Brocade Commc'ns Sys. v. A10 Networks, Inc.
Brocade Commc'ns Sys. v. A10 Networks, Inc.
2012 WL 13234020 (N.D. Cal. 2012)
April 6, 2012
Ambler, Read (Ret.), Special Master
Summary
The Court ordered Plaintiffs to produce the Meckley hard drive, but denied the motion to compel A10 to produce the hard drive. The Court also denied Plaintiffs' motion to strike portions of Dr. Tygar's expert report, as his interpretations were not improper. The Court set out a schedule for the depositions of Plaintiffs' and Defendants' experts.
Additional Decisions
BROCADE COMMUNICATIONS SYSTEMS, INC., a Delaware corporation, and FOUNDRY NETWORKS, LLC, a Delaware limited liability company, Plaintiffs and Counterclaim Defendants,
v.
Al 0 NETWORKS, INC., a California corporation; LEE CHEN, an individual; RAJKUMAR JALAN; an individual; RON SZETO, an individual; DAVID CHEUNG, an individual; LIANG HAN, an individual; and STEVEN HWANG, an individual, Defendants and Counterclaimants
v.
Al 0 NETWORKS, INC., a California corporation; LEE CHEN, an individual; RAJKUMAR JALAN; an individual; RON SZETO, an individual; DAVID CHEUNG, an individual; LIANG HAN, an individual; and STEVEN HWANG, an individual, Defendants and Counterclaimants
Case No. 10-cv-03428 LHK
United States District Court, N.D. California
Filed April 06, 2012
Counsel
Matthew Herman Poppe, Rimon, P.C., Bas de Blank, Denise Marie Mingrone, Gary Evan Weiss, Elizabeth Cincotta McBride, Orrick, Herrington & Sutcliffe LLP, Menlo Park, CA, Allen Ruby, Attorney at Law, Los Gatos, CA, Annette L. Hurst, Orrick, Herrington & Sutcliffe LLP, Nitin Gambhir, Hogan Lovells US LLP, San Francisco, CA, Christina Marie Von der Ahe Rayburn, Law Office of Christina Von der Ahe Rayburn, Mission Viejo, CA, Daniel Justin Weinberg, Freitas Angell and Weinberg LLP, Redwood Shores, CA, Fabio Elia Marino, Teri H.P. Nguyen, Polsinelli LLP, Palo Alto, CA, Siddhartha M. Venkatesan, GE Digital, San Ramon, CA, for Plaintiffs and Counterclaim Defendants.Edward Robert Yoches, Finnegan Henderson Farabow, et al., Joshua Lawrence Goldberg, Pro Hac Vice, Smith R. Brittingham, IV, Pro Hac Vice, John F. Hornick, Pro Hac Vice, Naresh Kilaru, Pro Hac Vice, Finnegan, Henderson, Farabow, Garrett and Dunner, LLP, Washington, DC, Elliot Brown, David Nimmer, Hong Annita Zhong, Morgan Chu, Ryan Alexander Ward, Dominik B. Slusarczyk, Irell & Manella LLP, Jessica Claire Kronstadt, Mark A. Flagel, Robert Steinberg, Latham & Watkins LLP, Jonathan Michael Jackson, Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C., Los Angeles, CA, Scott Richard Mosko, Intuitive, Sunnyvale, CA, Dean Geoffrey Dunlavey, Latham & Watkins, Costa Mesa, CA, Jacob Adam Schroeder, Scott Alan Herbst, Jeffrey D. Smyth, Finnegan Henderson Farabow Garrett & Dunner, LLP, Shaobin Zhu, Morgan Lewis & Bockius LLP, Palo Alto, CA, Lionel M. Lavenue, Finnegan Henderson Farabow Garrett & Dunner, LLP, Reston, VA, William Sloan Coats, III, Novak Druce Connolly Bove + Quigg LLP, San Francisco, CA, William Brownell Dyer, III, Pro Hac Vice, Finnegan LLP, Atlanta, GA, for Defendant and Counterclimant A10 Networks, Inc.
