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JAN l 0 2019
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SUPERIOR COURT 0F CALIFORNIA
\OOOHO
COUNTY OF SANTA CLARA
ACACIA COMMUNICATIONS, INC., Case No. 18CV335905
Petitioner, STIPULATION AND' REQUEST TO A8
MODIFY THE COURT'S DECEMBER 21,
V. 2018 ORDER GRANTING ACACIA'S
PETITION TO COMPEL DISCOVERY XVd
FIBERHOME TELECOM USA, INC, FROM FIBERHOME
Respondent. Dept: l9
Judge: Hon. Peter H. Kirwan
SUPERIOR COURT 0F THE
COMMONWEALTH OF MASSACHUSETTS
ACACIA COMMUNICATIONS, INC., Mass. Case No. 17-2386
Plaintiff,
Counterclaim-Defendant,
v.
VIASAT, INC,
Defendant,
Counterclaim-Plaintiff.
StipulationTofibaify The Cgun's Order Granting Acacia's PetitionTo Compcl Discoven From Fiberhome
Petitioner Acacia Communications, ("Acacia")
Inc. and Respondent Fiberhomc Telecom
USA, Inc. ("Fiberhome") hereby stipulate and jointly request the Coun to modify the December
21, 2018 Order attached as Exhibit A hereto. Under the Coun's December 21, 2018 Order,
Fiberhome must appear for deposition no later than twenty (20) calendar days from notice of
entry of that Order and produce documents within (20) days from notice of entry of that Order,
which isJanuary 10, 2019.
Afler meet and confer discussions, the parties jointly request that the Comt‘s December
COONQ
21, 2018 Order be modified to require Fiberhome to appear for deposition and produce
documents afier a stay that has recently been entered in the underlying action pending in
10 Massachusetts (the "Massachusetts Action") is lifted.
1
11 This petition to compel sought discovery from Fiberhome intended to be used in the
12 Massachusetts Action. The underlying Massachusetts Action was recently stayed by that court
13 until the resolution of another pending litigationbetween the Massachusetts Action parties, which
14 is scheduled to begin uial on May 31, 2019. The stay of the underlying Massachusetts Action
15 will remain in place until theconclusion ofthat other trial.
16 WHEREFORE, to conserve the parties' and the Court’s resources, the parties respectfully
17 request that the Court grant the parties’
request and enter the Proposed Order attached as Exhibit
18 B hereto.
19
20 Dated: January‘l, 2019 Respectfully submitted,
21
22 215!de 3C7 w/m
TSAO-WU & YEE L‘L‘P
23 leliam
PROCOPIO, CORY, HARGREAVES
J.Taylor
Attorney for Respondent
& SAVITCH LLP
24 Victor M, Felix
FIBERHOME TELECOM, INC. Melinda M. Morton
25 Attorneys for Petitioner
ACACIA COMMUNICATIONS, INC.
26
27
2
To Modify The
Stipulation Court‘s Order Granting Acacia's Petition
To Compel Discovery From Fiberhome
EXHIBIT A
Ix.)
b)
O\UIJ>
\l
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SANTA CLARA
11 ACACIA COMMUNICATIONS, INC, Case No. ISCV'335905
g
12 Petitioner,
1’
ORDER
14 vs.
16 FIBERHOME TELECOM USA, INC,
17 Respondent. '
18
19
i.n
20 Acacia Communications, Inc.’s Petition for Relief Discovery DiSputc Related to Out-
21 of-State Case Seeking an Order Directing Compliance with Deposition Subpoena and Subpoena
22 for the Production of Business Records and for Expenses ofthe Petition or Monetary Sanctions
23 came on for hearing before the Honorable Peter H. Kirwan on December 20, 201 S. at9:00 am.
2-1 in Dcpanment 19. The matter having been submitted, the court orders as follows:
-_:> Factual and Procedural Background
26 Petitioner Acacia Communications, Inc. ("Acacia") commenced a lawsuit against \‘iaSat
27 Communications, Inc. ("ViaSat") in the Supen’or Court ofthe Commonwealth of Massachusetts
2S (“MA Litigation"). (Petition. ‘53.) Acacia claims ViaSat interfered with Acacia‘s technical
Case No. ISCYEBS‘JOS
Order
submissions to a standard setting organization called the Optical Intemctworking Forum (“01F”).
IQ (Petition, $5.) In the summer of2017, the OIF was considering submissions from different
la:
companies, including Acacia and Inphi Corporation (“Inphi"), to create a standard known as
4OOZR FEC. (Id)
On July 2S, 2017, ViaSat sent a letter toOIF and various OIF members containing false
and misleading accusations about Acacia and its4OOZR submission, including the false
\OUJNQUI$8
statement that Acacia’s submission containcd ViaSat intellectual property. (Petition, W.) ViaSat
asked 01F to halt consideration ofAcacia’s submission and ViaSat threatened that 01F, its
members, and anyonercceiving Acacia’s submission may be subject to potential liability to
ViaSat. (Petition, £8.)
