Anokiwave, Inc. v. Rebeiz

Opinion

1 UNITED STATES DISTRICT COURT 2

3 4 SOUTHERN DISTRICT OF CALIFORNIA 5 6 ANOKIWAVE, INC., a Delaware 7 corporation, Case No. 3:18-cv-00629-JLS- 8 MDD 9 Plaintiff, 10 ORDER ON JOINT 11 v. MOTIONS FOR 12 DISCOVERY DISPUTES 13 GABRIEL REBEIZ, an individual; [ECF Nos. 70, 74, 81, 85] 14 SPECTRABEAM, LLC, a Delaware 15 limited liability company; TUMAY 16 KANAR, an individual; SAMET ZIHIR, 17 an individual; INTEGRATED DEVICE 18 TECHNOLOGY, INC., a Delaware 19 corporation; and DOES 1-20 inclusive 20

21 Defendants. 22

23 24 25 Before the Court are four joint motions for determination of various 26 discovery disputes. At issue are approximately one hundred requests for 27 discovery propounded by both parties. LEGAL STANDARD 1 The Federal Rules of Civil Procedure authorize parties to obtain 2 discovery of “any nonprivileged matter that is relevant to any party’s 3 4 claim or defense and proportional to the needs of the case[.]” FED. R. CIV. 5 P. 26(b)(1). “Information within the scope of discovery need not be 6 admissible in evidence to be discoverable.” Id. District courts have 7 broad discretion to limit discovery where the discovery sought is 8 “unreasonably cumulative or duplicative, or can be obtained from some 9 other source that is more convenient, less burdensome, or less 10 expensive.” FED. R. CIV. P. 26(b)(2)(C). Courts have broad discretion to 11 determine relevancy for discovery purposes. Hallett v. Morgan, 296 F.3d 12 732, 751 (9th Cir. 2002). 13 An interrogatory may relate to any matter that may be inquired of 14 under Rule 26(b). FED. R. CIV. P. 33(a)(2). The responding party must 15 answer each interrogatory by stating the appropriate objections with 16 specificity or, to the extent the interrogatory is not objected to, by 17 “answer[ing] separately and fully in writing under oath.” FED. R. CIV. P. 18 33(b). The responding party has the option in certain circumstances to 19 answer an interrogatory by specifying responsive records and making 20 those records available to the interrogating party. FED. R. CIV. P. 33(d). 21 Courts “will generally find [interrogatories] overly broad and 22 unduly burdensome on their face to the extent they ask for every fact 23 which supports identified allegations.” Hiskett v. Wal-Mart Stores, Inc., 24 25 180 F.R.D. 403, 404-05 (D. Kan. 1998). “[T]o the extent Plaintiff seeks 26 every minute detail and narratives about the subject incident . . ., 27 written discovery is not the proper vehicle to obtain such detail.” Bashkin v. San Diego County, No. 08-cv-1450-WQH-WVG, 2011 WL 1 109229, *2 (S.D. Cal. Jan. 13, 2011). 2 A party may request the production or inspection of any document 3 4 within the scope of Rule 26(b). FED. R. CIV. P. 34(a). “For each item or 5 category, the response must either state that inspection and related 6 activities will be permitted as requested or state an objection to the 7 request, including the reasons.” Rule 34(b)(2)(B). An objection must 8 state whether any responsive materials are being withheld on the basis 9 of that objection. Rule 34(b)(2)(C). An objection to part of a request must 10 specify the part and permit inspection or production of the rest. Id. The 11 responding party is responsible for all items in “the responding party’s 12 possession, custody, or control.” Rule 34(a)(1). Actual possession, 13 custody or control is not required. Rather, “[a] party may be ordered to 14 produce a document in the possession of a non-party entity if that party 15 has a legal right to obtain the document or has control over the entity 16 who is in possession of the document.” Soto v. City of Concord, 162 17 F.R.D. 603, 620 (N.D. Cal. 1995). 18 DISCUSSION 19 A. ECF No. 70: Defendant SpectraBeam’s Requests for 20 Production 21 a. RFP Nos. 2, 3, 4, 5, and 6 22 Through its RFPs, SpectraBeam seeks what appear to be different 23 visual representations of the chips named in Plaintiff’s Complaint and 24 25 Trade Secret Statement (“Chips at issue”) as of August 14, 2016, the date 26 Dr. Rebeiz resigned from the Anokiwave Advisory Board. Each category 27 of document illustrates different levels of technical detail for each individual chip. Generally, the requests seek mask works, fabrication 1 masks (in native gds file format), layouts, physical floor plans, and 2 detailed schematics. 