IBM Corporation v. Micro Focus, Inc.

Background

Micro Focus asked the court to sanction IBM for alleged misconduct during discovery and a deposition under Federal Rule of Civil Procedure 30(b)(6). That rule allows a party to designate an organization to provide a witness who can give complete, knowledgeable, and binding answers about specified topics.

Micro Focus requested reimbursement of its travel expenses and attorneys’ fees for taking Steve Wallin’s deposition in London, an order preventing IBM from introducing evidence at trial on the noticed topics, an inference that IBM had no evidence supporting its copying and infringement claims, and other relief. Micro Focus argued that IBM’s counsel failed to prepare Wallin, improperly asserted attorney-client privilege and made speaking objections, and served supplemental contention-interrogatory objections only hours before the deposition.

IBM argued that Micro Focus had selected portions of Wallin’s testimony to create a misleading account. IBM’s counsel maintained that Wallin had been properly prepared, that the privilege objections concerned a pre-suit investigation directed by IBM’s attorneys, and that IBM had timely responded to Micro Focus’s contention interrogatories.

Court’s Analysis

The court found that Micro Focus overstated Wallin’s lack of preparation. Wallin had clarified that he understood “preparation” to mean learning something new and that he had spent the preceding two days preparing at IBM’s offices. More importantly, Micro Focus did not identify specific questions or topics that Wallin could not answer meaningfully because of inadequate knowledge or preparation. The court found only one example in which Wallin could not recall which versions of two Micro Focus products were referenced in IBM’s complaint. It held that the deposition excerpts did not show the serious inadequacies required for sanctions.

The court also declined to impose sanctions based on IBM’s privilege objections. The parties’ submissions did not clearly show what they understood before the deposition about whether certain topics might involve IBM’s pre-suit investigation, and the excerpted transcript did not clearly establish that IBM improperly asserted attorney-client privilege. The court noted that Micro Focus had not moved to compel the information over which IBM asserted privilege.

The court found that the timing of IBM’s submission of a document exceeding 100 pages, on the night before the deposition, necessarily limited Micro Focus’s ability to review the responses meaningfully. However, the court concluded that the record did not justify sanctions, particularly the severe sanctions Micro Focus proposed. The court also cautioned both parties against speaking objections, while finding that any such objections shown in the transcript were not pervasive or disruptive enough to warrant sanctions.

Disposition

The court denied Micro Focus’s request for sanctions. It ordered the parties to meet and confer by January 10, 2024, about scheduling a deposition of a witness who could testify about the information in IBM’s supplemental contention-interrogatory answers. Judge Victoria Reznik signed the order.