On August 2, 2017, the OIF voted to select a 4OOZR standard‘ adopting Inphi’s preposa]
and not Acacia's by a close margin. (Petition, 19.) Adoption of Acacia’s submission as the
4OOZR standard would have been a siglificant business opportunity for Acacia, potentially worth
hundreds ofmillions of dollars. (1d)
Before the OIF vote, various OIF members contacted other 01F members regarding the
competing 4OOZR standard submissions. (Petition, ‘311.) Respondent Fiberhomc Telecom USA,
Inc. (“Fiberhomc”) was involved in thecommunications with 01F members. (Id)
Acacia's counsel issued a Deposition Subpoena and Subpoena for the Production of
Business Records to Fiberhome relevant to claims made by Acacia against \‘iaSat in the MA
Litigation. (Petition. $12.) Fibcrhomc’s communications intemally and with other OIF members
will pron'de insight about the impact of ViaSat’s conduct. (1d)
On August 15, 2018, Acacia's counsel issued a corresponding deposition subpoena and
IQ o) subpoena for the production ofbusiness records ("Subpoena").' The Subpoena was personally
4.
Ix)
served on Fiberhome at itscorporate office located at 4677 01d lronsides Drive in Santa Clara on
u:
IQ August 16, 2018.3
IQ 0‘
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Sec ‘23 to the Declaration of Victor M. Felix in Support ot‘Parr)‘ Acacia Communications. Inefs Petition f0: Rciief
'
inDiscovery Dispute Related to Out-otlstatc Case t"Dc:lara:xon Felix").
3
See 'H to the Declaration Felix.
7
'
Cm No. 130335905
Order
On August 24, 2018, Acacia’s counsel received a telephone callfrom John Z. Huang
h) (“Huang"), an attorney claiming to represent Fiberhome, who explained that the entity served
b)
with the Subpoena was not incorporated at the time the OIF vote took place on August 2, 2017.3
A Acacia's counsel met and conferred with Huang and directed Huang to follow-up with Acacia’s
UI
counsel in Massachusetts.“
Ox
On August 30, 2018, another attorney representing Fiberhome emailed a letter to
\l
Acacia‘s counsel asserting the Subpoena was invalid and unenforceable.5 Acacia’s counsel
m responded the same day advising Fiberhome’s counsel about the validity of the Subpoena and
\O advising Fiberhome’s counsel that the failure to formally respond or object will result in a waiver
of objections.5
On August 31, 2018, Fiberhomc served itsobjections to the Subpoena by mail and fax}
Acacia’s counsel did not agree to accept service by facsimilc.3 Fiberhome did not produce any
documents and did not agce or confirm itwould appear for deposition?
On September 4, 2018, Fiberhome filed a Petition to Quash the Subpoena in Santa Clara
County Superior Conn, case number 18CV334283 (“Fiberhome Petition”). naming Acacia’s
counsel as the only reSpondent.‘°
On October 3, 2018, Acacia filed the instant Petition for Relief in Discovery DiSpute
Related to Out-of-State Case Seeking an Order Directing Compliance with Deposition Subpoena
and Subpoena for the Production of Business Records and for Expenses of the Petition or
Monetary Sanctions.
I. Petitioner Aeacin’s request for judicial notice isDENIED.
In support ofits petition, Acacia requests judicial notice of orders issued by the Alameda
County Superior Court and the Sacramento CQunt} Superior Court. The coun does not find the
IQ 4a
3
See the Declaration Felix.
'15 to
‘
Id.
5
See '.6 Declaration Felix.
to the
6
See f7 to theDeclaration Felix.
7
See ‘18to the Declaration Felix.
5
Sec T8 Declaration Felix.
to the
g
Id.
"’
See ‘9 to the Declaration Felix.
DJ
Case No. 18CV335905
Order
orders necessary or helpful in ruling on the petition. (Sec Dum-ze r.Pacific Specialty Insurance
IQ Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice isnot
b)
necessary, helpful or relevant.) Accordingly, the request for judicial notice in support of
Acacia’s petition isDENIED.
II. Petitioner Acacia’s petition to enforce compliance with deposition subpoena and
\IO‘uUi#
subpoena for production of business records is GRANTED.
“[Hf a party to a proceeding pending ina foreign jurisdiction retains an attorney licensed
who
to practice in this state, isan active member of the State Bar. and that attorney receives the
00m
on'g’nal or a trueand correct copy of a foreign subpoena, the attomey may issue a subpoena.”
(Code Civ. Proc., §2029.350, subd. (a).) Under this authority, Acacia’s counsel in California
issued the Subpoena at issue on August 15, 201 S after receiving the foreigx (Massachusetts)
subpoexn The Subpoena directed Fiberhome to appear and produce business records on
September 4, 2018.