3 4 The crux of the dispute appears to be that Plaintiff has provided 5 block diagrams of the chips at issue, which it alleges are sufficient to 6 prove or disprove its trade secrets claims. Plaintiff explains that block 7 diagrams are a high-level conceptual representation of the chips that 8 illustrate the relationship between individual components. The masks, 9 layouts, floor plans, and schematics, on the other hand, provide discrete 10 technical details of the chips. 11 Through this dispute, Plaintiff confirms that it does not allege that 12 Defendants misappropriated the technical details of its chips’ component 13 parts. Rather, Plaintiff claims Defendants misappropriated the unique 14 combination of components and features that are present on each chip 15 and that are sufficiently illustrated in the block diagrams. Thus, 16 Plaintiff claims that because technical details are not alleged as trade 17 secrets, they are therefore irrelevant and not subject to discovery. 18 Plaintiff also argues that the dismissal of its mask work infringement 19 claims renders the requests for technical data moot. 20 Defendants disagree and claim the highly detailed technical 21 documents they requested are necessary for their expert to complete a 22 technical comparison of the chips at issue. Defendants recognize that 23 Plaintiff claims its trade secrets are embodied in the combination of 24 25 features in each chip and not in the technical details of each component 26 part. However, they also claim Plaintiff has not sufficiently committed 27 to that position. Plaintiff’s Trade Secret Statement describes 43 separate trade 1 secrets. The identified secrets relevant to these requests are clearly 2 described as chips utilizing the “Coupling Solution” and/or “Fast Beam 3 4 Steering Technology” and as having a unique architecture and 5 combination of features for use on a single microchip. (ECF No. 70-2). 6 Defendants’ motion to compel further responses is DENIED. 7 Plaintiff’s trade secret statement describes its trade secrets as single 8 microchips with a combination of specific features. Defendant fails to 9 explain how the technical details of the component parts are relevant to 10 the claims and trade secrets as alleged by Plaintiff. 11 b. RFP Nos. 9, 10, 11, 12, 13, and 14 12 SpectraBeam seeks “[d]ocuments sufficient to show the details of” 13 specific components of the chips at issue as of August 14, 2016 including 14 the phase shifter, gain control functions (or Variable Gain Amplifier), 15 RF-system lineup, packaging, temperature sensor, and temperature 16 compensation in the radio frequency lineup.” 17 Defendants’ arguments echo those made in the previous group of 18 requests as to why the technical details of the chips at issue are relevant. 19 As discussed above, a review of the Trade Secret Statement makes clear 20 that Plaintiff is not claiming the technical details of these individual 21 components as a trade secret. Defendants’ position that the technical 22 details are still relevant is not persuasive. Defendants’ motion to compel 23 production of the technical details of specific components of the chips at 24 25 issue is DENIED. 26 /// 27 /// c. RFP Nos. 47-57 1 Through these requests, SpectraBeam seeks documents related to 2 any mask work applications filed by Plaintiff, communications with the 3 4 Copyright Officer concerning mask work applications, and documents 5 supporting Anokiwave’s mask work infringement claims. Defendants 6 argue that the mask work applications will show whether Plaintiff’s 7 mask works were found to be original or commonly known by the 8 Copyright Office. Plaintiff argues the mask works and mask work 9 applications are no longer relevant because it dismissed the mask work 10 infringement claims. Plaintiff also explains that “mask works” is a legal 11 term and is synonymous with layouts. 12 In light of the finding that Defendants have failed to demonstrate 13 the mask works are relevant and all mask work infringement claims 14 have been dismissed, Defendants’ motion to compel is DENIED. 