A Blog About Intellectual Property Litigation and the District of Delaware

An attorney's view after many a deposition—if you're lucky enough to catch a flight back that night.
An attorney's view after many a deposition—if you're lucky enough to catch a flight back that night. Eva Darron, Unsplash

This On Friday, Judge Wolson addressed—and rejected—an effort by an ANDA defendant to limit deposition discovery on the basis that discovery is, in its view, just not that important in an ANDA action. As set they put it:

This is an ANDA case. Black letter law holds that the infringement issues in an ANDA case are controlled by the ANDA itself. . . . Months ago, Defendants produced the ANDA and ANDA product samples from which the relevant infringement analysis must be derived. Plaintiff has now noticed the deposition of both Defendants and seven individuals. But the information that could be elicited from those witnesses will have only limited bearing on the infringement issues in this case. Accordingly, Defendants move for a protective order limiting the number, location, and mode of depositions noticed by Plaintiff.

Veloxis Pharmaceuticals, Inc. v. Accord Healthcare, Inc., C.A. No. 22-909-JDW, D.I. 84 at 1 (D. Del. Aug. 18, 2023). The defendant complained that the plaintiff had noticed seven individual depositions, in addition to its corporate FRCP 30(b)(6) deposition—and that all but one of its witnesses are located in Ahmedabad, India.

The defendant essentially tried to argue that depositions just aren't worth it in ANDA actions:

As noted above, the ANDA and produced samples control the infringement questions in this civil action. . . . The depositions will serve merely to confirm the information that already has been produced in this civil action. Dr. Pathak and Ms. Nair will likely be able to address all of the topics identified by Plaintiff for deposition. Depositions of the other noticed individuals would almost certainly be merely cumulative or duplicative as the relevant information can be obtained either through the depositions of Dr. Pathak and Ms. Nair [who are the 30(b)(6) designees], the produced ANDA and samples, or other discovery responses, in particular Defendants’ substantial responses to Plaintiff’s interrogatories.

Id. at 3.

Judge Wolson, with his 18 years or so in private civil practice, shut this argument down immediately. As to the number of depositions, that's just the cost of doing business in this field:

AND NOW, this 8th day of September, 2023, it is ORDERED as follows: Defendants’ Motion for a Protective Order (ECF No. 91) is DENIED because (a) the discovery that Veloxis seeks is not unreasonable or disproportionate to the needs of the case, and (b) Defendants have elected to do business in the United States in an industry likely to result in litigation, so they should reasonably expect to participate in discovery in the United States, including depositions.

Veloxis Pharmaceuticals, Inc. v. Accord Healthcare, Inc., C.A. No. 22-909-JDW, D.I. 94 at 1 (D. Del. Aug. 18, 2023).

His order also makes evident that he is no fan of remote depositions:

In addition, I conclude that the technological challenges of a deposition, including the challenges of working with voluminous documents, witnesses likely to have an accent, and the possibility of inconsistent internet connectivity justify the cost and time of in person depositions. Therefore, Defendants must make available all of the noticed witnesses for in-person depositions. The Parties shall meet and confer to mitigate concerns regarding the witnesses’ travel burdens and any immigration-related restrictions.


Personally I think remote depositions are great. But it seems like most of the decisions on remote activities like this are trending in the same direction, and we have transitioned back to a system where the deponent's side mostly can't force a remote deposition.

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