Motorola Asks Court to Compel Connecticut Distributor to Testify in Hytera Lawsuit
Thursday, May 09, 2019 | Comments

Motorola Solutions filed a motion in the U.S. District Court for Connecticut seeking to compel the owner of a Connecticut-based radio distributor to testify in a deposition as part of Motorola’s ongoing theft of trade secrets lawsuit against Hytera Communications.

In its motion, Motorola identified Marcus Communications Ltd. (MCL) as “one of Hytera’s key distributors in the U.S.” and asked the court to compel Bruce Marcus, the owner, founder and chief technical officer of MCL, to submit to a deposition. MCL was one of several distributors that publicly supported Hytera during a patent infringement case Motorola filed against Hytera with the U.S. International Trade Commission (ITC).

Motorola filed its theft of trade secrets complaint with the U.S. District Court for the Northern District of Illinois in March 2017. The complaint alleged that three former Motorola Solutions employees secretly downloaded proprietary Motorola documents and then went to work for Hytera, where they used those trade secrets in Hytera Digital Mobile Radio (DMR) products.

While Motorola’s case is centered in Illinois, the motion to compel was filed in Connecticut because that is where MCL is based. MCL filed a motion asking that Motorola’s motion to compel be transferred to the Illinois court because of the judges’ familiarity with the case. Motorola said that it is not opposed to the motion to transfer.

In its motion to compel, Motorola said it had filed a subpoena for documents related to the case and to have Marcus testify during a deposition. In December, MCL refused to provide any of the requested documents.

Motorola said that it had narrowed the scope of its subpoena and had agreed to pay a “substantial portion” of the costs related to collecting the documents, and after the production of those documents, the two parties agreed to discuss the issue of Marcus’ deposition. However, in March, the parties met, and Marcus refused to submit to a deposition, prompting Motorola to file the motion to compel.

Motorola said in its motion that MCL and Marcus “possess unique information highly relevant to Motorola’s trade secret misappropriation and copyright infringement claims against Hytera.”

It is unclear precisely what information Motorola is seeking from Marcus because large portions of Motorola’s motion are redacted, but snippets of Motorola’s motion, as well as MCL’s opposition to the motion, suggest that Motorola believes Hytera employees may have disclosed the alleged theft of Motorola trade secrets to Marcus.

In MCL’s opposition, the company argued that Marcus had already sat for deposition relating to the same issues Motorola is seeking a deposition for in the trade secrets case, as well as for a patent infringement suit that Motorola filed against Hytera with the International Trade Commission (ITC).

“Simply put, Motorola has already ‘engaged in extensive, alternative, duplicative and likely less burdensome’ deposition discovery — twice — and should not be given a third bite at the apple at MCL’s burden and expense,” MCL’s opposition said.

Additionally, Marcus Communications argued that while Motorola had said that it narrowed its requested line of questioning for the deposition to a single line of questioning, that line was so broad, it was impossible for MCL to “identify the person who is best situated to answer questions about the matter or to make sure that the person selected to testify is able to respond regarding that matter.”

“Motorola’s unbounded topic makes it extremely burdensome, if not impossible for non-party MCL to designate and prepare a witness to testify to respond …” MCL’s response said. “Motorola, which has known about MCL for years, should not be permitted to wait until the close of fact discovery to go on an indefinite fishing expedition with a non-party, particularly when Motorola has deposed the non-party previously on the same or similar topics.”

MCL also argued that Motorola subpoenaed MCL and not specifically Marcus, meaning that under federal discovery rules, it should be up to MCL to designate the person who can best answer Motorola’s inquiry. The company also argued that much of the information Motorola is seeking can be obtained from Hytera and should be because Hytera is a party to the lawsuit, unlike MCL.

Multiple discovery actions made by Motorola have frustrated Hytera and Magistrate Judge Jeffrey Cole during the theft of trade secrets case. Cole, who is overseeing procedural issues in the case on behalf of District Judge Charles Norgle, has reprimanded Motorola for extending beyond the scope of the case in discovery multiple times.

“While the inquiry should have been uncomplicated, it has become a long, drawn out, pitched battle — one, in a rhetorical sense, to rival the Punic Wars — albeit without the elephants and the Alps and the sheer drama,” Cole wrote about discovery for a summary judgment motion last year.

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