In re Mosaic LLM Litigation

Background

The court considered the parties’ joint discovery letter brief about defense counsel’s conduct during depositions. The plaintiffs alleged that defense counsel repeatedly coached witnesses during breaks and improperly instructed witnesses not to answer. They requested an order barring discussions about the substance of testimony during breaks except for privilege issues, requiring additional depositions of Hanlin Tang and Jonathan Frankle, and limiting instructions not to answer to the circumstances allowed by the Federal Rules of Civil Procedure.

Discussions During Deposition Breaks

The court held that counsel may not discuss the substance of a witness’s testimony with the witness during a deposition break, except when necessary to determine whether a privilege should be asserted. If counsel believes testimony needs clarification or the witness’s memory needs refreshing, the proper procedure is to question the witness on the record at the end of the deposition. The court stated that these procedures must be followed at future depositions.

The court also held that the examining lawyer may ask whether the witness discussed the substance of the testimony with counsel during a break, apart from discussions needed to address privilege. The witness must confirm or deny that discussion but does not have to describe its content, and the confirmation or denial does not waive attorney-client privilege.

Requests for Additional Depositions

The court denied the plaintiffs’ request to require additional depositions of Tang and Jonathan Frankle concerning communications with counsel during breaks. Tang clarified after a break what he meant by describing certain datasets as “public,” but the court found that he did not retract or reverse his earlier testimony. Frankle reviewed a document during a break and later answered questions about the dataset during the deposition. Because the plaintiffs had an opportunity to question Frankle and the communications with counsel were privileged, the court found further testimony about those communications unwarranted.

The court stated that, to the extent defense counsel discussed the substance of testimony with the witnesses during breaks, that conduct was improper. It nevertheless did not require additional depositions under the circumstances described.

Instructions Not to Answer

Federal Rule of Civil Procedure 30(c)(2) permits a person defending a deposition to instruct a witness not to answer only when necessary to preserve a privilege, enforce a court-ordered limitation, or present a motion to terminate or limit the deposition under Rule 30(d)(3). Rule 30(d)(3) concerns depositions conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the witness or party.

The court found that defense counsel’s instruction to Jonathan Frankle not to answer questions about DBRX training data was appropriate because prior orders had limited the plaintiffs’ discovery about the DBRX models. The court found that questions about witnesses’ experience torrenting media and using websites such as Napster did not meet the standard for an instruction based on unreasonable annoyance, embarrassment, or oppression. It therefore found counsel’s instruction to Naveen Rao not to answer those questions improper because the stated reason was that personal questions were inappropriate, rather than privilege or another permitted ground.

The court also found improper defense counsel’s instructions to Tang not to answer questions about his stake in MosaicML when it was acquired and how much he received from the acquisition. The court recognized privacy concerns but found that the information could be relevant to the claims and that the deposition transcripts appeared to be designated “Attorney-Eyes’ Only.” It cautioned that this ruling did not allow questions about personal finances unrelated to the acquisition or the financial benefit from the alleged infringement without limitation.

Disposition

The court ordered the parties to comply with Rule 30(c)(2) and stated that instructions not to answer are permitted only in the circumstances identified by that rule. It denied the request for additional depositions of Tang and Frankle. It also granted the parties’ joint administrative motion to exceed the exhibit page limit for their discovery briefs. The opinion does not state a separate overall grant or denial of the plaintiffs’ remaining requested deposition restrictions beyond the specific rulings described above.