Edward Robert Yoches, Finnegan Henderson Farabow, et al., Joshua Lawrence Goldberg, Pro Hac Vice, Smith R. Brittingham, IV, Pro Hac Vice, John F. Hornick, Pro Hac Vice, Naresh Kilaru, Pro Hac Vice, Finnegan, Henderson, Farabow, Garrett and Dunner, LLP, Washington, DC, H. Ann Liroff, Farbstein & Blackman, a Professional Corporation, San Mateo, CA, Scott Richard Mosko, Intuitive, Sunnyvale, CA, Dominik B. Slusarczyk, Los Angeles, CA, Jacob Adam Schroeder, Scott Alan Herbst, Jeffrey D. Smyth, Finnegan Henderson Farabow Garrett & Dunner, LLP, Shaobin Zhu, Morgan Lewis & Bockius LLP, Palo Alto, CA, Lionel M. Lavenue, Finnegan Henderson Farabow Garrett & Dunner, LLP, Reston, VA, William Sloan Coats, III, Novak Druce Connolly Bove + Quigg LLP, San Francisco, CA, William Brownell Dyer, III, Pro Hac Vice, Finnegan LLP, Atlanta, GA, for Defendant and Counterclimant Lee Chen.
Edward Robert Yoches, Finnegan Henderson Farabow, et al., Joshua Lawrence Goldberg, Pro Hac Vice, Smith R. Brittingham, IV, Pro Hac Vice, John F. Hornick, Pro Hac Vice, Naresh Kilaru, Pro Hac Vice, Finnegan, Henderson, Farabow, Garrett and Dunner, LLP, Washington, DC, Scott Richard Mosko, Intuitive, Sunnyvale, CA, Fabio Elia Marino, Polsinelli LLP, Jacob Adam Schroeder, Scott Alan Herbst, Jeffrey D. Smyth, Finnegan Henderson Farabow Garrett & Dunner, LLP, Shaobin Zhu, Morgan Lewis & Bockius LLP, Palo Alto, CA, Lionel M. Lavenue, Finnegan Henderson Farabow Garrett & Dunner, LLP, Reston, VA, William Sloan Coats, III, Novak Druce Connolly Bove + Quigg LLP, San Francisco, CA, William Brownell Dyer, III, Pro Hac Vice, Finnegan LLP, Atlanta, GA, for Defendant and Counterclimant Rajkumar Jalan.
Edward Robert Yoches, Finnegan Henderson Farabow, et al., Joshua Lawrence Goldberg, Pro Hac Vice, Smith R. Brittingham, IV, Pro Hac Vice, John F. Hornick, Pro Hac Vice, Naresh Kilaru, Pro Hac Vice, Finnegan, Henderson, Farabow, Garrett and Dunner, LLP, Washington, DC, Scott Richard Mosko, Intuitive, Sunnyvale, CA, Jacob Adam Schroeder, Scott Alan Herbst, Jeffrey D. Smyth, Finnegan Henderson Farabow Garrett & Dunner, LLP, Shaobin Zhu, Morgan Lewis & Bockius LLP, Palo Alto, CA, Lionel M. Lavenue, Finnegan Henderson Farabow Garrett & Dunner, LLP, Reston, VA, William Sloan Coats, III, Novak Druce Connolly Bove + Quigg LLP, San Francisco, CA, William Brownell Dyer, III, Pro Hac Vice, Finnegan LLP, Atlanta, GA, for Defendant and Counterclimant Ron Szeto.
Joseph Ehrlich, Losch Ehrlich & Meyer, San Francisco, CA, Fabio Elia Marino, Polsinelli LLP, Palo Alto, CA, for Defendant and Counterclimant Liang Han.
Edward Robert Yoches, Finnegan Henderson Farabow, et al., Joshua Lawrence Goldberg, Pro Hac Vice, Naresh Kilaru, Pro Hac Vice, Finnegan, Henderson, Farabow, Garrett and Dunner, LLP, Washington, DC, Jacob Adam Schroeder, Scott Alan Herbst, Jeffrey D. Smyth, Finnegan Henderson Farabow Garrett & Dunner, LLP, Shaobin Zhu, Morgan Lewis & Bockius LLP, Palo Alto, CA, Scott Richard Mosko, Intuitive, Sunnyvale, CA, William Sloan Coats, III, Novak Druce Connolly Bove + Quigg LLP, San Francisco, CA, William Brownell Dyer, III, Pro Hac Vice, Finnegan LLP, Atlanta, GA, for Defendant and Counterclimant Steve Hwang.
