1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SYNOLOGY INC., Case No. 22-cv-01405-TLT (TSH)

8 Plaintiff,

DISCOVERY ORDER

9 v. Re: Dkt. No. 59 10 VIA LICENSING CORPORATION, 11 Defendant.

12 13 In their June 16, 2022 Case Management Statement, the parties agreed that “[t]he Parties 14 will each be entitled to a maximum of 10 fact-witness depositions, including any corporate 15 representative depositions pursuant to Fed. R. Civ. P. 30(b)(6). A Rule 30(b)(6) notice of 16 deposition will count as 1 deposition toward the limit. Depositions of third parties shall count 17 toward the limit on the number of fact depositions. Each deposition will be limited to a maximum 18 of 7 hours unless extended by agreement of the Parties.” ECF No. 24. 19 The parties eventually agreed that Via would depose nearly all of Synology’s witnesses in 20 a single week in Taipei. ECF No. 59 at 3 (“At Synology’s insistence, Via traveled to Taiwan to 21 depose nearly all of Synology’s witnesses and corporate representatives over only five days.”). 22 Leading up to those depositions, the parties reiterated their agreement that 30(b)(6) testimony 23 would be limited to seven hours. ECF No. 62-1 (Oswell March 4, 2023 11:17 a.m. email: “With 24 respect to time limits for 30(b)(6) testimony, Via accepts Synology’s proposed seven-hour total 25 limit for all.”). Also leading up to those depositions, Synology informed Via that “[a]s you might 26 expect, Synology’s witnesses in Taiwan are native Mandarin speakers, and most if not all will 27 require a translator. We will have a Mandarin translator present.” ECF No. 62-3 (Nguyen March 1 communication after March 8, 2023 and before the depositions calling into question the agreed 2 seven-hour time limit on 30(b)(6) deposition testimony. 3 In the joint discovery letter brief, Via raises a couple of complaints about the depositions. 4 First, Via says that all of Synology’s 30(b)(6) witnesses required a translator, which added 5 significant time to each witness’s testimony, particularly because Synology’s “check” translator 6 corrected the main translator a significant number of times. Second, Via contends that Synology’s 7 30(b)(6) witnesses were unprepared in several areas of their testimony. As remedies, Via requests 8 “additional deposition time” of 30(b)(6) deponent Z.P. Kao, or in the alternative evidentiary 9 sanctions preventing Synology from objecting to evidence about Synology altering or adjusting its 10 database or the other 30(b)(6) topics for which Kao had been designated. Via also requests an 11 additional seven hours of 30(b)(6) deposition time because Synology’s 30(b)(6) witnesses were 12 unprepared and because the translations took up so much time. Via also requests monetary 13 sanctions. 14 Let’s begin with the translation issue. A month before the depositions, Via had been put 15 on notice that “most if not all” of Synology’s witnesses would need a translator. Anyone with 16 common sense understands the significant impact a translator has on a deposition: Every single 17 question and answer needs to be spoken twice, first in the language of the speaker, and second in 18 the language of either the witness or the questioning attorney. Further, it is a common practice to 19 bring a check translator to a deposition to keep your opponent’s translator honest. You can’t say 20 with a straight face that you didn’t know that using a translator would significantly slow down a 21 deposition because of course you knew that; everyone knows that. And Synology justifiably 22 thought it had a deal that the 30(b)(6) depositions would be limited to a total of seven hours 23 because that is exactly what Via said. The Court is not going to let Via walk away from that deal 24 just because it played out in exactly the way anyone would have expected, i.e., the translator 25 significantly slowed down the depositions. To be sure, the agreement to a seven hour cap was 26 confirmed in a March 4 email, whereas the need for translators was disclosed in a March 8 email, 27 but once those emails were exchanged and Via did not walk back the seven-hour agreement in 1 Via blames Synology’s check translator for making so many corrections. The Court has 2 read Kao’s deposition (ECF No. 61-2), and it’s true the check translator made many corrections. 3 But whose fault is that? The Court did not see any instance in which the main translator disagreed 4 with the check translator, and the check translator has submitted a declaration stating that that 5 never happened. ECF No. 63-4 ¶ 3. 6 So, the Court will not let Via out of its agreement to cap 30(b)(6) deposition time at seven 7 hours based on the time taken up by translation. (By the way, Synology calculates that Via 8 actually took ten hours of 30(b)(6) deposition time, ECF No. 62 ¶ 9.) This was a known issue 9 going into the depositions. It’s helpful for parties to work out procedures in advance of 10 depositions, particularly in a situation like this where there were multiple depositions on 11 successive days in a foreign country. To avoid a bait-and-switch, courts should generally hold 12 parties to their agreed procedures unless something genuinely unexpected comes up, which did not 13 happen here, at least not with respect to the translation issue. 14 Now let’s turn to the other issue, which is Via’s argument that Synology’s 30(b)(6) 15 witnesses were unprepared. Here, there is a complete disconnect between the alleged wrong and 16 the requested remedy. Normally, when a party claims a 30(b)(6) witness was unprepared on 17 certain subjects, it moves to compel a further 30(b)(6) on those subjects. See, e.g., Baird v. 18 Blackrock Institutional Trust Company, N.A., 2019 WL 365845 (N.D. Cal. Jan. 30, 2019). Via 19 does not ask for that relief. Instead, it asks for an additional seven hours of 30(b)(6) deposition 20 time generally. To be clear, Via does not ask for an additional seven hours of deposition time on 21 the topics the witnesses were supposedly uneducated about. It just asks for seven more hours, 22 period. Further, Via’s effort to show that Synology’s witnesses were unprepared consists of citing 23 to less than 25 pages of testimony from all of Synology’s 30(b)(6) witnesses. ECF No. 61-3. 24 Even if the Court shared Via’s interpretation of that testimony, that would come nowhere close to 25 justifying seven hours of more testimony.1 Further, Via again raises the translator issue in 26 1 The Court rules on the remedies Via requests, and does not come up with any proposals of its 27 own, on the theory that Via is represented by capable counsel and knows what it wants. Even if 1 connection with this request for seven more hours of 30(b)(6) deposition time, making clear that 2 || this is simply a request for more time than Via had agreed to. Accordingly, the Court denies Via’s 3 request for an additional seven hours of 30(b)(6) deposition time. 4 The Court also denies Via’s request for sanctions because it violates the local rules. A 5 motion for sanctions has to be a separately filed noticed motion. Civil Local Rule 7-8. 6 Accordingly, Via’s motion to compel and request for sanctions are DENIED. 7 IT IS SO ORDERED. 8 9 Dated: May 23, 2023 10 AS \ - Lj, —

THOMAS S. HIXSON

United States Magistrate Judge 12

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19 20 21 22 23 24 25 26 27 28 . wt other side of the world for one or two more hours of deposition.