15 B. ECF No. 74: Defendant SpectraBeam’s Interrogatories and 16 RFPs, and Defendant Rebeiz’s Interrogatories 17 a. SpectraBeam’s Interrogatories 4, 6, and 14 18 SpectraBeam’s disputed interrogatories are related and will be 19 considered together. Interrogatories Four and Six seek all documents 20 supporting the claim that the persons Plaintiff identified invented or 21 developed each claimed trade secret and ask Plaintiff to describe in 22 detail how the identified persons invented or developed each trade 23 secret. Interrogatory 14 asks Plaintiff to identify all facts supporting its 24 25 contention that each claimed trade secret is unique, novel, or otherwise 26 distinguishable from unprotected public knowledge or information 27 generally known to persons in the relevant field. Plaintiff objects on grounds that all three requests are overbroad, unduly burdensome, 1 vague, ambiguous, and compound. 2 The Court agrees that each of the three requests are overbroad, 3 4 cumulative, and compound. Plaintiff previously designated eighteen 5 people who were involved in inventing or developing one or more of the 6 43 claimed trade secrets. Requiring Plaintiff to respond to the requests 7 as to each of the eighteen persons identified and addressing each of the 8 43 identified secrets in a single interrogatory is improper and unduly 9 burdensome. Defendants’ motion to compel further responses is 10 DENIED. 11 b. SpectraBeam’s RFP Nos. 37, 38, 43 12 RFP 37 seeks documents to show “every instance in which 13 Anokiwave, or any of its engineers, founders, or executives, has designed 14 a radio frequency integrated chip, with or without basing the design on 15 one or more pre-existing intellectual property blocks, in approximately 16 12 months or less.” Plaintiff objects on grounds that the request is 17 overbroad, vague, ambiguous, and unintelligible as to “radio frequency 18 integrated chips” and “with or without basing the design on one or more 19 pre-existing intellectual property blocks.” 20 This request is overbroad and not proportional to needs of the case. 21 A response would require Plaintiff to determine if any of its employees 22 had ever (in their career and not limited in time) designed any radio 23 frequency chip in less than 12 months. This would also necessarily 24 25 includes chips not at issue here. Defendants’ motion to compel is 26 DENIED as to RFP 37. 27 RFP 38 seeks all Anokiwave Advisory Board records, including 1 correspondence, meeting agendas, minutes, recordings and so forth, for 2 time when Rebeiz served on the board. Plaintiff agreed to produce all 3 4 non-privileged, responsive documents received by Defendant Rebeiz in 5 his role as member of advisory board, as well as communications 6 between Anokiwave and one or more of its Advisory Board Members 7 relating to “Anokiwave’s development of RF chips, claimed trade secrets, 8 and claimed proprietary information.” Defendants argue this is not 9 sufficient because they want all Advisory Board records. Defendants 10 make no argument as to why all the Advisory Board records are relevant. 11 The Court finds Plaintiff’s response is sufficient. Defendants’ motion to 12 compel is DENIED as to RFP 38. 13 RFP 43 seeks all documents to support allegations that Plaintiff 14 acted in reliance on Rebeiz’s alleged representations that “all proprietary 15 information would remain confidential and the exclusive property of 16 Anokiwave.” Plaintiff agreed to produce the Proprietary Information 17 Agreement. Defendants’ argue further response is required because it is 18 not clear whether Plaintiff relied on any other documents. Plaintiff 19 stated that it has already agreed to produce all communications it had 20 with Rebeiz and so there is nothing left to compel. 21 If Plaintiff has other documents that show its reliance on Rebeiz’s 22 agreement to not disclose confidential information or use it, it must be 23 disclosed. If they have disclosed everything as they state, then that is 24 25 sufficient. Defendants’ motion to compel is DENIED as to RFP 39. 