Ambler, Read (Ret.), Special Master
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' APRIL 2, 2012 MOTION FOR RELIEF REGARDING OUTSTANDING DISCOVERY DISPUTES
*1 On April 2, 2012, Plaintiffs and Counter-Defendants Brocade Communications Systems, Inc. (“Brocade”) and Foundry Networks (“Foundry”) (collectively, “Plaintiffs”) submitted a motion for relief regarding outstanding discovery. Defendants and Counterclaimants A10 Networks, Inc. (“A10”), Lee Chen, Rajkumar Jalan, Ron Szeto, David Cheung, Liang Han, and Steven Hwang (collectively, “Defendants”) have submitted an opposition to the motion. A hearing was held on April 6, 2012. The Special Master has considered the submissions and arguments of counsel and rules as follows:
Discussion
I. Meckley Hard Material
Plaintiffs move to compel A10's production of the forensic image of the Meckley hard drive in its control.
A. Background
1. Plaintiffs' Prior Motion Re the Meckley Hard Drive
Plaintiffs' March 12, 2012 motion sought production from A10 of a hard drive used by Bryan Meckley, a former Foundry engineer currently employed by A10. Meckley had testified during his deposition that a week before he left Brocade, he “backed up” Plaintiffs' documents onto a Toshiba external USB hard drive, and that he kept the drive and used the drive while employed by A10 for “reference” and to “answer questions” regarding the “features and functionality” of Plaintiffs' ServerIron product (which competes with A10's AX Series product) after arriving at A10. Plaintiffs' motion offered evidence that Meckley had given the drive to A10's counsel around two weeks before his February 24, 2012 deposition as part of A10's effort to preserve relevant evidence, that Plaintiffs demanded the immediate production of the hard drive during the deposition, and that Al0's counsel claimed the hard drive had been given to Meckley's personal counsel, Joseph Ehrlich, prior to the deposition.
Plaintiffs argued that prior to being given to Meckley's personal counsel, the Meckley hard drive was in A10's possession, custody or control, and thus A10 had an ongoing responsibility to produce the hard drive. In opposition, A10 asserted that it did not have possession of the hard drive.
On March 21, 2012, Plaintiffs' motion to compel A10's production of the Meckley hard drive was denied on the ground that Plaintiffs had failed to establish that A10 had sufficient control over Meckley's hard drive to compel A10 to produce the hard drive. The order further provided that:
However, good cause having been shown, Plaintiffs are hereby given leave, on shortened time, to propound appropriate discovery upon Meckley so as to obtain the hard drive and/or or all relevant, non-privileged documents located on the hard drive directly from Meckley. Upon receipt of this order, counsel for Plaintiffs and counsel for Meckley shall meet and confer in order to resolve this issue without the issuance of a subpoena by Plaintiffs.
2. Events Subsequent to the March 21, 2002 Order
On March 21, 2012, counsel for Plaintiffs sent a meet and confer letter to Meckley's counsel requesting that Meckley immediately produce the drive described in the March 21st order. Marino Decl., Ex. I. On March 22, 2012, counsel for Meckley noted that the March 21st order did not order Meckley to produce the drive, and instead required plaintiff to propound appropriate discovery to obtain the drive. Id., Ex. J. In response, counsel for Plaintiffs noted the requirement that the parties meet and confer in order to resolve the issue without a subpoena, and requested that Meckley voluntarily produce the drive. Id.
*2 On March 23, 2012, counsel for Meckley sent an email to counsel for Plaintiffs wherein he noted what he had said in an earlier voicemail. Counsel for Meckley advised counsel for Plaintiffs inter alia that: (1) the drive “contains not only Brocade/Foundry folders/files, but also contains personal items such as his taxes, and other highly personal matters;” (2) we will extract all Brocade/Foundry folders/files from the USB device and put them on a separate disk and produce them as soon as we can; (3) the USB device also contains Meckley's A10 work files; (4) to the extent you want us to search Meckley's A10 files, you need to provide me with specific requests; and (5) we are moving forward with extracting the relevant folders/files from the USB device and need your assistance to the extent you want us to search Meckley's USB device for any post Brocade/Foundry employment items. Marino Decl., Ex. J. The email also again indicated that the March 21st order required Plaintiffs to propound appropriate discovery upon Meckley. Id.
On March 23, 2012, counsel for Plaintiffs telephonically met and conferred with counsel for Meckley. Marino Decl., ¶ 5. “During this conference, Mr. Ehrlich informed me that he was not in possession of the original Toshiba hard drive belonging to Mr. Meckley.” Id. “Instead, Mr. Ehrlich informed me that A10's counsel Scott Herbst provided him with what he believed to be a forensic image of the original Toshiba hard drive.” Id. Exhibit D to the Marino declaration is a “copy of the email correspondence summarizing that conference.” Id. A review of exhibit D, however, reveals that it contains the same email communications as exhibits I and J to the Marino declaration.
