Product Key 1. The document 12 requests may proceed as to Requests 1, 2, 4, 5, 6, 7, 12, and 13, but are permitted with respect to Northern District of California United States District Court 13 Requests 3, 8, 9, 10, 11, 14, 15, and 16 only to the extent they pertain to Product Key 1. 14 (4) With respect to the subpoena directed to FBT/Flashback Technologies World 15 Trading Inc., the deposition may proceed as to Topics 1, 2, 4, 5, 6, 7, 12, and 13. The deposition 16 with respect to Topics 3, 8, 9, 10, and 11 is limited to such topics to the extent they pertain to the 17 purchase and/or acquisition, sale and/or distribution of the "Microsoft Office Professional 2010 18 Product Key" alleged in Paragraphs 30-36 and Exhibit 11 of the TAC, product key 2KMPF- 19 7CYYW-6WQRR-Q6QJM-BQ8H3 ("Product Key 2"). Likewise, the document requests may 20 proceed as to Requests 1, 2, 4, 5, 6, 7, 12 and 13, but are permitted with respect to Requests 3, 8, 21 9, 10, and 11 only to the extent they pertain to Product Key 2. 22 Therefore, the Court ORDERS that discovery is limited as set forth above. This order is 23 without prejudice to any party seeking such discovery later in the case, after the initial summary 24 judgment on the license issue has been decided. 25 IT IS SO ORDERED. 26 Dated: September 1, 2016 27 ______________________________________ YVONNE GONZALEZ ROGERS 28 UNITED STATES DISTRICT COURT JUDGE 2