Case 3:17-cv-02398-DMS-MDD Document 150 Filed 11/07/18 PageID.2529 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`Case No. 3:17-cv-02398-DMS-MDD
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`ORDER ON JOINT MOTION
`FOR DETERMINATION OF
`DISCOVERY DISPUTE
`REGARDING APPLE’S
`RESPONSE TO QUALCOMM’S
`INTERROGATORY No. 2
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` [ECF No. 144]
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`QUALCOMM INCORPORATED,
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`
`Plaintiff,
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`Defendant.
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`v.
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`
`APPLE INC.,
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`
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`Before the Court is the Joint Motion of the parties, filed on October
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`22, 2018, for determination of a discovery dispute regarding a single
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`contention Interrogatory. (ECF No. 144). The parties refer to the
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`disputed Interrogatory as No. 2 but provided the disputed Interrogatory
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`and response under the heading “Interrogatory No. 1. (Id. at 11-12).1 In
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`summary, Qualcomm is asking Apple to identify all patent license
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`agreements concerning any of the Apple Accused Functionalities that
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`Apple contends are comparable to a license Apple would have taken in a
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`1 The Court will refer to page numbers supplied by CM/ECF rather than original
`pagination throughout.
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`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`
`Case No. 3:17-cv-02398-DMS-MDD
`
`ORDER ON JOINT MOTION
`FOR DETERMINATION OF
`DISCOVERY DISPUTE
`REGARDING APPLE’S
`RESPONSE TO QUALCOMM’S
`INTERROGATORY No. 2
`
` [ECF No. 144]
`
`
`QUALCOMM INCORPORATED,
`
`
`Plaintiff,
`
`
`Defendant.
`
`v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`Before the Court is the Joint Motion of the parties, filed on October
`
`22, 2018, for determination of a discovery dispute regarding a single
`
`contention Interrogatory. (ECF No. 144). The parties refer to the
`
`disputed Interrogatory as No. 2 but provided the disputed Interrogatory
`
`and response under the heading “Interrogatory No. 1. (Id. at 11-12).1 In
`
`summary, Qualcomm is asking Apple to identify all patent license
`
`agreements concerning any of the Apple Accused Functionalities that
`
`Apple contends are comparable to a license Apple would have taken in a
`
`
`1 The Court will refer to page numbers supplied by CM/ECF rather than original
`pagination throughout.
`
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`No. 17-cv-02398-DMS-MDD
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`Case 3:17-cv-02398-DMS-MDD Document 150 Filed 11/07/18 PageID.2530 Page 2 of 4
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`hypothetical negotiation in this case including certain details regarding
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`those comparable licenses. (Id.)
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`LEGAL STANDARD
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`The Federal Rules of Civil Procedure authorize parties to obtain
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`discovery of “any nonprivileged matter that is relevant to any party’s
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`claim or defense and proportional to the needs of the case . . . .” Fed. R.
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`Civ. P. 26(b)(1). “Information within the scope of discovery need not be
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`admissible in evidence to be discoverable.” Id. District courts have
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`broad discretion to limit discovery where the discovery sought is
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`“unreasonably cumulative or duplicative, or can be obtained from some
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`other source that is more convenient, less burdensome, or less
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`expensive.” Fed. R. Civ. P. 26(b)(2)(C).
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`An interrogatory may relate to any matter that may be inquired of
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`under Rule 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must
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`answer each interrogatory by stating the appropriate objection(s) with
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`specificity or, to the extent the interrogatory is not objected to, by
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`“answer[ing] separately and fully in writing under oath.” Rule 33(b).
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`The responding party has the option in certain circumstances to answer
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`an interrogatory by specifying responsive records and making those
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`records available to the interrogating party. Rule 33(d).
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`“An interrogatory is not objectionable merely because it asks for an
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`opinion or contention that relates to fact or the application of law to fact.”
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`Fed. R. Civ. P. 33(a)(2). The court, however, “may order that the
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`interrogatory need not be answered until designated discovery is
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`26
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`complete, or until a pretrial conference or some other time.” Id.
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`Contention interrogatories are premature if the propounding party
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`Case 3:17-cv-02398-DMS-MDD Document 150 Filed 11/07/18 PageID.2531 Page 3 of 4
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`cannot present plausible grounds showing that early answers to
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`contention questions will efficiently advance litigation, or if the
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`defendant does not have adequate information to assert its
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`position. Gen-Probe v. Becton, Dickinson and Co., No. 09-cv-2319-BEN-
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`NLS, 2010 WL 2011526 *1-2 (S.D. Cal. May 19, 2010). A contention
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`interrogatory during the early stages of litigation is appropriate where
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`the responses to the interrogatory would “contribute meaningfully” to: (1)
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`clarifying the issues in the case; (2) narrowing the scope of the dispute;
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`(3) setting up early settlement discussion; or (4) providing a substantial
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`basis for a motion under Rule 11 or Rule 56. Id. citing In re Convergent
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`Technologies Securities Litigation, 108 F.R.D. 328, 338-39 (N.D. Cal.
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`1985).
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`DISCUSSION
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`Whether a particular patent license is comparable to one that
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`might be taken in a hypothetical negotiation is considered to be a matter
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`of expert opinion. See SPH Am., LLC v. Research in Motion, Ltd., No. 13-
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`cv-2320-CAB-KSC, 2016 WL 6305414 *4 (S.D. Cal. Aug. 16, 2016);
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`Dataquill Ltd. v. High Tech Comp. Corp., No. 08-cv-0543-IEG-BGS, 2012
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`WL 1284381 *4 (S.D. Cal. Apr. 16, 2012). Contention interrogatories
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`calling for expert opinion are improper. See Finjan, Inc. v. ESET, LLC,
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`No. 17-cv-0183-CAB-BGS, 2018 WL 4772124 *4 (S.D. Cal. Oct. 3,
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`2018)(and cases cited therein).
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`Here, it is not early in the case. Discovery opened on March 8,
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`2018, and fact discovery will close on March 13, 2019. (ECF No. 98).
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`Initial expert reports are due April 10, 2019, and expert discovery will
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`close on June 5, 2019. (Id.). If Apple refused entirely to respond to this
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`Case 3:17-cv-02398-DMS-MDD Document 150 Filed 11/07/18 PageID.2532 Page 4 of 4
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`Interrogatory it would be one thing, but that is not the case. Apple has
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`identified certain relevant licenses and states that it will identify others
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`as its investigation proceeds and third parties are given notice. (ECF
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`No. 144 at 10). These licenses provide the factual information that is
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`required in response to this contention interrogatory and Apple
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`recognizes its obligation to supplement its responses as additional
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`relevant documents are identified. That is sufficient at this time. Apple
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`will not be required, in connection with this dispute, to provide the
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`opinions of its experts regarding the comparability of these licenses to
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`that which may be taken in the hypothetical negotiation.
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`CONCLUSION
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`As presented in this Joint Motion, Qualcomm’s motion to compel
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`Apple to provide a further response to Interrogatory No. 2 is DENIED.
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`IT IS SO ORDERED.
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`Dated: November 7, 2018
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