On March 25, 2012, counsel for Plaintiffs emailed counsel for Meckley, first noting that the parties had talked about the case on March 23rd. See Marino Decl., Exs. D and J. In the email, counsel for Plaintiffs asserted that “it is essential that Mr. Meckley take appropriate forensic measures to preserve the evidence on the USB device,” which would include “making a forensic image of the device and then extracting/searchmg for the requested information on the forensic image and not the USB device itself, as doing otherwise will likely destroy discoverable electronic evidence.” Marino Decl., Ex. J. The email further stated that during a prior phone conversation:
You stated your belief that a forensic image of the USB device had already been created by Scott Herbst and that you had received that image from Scott, but I asked you to confirm that and you agreed to do so. I also requested that you provide us with the list of folders and subfolders stared on the USB device to facilitate our efforts to meet and confer on what documents, in addition to the ones you have already agreed to produce, you would search for and produce. You stated that you would look into that and get back to me. Finally, I requested that the “Brocade/Foundry folders/files” you already agreed to produce be produced in native format with all metadata preserved. I will follow-up with you next week.
Id.
On March 28, 2012, counsel for Meckley sent an email to counsel for Plaintiffs stating that:
In an effort to streamline the production from the Meckley Toshiba drive, we have extracted the files that appear to have been created in the course of Mr. Meckley's activities while at Foundry/Brocade. Instead of performing an analysis as to whether any of these files is “relevant,” we are producing all of them in hopes that this will resolve the issues identified in Judge Ambler's Order. If you have questions, please let me know.
Regarding your request for meta data, I recently reviewed an Order from Judge Koh. That Order provides that a limited request for meta data as it concerns specific files should be produced. If you are still interested in meta data, please let me know which files in the soon-to-be delivered hard drive you are interested in. We will work toward producing those, assuming you identify a reasonable number.
*3 Marino Decl., Ex. J. On March 30, 2012, counsel for Plaintiffs responded by an email asking counsel for Meckley to confirm that: (1) the files you have extracted are being produced today; (2) a forensic image of the Meckley hard drive has been created so that no electronic evidence is being destroyed; and (3) you will produce today the folders/files list that I requested in my earlier emails.” Id.
On April 2, 2012, counsel for Meckley sent an email to counsel for Plaintiffs stating that:
As I advised you by email on March 28, we have extracted the files that appear to have been created in the course of Mr. Meckley's activities while at Brocade/Foundry.
We have an encrypted (Truecrypt) Toshiba USB 2.0 Portable Hard Drive available for you for immediate pick up at our reception desk.
The password for the hard drive is:...
If you prefer, we can have someone deliver it to Orrick's San Francisco office tomorrow, or it can be delivered to your or Orrick's offices in Palo Alto on Wednesday.
Further, no electronic evidence has been destroyed.
Marino Decl., Ex. K.
B. Production of the Meckley Hard Drive by A10
Plaintiffs contend that: (1) contrary to A10's statement in opposition to the prior motion, A10 has at all times been in possession of a forensic image of Mr. Meckley's hard drive (citing Marino DecL, ¶ 5 and Ex. D); (2) Meckley's production of documents from the drive “does not comply with the Special Master's order for meet and confer with the aim of production of all responsive documents;” and (3) A10's possession of the forensic image, and Ehrlich's repeated concessions that the evidence must be preserved, demonstrate A10's ongoing control of the contents of the drive in addition to its actual possession thereof.
In opposition A10 contends that the motion should be denied because it has already been denied once by the Special Master, and A10 does not have that drive. A10 asserts that: (1) Plaintiffs' motion fails to comply with Civil L.R. 7-9; and (3) Plaintiffs have not propounded discovery on Meckley, and Meckley's counsel has produced the files sought by the motion.
Cilvil L.R.7-9(a) provides that:
Before the entry of a judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case, any party may make a motion before a Judge requesting that the Judge grant the party leave to file a motion for reconsideration of any interlocutory order made by that Judge on any ground set forth in Civil L.R. 7-9 (b). No party may notice a motion for reconsideration without first obtaining leave of Court to file the motion.