26 /// 27 /// c. Defendant Rebeiz’s Interrogatories 6, 7, and 8 1 Rebeiz’s interrogatories six, seven, and eight are similar and will be 2 discussed together. Interrogatory Six asks Plaintiff what percentage of 3 4 Anokiwave’s outstanding shares are owned by Rebeiz. Interrogatory 5 Seven asks what percentage of Anokiwave’s outstanding shares are 6 “owned by each prior or current member of the Anokiwave Advisory 7 Board.” Finally, Interrogatory Eight asks Plaintiff to identify the 8 amount and date of compensation, including stock options, shares, loans, 9 wages, stipends, and honoraria, that Anokiwave has paid or offered to 10 pay every member of Anokiwave’s Advisory Board. 11 Plaintiff answered interrogatory six stating that Rebeiz was 12 awarded 100,000 stock options and exercised 38,543 of those options. 13 Plaintiff objected to interrogatories seven and eight arguing they are 14 compound, vague, overly broad, not relevant, and implicate the privacy 15 interests of third parties. 16 Defendant argues the percentage of shares requested in numbers 17 six and seven are relevant because Plaintiff “repeatedly emphasized the 18 number of shares” Rebeiz owned in its Complaint and that a percentage 19 is needed for context and is relevant to both liability and damages. 20 Defendant also argues the information about other board members’ 21 compensation gives “relevant factual context” in response to Plaintiff’s 22 claim that Rebeiz tricked Anokiwave into giving him stock. 23 The Court fails to see how the percentage of shares owned by all 24 25 former and current board members as well as their compensation is 26 relevant to either liability or damages or any other claim or defense. 27 Defendants’ motion to compel is DENIED. C. ECF No. 81: Plaintiff’s Discovery Requests1 1 a. Plaintiff’s Interrogatories to Defendants SpectraBeam 2 and Rebeiz 1-9 and 14-22 3 4 Plaintiff propounded identical interrogatories to both SpectraBeam 5 and Rebeiz. Interrogatories 1-9 request Defendant to “identify with 6 specificity (or by your best estimate)” the number of hours spent by “any 7 and all representatives of Spectrabeam” in research and development of 8 specified chips. Interrogatories 14-22 request Defendant to describe or 9 give a timeline of research and development for specified chips. 10 The dispute underlying these requests relates to which chips are at 11 issue in this litigation and, as a result, what information can be 12 discovered about each parties’ chips. Specifically, interrogatories 1-4 and 13 14-17 ask about ku-band chips. Plaintiff’s Trade Secret Statement and 14 the operative Complaint state that only its ka-band chips are at issue. 15 Neither document mentions ku-band chips. Plaintiff argues that they 16 are still entitled to the information about ku-band chips as it could lead 17 to information about the extent of Defendants’ alleged misappropriation 18 and resulting unjust enrichment. 19 The information related to ku-band chips is not relevant. Plaintiff 20 specifically identified chips that were at issue in their Fifth Amended 21 Complaint and the Third Trade Secret Statement. Plaintiff claims that 22 the Trade Secrete Statement and Complaint do not limit discovery into 23 other unnamed chips. However, this is the exact opposite of what 24 25 Plaintiff argues in refusing to turn over certain information requested by 26

27 1 Plaintiff has propounded identical or nearly identical discovery requests to Defendants. Plaintiff cannot have it both ways. Absent any allegation 1 that Defendants’ misappropriated Plaintiff’s trade secret information in 2 their Ku-band chips, the information is not relevant to this litigation. 3 4 Plaintiff’s motion to compel further response is DENIED. 5 Interrogatories 5-9 and 18-22, on the other hand, seek information 6 about the chips identified in Plaintiff’s pleadings. Plaintiff’s amended 7 responses lay out a timeline and rough estimate of hours spend in some 8 stages of development for the identified chips. The timelines begin in 9 2012 and include the work done during Defendant Zihir’s and Kanar’s 10 doctoral studies. Defendants explain that the development of their chips 11 happened over the course of years and that hour logs of time spent on 12 each phase or each individual chip were not kept. 13 Defendants state that detailed hour logs do not exist and are not 14 generally kept in academia. Defendants cannot produce what does not 15 exist. The lengthy explanations describe the general process and include 16 some rough hours estimate. These responses are sufficient given 17 Defendants verification that nothing more exists. Plaintiff’s motion o 18 compel is DENIED. 