4WEB, Inc. v. NuVasive, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 4WEB, INC, and 4WEB, LLC, Case No.: 24-cv-01021-JLS-MMP 11 Plaintiffs, ORDER GRANTING IN PART 12 v. 4WEB’S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA 13 NUVASIVE, INC., FOR DEPOSITION TO PATRICK 14 Defendant. MILES 15 [ECF No. 230] 16 17 18 Pending before the Court is 4WEB’s Motion to Compel Compliance with Subpoena 19 for Deposition Issued to Non-Party Patrick Miles (“Miles”), a former senior executive at 20 NuVasive. ECF No. 230. The matter is fully briefed. ECF Nos. 249, 262.1 For the reasons 21 set forth below, the Court GRANTS IN PART the motion. 22 I. RELEVANT BACKGROUND 23 The Court presumes the parties’ familiarity with the facts and discusses them only 24 as necessary for context of this motion. 25 26 27 1 An unredacted version of the motion, opposition, and reply have been filed under seal. 28 1 Miles worked at NuVasive for approximately sixteen years, from 1999 to October 2 2017, holding various leadership positions. ECF No. 230-2 ¶ 16. In 2015, NuVasive 3 inquired about licensing 4WEB’s truss-based implant technology—the subject of the 4 Asserted Patents. ECF No. 230-1 at 6. At or around this time, Miles was NuVasive’s 5 President and Chief Operating Officer (COO) and personally attended a meeting with 6 4WEB’s founder, among others, to discuss the patented technology. ECF Nos. 230-2 ¶ 16, 7 230-1 at 6, 249 at 9. NuVasive did not enter into a license for 4WEB’s patents and 8 subsequently developed and launched the Modulus implants—the Accused Products in this 9 patent infringement case between 4WEB and NuVasive. ECF Nos. 230-1 at 6, 230-2 ¶ 16. 10 In October 2017, Miles left his position as COO at NuVasive. ECF Nos. 230-1 at 6, 11 249 at 6. He is currently the Chief Executive Officer (CEO) and Chairman of nonparty 12 Alphatec Spine, Inc.—another medical device company specializing in spinal implant 13 technology and direct competitor of both NuVasive and 4WEB. ECF No. 249 at 6. 14 On March 4, 2025, 4WEB served Miles with a subpoena seeking production of 15 documents and deposition testimony. ECF Nos. 230-3 at 16–26, 249 at 7. Miles, through 16 counsel, objected to the deposition. ECF No. 249 at 7. 4WEB contemporaneously served 17 two other former NuVasive employees (Eric Dasso and Jesse Unger) with similar 18 subpoenas. They are represented by the same counsel and served similar objections. Id. 19 Around this time, NuVasive served its Third Amended Initial Disclosures dated 20 March 21, 2025, identifying Miles as having relevant and discoverable information to 21 support NuVasive’s claims or defenses regarding “Communications between NuVasive 22 and 4WEB, Inc.” ECF No. 230-3 at 8. 23 Between March and August 2025, counsel for 4WEB and Miles continued to 24 negotiate his deposition, along with the depositions of former NuVasive employees Dasso 25 and Unger. See ECF Nos. 249 at 7, 230-1 at 7–8. On June 12, 2025, 4WEB served an 26 amended deposition notice under Federal Rule of Civil Procedure (“Rule”) 30 noticing 27 Miles’ deposition for June 27, 2025. ECF No. 230-3 at 48–50. Miles did not appear, citing 28 1 scheduling issues. ECF Nos. 230-1 at 8, 249 at 7. 4WEB deposed Dasso in July and, at the 2 time of briefing this motion, Unger’s deposition was scheduled but not yet taken. Id. at 8. 3 4WEB now moves to compel Miles’ deposition under Rule 45, asserting he 4 possesses unique knowledge because he was responsible for several aspects of the potential 5 licensing transaction with 4WEB, participated directly in those negotiations, and 6 subsequently led the decision to develop NuVasive’s Modulus implants. See generally ECF 7 No. 230-1. 4WEB also asserts his testimony would not be duplicative or cumulative of 8 Dasso’s, as there are hundreds of documents and dozens of emails referencing 4WEB on 9 which Miles appears that Dasso2 does not appear, including communications with 10 NuVasive’s board of directors regarding the spinal implant market. Id. at 14; see ECF No. 11 230-2 ¶ 15. Further, to minimize the burden, 4WEB also has offered to limit the deposition 12 to 4.5 hours.3 ECF No. 230-1 at 5, 14. 13 Miles objects on the grounds 4WEB fails to establish he has any unique, personal 14 knowledge relevant to the patent infringement claims between 4WEB and NuVasive. ECF 15 No. 249 at 5. Miles asserts there is no legitimate reason to subject him to an apex 16 deposition, 4WEB has not met its burden to justify compelling the deposition of a high- 17 ranking nonparty executive, and “4WEB’s own evidence shows that others, including those 18 already deposed, know the same sought-after information, if not more.” Id. at 6. 19 / / 20 / / 21 22 23 2 Dasso is also identified in NuVasive’s Third Amended Initial Disclosures as having discoverable information regarding communications between NuVasive and 4WEB. ECF 24 No. 230-3 at 8. Dasso also attended the 2015 meeting with 4WEB’s Founder. ECF No. 249 25 at 5.