Following Fibcrhome's objection. Acacia filed the instant petition on October 3,2018 as
directed by Cod: of Civil Procedure section 2029.600. subdivision (a) which states, "If a dispute
an'ses relating to discovery under this article,any request to enforce a subpoena, or for
other reliefmay be filed in the superior court in the county in which discovery isto be conducted
and, if so filed, shall comply with the applicable rules or statutes of this state." “A request for
relief pursuant to this secrion shall be referred to as a petition notm‘thstanding any statute under
which a request for the same relief would be referred to as a motion or by another term was
if it
brought in a proceeding pending in this state."(Code Civ. Proe. §2029.600, subd. (b).)
Apart from referiing to the request as a petition instead of a motion, the request is
otherwise governed by thc Civil Discoveiy Act. (Sec Code Civ. Proc.. §2029.500—“Titles 3
(commencing with Section 1985) and 4 (commencing with Section 2016.0 1 0) of Pan 4, and any
other law or court rule of this state goveming a deposition. a production of documents or other
tangible items, or an inspection of premises. including any law or com rule governing payment
of court costs or sanctions, apply to discovery under this article")
ISCV335905
Case .\'o.
Order
._. “If a deponent fails to answer any question or to produce any document, electronically
stored information, or tangible thing under the dcponcnt's control that is Specified in the
deposition notice or a deposition subpoena, the party seeking discovery may move the court for
an order compelling that answer or production.” (Code Civ. Proc.. §2025.480, subd. (3).)
“A
dcponcm who has objected to a question and refused to answer bcars the burden ofjustifying
©WQO‘MhWN
such refusal on the motion to compel.” (Wcil & Brown e1 a1., CAL. PRAC. GUIDE: CIV. PRO.
BEFORE TRIAL me Runer Group 201 8) (8:814. p.35-145.)
In opposition, Fibcrhome argues initially thatAcacia’s petition to enforce compliance
with the Subpoena should bc denied because Fiberhome did not come into existence until August
O
,_‘
l7, 2017 when itwas incorporated, after the August 2. 201 7 date of the OIF vote. Fibcrhome is
essentially denying any involvement andbr infommtion concerning the matters at issue in thc
MA Litigation. This is not a valid basis for refusing to comply with the validly issued Subpoena.
To the extent Fibcrhome did not have any involvement and does not have any information
relating to the matters at issue in the MA Litigation. Fiberhome can respond and/or testify
accordingly.
Fiberhome argues additionally that Acacia‘s Subpoena isoverbroad, irrelevant, and
unduly burdensome. However, as Acacia pointed out in its petition.Fiberhome wnivedlany
objections in failing to timely object.
Any party served with a deposition notice that does not comply with Article 2
(commencing with Section 2025.210) waives any error or irregularity unless that
party promptly serves a written objection specifying that error or irregularity a!
Io k) least three calendar days prior to the darefor which tlze deposition is scheduled,
Nl.»
on the party seeking to take the deposition and any other attorney or party on
(\J 4a.
whom the deposition notice was served.
IQ UI (Code Ci\’. Proc., §2025.410. subd. (a): emphasis added.)
IJ O\ The deposition was scheduled for September 4. 201 S. To be timely. Fibcrhomc‘s
IJ \l
objections had to be mailed by August 22. 201 S since they were mailed from Chicago, Illinois.
m
Ix)
Fiberhome served objections by mail and fax on August 3 1.2018 from Chicago, Illinois.
'JI
Case No. ISCV335905
Order
“Service by facsimile transmission shall be pennined only where the parties agree and a written
[\J
continuation of that agreement ismade." (Code Civ. Proc., §1013. subd. (2).) Acacia’s counsel
lu did not agree to accept service by facsimile. Consequently, Fiberhome has waived any
objections.
Petitioner Acacia‘s petition to enforce Fiberhomc’s compliance with the Subpoena is
GRANTED. Fiberhome shall appear for deposition at 11 17 S. California Avenue, Suite 200,
Palo Alto.
OOOOQOU‘A
CA 94304 at a mutually convenient date and time no later than20 calendar days from
notice of entry of this order. Fibcrhome shall also produce the documents, electronically stored
information, and things described in Attachment 3 to the Subpoena within 20 calendar days from
notice of entry of this order.
“The court shall impose a monetary sanction against any pany, person, or attomey
who unsuccessfully makes or opposes a motion to compel an answer or production. unless it
finds that the one subject to thc sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust." (Code Civ. Proc., §2025.480, subd.
(j).) Although petitioner Acacia prevailed against Fiberhome on this petition, the court isof the
opinion that the imposition ofmonctary sanctions against Fiberhome would bc unjust under the
circumstances. Accordingly, petitioner Acacia’s request for monetary sanctions of $74,440 is
DENIED.
