AbCellera Biologics Inc. v. Bruker Cellular Analysis, Inc.

Background

AbCellera Biologics, Inc. and The University of British Columbia, collectively called “AbCellera” in the opinion, asked the court to resolve a discovery dispute concerning depositions of Siddhartha Kadia and Mark Munch. According to the parties, Kadia was PhenomeX’s former chief executive. PhenomeX was identified by Bruker Cellular as the successor to Berkeley Lights, the original defendant. Bruker Corporation acquired PhenomeX during the litigation, and the surviving corporation became the current defendant, Bruker Cellular.

Kadia participated for PhenomeX in at least one August 2023 communication or meeting with an AbCellera representative about a possible resolution of the case and signed the August 2023 merger agreement with Bruker Corporation. He was no longer affiliated with a party to the case and resided and worked outside the Northern District of California. Munch was the president of Bruker Cellular and its corporate parent and also signed the merger agreement for Bruker Corporation.

AbCellera first requested Kadia’s deposition on January 23, 2025, and Munch’s deposition on February 25, 2025. Bruker Cellular objected to both requests, arguing that the witnesses were high-level executives with no unique, relevant knowledge. The court also noted that Bruker Cellular’s counsel had represented Kadia for purposes of the deposition request but was not authorized to accept service of a subpoena for him.

Legal standard

The Federal Rules of Civil Procedure generally allow a party to depose a person without first obtaining court permission. A deposition of a non-party must be obtained through a subpoena. Discovery must concern information relevant to a claim or defense and proportional to the needs of the case. The court may issue a protective order for good cause to prevent annoyance, embarrassment, oppression, or undue burden or expense.

For a deposition of a high-level corporate executive—an “apex” deposition—the court considers whether the person has unique firsthand knowledge of facts at issue and whether the requesting party has exhausted less intrusive ways to obtain the information. The court may limit or disallow the deposition if the information can be obtained from a more convenient, less burdensome, or less expensive source.

Kadia deposition

Because Kadia was a non-party, the court held that AbCellera could obtain his testimony only through a valid subpoena. AbCellera could not rely on the rule governing depositions of parties or corporate officers to require Bruker Cellular to produce him. The subpoena had not been provided to the court. The court further stated that, if Kadia resided outside the Northern District of California, the subpoena would have to identify a place of compliance under the federal rules, and any dispute about his compliance would generally need to be brought in the district of compliance unless transferred to the Northern District of California.

The court found that AbCellera had not presented grounds for an order requiring Kadia to testify or requiring Bruker Cellular to produce him. It denied AbCellera’s request for relief concerning Kadia.

Munch deposition

Unlike Kadia, Munch was an officer of Bruker Cellular, so AbCellera could notice his deposition under the rule governing depositions of corporate officers. The court treated Munch as an apex witness and asked whether he had unique firsthand knowledge of facts at issue and whether AbCellera had pursued less intrusive means of obtaining that information.

AbCellera argued that Munch had signed and been directly involved in the August 2023 merger transaction, had headed the entity responsible for manufacturing and selling the accused Beacon system, and had knowledge concerning Bruker Cellular’s employment of Anupam Singhal and its decision to continue allegedly infringing activity after receiving AbCellera’s first infringement notice. AbCellera also stated that a Bruker Cellular corporate representative lacked relevant knowledge about the subject.

Bruker Cellular responded that Munch had almost no direct involvement in relevant issues. It argued that information about the merger negotiations was privileged or already clear from discovery, and it represented that Munch had no information about responding to AbCellera’s infringement notice because the notice came before Bruker Cellular’s involvement. Bruker Cellular also stated that Singhal left the company before the PhenomeX transaction.

The court concluded that AbCellera had not explained how Munch’s anticipated testimony about the merger negotiations or Singhal’s employment was relevant to an issue in the case. Although information about responding to an infringement notice might be relevant to willfulness, the court accepted Bruker Cellular’s representation that Munch had no such information, and AbCellera did not respond to that point. The court therefore found that AbCellera had not shown that Munch possessed unique firsthand knowledge of facts at issue.

The court denied AbCellera’s request for Munch’s deposition and granted Bruker Cellular’s request for a protective order. The court separately deferred ruling on AbCellera’s related sealing motion. The opinion also stated that Bruker Cellular had not established a basis to conclude that the merger negotiations were privileged and explained that the “common interest” doctrine does not itself create a privilege.