26 3 4WEB also contends by failing to file a motion to quash, Miles waived his right to object 27 to the subpoena under Rule 45. In light of the Court’s determination on the merits that Miles’ deposition is relevant and proportional under Rule 26 and the apex doctrine, the 28 1 II. LEGAL STANDARD 2 “The Federal Rules of Civil Procedure distinguish between parties and non-parties 3 in establishing available discovery devices.” Jules Jordan Video, Inc. v. 144942 Can. Inc., 4 617 F.3d 1146, 1158 (9th Cir. 2010). Rule 45 governs the requirements for issuance of a 5 subpoena for deposition testimony. Fed R. Civ. P. 45. A subpoena under Rule 45 “is 6 directed at the nonparty” and “obligates the nonparty to appear at the scheduled deposition 7 at pain of being held in contempt.” Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1224 8 (9th Cir. 2018). While noticing a deposition is sufficient to compel a party’s attendance, “a 9 nonparty’s attendance generally can be compelled only by subpoena[.]” Id. at 1222. 10 Rule 45(d)(1) provides “[a] party or attorney responsible for issuing and serving a 11 subpoena must take reasonable steps to avoid imposing undue burden or expense on a 12 person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). The Ninth Circuit has 13 “interpret[ed] ‘undue burden’ as the burden associated with compliance.” Mount Hope Ch. 14 v. Bash Back!, 705 F.3d 418, 427 (9th Cir. 2012) (citing Mattel, Inc. v. Walking Mountain 15 Prods., 353 F.3d 792, 813–14 (9th Cir. 2003)). While courts “are sensitive to the imposition 16 of large discovery costs on non-parties and recognize the special need to protect them,” the 17 Ninth Circuit has declined to read “undue burden” differently just because a non-party was 18 subpoenaed. Id. at 429. 19 Finally, “the scope of discovery through a subpoena is the same as that applicable to 20 Rule 34 and other discovery rules.” Fed. R. Civ. P. 45 Advisory Comm.’s Note (1970). 21 Rule 26(b)(1) defines the scope of discovery as follows: 22 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the 23 case, considering the importance of the issues at stake in the action, the 24 amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and 25 whether the burden or expense of the proposed discovery outweighs its likely 26 benefit.

27 Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible 28 in evidence to be discoverable.” Id. 1 III. ANALYSIS 2 At the outset, the Court finds 4WEB has established the relevancy of Miles’ 3 deposition under Rule 26(b)(1). It is undisputed in 2015 Miles was personally involved in 4 NuVasive’s attempts to license 4WEB’s patents, was one of several NuVasive 5 representatives to meet with 4WEB to discuss the potential licensing of 4WEB’s truss- 6 based implant technology, and was responsible for certain aspects of the potential licensing 7 transaction. NuVasive also identified Miles in its initial disclosures as knowledgeable 8 regarding communications with 4WEB. 9 Though Miles does not genuinely dispute relevancy under Rule 26(b)(1), he 10 contends because he is the former COO of NuVasive and the current CEO and Chairman 11 of another medical device company, there is no legitimate reason to subject him to an 12 “apex” deposition. ECF No. 249 at 6. 13 The “apex doctrine” is a judicially-created tool to address the “tremendous potential 14 for abuse or harassment” where “a party seeks the deposition of a high-level executive (a 15 so-called ‘apex’ deposition).” Apple Inc. v. Samsung Elecs. Co., Ltd., 282 F.R.D. 259, 263 16 (N.D. Cal. 2012) (citation modified); see 10th Gear v. PACCAR Inc., No. 23-cv-1933-RSL, 17 2025 WL 2637683, at *1 (W.D. Wash. Sept. 12, 2025); In re Uber Techs., Inc., Passenger 18 Sexual Assault Litig., No. 23-md-03084-CRB-LJC, 2025 WL 896412, at *1 (N.D. Cal. 19 Mar. 24, 2025) (recognizing deposing high-level officers of large corporate entities may 20 impose “meaningful” burdens “because in the absence of any restrictions, sitting for 21 depositions could quickly become a full-time job for leaders of entities that face extensive 22 litigation”). Courts have discretion to limit discovery where the discovery sought “can be 23 obtained from some other source that is more convenient, less burdensome, or less 24 expensive[.]” Fed. R. Civ. P. 26(b)(2)(C)(i). “Rule 26’s requirement of proportionality and 25 avoidance of undue burden therefore warrant close oversight of such depositions.” In re 26 Uber Techs., Inc., 2025 WL 896412, at *1. 