19 b. Plaintiff’s RFPs to Defendants Zihir, Kanar, Rebeiz, 20 and SpectraBeam 21 i. RFP Nos. 13-16 as to Individual Defendants and 22 SpectraBeam 23 Through identical interrogatories to the individual Defendants and 24 25 SpectraBeam, Plaintiff seeks all documents and communications 26 regarding the founding or plans to found a company with goods or 27 services relating to RF chips, including SpectraBeam. Defendants initially stated they are withholding documents based on their lengthy 1 standard objections. 2 It appears from this motion that after the amended responses were 3 4 served, lengthy meet and confers took place and Plaintiff’s Trade Secret 5 Statement was amended. Through that process, various limitations were 6 proposed and accepted that limited these disputed requests in time and 7 breadth. It also appears that after these negotiations, Defendants served 8 responsive documents as to SpectraBeam and stated that it does not 9 have any responsive documents concerning other entities. Plaintiff’s 10 concern appears to be that it is not confident that Defendants have in 11 fact turned over all responsive documents subject to the limitations the 12 parties agreed upon. If Defendants have produced all responsive 13 documents in their possession, the responses are sufficient. If Defendant 14 is withholding responsive documents, it must produce them. 15 ii. RFP Nos. 21-22 as to Individual Defendants 16 RFP No. 21 seeks documents sufficient to identify past, present, or 17 future ownership interest in any company. Through the meet and confer 18 process, and in response to Defendants’ objections, Plaintiff proposed 19 limiting the request to “documents relating to the founding or plans to 20 found a company with goods or services related to RF chips, including 21 SpectraBeam or any other entity that could utilize information obtained 22 from Anokiwave commercially and in which you expected to be an owner, 23 founder, shareholder, or other financial beneficiary.” Plaintiff claims 24 25 Defendant accepted the limitation but failed to amend its response. 26 RFP No. 22 seeks all documents relating to communications 27 relating to any past, present, or future ownership interest in any company owned or founded by Kanar or Zihir. Plaintiff proposed the 1 same limitations as discussed in RFP No. 21, which Defendant accepted. 2 The Court fails to see how these requests as amended differ from RFP 3 4 Nos. 13-16 discussed above. If documents are being withheld, they must 5 be produced as agreed upon. Plaintiff’s motion to compel is GRANTED. 6 iii. RFP Nos. 25-26 as to Rebeiz and SpectraBeam 7 RFPs 25 and 26 seek all documents and communications relating to 8 the purchase, sale, funding or funding for development of RF chips. 9 Defendants object on grounds of relevance and proportionality. To the 10 extent Plaintiff’s requests seek all documents and information about RF 11 chips that are not at issue in this litigation, the request is fatally 12 overbroad. Plaintiff’s motion to compel further responses is DENIED. 13 iv. RFP No. 27 as to Individual Defendants and 14 SpectraBeam 15 RFP No. 27 seeks all documents relating to communications 16 relating to any merger, purchase, sale, or investment between 17 SpectraBeam and IDT, including any offers to engage in similar 18 transactions or negotiations. Defendants object on general grounds but 19 agreed to produce: (1) the due diligence files SpectraBeam provided to 20 IDT; (2) the acquisition contract between IDT and SpectraBeam; and (3) 21 documents to demonstrate what each individual Defendant received in 22 connection with the sale of substantially all of SpectraBeam’s assets to 23 IDT. 24 25 In its position statement, Plaintiff explains the communications 26 between SpectraBeam and IDT regarding the acquisition and 27 negotiations leading up to the actual sale are probative to its claims that IDT was aware that Defendants had incorporated one or more of 1 Anokiwave’s trade secrets into its