The March 21st order denied Plaintiffs' motion to compel A10 to produce the Meckley hard drive. Although not so entitled, Plaintiffs' current motion to compel A10 to produce the Meckley hard drive is in fact a motion for reconsideration of the March 21st order. Plaintiffs, however, did not seek leave to file the present motion as to the Meckley drive prior. As a result, Plaintiffs' motion (as to the Meckley drive) is procedurally improper. Undoubtedly, time is of the essence in this matter, and the parties have fully briefed the issue. In the event that Plaintiffs' present motion offered compelling evidence that, contrary to the assumption of the prior order, A10 is in possession of the Meckley drive, or has control over the drive, the Special Master likely would have addressed the renewed motion on its merits.
*4 The record presented by Plaintiffs, however, is not compelling. Paragraph 5 of the Marino declaration perhaps raises a suggestion that A10 is actually in possession of the drive or a copy thereof, but a careful review of the evidence purportedly supporting counsel's declaration testimony, i.e., the meet and confer correspondence between counsel for Plaintiffs and counsel for Meckley, does not support Plaintiffs' assertion that A10 is in possession or control of a copy of the drive. Moreover, Plaintiffs' motion reveals that Plaintiffs did not comply with the prior order. Plaintiffs were given leave to propound appropriate discovery on Mr. Meckley, but were also ordered to meet and confer in attempt to avoid the need for such discovery. The order does not provide that a failure to resolve the dispute during meet and confer would allow Plaintiffs to renew their motion. Indeed, the record reveals that the meet and confer discussions resulted in production of documents from the drive by Meckley. Plaintiffs' motion, however, is silent with respect to the nature of the production, and any problems Plaintiffs have with the production. Moreover, Plaintiffs' request for meta data during the meet and confer discussions appears to be directly at odds with a prior order by the Court on this subject.
Consistent with the foregoing, Plaintiffs' motion to compel A10 to produce the Meckley drive is DENIED. To the extent that Plaintiffs desire additional documents or information from the drive, or good cause exists for production of a forensic copy of the drive, Plaintiffs shall engage in further meet and confer discussions with counsel for Meckley. In the event that these discussions are unsuccessful, Plaintiffs shall, as required by the prior order, propound appropriate discovery upon Meckley.
II. Expert Deposition Schedule
On March 26, 2012, counsel for Plaintiffs met and conferred with counsel for Defendants telephonically in order to propose deposition dates for Plaintiffs' experts. Marino Decl., ¶ 14. Counsel for Plaintiffs offered:
Dr. Izhak Rubin on April 12
Dr. Bestavaros on April 14
Dr. Samuel Rubin on April 17
Dr. Zeidman on April 18
Dr. Malakowski on April 23.
Id.
On March 28, 2012, counsel for Plaintiffs sent an email to counsel for Defendants regarding expert depositions. Marino Decl., Ex. M. Counsel for Plaintiffs first noted that all expert depositions would occur in the Bay Area, and that he had provided Defendants with available dates for some of Plaintiffs' experts. Id. Counsel further asked counsel for Defendants to provide available dates for A10's expert as soon as possible. Id. Counsel for Plaintiffs stated that he wanted to confirm dates for well in advance of April 9th, if possible. Id.
Shortly after Plaintiffs served their initial expert reports on March 30, 2012, counsel for A10 (Mr. Mosko) had a conversation with counsel for Plaintiffs (Mr. Marino). Mosko Decl., ¶ 6. “Mr. Marino provided me with proposed dates for Plaintiffs' experts' deposition.” Id. The dates Mr. Marino provided me were as follows:
Mr. Rubin: April 12
Mr. Bestavros: April 13 or 14
Mr. Malackowski: April 23
Mr. Zeidman: April 18
Id. “Later, Mr. Marino advised that the Expert who wrote the Stroz Friedberg report [Mr. Rubin] was available on April 17.” Mosko Decl., ¶ 6. “I told Mr. Marino I would confirm with him whether the dates he offered were acceptable, and would work on a schedule for A10's experts.” Id. “I expected to provide him with my response during the week of April 2, 2012.” Id.
Plaintiffs assert that: (1) pursuant to the Court's order, expert depositions must take place between April 11 and April 25; (2) A10 has refused to provide a single date for any of its experts; and (3) Plaintiffs have offered deposition dates for all of its experts, yet A10 has not confirmed them. Plaintiffs' motion proposes the following schedule for the depositions of Plaintiffs' experts:
Dr. Izhak Rubin: April 12
Dr. Bestavros: April 14 (to provide a brief break after the April 12th deposition)
Dr. Samuel Rubin: April 17
Dr. Zeidman: April 18.
