United States: Cat Got Their Tongue, Public Got Their Transcripts. A Bad Day For Ariosa Diagnostics

Discovery requests denied as moot. Verinata Health, Inc. v. Ariosa Diagnostics, Inc. et al., No. C 12-06602 SI

There is a line between preparing deponents to give concise, truthful answers without volunteering information and counseling them to be evasive and obstruct a deposition. Last Tuesday, counsel for Ariosa Diagnostics learned where Judge Illston draws that line, and found themselves on the wrong side of it.

The case is Verinata Health, Inc. v. Ariosa Diagnostics Inc. Verinata is a diagnostics company that develops and sells non-invasive tests for the early identification of fetal trisomies, which, like Down's Syndrome, are conditions where a person has three copies of a particular chromosome instead of the normal two. Ariosa is a competing diagnostics company. Verinata filed suit in October 2012, alleging that Ariosa's prenatal tests infringe U.S. Patent No. 8,296,076.

When Verinata deposed two of Ariosa's employees, Drs. Zahn and Struble, it found them... less than fully cooperative. Verinata submitted a pair of letters to Judge Illston, asking the Court to compel the deponents to sit for resumed—and more forthcoming—depositions. The parties subsequently came to an agreement, but Verinata nevertheless asked Judge Illston to issue "guidance" to the parties. She did so on September 16, in a scalding order rebuking Ariosa.

Verinata's chief complaint was that both witnesses were evasive, and refused to answer questions without any justifiable excuse. The Court evidently agreed, writing that Dr. Zahn "refused to answer whether he had 'any understanding whatsoever' of certain topics because he did not 'have a hundred percent accurate understanding,' and because there might be other Ariosa employees with a better understanding." While Socrates might approve of the witness coming to grips with the only true wisdom –knowing that you know nothing—as a practical matter F.R.C.P. 30 would be of limited utility if questions could so easily be deflected (unless, presumably, the deponent were Jon Snow, who as everyone knows, knows nothing). "He similarly claimed not to understand the word 'analyze' because his department was not charged with performing analysis" and also "expressed an inability to understand words such as 'founded,' 'started,' 'history,' 'document,' and 'legal' without additional context.

Dr. Struble escaped direct excoriation, because although his conduct was much the same, there was less of it. And there was less of it thanks to counsel for Ariosa. Dr. Struble's deposition ended after little more than an hour as "defendants insisted that plaintiff's counsel preface each question by stating whether it was directed to Dr. Struble in his individual capacity, or in his capacity as a corporate designee." If that weren't enough, "counsel for Ariosa added fuel to the fire, interposing objections which at times appeared to be made for no reason other to signal to the witness to become more obstructive, for example by prompting a witness to answer "I wouldn't want to speculate" with what in hindsight may have been a less-than-subtle "Objection; calls for speculation."

Although Verinata did not seek sanctions and Judge Illston did not impose any sua sponte in this instance, her opinion made it abundantly clear that she will not tolerate this kind of discovery gamesmanship.

But Ariosa did not escape unscathed. Verinata attached transcripts of the depositions of the Ariosa employees to its letters to the Court. It attempted to file them under seal because Ariosa designated them as "Confidential / Outside Attorneys' Eyes Only" pursuant to the parties' stipulated protective order. Ariosa, however, failed to comply with Civil Local Rule 79-5(e), which requires that where "the Submitting Party is seeking to file under seal a document designated as confidential by the opposing party or a non-party pursuant to a protective order ...[,] within 4 days of the filing of the Administrative Motion to File Under Seal, the Designating Party must file a declaration ... establishing that all of the designated material is sealable." As of the date of Judge Illston's Order (24 days after the Motion to Seal was filed), Ariosa had not filed any such declaration, and the Court consequently ordered Verinata to publicly file the discovery letters and the attached deposition transcripts. A sequel to the (in)famous photocopier deposition dramatization may be in the offing.

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