04
Mar
By Eric Schweibenz
On March 1, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 10 (dated January 12, 2011) in Certain Video Game Systems and Controllers (Inv. No. 337-TA-743).  In the Order, ALJ Rogers granted Respondents Nintendo Co., Ltd. and Nintendo of America Inc.’s (collectively, “Nintendo”) motion for a protective order regarding the deposition of Mr. Shigeru Miyamoto.

According to the order, Complainant Motiva, LLC (“Motiva”) had noticed a deposition for Mr. Miyamoto.  Nintendo argued in its motion that Mr. Miyamoto is a high-ranking Nintendo executive that does not possess detailed technical information regarding Nintendo’s accused product, the Nintendo Wii gaming system.  Nintendo noted that Motiva was seeking to depose Mr. Miyamoto before any other Nintendo employee and argued that Motiva could obtain the information it seeks about the Wii through less obtrusive and burdensome methods.

Motiva opposed the motion, arguing that Mr. Miyamoto possesses unique information regarding Nintendo’s invalidity defenses.  Motiva claimed that Mr. Miyamoto possesses unique knowledge about the design of the Wii system and the prior art Nintendo products that Nintendo alleges invalidate the asserted claims.  Motiva further argued that because Mr. Miyamoto possesses unique knowledge regarding these subjects, his deposition should be allowed even though he is a high-ranking executive at Nintendo.

After considering the parties’ arguments, ALJ Rogers determined to grant Nintendo’s motion for a protective order quashing Motiva’s deposition notice for Mr. Miyamoto.  ALJ Rogers found that Nintendo had demonstrated that Mr. Miyamoto is a high-ranking executive who is subject to the so-called apex deposition rule.  According to the order, under the apex deposition rule, courts tend to look with disfavor on depositions of high-level executives when the executive lacks first-hand, non-repetitive knowledge of the facts at issue in the case and when the party seeking the deposition has not exhausted other less intrusive discovery methods, such as interrogatories and depositions of lower level employees.  ALJ Rogers found that the evidence did not support a finding that Mr. Miyamoto possesses unique first-hand, non-repetitive knowledge of the discoverable facts in the investigation.  ALJ Rogers further found that the record did not support a finding that Motiva had exhausted other less intrusive discovery methods, particularly in view of the fact that Motiva had not yet taken Nintendo’s Rule 30(b)(6) deposition or taken any depositions of lower level Nintendo employees.  Accordingly, ALJ Rogers granted Nintendo’s motion for a protective order quashing Motiva’s deposition notice of Mr. Miyamoto.