Concurrent Ventures, LLC, et al. v. Advanced Micro Devices, Inc., et al.
- Jon Tigar
- 4:25-cv-09567
- U.S. District Court · Northern District of California
- 11
Counsel of record per CourtListener. Firm names are approximate and have been consolidated across spelling variants.
Concurrent Ventures v. Advanced Micro Devices: Judge Beeler granted defendants’ discovery motion in part, ordering preservation disclosures and a two-hour deposition without deciding spoliation.
Concurrent Ventures, LLC, XtreamEdge, Inc., and the other plaintiffs must make the ordered disclosures and produce Stacy Kenworthy for a further deposition. The defendants may obtain that discovery, but the order does not decide whether spoliation occurred or whether any remedy is warranted.
What happened
Concurrent Ventures, LLC, et al. v. Advanced Micro Devices, Inc., et al. is a patent-infringement case involving data-processing products. The defendants sought information about the plaintiffs’ efforts to preserve emails, calendars, and other electronically stored information after Stacy Kenworthy, one of the plaintiffs’ founders and principals, described regularly deleting such material. The plaintiffs agreed to provide several categories of information but disputed the scope of a further deposition and sought protection against losing attorney-client privilege or work-product protection.
The court found that Kenworthy’s admitted deletion of emails and calendar data for more than two years after the lawsuit began was enough to allow discovery about possible evidence loss. The court did not decide when the preservation duty began, whether evidence was actually destroyed improperly, whether anyone was prejudiced, or whether sanctions should be imposed. It also ordered that compelled disclosures would not waive attorney-client privilege or work-product protection.
Judge Beeler granted the defendants’ discovery motion in part. The plaintiffs must produce litigation holds and preservation-related communications within fourteen days, provide a sworn written account of verbal communications, and produce Kenworthy for a remote deposition of up to two hours within thirty-five days. The deposition is limited to preservation and deletion topics, and the defendants generally may not repeat questions already answered.
The detailed version
- Concurrent Ventures, LLC, et al. v. Advanced Micro Devices, Inc., et al. · No. 4:25-cv-09567
- Jon Tigar
- Sept. 14, 2026
Background
The plaintiffs assert five patent-infringement claims against Advanced Micro Devices, Inc., Pensando Systems, Inc., and other defendants concerning data-processing-unit products. The discovery dispute concerned the plaintiffs’ preservation of documents and electronically stored information.
Stacy Kenworthy, identified as one of the two founders and principals of Concurrent Ventures, LLC and XtreamEdge, Inc., testified that he had deleted sent and received emails and calendar entries daily during his tenure at HellaStorm, Concurrent Ventures, and XtreamEdge. The opinion states that this practice continued for more than two years after the plaintiffs filed the case. After the plaintiffs disclosed the practice in June 2026, Kenworthy testified that he continued deleting personal-account emails unless he judged them related to the case.
The defendants sought production of litigation holds, communications about the duty to preserve documents and electronically stored information, and a sworn account of verbal preservation communications. They also sought a two-hour further deposition of Kenworthy about spoliation, document retention, and preservation instructions. The plaintiffs agreed to provide the requested documents and written account if ordered, but offered a shorter deposition limited to questions previously blocked on privilege grounds. The plaintiffs also sought protection against an argument that producing privileged material waived privilege.
Legal Standard
Under Federal Rule of Civil Procedure 26(b)(1), discovery may concern nonprivileged matters relevant to a claim or defense and proportional to the needs of the case. The court explained that litigation holds and related preservation communications are ordinarily protected by the attorney-client privilege or work-product doctrine, but they may be discoverable when the requesting party makes a preliminary showing of spoliation. That preliminary showing permits investigation; it is not a finding that spoliation occurred.
The court also explained that the duty to preserve evidence begins when litigation is reasonably anticipated and extends to evidence the party knows or reasonably should know is relevant. A party generally needs court permission to take a further deposition of a witness who has already been deposed. Additional time may be allowed when circumstances impeded or delayed the first examination, subject to limits against cumulative discovery.
Analysis
The court found the required preliminary showing based on Kenworthy’s admitted wholesale deletion of email and calendar data, which continued daily for more than two years after the plaintiffs filed the case. The court did not resolve the parties’ dispute about whether litigation was reasonably anticipated before 2020 or only in mid-2022. It held that, at the latest, the duty to preserve attached when the plaintiffs filed suit on March 29, 2024.
The court rejected the plaintiffs’ arguments as reasons to deny preservation discovery. The plaintiffs argued that relevant material might remain in the records of another custodian because Kenworthy copied or forwarded important communications. The court said that issue was contested and could be investigated through discovery. The plaintiffs also defended Kenworthy’s ongoing relevance-based deletion practice, but the court held that an interested principal’s unilateral and continuing relevance judgments were at least a proper subject of inquiry.
The court emphasized that it was deciding only whether the defendants could obtain preservation discovery. It expressly left open the propriety of Kenworthy’s retention practices, the date the preservation duty began, whether information was lost, whether anyone was prejudiced, and whether there was an intent that could support a later remedy.
Privilege and Further Deposition
The court ordered that compelled production is not a voluntary disclosure for waiver purposes. Under Federal Rule of Evidence 502(d), the production and testimony compelled by the order do not waive attorney-client privilege or work-product protection in this case or any other federal or state proceeding. The order did not decide any other waiver theory.
The court allowed a further remote deposition of Kenworthy for no more than two hours. The examination is limited to the questions previously blocked on privilege grounds, materials produced under the order, and Kenworthy’s document and electronically stored information retention, deletion, and preservation practices, including his response to preservation instructions. The defendants may not re-ask questions from the August 11, 2026 deposition except as reasonably necessary to establish a foundation.
Order
Judge Laurel Beeler granted the defendants’ discovery motion in part and ordered:
- Within fourteen days, the plaintiffs must produce litigation-hold notices relating to the case that were sent to the plaintiffs, including Kenworthy.
- Within fourteen days, the plaintiffs must produce communications involving the plaintiffs, their principals, or employees about preserving documents and electronically stored information, steps taken to preserve them, or failures to preserve them.
- At least three days before the further deposition, the plaintiffs must serve a sworn written account of verbal communications in those categories.
- Within thirty-five days, the plaintiffs must produce Kenworthy for the further deposition, which may last up to two hours and must remain within the stated subject limits.
- The compelled production and testimony do not waive attorney-client privilege or work-product protection.
The order resolves the discovery dispute identified as ECF No. 309. It does not decide whether spoliation occurred, when any duty to preserve attached, or whether a remedy under Rule 37(e) or another authority is warranted.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.