Dr. Malackowski: April 23
Plaintiffs contend that A10 should be ordered to confirm an expert deposition by no later than April 6th. Plaintiffs further request that if A10 chooses to have a single expert on all patent invalidity, non-infringement, and trade secrets, Brocade should be provided two deposition days for this expert, as A10 will equally have the opportunity to depose Plaintiffs' two experts for a day each on these same topics.
*5 In opposition, with respect to the depositions of Plaintiffs' experts, Defendants assert that the Bestavros deposition should proceed on April 13th, and based thereon, confirm the following dates for the depositions of Plaintiffs' experts:
Dr. Izhak Rubin: April 12 at Finnegan Palo Alto beginning at 9:00 A.M.
Mr. Bestavros: April 13 at Finnegan Palo Alto beginning at 9:00 A.M.
Samuel Rubin: April 17 at Finnegan Palo Alto beginning at 9:00 A.M.
Mr. Zeidman: April 18 at Finnegan Palo Alto beginning at 9:00 A.M.
Mr. Malackowski: April 23 at Finnegan Palo Alto beginning at 9:00 A.M.
With respect to Defendants' experts, Defendants assert that its motion requests production of the tool relied upon by Dr. Zeidman and the forensic images reviewed by Samuel Rubin, and assuming the Special Master grants these requests, and the corresponding requests delaying rebuttal reports to the Zeidman and Malackowski reports, “A10 will serve its rebuttal reports consistent with the Special Master's Order and offer deposition dates for its experts concerning these issues.” Defendants assert that subject to the Special Master resolving these issues, A10 has confirmed the following dates for its experts:
Mr. Kalusner:April 17 at Orrick Menlo Park beginning at 9:00 A.M.
Dr. Tygar: April 19 at Orrick Menlo Park beginning at 9:00 A.M.
Ms. Dean: April 25 at Orrick Menlo Part beginning at 9:00 A.M.
Finally, with respect to Plaintiffs' request that “they be granted more than the normal 7 hours allotted for deposition, that request must be denied.” Defendants assert that at this time, A10 expects to serve opinions from more than one expert to address the patent and trade secret issues.
In light foregoing, there appears to be a single dispute with respect to the depositions of Plaintiffs' experts, i.e., the date of the Bestavros deposition. Based upon the record presented, the Special Master finds that the Bestavros deposition shall proceed on a weekday, and thus April 13th shall be the date for the deposition. With respect to the depositions of Defendants' experts, there are two issues: (1) a rebuttal report and deposition date in response to the Zeidman report; and (2) a rebuttal report and deposition date in response to the Samuel Rubin report. For the reasons noted in the Special Master's April 6th order regarding Defendants' motion for order regarding Plaintiffs' expert reports, Defendants are not entitled to relief related to the tool relied upon by Dr. Zeidman. Accordingly, Defendants shall provide a date for the Zeidman rebuttal report and a date for the deposition of that expert consistent with the relevant prior orders by noon on April 9, 2012. With respect to the forensic images reviewed by Samuel Rubin, as noted in the order regarding Defendants' motion, A10's rebuttal report shall be due two weeks after Plaintiffs' production of materials pursuant to paragraph 7 (as modified by the Special Master) of the protocol proposed by Plaintiffs. The deposition of the expert who submits the rebuttal report shall occur between 5-7 calendar days after the rebuttal report is provided to Plaintiffs. Finally, in the event that Defendants offer a single expert to address the patent and trade secret issues, Plaintiffs shall be entitled to 14 hours of deposition time for that witness.
*6 Consistent with the foregoing, Plaintiffs' request for an order requiring A10 to confirm a complete expert deposition schedule no later than April 6, 2012 is GRANTED IN PART AND DENIED IN PART.
III. Tygar Report
On August 26, 2011, the parties submitted a Joint Claim Construction Statement outlining their proposed claim constructions. Marino Decl., Ex. N. The Joint Claim Construction Statement identified a large number of disputed claim terms. The parties subsequently sought construction of 10 disputed terms (five selected by each party) used in the claims of eight of the patents-in-suit. Id., Ex. O. On January 6, 2012, the Court issued an order construing the 10 disputed claim terms. Id., Ex. O.