products. Defendant’s position 2 statement claims it is producing the relevant non-privileged documents 3 4 identified in Plaintiff’s position statement. To the extent that Defendant 5 has in fact done so, its response is sufficient. If Defendant has failed to 6 produce communications as discussed in Plaintiff’s position statement, it 7 must do so now. 8 v. RFP Nos. 31-33 as to Individual Defendants and 9 Nos. 38-40 as to SpectraBeam 10 RFPs 31-33 seek “all documents relating to technology, trade 11 secrets, or know how that [Drs. Zihir, Kanar, and Rebeiz] transferred to 12 IDT.” To the extent the requests seeks all documents relating to any 13 technology or “know how” and is without a time limitation, it is 14 overbroad. Plaintiff’s motion to compel is DENIED. 15 vi. RFP Nos. 34-35, and 49-50 as to Individual 16 Defendants and Nos. 41-42 and 56-57 as to 17 SpectraBeam 18 RFPs 34-35 and 41-42 seek all documents and communications 19 relating to the design, manufacturing, specification, development, or 20 testing of RF chips by the individual defendants or SpectraBeam. RFPs 21 49-50 and 56-57 seek all documents and communications relating to the 22 funding of RF chips similar to Anokiwave RF chips. Defendants object 23 arguing the requests are overbroad in that they seek information about 24 25 all RF chips and that the phrase “RF chips similar to Anokiwave RF 26 chips” is overbroad as to time. 27 The Court agrees that both requests are overbroad to the extent the 1 seek all documents and seek information about RF chips not at issue in 2 this litigation. Defendants’ amended responses agreed to produce all 3 4 responsive non-privileged documents relating to the chips at issue. This 5 is sufficient. Plaintiff’s motion to compel further responses is DENIED. 6 vii. RFP Nos. 54, 56 as to Individual Defendants and 7 Nos. 61 as to SpectraBeam 8 RFP Nos. 54 and 61 seek documents to identify all employees, 9 consultants, or contractors who have worked on the research, 10 development, design, or manufacturing of SpectraBeam’s RF chips. 11 Defendants’ amended responses state that only Dr. Kanar and Dr. Zihir 12 designed and developed the chips and SpectraBeam did not have any 13 employees. Plaintiff was not satisfied with this response. In Defendants’ 14 position statement it confirms that Drs. Kanar and Zihir were the only 15 members of the design team and no consultants or contractors were 16 involved. This is sufficient. Plaintiff’s motion to compel further 17 responses is DENIED. Defendants should consider whether a deposition 18 of Plaintiff under Rule 30(b)(6) is the better vehicle to obtain this 19 information. 20 RFP No. 56 seeks all employment or contractor agreements 21 between Defendant Rebeiz and IDT. In its amended response, 22 Defendant agreed to produce his consulting agreement with IDT. 23 Plaintiff argues that this response is incomplete because it does not 24 25 identify whether any other consultant or contractor agreements exist. 26 The Court fails to see how other agreements would be responsive to this 27 request. Defendant produced the agreement. This response is sufficient. 1 Plaintiff’s motion to compel further responses is DENIED. 2 /// 3 4 c. RFP Nos. 29 and 33-36 as to Defendant SpectraBeam 5 RFP Nos. 29, 33, 34, and 35 are similar and will be discussed 6 together. RFP No. 29 seeks communications relating to offers or 7 potential offers from third parties for the merger or acquisition of 8 SpectraBeam. RFP Nos. 33 and 34 seek all formal or informal valuations 9 relating to the sale of SpectraBeam to IDT. And RFP No. 35 seeks all 10 agreements relating to IDT’s assumption of either the assets or liabilities 11 of SpectraBeam. 12 Defendants have agreed and confirmed through this joint motion 13 that they are producing all responsive documents that are not subject to 14 a non-disclosure agreement. This is sufficient. Plaintiff’s motion to 15 compel is DENIED. 