Dated: \Z-l 2" “8 M._ Hm L0...“
Hon. Peter H. Kirwan
Judge of the Superior Court
N 43
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Case No. ISCVSSSGOS
Order
SUPERIOR COURT 0F CALIFORNIA
COUNTY OF SANTA CLARA
DO\\'NTO\\'N COURTHOUSE
191Noam Fmsr STREET
SAxJossrAchaNu
CIVIL DIVISION
95113
' L E
"
-
DEC 1 2018
he Co
BY 0' 83331
Gar.
RE: Acacia Communications, Inc. vs Fiberhome Telecom US- EPUTY
Case Number. 180V335905
PROOF OF SERVICE
was above
delivered to the parties listed below the entitledcase as set forthin the sworn declaration below.
if on behalf
you. a party represenzed by you, or a witness to be calzed need an accommodation
cf that party under the American with
Ad. phase
Disabilities coma the Court Administrawrs
office TDD line (408) 882-2690 or the
or use the Court’s
at (408,1 882-2700,
VcheITDD Cafifomia Relay Sewioe
(800)7352922.
DECLARATION OF SERVICE BY MAIL: Idedare mat1served this nozice by enclosing a true copy in a sealed envelope. addressed to
each person whose name is shown betow. and by depositing the envelope w‘th postage fufly prepaid, in the United States Mail at San Jose‘
CA on. CLERK OF THE COURT. by Ingrid Stewart Deputy.
cc: fibemome Telecom USA Inc No Known Address
V1ctorManuel FelixPerez 525 B St S1e 2200 San Diego CA 92101
cw.9027 Rev 1208/16 PROOF OF SERVICE
SUPERIOR COURT 0F CALIFORNIA
COUNTY OF SANTA CLARA
DOWNTOWN COURmOUSE
I91 NORTH FIRST STREET
Sm JOSE. CamromL-x 9S! 13 (IENDORSED)
Victor Manuel FelixPerez
CIVIL DIVISION
F DEC 1
L
8 B
20,8
525 B s: Ste 2200 I
st“ Clerk of
San Diego CA 92101 the
BY
9089",:
RE: Acacia Communications, Inc.vs Fiberhome Telecom USA. Inc. 5:3.“
Case Number. 186V335905
PROOF OF SERVICE
was delivered to the parties listed below theabove entitledcase as set forthinthe sworn declaration below.
Ifyou. apuny remained by you, or a witness to be celied on behal! o! that party need an accommodatian
under the American with
Au.
Disabilines please coma the Cour: Adminismtor’sofficea: (408)882-2700.or use the Court's TDD line
(408)882-2690 or the
VoicelTDD California Relay Service (800) 735-2922,
DECLARATION OF SERVICE BY MAIL: ldeclare that
Iserved this notice by endosing a true copy in a sealed envelope. addmssod to
each person whose name is shown below. and by depositing the envelope with postage fulty prepaid. in the United States Mai! at San Jose.
CA on .CLERK OF THE COURT. by Ingrid Stewart. Deputy.
cc: Fiberhome Teleoom USA Inc No Known Address
k
cw-9027 REV 1208/16 PROOF 0F SERVICE
EXHIBIT B
\OOOQOLIIA
SUPERIOR COURT OF CALIFORNIA
COUNTY 0F SANTA CLARA
ACACIA COMMUNICATIONS, INC, Case No. 18CV335905
Petitioner, [PROPOSED] ORDER TO MODIFY THE
COURT'S DECEMBER 21, 2018 ORDER
v. GRANTING ACACIA'S PETITION T0
COMPEL DISCOVERY FROM
FIBERHOME TELECOM USA, INC, FIBERHOME
Respondent. Dept: 19
Judge: Hon. Peter H. Kirwan
SUPERIOR COURT OF THE
COMMONWEALTH OF MASSACHUSETTS
ACACIA COMMUNICATIONS, INC, Mass. Case No. 17-2386
Plaintiff,
Counterclaim-Defendant,
v.
VIASAT, INC.,
Defendant,
Counterclaim-Plaintiff.
[Proposed] Order To Modify The Court's Order Dated December 2 l, 20l8 Granting Acacia'sPetitionTo Compel
Discovery From Fiberhome
Upon consideration of the Stipulation To Modify The Court’s Order Dated December 21,
N 2018 Granting Acacia’s Petition To Compel Discovery From Fiberhome, upon all other papers
and proceedings herein, and with good cause shown, itis hereby ORDERED that:
1. Afier the stay is lifted in the Massachusetts Action, Acacia will promptly notify
Fiberhome that the stay has been lified.
2. Within twenty (20) calendar days of receiving notice from Acacia that the stay in
\OOOHQM-bw
the Massachusetts Action has been lifted, Fiberhome shall produce the documents, electronically
stored information, and things described in Attachment 3 to the Subpoena, and;
3. Fiberhome shall appear for deposition at 1117 S. California Avenue, Suite 200,
10 Palo Alto, CA 94304 at a mutually convenient date and time no later than forty-five (4S) calendar
11 days from the conclusion of the stay in the Massachusetts Action.
