Yu v. ByteDance Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 YINTAO YU, Case No. 23-cv-04910-SI

8 Plaintiff, ORDER RE: DISCOVERY 9 v. Re: Dkt. No. 106 10 BYTEDANCE INC., et al., 11 Defendants.

12 13 The parties have submitted two discovery disputes to the Court for resolution. 14 15 I. Deposition of Yiming Zhang 16 Yu wishes to take the deposition of Yiming Zhang, one of the founders of ByteDance Ltd. 17 and the former CEO of ByteDance Ltd.1 Yu asserts that Zhang has personal knowledge of relevant 18 facts because Zhang’s signature appears on three of the documents at issue in this case. Yu also 19 asserts that Zhang “had several direct negotiations about the terms of Mr. Yu’s employment.” Dkt. No. 106 at 4. 20 Defendant ByteDance Inc. (“BDI”) objects to the deposition on several grounds. BDI asserts 21 that Zhang, who lives and works in Asia, “lacks specific information and was not personally 22 involved in the negotiation or execution of any of Yu’s contracts.” Id. at 1. BDI states that it 23 provided nine interrogatory responses explaining that two other employees, Jinmei Xiao and Meili 24 Wu, executed the agreements on BDI’s behalf and outside Zhang’s presence by applying Zhang’s 25 “authorized signature stamp,” and that a third witness, Linlin Fan, saw Yu wet-sign two of the 26 27 1 agreements. BDI states that it offered to produce these witnesses for deposition in either South 2 Korea or Singapore (the witnesses live in Asia), but that Yu declined. BDI also states that in 3 response to a Rule 30(b)(6) deposition notice about, inter alia, the signing of Yu’s contracts, it 4 offered to produce witnesses with first-hand knowledge of the signing of Yu’s contracts in South 5 Korea or Singapore, but that Yu refused the offer of depositions in Asia and so instead BDI will be 6 producing one or more U.S.-based deponents who will recount BDI’s understanding. The parties agree that Mr. Zhang’s deposition qualifies as an “apex” deposition. “In 7 determining whether to allow an apex deposition, courts consider (1) whether the deponent has 8 unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party 9 seeking the deposition has exhausted other less intrusive discovery methods.” Apple Inc. v. Samsung 10 Elec. Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (internal quotation marks and citations 11 omitted). 12 Based on the record before the Court, it is not clear whether Zhang has unique, first-hand, 13 non-repetitive knowledge about the negotiation and execution of Yu’s contracts. However, the 14 Court finds that Yu has not exhausted other less intrusive discovery methods, including 15 interrogatories directed at Zhang, the offer of depositions of Xiao and Wu, and the Rule 30(b)(6) 16 depositions. Accordingly, the Court QUASHES the deposition notice to Zhang, without prejudice 17 to renewal if Yu can make a greater showing of the need to depose Zhang. 18

19 II. Deposition of Wei “Ronnie” Hua 20 Hua is BDI’s Head of Human Resources and Management. Yu asserts that Hua oversaw his 21 onboarding and that “months after Mr. Yu joined BDI, Defendant Gao reported to Mr. Hua BDI’s 22 failure to obtain onboarding paperwork from Mr. Yu.” Dkt. No. 106 at 3. Yu also asserts that Hua 23 “regularly apprised Mr. Zhang on the status of Mr. Yu’s employment negotiations, including the 24 status of negotiated agreements.” Id. Yu also notes that BDI already offered to produce Hua in 25 South Korea, and thus that he should be produced – but in Seattle, because BDI previously 26 represented that Hua works in Seattle. 27 BDI asserts that Hua was not involved in the formation of the contracts at issue, and that 1 BDI has identified Xiao, Wu, and Fan as three fact witnesses involved in the execution of the 2 || contracts. BDI also states that it previously mistakenly told Yu that Hua was based in Seattle, but 3 that he currently lives and works in Singapore, and thus any deposition of Hua would have to take 4 || place in Asia. 5 Given BDI’s prior offer to make Hua available for deposition, the Court is not persuaded 6 that Hua does not have relevant information. Thus, the issue is where he should be deposed. “A 7 subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 8 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. 9 R. Civ. P. 45(c)(1)(A). If Hua does in fact live, work, and regularly transact business in Singapore, 10 he should be deposed in Asia, and if Hua lives, works, or regularly transacts business in Seattle, he 11 should be deposed in Seattle. The Court directs BDI to file a declaration signed under oath stating «= 12 || where Hua lives and works, and whether Hua “regularly transacts business” in Seattle. The

13 || declaration shall be filed no later than August 2.2 Assuming BDI files a declaration stating that Hua

v 14 || lives, works and regularly transacts business in Singapore, Yu may depose Hua in Asia at a mutually © 15 agreeable location, or Yu may coordinate with BDI to take a remote deposition of Hua. 16

= 17 IT IS SO ORDERED.

Z 18 19 Dated: July 23, 2024 SUSAN ILLSTON 20 United States District Judge 21 22 23 24 25 26 07 > Tn the Court’s June 7, 2024 discovery order, the Court directed BDI to file several declarations under oath. See Dkt. No. 98 {| 3-4. To date, BDI has not filed the declarations. By 2g || August 2, BDI shall file the declarations ordered in the June 7 order by August 2, or BDI shall file a letter explaining why it has not yet filed those declarations.