*1 Now pending before the court are two discovery dispute letter briefs. The first of which involves Plaintiff Metabyte, Inc.'s (“Metabyte”) request to compel the apex deposition of Mr. Mark Zuckerberg, the CEO of Defendant Meta Platforms, Inc. (“Meta”). See Ltr. Br. I (dkt. 49) at 2-4. The second dispute concerns Meta's request for the entry of its proposed ESI protocol. See Ltr. Br. II (dkt. 50) at 2-4. Each Party objects to the relief sought by the other. Having reviewed and considered the Parties' arguments – pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the court finds these matters suitable for disposition without oral argument. For the reasons stated below, Metabyte's request to compel the apex deposition of Mr. Zuckerberg is denied, and Meta's request for the entry of its proposed ESI protocol is granted.

Regarding the first dispute, the court will note that “[i]n determining whether to allow an apex deposition, courts consider (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.” Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (quoting In re Google Litig., 08-cv-03172 RMW (PSG), 2011 U.S. Dist. LEXIS 120905, at *10 (N.D. Cal. Oct. 19, 2011)). The court finds that Metabyte's showing in this regard is unpersuasive. As to the first prong, Metabyte states that Mr. Zuckerberg's personal role “in architecting and directing Facebook's rebrand to Meta warrants his deposition.” See Ltr. Br. I (dkt. 49) at 3. Building on this conclusory statement, Metabyte then suggests that its willful infringement claim “requires an investigation of Mr. Zuckerberg's state of mind throughout the rebranding process ... [in that] [h]is decision to adopt the ‘Meta’ mark despite knowing of meta-formative marks – including Metabyte's – is central to assessing willfulness [which] cannot be fully evaluated without deposing Mr. Zuckerberg, who personally orchestrated the rebrand.” Id. The court finds these assertions to be unsubstantiated and speculative, such that they are unpersuasive regarding the question of whether Mr. Zuckerberg, in fact, has unique first-hand, non-repetitive knowledge of the facts at issue in the case. As to the second prong, the court finds that Metabyte has failed to even explore, let alone exhaust, less intrusive discovery methods to garner the information it seeks. According to Meta, “[a]s of this filing, Metabyte has taken no depositions and [has] only recently served interrogatories. Instead, Metabyte proposes that it start with Meta's CEO instead of deposing any other witnesses.” Id. at 6 (emphasis in original). Metabyte's only answer in this regard is to simply declare that “[n]o alternative sources can provide the same insights into [Mr. Zuckerberg's] direct involvement in the trademark acquisition and rebranding process.” Id. at 4. However, this is no answer – at least not one that would satisfy Metabyte's burden to show that it has exhausted less intrusive discovery methods. Metabyte has not explained why interrogatories or requests for admission could not be used to conducts what it characterizes as its “investigation of Mr. Zuckerberg's state of mind throughout the rebranding process,” instead, in conclusory fashion and without any explanation, Metabyte only states (rather than explains) that only a deposition would suffice. However, as set forth above, the law requires more. Thus, for that reason, as well as the reasons set forth by Meta (see id. at 4-6), Metabyte's request for an order compelling the deposition of Mr. Zuckerberg must be DENIED.

*2 Regarding the second dispute, Meta seeks the entry of an ESI protocol that would be effective in addressing the issue of “Metabyte's CEO continue[ing] to hand-pick documents for production as PDFs without original metadata,” a problem which Meta claims has caused “recurring search deficiencies that have been prevalent in Metabyte's discovery.” See Ltr. Br. II (dkt. 50) at 2 n.1. Meta adds that “Metabyte's counsel admitted that Metabyte CEO Manu Mehta – unsupervised by counsel – was responsible for its document collection,” and that “Metabyte's paltry production only underscores Meta's concerns ... [in that] [it] has produced [only] a total of approximately 400 unique documents and fewer than ten email communications in response to Meta's various requests for production.” Id. at 3 (emphases in original). Meta then notes that it has recently learned that the majority of the 400 documents that have been produced were not generated through any ESI search. Id. Meta substantiates this assertion by noting that “on February 18, Metabyte re-produced 35 documents and explained in its position statement [ ] that no other documents [it] produced contain original metadata because they were hard copy documents or documents created for this litigation.” Id. In short, the essence of Meta's request can be distilled to the statement that “Metabyte should be required to produce all documents in a forensic manner with an associated load file of original metadata.” Id. Meta then sets forth detailed justifications as to why the associated metadata is necessary in order for those documents to be useful. See id. at 3-4.

