Unreported / Non-Citable
Background
Concurrent Ventures and related plaintiffs are litigating patent claims against Advanced Micro Devices and other defendants. The court had already limited fact discovery to ten depositions and seventy total deposition hours, while permitting a later witness-specific showing that additional testimony was genuinely needed. Near the close of fact discovery, plaintiffs sought four more depositions—Dell, IBM, Microsoft, and Cisco—and ten extra hours.
Plaintiffs argued that the customers possessed unique evidence about how they used and configured the accused products, matters the defendants’ own employees could not fully establish. Defendants responded that plaintiffs had not exhausted their original allotment, that the requests were late and cumulative, and that written discovery and existing testimony supplied enough information.
The Court’s Holding
The court partly granted the request. IBM, Microsoft, and Cisco could each be deposed for no more than two hours, with questioning confined to use and configuration of the accused products and related topics identified in the order. The seventy-hour cap increased by six hours solely for those depositions.
The court found a concrete evidentiary gap and emphasized that the identified customers had first-hand knowledge unavailable from company witnesses. It addressed proportionality by sharply limiting duration and subject matter rather than refusing the discovery altogether. Dell was different: plaintiffs relied principally on sales volume and an asserted failure to comply with a subpoena. The court denied that deposition without prejudice while a separate enforcement motion remained pending.
The ruling did not extend the discovery cutoff. The parties were ordered to confer promptly about completing the permitted depositions, including arranging them after the cutoff if necessary.
Key Takeaways
- A party seeking more than Rule 30’s presumptive ten depositions should identify particular witnesses and explain the unique evidence each possesses.
- Courts may cure proportionality concerns with short, topic-limited depositions instead of an all-or-nothing ruling.
- A subpoena dispute does not automatically establish a need for deposition testimony; the requesting party should connect the expected production to a specific testimonial gap.
- Late discovery requests are more credible when the movant offers a tightly bounded plan that does not require extending case deadlines.
Why It Matters
For California patent litigators, this order is a useful model for requesting customer discovery. The successful showing was witness-specific and tied to product operation, not merely to the customers’ commercial importance.
The practical lesson is to preserve room in the discovery plan for third-party evidence and, if additional depositions become necessary, propose precise time and topic limits. That approach helps demonstrate proportionality while protecting the record on infringement and product configuration.
The order is also a reminder to distinguish an interim procedural ruling from a final decision on the merits. Counsel should identify exactly what the court decided, preserve any deadlines or evidentiary burdens created by the order, and avoid overstating issues the judge expressly left open. For clients, that means updating the litigation plan now: assign responsibility for the next filing or compliance step, preserve the supporting record, and reassess settlement and business risk using the ruling’s actual scope. A focused response is usually more valuable than treating every adverse procedural development as though it finally resolved liability. The team should also circulate the order to the people responsible for discovery, payroll, regulatory compliance, or outside-counsel management, as applicable, because the practical cost of a ruling often depends on quick operational follow-through. Building that implementation record can prevent missed deadlines and make any later request for modification more credible.