*1 Defendants[1] and non-party Optronics Technologies, Inc. (“Orion”) ask the Court to resolve a dispute concerning defendants' amended deposition subpoena to Orion. Dkt. No. 612. The Court finds this dispute suitable for resolution without oral argument. Civil L.R. 7-1(b).

Having considered the parties' submission and the applicable law, the Court denies defendants' request for an order requiring Orion to produce a corporate representative to testify regarding the topics in defendants' Rule 30(b)(6) deposition notice, subject to further proceedings described below.

I. BACKGROUND

On May 15, 2024, the Court denied without prejudice defendants' request for an order requiring Orion to produce a corporate representative to testify regarding the topics in defendants' Rule 30(b)(6) deposition notice and also denied defendants' request for an order requiring two of Orion's employees to provide deposition testimony. Dkt. No. 597. On May 20, 2024, plaintiffs file a motion for class certification. Dkt. No. 599. On May 21, 2024, defendants served an amended deposition subpoena seeking Orion's testimony pursuant to Rule 30(b)(6) on the following topics:

Dkt. No. 612-1 at ECF 11-12. Orion objects to providing any testimony via a corporate representative. Dkt. No. 612 at 6-8.

II. LEGAL STANDARD

Rule 45 of the Federal Rules of Civil Procedure governs discovery of non-parties. The scope of allowable discovery under Rule 45 is the same as the scope of discovery permitted under Rule 26(b). Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., No. 16-mc-80062-JSC, 2016 WL 3162218, at *2 (N.D. Cal. June 7, 2016) (citing Fed. R. Civ. P. 45 advisory committee note (1970); Fed. R. Civ. P. 34(a)). Rule 26 permits discovery “regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

The Court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Rule 45 further provides that “the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).

III. DISCUSSION

As before, defendants and Orion disagree about the scope of relevant discovery and about whether the discovery defendants seek is proportional to the needs of the case. The Court refers to its earlier discussion of the claims at issue in the operative complaint and Orion's apparent role with respect to those claims. Dkt. No. 597 at 3-6.

The Court agrees with Orion that most of topics in defendants' amended Rule 30(b)(6) notice suffer from the same infirmities as the topics in their earlier notice. Several topics are again drafted in extremely broad terms (e.g. Topics 1-2, 7-9), and defendants offer only speculative or conclusory arguments about the relevance of other topics (e.g. Topics 3-6). However, some topics merit further discussion.

With respect to Topic 3, which seeks corporate testimony regarding Orion's “purchase and/or acquisition of MEADE, including the timeline, the entities/persons involved, and the terms of the transaction,” defendants explain that Meade is a “key competitor” of defendant Celestron, and that the “nature of Orion's acquisition of Meade” is “central to [plaintiffs' expert] Dr. Zona's analysis of the relevant market and the competitive landscape.” Dkt. No. 612 at 4. Orion responds that Topic 3 is very similar to a topic the Court rejected in defendants' earlier deposition subpoena, where the Court concluded that testimony about the Meade acquisition “appeared to be directed to exploring Orion's own anticompetitive conduct,” and therefore not relevant to this case. Id. at 7 (citing Dkt. No. 597 at 7). The “Meade acquisition” features prominently in plaintiffs' motion for class certification, although that focuses on Ningbo Sunny's acquisition of Meade, and not Orion's. See, e.g., Dkt. No. 599 at 2-12, 20-23. However, plaintiffs' motion includes the following assertions about the “relevant market,” citing the declaration of their expert, Dr. Zona:

Dkt. No. 599 at 6-7 (emphasis added). In his supporting declaration, Dr. Zona refers to Orion's acquisition of Meade in 2021; he characterizes that acquisition as not including a full conveyance of Meade assets to Orion; and he has computed market share for the “Meade” brand during the period after the acquisition. Dkt. No. 599-1 ¶¶ 36, 42, 92, 93. Thus, it appears that some information about the “nature of Orion's acquisition of Meade” is relevant to matters plaintiffs have put at issue in their motion for class certification, but it remains unclear what exactly defendants wish to learn from an Orion corporate representative and why all testimony potentially within the broad scope of Topic 3 is relevant to class certification or to a claim or defense. For example, defendants do not explain why they seek information about the “timeline” of the transaction and the “entities/persons involved.” The Court is inclined to allow some deposition testimony within the scope of Topic 3—such as, Orion's “purchase and/or acquisition of” Meade and the “terms of the transaction”—but will require the parties to confer further regarding the scope of the testimony beyond those matters.

With respect to Topics 1 and 2, which seek corporate testimony regarding documents plaintiffs “cite or rely upon” in their class certification motion and documents that Dr. Zona “cite[s] or relie[s] upon” in his supporting declaration, defendants apparently refer to thousands of documents. See Dkt. No. 612 at 4, 7. As the Court explained in its prior order, a deposition topic that requires Orion to prepare a corporate representative to testify about this volume of documents (particularly if many of those documents were not generated by Orion, but were produced instead by others in the Orion litigation) imposes an “extraordinary burden.” See Dkt. No. 597 at 8. Defendants may not take testimony of Orion on Topics 1 and 2 unless they first specifically identify the documents about which they intend to examine a witness, and they limit the volume of documents to a reasonable number.

Defendants have failed to offer any reasonable justification for any of the other deposition topics in the amended Rule 30(b)(6) notice to Orion.

IV. CONCLUSION

*4 For the reasons explained above, the Court denies defendants' request for an order requiring Orion to produce a corporate representative to testify regarding Topics 4-9 of defendants' amended Rule 30(b)(6) notice. As to Topic 3, the Court requires Orion to prepare a corporate representative to testify regarding the portion of that topic that concerns Orion's “purchase and/or acquisition of” Meade and the “terms of the transaction”; if defendants wish to obtain testimony beyond those matters, they must specifically identify what additional testimony they require. As to Topics 1 and 2, Orion need not prepare a corporate representative to testify about these topics, unless and until defendants specifically identify a reasonable number of Orion documents about which they wish to conduct an examination.

Defendants shall promptly advise Orion whether they wish to proceed with a deposition that is limited to the portion of Topic 3 described above. If defendants wish to take Orion's deposition regarding other matters within the scope of Topic 3 or regarding specific documents within the scope of Topics 1 and 2, they shall promptly advise Orion, and the parties shall confer in an effort to reach agreement on the scope of Orion's testimony. By July 15, 2024, the parties shall file a joint status report advising the Court of (1) the scope of defendants' Rule 30(b)(6) deposition of Orion, including a description of any remaining disagreements about that scope, and (2) the date on which the deposition will occur. The joint status report must not contain any argument.

IT IS SO ORDERED.