27 The parties do not cite, and the Court is not aware of, any published Ninth Circuit 28 case addressing the apex doctrine. See id. Earlier this year in an unpublished opinion, the 1 Ninth Circuit found the district court did not abuse its discretion in granting the defendants’ 2 motion for a protective order in a pro se prisoner civil rights case based in part on the apex 3 doctrine. Andrich v. Glynn, No. 24-3078, 2025 WL 1625536, at *1 (9th Cir. June 9, 2025) 4 (citing United States v. Morgan, 313 U.S. 409, 421-22 (1941) and Kyle Eng’g Co. v. 5 Kleppe, 600 F.2d 226, 231 (9th Cir. 1979)). The Ninth Circuit determined the district court 6 properly found two defendants lacked “personal, first-hand information essential to 7 Plaintiff’s claims that could support deposing them.” Id. at *2 (citing Rule 26(b)(1)). The 8 Ninth Circuit also noted a third defendant had no personal involvement in the underlying 9 case other than providing the prison file, but no evidence in the record supported he was 10 the only individual who could provide the prison file, and the plaintiff did not refute the 11 district court’s finding that deposing the defendant would pose an undue annoyance or 12 burden. Id. 13 Though the Ninth Circuit has not expressly endorsed any particular test or factors 14 for analyzing an apex deposition, this Court finds instructive the Ninth Circuit’s 15 consideration of whether the person sought to be deposed had personal, first-hand 16 information or personal involvement and is the only individual who could provide the 17 information sought, as well as any alleged undue burden. 18 Districts courts in the Ninth Circuit are routinely tasked with determining the 19 propriety of so-called “apex” depositions. As both sides recognize in their briefing, courts 20 generally consider: “(1) whether the deponent has unique first-hand, non-repetitive 21 knowledge of the facts at issue in the case and (2) whether the party seeking the deposition 22 has exhausted other less intrusive discovery methods.” Apple Inc., 282 F.R.D. at 263. 23 In recognizing a tension between the apex doctrine and the broad discovery 24 permitted under Rule 26(b)(1), numerous district courts in this Circuit have considered 25 additional factors or circumstances to ensure the apex doctrine “does not itself become a 26 tool for evading otherwise relevant and permissible discovery[.]” Id. For example, courts 27 consider the “the person’s degree of ‘apex-ness’” meaning “the closer that a proposed 28 witness is to the apex of some particular peak in the corporate mountain range, and the less 1 directly relevant that person is to the evidence proffered in support of his deposition, the 2 more appropriate the protections of the apex doctrine become.” Id. Other courts have noted 3 “an overemphasis on unique knowledge is inconsistent with otherwise common approaches 4 to discovery and trial advocacy, where corroborating evidence and testing credibility 5 through the testimony of more than one witness is often appropriate.” In re Uber Techs., 6 2025 WL 896412, at *2. Still others have recognized “the apex doctrine is not written down 7 in the Federal Rules of Civil Procedure” and “is really just an application of Rule 26’s 8 requirements of relevance and proportionality and protecting a person from abuse or 9 harassment.” In re Apple Iphone Antitrust Litig., No. 11-cv-06714-YGR-TSH, 2021 WL 10 485709, at *4 (N.D. Cal. Jan. 26, 2021). 11 “In general, the apex doctrine limits the length of a deposition, rather than barring it 12 altogether, because of the heavy burden a party faces in blocking a deposition entirely.” Id. 13 at *3; see also Apple Inc., 282 F.R.D. at 263 (“[A] party seeking to prevent a deposition 14 carries a heavy burden to show why discovery should be denied.” (citation omitted)); 15 Finisar Corp. v. Nistica, Inc., No. 13-cv-03345-BLF-JSC, 2015 WL 3988132, at *2 (N.D. 16 Cal. June 30, 2015) (“Even when the apex doctrine is at issue, however, the burden remains 17 on the party seeking to avoid the deposition.”) (citation modified). Thus, it is very unusual 18 “for a court to prohibit the taking of a deposition altogether absent extraordinary 19 circumstances.” WebSideStory, Inc. v. NetRatings, Inc., 06-cv-0408-WQH-AJB, 2007 WL 20 1120567, at *2 (S.D. Cal. April 6, 2007). “When a witness has personal knowledge of facts 21 relevant to the lawsuit, even a corporate president or CEO is subject to deposition.” Id. 22 (citation omitted). “A claimed lack of knowledge, by itself, is insufficient to preclude a 23 deposition.” In re Google Litig., No. 08-cv-03172-RMW-PSG, 2011 WL 4985279, at *2 24 (N.D. Cal. Oct. 19, 2011); Apple Inc., 282 F.R.D. at 263. “Moreover, the fact that the apex 25 witness has a busy schedule is simply not a basis for foreclosing otherwise proper 26 discovery.” WebSideStory, Inc., 2007 WL 1120567, at *2 (citation omitted). 