12 IT IS SO ORDERED.
13
14
Dated: ,2019
15 Hon. Peter H. Kirwan
Judge of the Superior Court
16
17
18
19
20
21
22
23
24
25
26
27
28
3
h
[Proposed] Order To Modify The Court's Order Dated December 21, 2018 Granting Acacia's PetitionTo Compel
Discovery From Fiberhome
Preview
FILE?) JAN l 0 2019 » .n I. ‘. V cw mmiaaczxcmd‘ mam R. Anflcfiébdmm SUPERIOR COURT 0F CALIFORNIA \OOOHO COUNTY OF SANTA CLARA ACACIA COMMUNICATIONS, INC., Case No. 18CV335905 Petitioner, STIPULATION AND' REQUEST TO A8 MODIFY THE COURT'S DECEMBER 21, V. 2018 ORDER GRANTING ACACIA'S PETITION TO COMPEL DISCOVERY XVd FIBERHOME TELECOM USA, INC, FROM FIBERHOME Respondent. Dept: l9 Judge: Hon. Peter H. Kirwan SUPERIOR COURT 0F THE COMMONWEALTH OF MASSACHUSETTS ACACIA COMMUNICATIONS, INC., Mass. Case No. 17-2386 Plaintiff, Counterclaim-Defendant, v. VIASAT, INC, Defendant, Counterclaim-Plaintiff. StipulationTofibaify The Cgun's Order Granting Acacia's PetitionTo Compcl Discoven From Fiberhome Petitioner Acacia Communications, ("Acacia") Inc. and Respondent Fiberhomc Telecom USA, Inc. ("Fiberhome") hereby stipulate and jointly request the Coun to modify the December 21, 2018 Order attached as Exhibit A hereto. Under the Coun's December 21, 2018 Order, Fiberhome must appear for deposition no later than twenty (20) calendar days from notice of entry of that Order and produce documents within (20) days from notice of entry of that Order, which isJanuary 10, 2019. Afler meet and confer discussions, the parties jointly request that the Comt‘s December COONQ 21, 2018 Order be modified to require Fiberhome to appear for deposition and produce documents afier a stay that has recently been entered in the underlying action pending in 10 Massachusetts (the "Massachusetts Action") is lifted. 1 11 This petition to compel sought discovery from Fiberhome intended to be used in the 12 Massachusetts Action. The underlying Massachusetts Action was recently stayed by that court 13 until the resolution of another pending litigationbetween the Massachusetts Action parties, which 14 is scheduled to begin uial on May 31, 2019. The stay of the underlying Massachusetts Action 15 will remain in place until theconclusion ofthat other trial. 16 WHEREFORE, to conserve the parties' and the Court’s resources, the parties respectfully 17 request that the Court grant the parties’ request and enter the Proposed Order attached as Exhibit 18 B hereto. 19 20 Dated: January‘l, 2019 Respectfully submitted, 21 22 215!de 3C7 w/m TSAO-WU & YEE L‘L‘P 23 leliam PROCOPIO, CORY, HARGREAVES J.Taylor Attorney for Respondent & SAVITCH LLP 24 Victor M, Felix FIBERHOME TELECOM, INC. Melinda M. Morton 25 Attorneys for Petitioner ACACIA COMMUNICATIONS, INC. 26 27 2 To Modify The Stipulation Court‘s Order Granting Acacia's Petition To Compel Discovery From Fiberhome EXHIBIT A Ix.) b) O\UIJ> \l 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA CLARA 11 ACACIA COMMUNICATIONS, INC, Case No. ISCV'335905 g 12 Petitioner, 1’ ORDER 14 vs. 16 FIBERHOME TELECOM USA, INC, 17 Respondent. ' 18 19 i.n 20 Acacia Communications, Inc.’s Petition for Relief Discovery DiSputc Related to Out- 21 of-State Case Seeking an Order Directing Compliance with Deposition Subpoena and Subpoena 22 for the Production of Business Records and for Expenses ofthe Petition or Monetary Sanctions 23 came on for hearing before the Honorable Peter H. Kirwan on December 20, 201 S. at9:00 am. 2-1 in Dcpanment 19. The matter having been submitted, the court orders as follows: -_:> Factual and Procedural Background 26 Petitioner Acacia Communications, Inc. ("Acacia") commenced a lawsuit against \‘iaSat 27 Communications, Inc. ("ViaSat") in the Supen’or Court ofthe Commonwealth of Massachusetts 2S (“MA Litigation"). (Petition. ‘53.) Acacia claims ViaSat interfered with Acacia‘s technical Case No. ISCYEBS‘JOS Order submissions to a standard setting organization called the Optical Intemctworking Forum (“01F”). IQ (Petition, $5.) In the summer of2017, the OIF was considering submissions from different la: companies, including Acacia and Inphi Corporation (“Inphi"), to create a standard known as 4OOZR FEC. (Id) On July 2S, 2017, ViaSat sent a letter toOIF and various OIF members containing false and misleading accusations about Acacia and its4OOZR submission, including the false \OUJNQUI$8 statement that Acacia’s submission containcd ViaSat intellectual property. (Petition, W.) ViaSat asked 01F to halt consideration ofAcacia’s submission and ViaSat threatened that 01F, its