On February 6, 2012, Defendants submitted a statement regarding issues to be discussed during a February 8, 2012 Case Management Conference (“CMC”). Marino Deel., Ex. P. With respect to potential issues to be tried, Defendants stated that “[o]n January 31, 2012, Brocade identified ten claims from six different patents for the July trial. The court has construed only three terms from two of the patents. Seven terms from the six patents remain disputed and have not yet been construed.” Id. at 3. On February 7, 2012, the Court issued an order regarding the parties February 6th submission which provided in pertinent part that “[t]he Court will not construe any more patent terms before trial.” Marino Decl., Ex. Q.
On March 23, 2012, Plaintiffs provided Defendants with the expert report of Justin Tygar, Ph.D. See Marino Decl., Ex. Q. The report, inter alia, offers opinions on the proper construction of a number of the dispute claim terms contained in the parties' Joint Claim Construction Statement which were not construed by the Court on January 6, 2012. Id.
Plaintiffs contend that “A10 now seeks to force the Court's hand by setting forth proposed claim construction for these very terms in its technical expert report, in clear violation of the Court's previous orders to the contrary,” and request that “the Court strike those portions of Dr. Tygar's report that set forth or argue these unauthorized constructions,” citing Marino Decl. Ex. R, which Plaintiffs assert “is a red-lined version of Dr. Tygar's report highlighting the instances where he improperly addresses claim constructions other than those adopted by the Court.”
Defendants contend that the Special Master should not strike Dr. Tygar's opinions regarding claim interpretation. Defendants assert that the timing of such constructions cannot possibly make Dr. Tygar's opinions about certain claim terms irrelevant. Defendants assert that Dr. Tygar's report addresses the reasons why the Court should conclude that the asserted patents are invalid, and to support his opinions, offers his interpretation of certain terms that the Court has not construed. Defendants assert that: (1) the Court will eventually have to construe these terms, and can even do so after trial; (2) if the Court construes the terms before trial, Dr. Tygar will not testify about their constructions; (3) otherwise, he needs to explain the basis for his opinions of invalidity; (4) Plaintiffs fail to cite any order from which these interpretations could possibly be “unauthorized;” (5) the Court's order cited by Plaintiffs does not relieve the parties from serving complete expert reports that include all bases for such reports; and (6) Plaintiffs are free to rebut Dr. Tygar's interpretations in their rebuttal reports.
*7 In brief, Plaintiffs have failed to identify any violation of the Court's prior orders. Dr. Tygar's expert report offers his opinions as to why the asserted patents should be declared invalid. To support his opinions, Dr. Tygar offers interpretations of terms not previously construed by the Court. Such interpretations are not improper. Accordingly, Plaintiffs' motion to strike portions of Dr. Tygar's expert report is DENIED.
ORDER
For the reasons set forth above,
1. Plaintiffs' motion to compel A10 to produce the Meckley hard drive is denied.
2. Plaintiffs' request for an order requiring A10 to confirm a complete expert deposition schedule no later than April 6, 2012 is granted in part and denied in part.
3. Plaintiffs' expert depositions shall proceed at 9:00 a.m. at the Finnegan office in Palo Alto as follows:
Dr. Izhak Rubin: April 12
Mr. Bestavros: April 13
Samuel Rubin: April 17
Mr. Zeidman: April 18
Mr. Malackowski: April 23
4. Defendants' expert depositions shall proceed at 9:00 a.m. at Orrick office in Menlo Park as follows:
Mr. Klausner: April 17
Dr. Tygar: April 19
Ms. Dean: April 25
5. Defendants shall provide a date for the Zeidman rebuttal report and a date for the deposition of that expert consistent with the relevant prior orders by noon on April 9, 2012.
6. With respect to the forensic images reviewed by Samuel Rubin, as noted in the order regarding Defendants' motion, A10's rebuttal report shall be due two weeks after Plaintiffs' production of materials pursuant to paragraph 7 (as modified by the Special Master) of the protocol proposed by Plaintiffs. The deposition of the expert who submits the rebuttal report shall occur between 5-7 calendar days after the rebuttal report is provided to Plaintiffs.
7. In the event that Defendants offer a single expert to address the patent and trade secret issues, Plaintiffs shall be entitled to 14 hours of deposition time for that witness.
8. Plaintiffs' motion to strike portions of Dr. Tygar's expert report is denied.
9. Counsel for Plaintiffs shall file this order and serve opposing counsel and the court with filed-endorsed copies.
IT IS SO ORDERED.