27 Applying the factors discussed above to this case, the Court finds 4WEB has justified 28 deposing Miles under Rule 26 and the apex doctrine. 1 4WEB has provided evidence Miles was personally involved in, and responsible for, 2 certain key aspects of NuVasive’s attempted licensing transaction with 4WEB and the 3 assessment of competitor technology, including to the board of directors. ECF Nos. 240-2, 4 240-6 at 13, Exh. I. 4WEB has also proffered evidence of the extent of Miles’ personal 5 involvement relevant to this case, explaining NuVasive has produced over 3,000 6 documents from Miles’ custodial file and approximately 800 emails where Miles is a 7 sender or recipient. ECF No. 230-2 ¶ 14. 4WEB further contends there are hundreds of 8 documents and dozen of emails referencing 4WEB on which Miles appears that Dasso does 9 not, including communications with NuVasive’s board of directors regarding the spinal 10 implant market. Id. ¶ 15; see ECF Nos. 230-1 at 12; ECF No. 240, Exh I. In addition, 11 several other former NuVasive employees have identified Miles as someone who may have 12 personal, first-hand knowledge regarding important issues in the case relevant, at a 13 minimum, to willful infringement and damages. Finally, NuVasive listed Miles in its initial 14 disclosures—amended within weeks after 4WEB first subpoenaed Miles—as an individual 15 likely to have discoverable information regarding the communications between NuVasive 16 and 4WEB. Though any of these alone may not suffice, when considered in combination, 17 the Court finds 4WEB has sufficiently established Miles likely has “personal, first-hand 18 information” and personal involvement directly relevant to 4WEB’s claims that support 19 deposing him. See Andrich, 2025 WL 1625536, at *1. 20 The Court is not persuaded by Miles’ arguments to the contrary. Though Miles 21 acknowledges his participation in the 2015 meeting with 4WEB, he asserts 4WEB has 22 failed to prove he has unique knowledge or information. Miles says other people who also 23 attended the meeting have already testified, including 4WEB’s own witnesses and Dasso. 24 Miles claims Dasso testified “as to NuVasive’s perspective of the meeting” though nothing 25 before the Court suggests Dasso testified to anything except his own personal recollection 26 of the 2015 meeting. ECF No. 249 at 5. Miles also contends the documents identified by 27 4WEB suggest he “received information—not that he generated it or that he holds any 28 unique, personal insights into 4WEB’s claims.” Id. at 5–6. He further disputes 4WEB’s 1 characterization of other witnesses identifying Miles as someone with unique information 2 and points the finger at other potential NuVasive deponents. In sum, he claims “he does 3 not have unique information that is different from what other witnesses have already 4 testified to or what the documents reflect.” Id. at 10. 5 Under the standard put forth by Miles, soothsaying would be a condition precedent 6 to any apex deposition. The Court declines to interpret the “unique, non-repetitive 7 knowledge” factor too literally such that it would require 4WEB to conclusively establish, 8 before the deposition, Miles’ testimony would be entirely distinct from any other witness 9 or document. See In re Apple Iphone Antitrust Litig., 2021 WL 485709, at *5 (recognizing 10 “the party seeking to take the deposition need not prove conclusively that the deponent 11 certainly has unique non-repetitive information”) (citation omitted). Rather, the Court is 12 persuaded “where a corporate officer may have any first-hand knowledge of relevant facts, 13 the deposition should be allowed.” Finisar Corp., 2015 WL 3988132, at *2 (citation 14 modified); see also In re Apple Iphone Antitrust Litig., 2021 WL 485709, at *4 (“When a 15 lawsuit concerns important aspects of a company’s business model that are plainly the 16 result of high-level executive decisions, we should expect that high-level executives will 17 be deposed, and their testimony will be relevant and proportional, and the depositions will 18 not be abusive or harassing.”); In re Uber Techs., 2025 WL 896412, at *2 (“[A]n 19 overemphasis on unique knowledge is inconsistent with otherwise common approaches to 20 discovery and trial advocacy[.]”). As another court so aptly put it, “this is not a lawsuit by 21 someone who slipped on a banana peel in the produce aisle at Safeway and now seeks to 22 depose Safeway’s CEO.” See In re Apple Iphone Antitrust Litig., 2021 WL 485709, at *4. 