members, and anyonercceiving Acacia’s submission may be subject to potential liability to ViaSat. (Petition, £8.) On August 2, 2017, the OIF voted to select a 4OOZR standard‘ adopting Inphi’s preposa] and not Acacia's by a close margin. (Petition, 19.) Adoption of Acacia’s submission as the 4OOZR standard would have been a siglificant business opportunity for Acacia, potentially worth hundreds ofmillions of dollars. (1d) Before the OIF vote, various OIF members contacted other 01F members regarding the competing 4OOZR standard submissions. (Petition, ‘311.) Respondent Fiberhomc Telecom USA, Inc. (“Fiberhomc”) was involved in thecommunications with 01F members. (Id) Acacia's counsel issued a Deposition Subpoena and Subpoena for the Production of Business Records to Fiberhome relevant to claims made by Acacia against \‘iaSat in the MA Litigation. (Petition. $12.) Fibcrhomc’s communications intemally and with other OIF members will pron'de insight about the impact of ViaSat’s conduct. (1d) On August 15, 2018, Acacia's counsel issued a corresponding deposition subpoena and IQ o) subpoena for the production ofbusiness records ("Subpoena").' The Subpoena was personally 4. Ix) served on Fiberhome at itscorporate office located at 4677 01d lronsides Drive in Santa Clara on u: IQ August 16, 2018.3 IQ 0‘ \l Ix) Sec ‘23 to the Declaration of Victor M. Felix in Support ot‘Parr)‘ Acacia Communications. Inefs Petition f0: Rciief ' inDiscovery Dispute Related to Out-otlstatc Case t"Dc:lara:xon Felix"). 3 See 'H to the Declaration Felix. 7 ' Cm No. 130335905 Order On August 24, 2018, Acacia’s counsel received a telephone callfrom John Z. Huang h) (“Huang"), an attorney claiming to represent Fiberhome, who explained that the entity served b) with the Subpoena was not incorporated at the time the OIF vote took place on August 2, 2017.3 A Acacia's counsel met and conferred with Huang and directed Huang to follow-up with Acacia’s UI counsel in Massachusetts.“ Ox On August 30, 2018, another attorney representing Fiberhome emailed a letter to \l Acacia‘s counsel asserting the Subpoena was invalid and unenforceable.5 Acacia’s counsel m responded the same day advising Fiberhome’s counsel about the validity of the Subpoena and \O advising Fiberhome’s counsel that the failure to formally respond or object will result in a waiver of objections.5 On August 31, 2018, Fiberhomc served itsobjections to the Subpoena by mail and fax} Acacia’s counsel did not agree to accept service by facsimilc.3 Fiberhome did not produce any documents and did not agce or confirm itwould appear for deposition? On September 4, 2018, Fiberhome filed a Petition to Quash the Subpoena in Santa Clara County Superior Conn, case number 18CV334283 (“Fiberhome Petition”). naming Acacia’s counsel as the only reSpondent.‘° On October 3, 2018, Acacia filed the instant Petition for Relief in Discovery DiSpute Related to Out-of-State Case Seeking an Order Directing Compliance with Deposition Subpoena and Subpoena for the Production of Business Records and for Expenses of the Petition or Monetary Sanctions. I. Petitioner Aeacin’s request for judicial notice isDENIED. In support ofits petition, Acacia requests judicial notice of orders issued by the Alameda County Superior Court and the Sacramento CQunt} Superior Court. The coun does not find the IQ 4a 3 See the Declaration Felix. '15 to ‘ Id. 5 See '.6 Declaration Felix. to the 6 See f7 to theDeclaration Felix. 7 See ‘18to the Declaration Felix. 5 Sec T8 Declaration Felix. to the g Id. "’ See ‘9 to the Declaration Felix. DJ Case No. 18CV335905 Order orders necessary or helpful in ruling on the petition. (Sec Dum-ze r.Pacific Specialty Insurance IQ Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice isnot b) necessary, helpful or relevant.) Accordingly, the request for judicial notice in support of Acacia’s petition isDENIED. II. Petitioner Acacia’s petition to enforce compliance with deposition subpoena and \IO‘uUi# subpoena for production of business records is GRANTED. “[Hf a party to a proceeding pending ina foreign jurisdiction retains an attorney licensed who to practice in this state, isan active member of the State Bar. and that attorney receives the 00m on'g’nal or a trueand correct copy of a foreign subpoena, the attomey may issue a subpoena.” (Code Civ. Proc., §2029.350, subd. (a).) Under this authority, Acacia’s counsel in California issued the Subpoena at issue on August 15, 201 S after receiving the foreigx (Massachusetts) subpoexn