Court lacks jurisdiction to resolve out-of-state deposition dispute
Accenture Global Services GMBH, et al. v. Guidewire Software, Inc., Civ. No. 07-826- SLR, July 29, 2009.
Robinson, J. Court rules that it is without jurisdiction to resolve a work product dispute asserted by plaintiff’s attorney representing nonparty at a deposition taken outside this jurisdiction.
Court concludes that it does not have jurisdiction to resolve the dispute over the assertion of the work product protection for patent prosecution activities in a deposition of a nonparty witness taken outside of this jurisdiction. FRCP 37(a)(2) provides that a motion for an order to a nonparty must be made in the jurisdiction where the discovery is to be taken. In this case, the nonparty deposition was taken outside the jurisdiction, although the witness was represented by plaintiff’s counsel and it was that same counsel that instructed the witness not to answer. However, because the protection belongs to the witness, the Court has no jurisdiction to resolve the dispute. In so ruling, the Court suggests in a footnote that the outcome would likely be different had the dispute arisen over the attorney client privilege since, in that instance, the privilege belongs to the client.