23 Here, it is undisputed Miles attended the 2015 meeting and thus presumably has personal, 24 first-hand knowledge relevant to central issues in the case. Miles was also personally 25 involved in developing the Modulus Accused Products before his departure from NuVasive 26 in 2017. And whether he received, generated, or holds information is a distinction without 27 a difference. Miles does not dispute his personal, first-hand involvement—nor can he. 28 Though Miles challenges 4WEB’s characterization of examples of other deponents 1 identifying Miles, ECF No. 249 at 5, the deposition transcripts make clear Miles may have 2 relevant, first-hand information and, in some circumstances, Miles may be the only person 3 who can explain his own written communications. ECF Nos. 240-3 at 36–37, 240-4 at 2. 4 Though Miles attempts to attribute a different meaning to his written communications in 5 his opposition, doing so exemplifies the benefit of deposing Miles for his first-hand 6 account. ECF Nos. 255 at 13–14, 240-4 at 4. In sum, 4WEB has sufficiently demonstrated 7 Miles has personal, first-hand knowledge relevant to 4WEB’s and NuVasive’s claims and 8 defenses that support deposing him. Further, based on this record, the Court is not 9 convinced Miles’ deposition would be duplicative or cumulative of information or 10 testimony in the case by Dasso or other witnesses. 11 Miles also argues 4WEB has not exhausted other less-intrusive means of obtaining 12 the information it seeks. ECF No. 249 at 14–15. There is no question 4WEB has resorted 13 to other forms of discovery from NuVasive prior to subpoenaing Miles, including 14 interrogatories and other depositions regarding NuVasive’s knowledge of and attempt to 15 license 4WEB’s technology and its development of the Modulus Accused Products. Given 16 the Court’s familiarity with the extensive discovery in this case, it finds 4WEB has 17 sufficiently exhausted other discovery methods to justify this deposition at this late stage 18 of the case. 19 Lastly, Miles argues requiring him to prepare, coordinate with counsel, and “set 20 aside an entire day” imposes an undue burden, and 4WEB’s proposal to limit the deposition 21 to 4.5 hours does not cure this burden. ECF No. 249 at 6. As Miles acknowledges, whether 22 a subpoena imposes an undue burden on a particular witness is a “case specific inquiry” 23 whereby courts “weigh the burden to the subpoenaed party against the value of the 24 information to the serving party.” In re Subpoena of DJO, LLC, 295 F.R.D. 494, 497 (S.D. 25 Cal. 2014) (citation omitted). Though Miles vaguely references the time to prepare, 26 coordinate with counsel, and “set aside an entire day,” the burden imposed on him is 27 outweighed by the likely benefit of his personal, first-hand knowledge or information 28 regarding NuVasive’s communications with 4WEB and, in particular, his recollection of 1 || his personal participation in the 2015 meeting regarding NuVasive’s licensing of 4WEB’s 2 || technology and development of the Accused Products. 3 Based on the factors above as well as his unpersuasive, vaguely-articulated “undue 4 || burden,” Miles has not satisfied his “heavy burden” of precluding the deposition entirely. 5 ||Rather, given Miles’ personal involvement, as well as the proportionality factors and 6 claimed burden, the Court finds it appropriate to limit the length of the deposition, rather 7 || than bar it altogether. Having considered 4WEB’s proposal for a 4.5-hour deposition and 8 default deposition length of seven hours, the Court finds limiting the deposition to no 9 ||more than four hours is appropriate. 10 CONCLUSION AND ORDER 11 The Court GRANTS IN PART 4WEB’s motion. 4WEB may depose nonparty 12 || Partick Miles for no more than four hours. 13 IT IS SO ORDERED. 14 || Dated: October 9, 2025 Whd why Ih. st 15 HON. MICHELLE M. PETTIT United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28