The Subpoena directed Fiberhome to appear and produce business records on September 4, 2018. Following Fibcrhome's objection. Acacia filed the instant petition on October 3,2018 as directed by Cod: of Civil Procedure section 2029.600. subdivision (a) which states, "If a dispute an'ses relating to discovery under this article,any request to enforce a subpoena, or for other reliefmay be filed in the superior court in the county in which discovery isto be conducted and, if so filed, shall comply with the applicable rules or statutes of this state." “A request for relief pursuant to this secrion shall be referred to as a petition notm‘thstanding any statute under which a request for the same relief would be referred to as a motion or by another term was if it brought in a proceeding pending in this state."(Code Civ. Proe. §2029.600, subd. (b).) Apart from referiing to the request as a petition instead of a motion, the request is otherwise governed by thc Civil Discoveiy Act. (Sec Code Civ. Proc.. §2029.500—“Titles 3 (commencing with Section 1985) and 4 (commencing with Section 2016.0 1 0) of Pan 4, and any other law or court rule of this state goveming a deposition. a production of documents or other tangible items, or an inspection of premises. including any law or com rule governing payment of court costs or sanctions, apply to discovery under this article") ISCV335905 Case .\'o. Order ._. “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the dcponcnt's control that is Specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc.. §2025.480, subd. (3).) “A dcponcm who has objected to a question and refused to answer bcars the burden ofjustifying ©WQO‘MhWN such refusal on the motion to compel.” (Wcil & Brown e1 a1., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL me Runer Group 201 8) (8:814. p.35-145.) In opposition, Fibcrhome argues initially thatAcacia’s petition to enforce compliance with the Subpoena should bc denied because Fiberhome did not come into existence until August O ,_‘ l7, 2017 when itwas incorporated, after the August 2. 201 7 date of the OIF vote. Fibcrhome is essentially denying any involvement andbr infommtion concerning the matters at issue in thc MA Litigation. This is not a valid basis for refusing to comply with the validly issued Subpoena. To the extent Fibcrhome did not have any involvement and does not have any information relating to the matters at issue in the MA Litigation. Fiberhome can respond and/or testify accordingly. Fiberhome argues additionally that Acacia‘s Subpoena isoverbroad, irrelevant, and unduly burdensome. However, as Acacia pointed out in its petition.Fiberhome wnivedlany objections in failing to timely object. Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity a! Io k) least three calendar days prior to the darefor which tlze deposition is scheduled, Nl.» on the party seeking to take the deposition and any other attorney or party on (\J 4a. whom the deposition notice was served. IQ UI (Code Ci\’. Proc., §2025.410. subd. (a): emphasis added.) IJ O\ The deposition was scheduled for September 4. 201 S. To be timely. Fibcrhomc‘s IJ \l objections had to be mailed by August 22. 201 S since they were mailed from Chicago, Illinois. m Ix) Fiberhome served objections by mail and fax on August 3 1.2018 from Chicago, Illinois. 'JI Case No. ISCV335905 Order “Service by facsimile transmission shall be pennined only where the parties agree and a written [\J continuation of that agreement ismade." (Code Civ. Proc., §1013. subd. (2).) Acacia’s counsel lu did not agree to accept service by facsimile. Consequently, Fiberhome has waived any objections. Petitioner Acacia‘s petition to enforce Fiberhomc’s compliance with the Subpoena is GRANTED. Fiberhome shall appear for deposition at 11 17 S. California Avenue, Suite 200, Palo Alto. OOOOQOU‘A CA 94304 at a mutually convenient date and time no later than20 calendar days from notice of entry of this order. Fibcrhome shall also produce the documents, electronically stored information, and things described in Attachment 3 to the Subpoena within 20 calendar days from notice of entry of this order. “The court shall impose a monetary sanction against any pany, person, or attomey who unsuccessfully makes or opposes a motion to compel an answer or production. unless it finds that the one subject to thc sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Code Civ. Proc., §2025.480, subd. (j).) Although petitioner Acacia prevailed against Fiberhome on this petition, the court isof the opinion that the imposition ofmonctary sanctions against Fiberhome would bc unjust under the circumstances. Accordingly, petitioner Acacia’s request for monetary sanctions of $74,440 is DENIED. Dated: \Z-l 2" “8 M._ Hm L0...