For its part, Metabyte contends that the time for entry of an ESI protocol “has long passed” because “[d]ocument production is nearly complete ... [and] [a]ny remaining productions will be minimal and require careful manual handling.” Id. at 4. Metabyte then submits that it “is fed up with Defendant's endless wheel spinning, shifting arguments, and its return with yet another iteration of this letter,” which Metabyte suggests amounts to “conduct [that] reeks of bad faith.” Id. Metabyte adds that Meta “refuses to accept that not all documents or document infrastructure are suitable for traditional ESI searching, and that an ESI protocol is overkill for Plaintiff's small business and limited document volume ... [because] [Metabyte's] search methodology has been effective – [given that] under attorney supervision, relevant documents were identified by using built-in tools in the systems for Boolean, keyword, text and date-range searches or custodian knowledge.” Id. at 5. Metabyte also notes that some documents have been produced in their native formats and that Meta's “demand for load files is disproportionate and unnecessary, especially with production nearly complete [because] [l]oad files serve no purpose here, as they are designed for large-scale productions with complex metadata, not Plaintiff's limited documents and simple systems.” Id. Metabyte then adds that Meta's demand for forensic collection of Slack messages “is disproportionate[,] grossly burdensome, and highly intrusive[,] effectively seeking Plaintiff's entire Slack system on certain dates when only a handful of messages are relevant,” and that “Defendant can verify these messages and attachments during depositions.” Id.

The court must note that these matters have been in dispute for some time, and the court finds that Metabyte's resistance to Meta's discovery demands in these regards appears to amount to attempted stonewalling such as to stall and run out the clock for document production. For example, in November of 2024, Meta complained that it “learned on [a November 11th phone] call that Metabyte supposedly could have obtained Slack messages (which Meta has been requesting since June [of 2024]) at any time by upgrading its Slack subscription, but did not do so until October 29 and still has not collected or produced any Slack messages.” See Ltr. Br. of Nov. 15, 2024 (dkt. 37) at 2. In that same letter, Meta was complaining about Metabyte's CEO “having full discretion over what the company searches for and produces” and noting that in order to “address some of these deficiencies and avoid the need for judicial intervention, the Parties have begun negotiating an ESI protocol that sets out requirements as to custodians and search terms [and] [i]f the parties are unable to agree on the protocol – or if disputes arise under an agreed-upon protocol – Meta requests the right to file a further letter setting forth those disputes.” Id. The previous month, in its position statement in an earlier discovery dispute letter brief, Metabyte's counsel appeared to tacitly concede that Metabyte's CEO and other employees had taken on the responsibility for document production unsupervised by counsel, notwithstanding the contrary representation in the letter brief now pending before the court. See See Ltr. Br. of Oct. 30, 2024 (dkt. 33) at 5 (“Upon hearing the concerns of Defendant's attorneys during meet and confer calls, Metabyte's counsel went back and interviewed multiple employees of Metabyte, not just the CEO, and verified that production had been thorough and complete.”).

*3 On this basis, and also for the reasons advanced by Meta (see Ltr. Br. II (dkt. 50) at 2-4), the request for the entry of Meta's proposed ESI Order (see id. at Exh A (dkt. 50-1) at 2-18) is GRANTED, and Metabyte's objections thereto are OVERRULED. Because Meta's attached proposed order is styled as a “proposed stipulated ESI order” (see id. at 2) (which, given Metabyte's strenuous objections appears to be anything but “stipulated”), and because it contains signature lines for counsel for both Parties (see id. at 10), Meta is ORDERED to promptly file a copy of its proposed ESI Order without references to the word “stipulated” (see id. at 2, 10), and without signature lines for counsel (id. at 10), such that the court can sign and enter the document as an order of the court.

IT IS SO ORDERED.