16 Plaintiff’s RFP No. 36 seeks “all final agreements between 17 [SpectraBeam] and IDT.” Defendant states it is withholding documents 18 based on its objections that the request is overbroad. Defendant 19 confirms that it produced the final acquisition agreement between 20 SpectraBeam and IDT. Plaintiff argues further response is required 21 because there may be other final agreements between SpectraBeam and 22 IDT. Plaintiff fails to provide insight as to what types of agreements it 23 seeks or the relevance of other agreements to its claims. Defendant 24 25 claims to have produced what was requested. If that is the case, 26 Defendant’s response is sufficient and no further response is required. 27 D. ECF No. 85: Defendant Spectrabeam’s RFPs and Defendant 1 IDT’s Interrogatories 2 a. RFP No. 73 3 4 RFP No. 73 seeks “documents sufficient to identify alleged beginning 5 and end dates of secrecy of claimed trade secrets.” Plaintiff has or will 6 produce documents to identify alleged end dates of secrecy for each 7 claimed trade secret. However, Plaintiff objects to identifying a 8 beginning date on grounds that it assumes that there are specific dates 9 on which alleged secrecy of any information sprang into existence. 10 Plaintiff further argues that the beginning of secrecy is not relevant to 11 any claim or defense because all it must prove is whether the 12 information was secret at the time of the alleged misappropriation. 13 Defendants argue Plaintiff’s response is not sufficient because the 14 beginning date is essential to show that the information was public or 15 readily ascertainable. 16 Plaintiff’s response is sufficient. Even if a beginning date of secrecy 17 were relevant, Plaintiff has explained that the claimed trade secrets 18 developed over a significant period of time through the collaboration of 19 many individuals rendering them incapable of identifying specific dates 20 that the information became secret. Plaintiff is correct regarding its 21 burden. No further response is required. 22 b. RFP No. 76 and 77 23 Through these RFPs, Defendant seeks all “communications, including 24 25 but not limited to public announcements, job listings, and person to 26 person communications, disclosing engineering skill sets required for 27 Anokiwave engineering positions [RFP No. 76] and describing 1 Anokiwave’s business [RFP No. 77] from 2013-2017.” 2 Plaintiff objects on grounds that the requests seek information that is 3 4 publicly available and overbroad because they conceivably include every 5 communication Anokiwave had from 2013-2017. The Court agrees the 6 requests as worded are fatally overbroad. However, Defendants clarify 7 in this motion that they are seeking “non-confidential external job 8 announcements [for Anokiwave engineering positions and job 9 announcements describing Anokiwave’s business plans] from 2013 to 10 2017.” Plaintiff does not object to producing these documents. Plaintiff 11 must produce documents responsive to Defendants’ narrowed request. 12 c. RFP No. 78 13 Defendants seek “all due diligence documents Anokiwave provided to 14 any company or individual, including but not limited to IDT, from 15 January 1, 2013 to the present.” 16 Plaintiff objects on grounds that the request is overbroad and 17 disproportionate to the needs of the case. Plaintiff also states that it did 18 not make any disclosure of any of its claimed trade secrets with the 19 protection of a nondisclosure agreement. Defendants argue this 20 information is relevant because the disclosures are likely to include 21 information about Plaintiff’s claimed trade secrets and if that 22 information as disclosed with or without confidentiality it may show 23 whether Plaintiff suffered harm. 24 25 Plaintiff states it has agreed to produce all documents demonstrating 26 when trade secret information was made publicly available prior to 27 Rebeiz’s resignation. Plaintiff also attested that no documents exist showing disclosures of trade secrets that were not made subject to a 1 confidentiality agreement. Plaintiff has also agreed to produce profit and 2 loss statements, and documents to calculate damages in response to 3 4 other RFPs. To the extent this RFP requests the same documents, it is 5 duplicative. To the extent it seeks complete disclosures of unrelated 6 financial and technical information, it is overbroad. No further response 7 is required. 