“ Hon. Peter H. Kirwan Judge of the Superior Court N 43 N UI O\ I.) \l Ix) Case No. ISCVSSSGOS Order SUPERIOR COURT 0F CALIFORNIA COUNTY OF SANTA CLARA DO\\'NTO\\'N COURTHOUSE 191Noam Fmsr STREET SAxJossrAchaNu CIVIL DIVISION 95113 ' L E " - DEC 1 2018 he Co BY 0' 83331 Gar. RE: Acacia Communications, Inc. vs Fiberhome Telecom US- EPUTY Case Number. 180V335905 PROOF OF SERVICE was above delivered to the parties listed below the entitledcase as set forthin the sworn declaration below. if on behalf you. a party represenzed by you, or a witness to be calzed need an accommodation cf that party under the American with Ad. phase Disabilities coma the Court Administrawrs office TDD line (408) 882-2690 or the or use the Court’s at (408,1 882-2700, VcheITDD Cafifomia Relay Sewioe (800)7352922. DECLARATION OF SERVICE BY MAIL: Idedare mat1served this nozice by enclosing a true copy in a sealed envelope. addressed to each person whose name is shown betow. and by depositing the envelope w‘th postage fufly prepaid, in the United States Mail at San Jose‘ CA on. CLERK OF THE COURT. by Ingrid Stewart Deputy. cc: fibemome Telecom USA Inc No Known Address V1ctorManuel FelixPerez 525 B St S1e 2200 San Diego CA 92101 cw.9027 Rev 1208/16 PROOF OF SERVICE SUPERIOR COURT 0F CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURmOUSE I91 NORTH FIRST STREET Sm JOSE. CamromL-x 9S! 13 (IENDORSED) Victor Manuel FelixPerez CIVIL DIVISION F DEC 1 L 8 B 20,8 525 B s: Ste 2200 I st“ Clerk of San Diego CA 92101 the BY 9089",: RE: Acacia Communications, Inc.vs Fiberhome Telecom USA. Inc. 5:3.“ Case Number. 186V335905 PROOF OF SERVICE was delivered to the parties listed below theabove entitledcase as set forthinthe sworn declaration below. Ifyou. apuny remained by you, or a witness to be celied on behal! o! that party need an accommodatian under the American with Au. Disabilines please coma the Cour: Adminismtor’sofficea: (408)882-2700.or use the Court's TDD line (408)882-2690 or the VoicelTDD California Relay Service (800) 735-2922, DECLARATION OF SERVICE BY MAIL: ldeclare that Iserved this notice by endosing a true copy in a sealed envelope. addmssod to each person whose name is shown below. and by depositing the envelope with postage fulty prepaid. in the United States Mai! at San Jose. CA on .CLERK OF THE COURT. by Ingrid Stewart. Deputy. cc: Fiberhome Teleoom USA Inc No Known Address k cw-9027 REV 1208/16 PROOF 0F SERVICE EXHIBIT B \OOOQOLIIA SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA ACACIA COMMUNICATIONS, INC, Case No. 18CV335905 Petitioner, [PROPOSED] ORDER TO MODIFY THE COURT'S DECEMBER 21, 2018 ORDER v. GRANTING ACACIA'S PETITION T0 COMPEL DISCOVERY FROM FIBERHOME TELECOM USA, INC, FIBERHOME Respondent. Dept: 19 Judge: Hon. Peter H. Kirwan SUPERIOR COURT OF THE COMMONWEALTH OF MASSACHUSETTS ACACIA COMMUNICATIONS, INC, Mass. Case No. 17-2386 Plaintiff, Counterclaim-Defendant, v. VIASAT, INC., Defendant, Counterclaim-Plaintiff. [Proposed] Order To Modify The Court's Order Dated December 2 l, 20l8 Granting Acacia'sPetitionTo Compel Discovery From Fiberhome Upon consideration of the Stipulation To Modify The Court’s Order Dated December 21, N 2018 Granting Acacia’s Petition To Compel Discovery From Fiberhome, upon all other papers and proceedings herein, and with good cause shown, itis hereby ORDERED that: 1. Afier the stay is lifted in the Massachusetts Action, Acacia will promptly notify Fiberhome that the stay has been lified. 2. Within twenty (20) calendar days of receiving notice from Acacia that the stay in \OOOHQM-bw the Massachusetts Action has been lifted, Fiberhome shall produce the documents, electronically stored information, and things described in Attachment 3 to the Subpoena, and; 3. Fiberhome shall appear for deposition at 1117 S. California Avenue, Suite 200, 10 Palo Alto, CA 94304 at a mutually convenient date and time no later than forty-five (4S) calendar 11 days from the conclusion of the stay in the Massachusetts Action. 12 IT IS SO ORDERED. 13 14 Dated: ,2019 15 Hon. Peter H. Kirwan Judge of the Superior Court 16 17 18 19 20 21 22 23 24 25 26 27 28 3 h [Proposed] Order To Modify The Court's Order Dated December 21, 2018 Granting Acacia's PetitionTo Compel Discovery From Fiberhome