In the ongoing patent battle between Google and Oracle over aspects of the Android operating system, Oracle filed a motion seeking to take four additional depositions, including Google CEO, Larry Page. Each of these depositions would be over the ten deposition limit established by Fed.R.Civ.P. 30. Google opposed the request on the ground that these depositions would not only be over the ten deposition limit but also that Oracle was seeking "apex" depositions from the highest level of executives at Google. The court sided with Oracle.

With respect to Mr. Page's deposition, the court noted that "Rule 30 of the Federal Rules of Civil Procedure requires a party wishing to take more than ten depositions without consent of other parties to obtain leave from the Court to proceed." The court also noted Fed.R.Civ.P. 26(b)'s requirement that "[w]hen evaluating a party's request to expand discovery limitations, the court must ensure that the discovery sought is 'relevant to[the] party's claim[s] or defense[s]' and not unreasonably cumulative, duplicative, or burdensome."

The court then found that Oracle had made a sufficient showing to justify three of the four depositions, including the deposition of Mr. Page. In addressing Mr. Page, Google's CEO, Oracle asserted that it needed Mr. Page's deposition "regarding his knowledge of the negotiations between Sun and Google that took place between 2005 and 2010 to obtain a Java license for Android, as well as Mr. Page's decision to purchase Android, Inc. due to its strategic value." The court granted Oracle's request but limited Mr. Page's deposition to two hours focused on the topics relevant to willfulness of Google's alleged patent infringement and the value of Android to Google.

What apparently persuaded the court to allow the CEO of Google's deposition to proceed was Google's admission that Mr. Page received briefings on the negotiations between Sun and Google and therefore it was highly likely that he participated in the decision-making regarding the licensing negotiations. The court wrote: "Even though Google asserts that Mr. Page was not personally at the bargaining table, Google admits that Mr. Page received briefings on the negotiations. Given the importance of Android to Google's business, it is highly likely that Mr. Page participated in decision-making regarding the licensing negotiations."

As a result, the court found that Mr. Page likely had first hand, non-repetitive knowledge of facts at issue in the case. "Therefore, Plaintiff also has satisfied the court that Mr. Page likely 'has unique first-hand, non-repetitive knowledge of facts at issue in the case' and that Plaintiff has 'exhausted other less intrusive discovery methods' to obtain the information it seeks in its proposed deposition."

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It can be very difficult to obtain the depositions of high level executives unless a showing of nonrepetitive, first hand knowledge is made. Here, Oracle made that showing by showing that Android's importance to Google meant that it was highly likely that the CEO would have been involved directly in the decision-making process as to whether or not to purchase Android.

Oracle America, Inc. v. Google Inc., Case No. C-10-03561-WHA (DMR) (N.D. Cal. July 21, 2011)