A Blog About Intellectual Property Litigation and the District of Delaware

Rarely does a motion go unopposed. The more common response to all but the most quotidian of requests is an offer to duel.

I've been waiting to use this picture, which I think is meant to be taken seriously
I've been waiting to use this picture, which I think is meant to be taken seriously Chris De Lima, Unsplash

Thus, I usually count even the most grudging and proviso-laden non-opposition as a win. Which, sometimes, works out.

This brings us to the case of TOT Power Control, S.L. v. LG Elecs. Inc., C.A. No. 21-1304-MN-SRF (D. Del. May 16, 2024). The plaintiff there had listed several formal technical employees as having discoverable information on their initial disclosures. As discovery progressed, however, five of these persons who resided overseas in Spain and Denmark stated that they would not appear for their noticed depositions. Plaintiff subsequently agreed not to call them at trial and removed them from their initial disclosures.

The defendants decided they still wanted to depose these former employees. In an email, Plaintiff stated that they would not object to Defendants seeking their depositions but represented that they were unlikely to have any information not already obtained from other sources.

When the parties got down to memorializing this non-opposition (in a stipulation to allow any of these depositions to take place after the close of fact discovery) the plaintiff was cagier still, explaining in a footnote:

Plaintiff has indicated that it will not oppose Defendants’ efforts to seek letters rogatory regarding the depositions of former employees of Plaintiff . . . However, as Plaintiff has already informed Defendants, Plaintiff contends these depositions are cumulative and unnecessary . . . By this stipulation, Plaintiff does not concede that these depositions should take place.

Defendants then moved for the letters rogatory and, somewhat surprisingly, Plaintiff filed an opposition brief, noting the proviso above and the fact that they had not seen the actual requests included in the letters rogatory at the time of the stip,

Judge Fallon addressed this issue in the opinion, finding that plaintiff had not waived its ability to oppose:

Defendants suggest that the court should grant the pending motions without analysis based on Plaintiff's prior representation that it would not oppose the motions: "Because TOT stipulated to the relief sought in Defendants' motion, and the Court ordered that stipulation, the Court should grant Defendants' motion and need not address the Aerospatiale standard for foreign discovery requests." As previously explained, however, the stipulation expressly stated that Plaintiff did not concede the depositions should go forward because they would be cumulative and unnecessary. Defendants' contention that plaintiff misleadingly altered its position on the depositions of foreign witnesses is not sufficiently supported by the record.

Id. at 6 (internal citations omitted).

More importantly, the Court found that it would still be required to consider the Aerospatiale factors, even if the request was unopposed:

Defendants cite no authority in support of their position that Plaintiff's alleged non-opposition excuses the court from consideration of the applicable standard. In fact, Defendants' reliance on Ingenico Inc. v. IOENGINE, LLC contradicts this assertion. In lngenico, the court denied the plaintiff's unopposed motion for issuance of letters rogatory after independently analyzing the Aerospatiale factors and determining that three of the five factors were not satisfied. The court's ruling in Ingenico is consistent with the Supreme Court's admonition that district courts "should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position."

Id. at 7 (internal citations omitted).

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