8 d. RFP No. 79 9 Defendants seek documents “sufficient to show all versions of 10 Anokiwave’s complete external website from January 1, 2013 to the 11 present, including but not limited to the content and timing of all 12 changes, revisions, additions, and deletions.” 13 Plaintiff objects that the request is overbroad. Defendant contends 14 that information that Anokiwave publicly displayed cannot have been 15 secret. At a minimum it will show end date of trade secrets. It is 16 undisputed that Anokiwave publicly posted “spec sheets” disclosing most 17 of its claimed trade secrets about the chips at issue. This is the end date 18 of secrecy and Plaintiff has agreed to produce this information in 19 response to other RFPs. Defendants state this request is “designed to 20 test the accuracy of Anokiwave’s interrogatory response against 21 Anokiwave’s promotional website materials, which may have 22 inadvertently signaled its product line or business plans to the relevant 23 field.” 24 25 Although some archived information on the website could be relevant, 26 seeking documents to show every change or update to a website for six 27 years is massively overbroad. No response is required. e. IDT Interrogatories 2, 3, and 4 (damages) 1 IDT propounds contention interrogatories asking Plaintiff to 2 identify “all facts” that support Plaintiff’s claims that it suffered damage 3 4 as a result of Defendants’ conduct, to identify the dates any alleged 5 damaged was suffered, and to identify all facts that support any ongoing 6 claims of damage. 7 Plaintiff objects to the interrogatories to the extent that they seek 8 “all facts” resulting in each request being unduly burdensome. Plaintiff 9 also argues the requests are premature because substantial discovery 10 remains to be conducted. Defendants contend that during meet and 11 confers, the parties limited the requests to “material facts” about 12 Anokiwave’s claimed damages although Plaintiff maintains that the 13 limitation to “material facts” does nothing to render the interrogatory 14 less burdensome. 15 Rule 33 of the Federal Rules of Civil Procedure governs contention 16 interrogatories which seek to discover the factual basis for allegations in 17 a complaint. Rule 33(a)(2) provides that an interrogatory is not 18 objectionable merely because it asks for contentions that relate to fact or 19 the application of law to fact. Rule 33(a)(2). A court may order that a 20 party does not need to answer a contention interrogatory until 21 designated discovery is complete or at some later time. Rule 33(a)(2). 22 Courts generally disfavor contention interrogatories asked before 23 discovery is undertaken. Tennison v. City & County of San Francisco, 24 25 226 F.R.D. 615, 618 (N.D.Cal.2005). In fact, courts tend to deny 26 contention interrogatories filed before substantial discovery has taken 27 place, but grant them if discovery almost is complete. See, e.g., Fischer & Porter Co. v. Tolson, 143 F.R.D. 93, 95 (E.D.Pa.1992). 3 Defendants’ contention interrogatories are premature at this stage 4 ||of discovery in that they seek support for Plaintiffs claim of damages. 5 || Additionally, pursuant to Rule 26, because the contention interrogatories 6 ||seek “all facts” supporting Plaintiffs allegations, they are overly broad 7 ||and unduly burdensome on their face. See FED.R.CIV.P. 26(b)(2)(C) 8 (stating that the court must limit discovery if the burden of the proposed 9 || discovery outweighs its likely benefit). 10 There is no dispute that Plaintiff must disclose this information. 11 |) The Federal Rules require Plaintiff in its initial disclosures to provide “a 12 computation of each category of damages claimed... and to make 13 available documents or other evidentiary material, unless privileged or 4 protected from disclosure, on which each computation is based.” '? Pup.R.Civ.P. 26(a)(1)(A)(iii). It may be more appropriate to explore the 16 validity of such disclosures through a Rule 30(b)(6) deposition. However, " any compelled response to an interrogatory at this early stage will most certainly be incomplete. For the foregoing reasons, Defendants’ motion

50 to compel is DENIED without prejudice. 21 9 IT IS SO ORDERED. 93 Dated: August 19, 2019 Mitel » : [> 24 Hon. Mitchell D. Dembin 25 United States Magistrate Judge 26 27 28 51 Ni, 18 ay.NNG90.1T □□□□□□