Fortinet, Inc. v. Forescout Technologies, Inc.

Background

The parties presented a discovery dispute concerning Fortinet’s effort to obtain information about Forescout’s litigation with Advent. Forescout had alleged in this case that Fortinet timed its lawsuit and an associated campaign to interfere with Advent’s planned acquisition of Forescout. Fortinet sought four categories of documents from the Advent litigation, including materials about the merger dispute, Advent’s defenses and allegations, deposition transcripts and expert reports, and documents referring to Fortinet or this lawsuit. Fortinet also sought testimony from Forescout under Rule 30(b)(6), which permits a company to designate one or more representatives to testify about specified topics. Finally, Fortinet sought to depose former Forescout chief financial officer Christopher Harms.

The court treated Fortinet’s requests as a motion to compel, meaning a request for an order requiring discovery, and treated Forescout and Harms’s opposition to the Harms deposition as a motion for a protective order.

Motion to Compel

The court concluded that the Advent litigation was largely irrelevant to this case. Forescout’s counterclaims alleged that Fortinet intended to interfere with the acquisition, but they did not allege that Fortinet’s lawsuit or campaign actually interfered with or reduced the value of the acquisition. The alleged business interference concerned Forescout’s relationships with existing and prospective customers.

The court also reasoned that the Advent litigation centered on COVID-19 and the parties’ merger agreement. Requests about the origination and cause of that dispute, Advent’s defenses and allegations, and related testimony would therefore gather substantial information unrelated to Forescout’s tort counterclaim against Fortinet. Under Rule 26, discovery must be relevant and proportional to the needs of the case. The court stated that if Fortinet wanted information about Forescout’s finances or business practices, it should have requested that information directly rather than seeking it indirectly through the Advent litigation.

The court found that document category 4—documents filed or produced in the Advent lawsuit that referred to Fortinet or this lawsuit—appeared relevant and proportional because such materials could show whether there was a causal relationship between Fortinet’s lawsuit or campaign and any effect on the Advent acquisition. The court therefore granted Fortinet’s motion to compel as to document category 4 and denied the rest of it.

Motion for a Protective Order

Forescout and Harms invoked the apex doctrine, which can limit discovery from a company’s highest-ranking executives in certain circumstances. The court found that the parties had not provided enough evidence to determine whether Harms was an apex witness or whether the doctrine’s requirements were satisfied. They did not provide information about his responsibilities, the number of people he supervised, the size of the company, or whether he had unique, nonrepetitive knowledge. They also did not address whether Fortinet had exhausted less intrusive discovery methods.

The court further stated that a former chief financial officer could have relevant knowledge about whether the alleged campaign affected Forescout’s customer relationships. Because the burden of preventing the deposition rested on the party seeking to stop it, and Forescout and Harms had not made the required showing, the court refused to quash the deposition. It denied Forescout and Harms’s motion for a protective order.

Disposition

The court granted Fortinet’s motion to compel as to document category 4, denied the rest of that motion, and denied Forescout and Harms’s motion for a protective order.