This is something you don't see often. In Kaneka Corporation v. Designs For Health, Inc., C.A. No. 21-209-WCB (D. Del.), the plaintiff contacted the Court after defendant's counsel offered only a single potential date for the deposition of the defendant's expert, and that date was just five days (and three business days) after the expert's non-infringement report.
The case has been going since 2022, with many twists and turns and amended scheduling orders. One of the most recent scheduling orders set deadlines of May 16 for opening expert reports and May 30 for responsive reports, with the close of expert discovery to close on June 13.
The defendant offered an opening report from their expert on the May 16th deadline, and the parties agreed to a June 4 deposition. D.I. 248 at 2. Shortly thereafter, the plaintiff learned that the expert was also planning to serve a responsive report on May 30th, and sought to back out of the June 4 deposition. Id.; D.I. 346-1 at 4. The defendant refused, saying that its expert is busy and cannot make any other dates work, all the way through trial. D.I. 346-1 at 2-3; D.I. 346 at 1.
Because the defendant offered only a single date, and just five days after the responsive report, the plaintiff sent a letter to the Court (Judge Bryson, sitting by designation) to either extend the close of expert discovery or preclude the expert from testimony regarding his second report. D.I. 346 at 1-2.
Judge Bryson seems to have instantly agreed. The same day the letter was filed, he issued an order directing the defendant to make their unavailable expert available later or face potential exclusion:
ORAL ORDER. Plaintiff Kaneka Corporation has submitted a letter to the court requesting that the defendants be required to make their expert, Dr. Umesh Banakar, available for a deposition at a reasonable time after his submission of a report on non-infringement on May 30, 2025. According to the plaintiff, the defendants have offered to make Dr. Banakar available for a deposition on June 4, 2025, but they claim that he is unavailable for a deposition at any other time between June 4 and the date of trial in late July. The plaintiff contends that conducting a deposition on June 4 would not afford it sufficient time to prepare for the deposition. The defendants are directed to file a responsive letter by 3:00 p.m. on May 29 proposing a time between June 9 and June 30 in which Dr. Banakar can be made available for a deposition. Limiting Dr. Banakar's availability to June 4, following shortly upon his submission of his report, is not sufficient. If the defendants do not make Dr. Banakar available on any other date, the court will consider excluding his testimony on non-infringement at trial. Signed by Judge William C. Bryson on 5/28/2025. (cpo) (Entered: 05/28/2025)
Id., D.I. 347 (D. Del. May 28, 2025).
This is interesting for a couple of reasons. First, the scheduling order has a May 30 deadline for reports and a June 13 deadline for completion of expert discovery. In other words, the entire deposition period is only 2 weeks long, and the defendant offered a date in the middle of the first week after the expert submitted a report on time. The Court's order requested a new deposition date largely after the deadline for the close of expert discovery in the schedule.
Second, it's pretty rare to see the Court order a party to make someone available after the party has said they are unavailable. More often, the Court takes witness unavailability at face value.
That's particularly true here, where (as far as I can tell) the plaintiff's letter didn't ask the Court to order that the defendant make their witness available. It merely asked for an extension to the expert discovery period or, in the alternative, preclusion:
Plaintiff Kaneka Corporation (“Kaneka”) respectfully submits this letter requesting a brief extension of the deadline for expert discovery . . . Kaneka respectfully requests the Court extend the close of expert discovery to July 7, so that Kaneka can depose Dr. Banakar on that day, or any time thereafter and before the trial on July 21. In the alternative, Kaneka requests the Court preclude Dr. Banakar from presenting his noninfringement opinion at trial because Kaneka has not been given a meaningful opportunity to depose him.
D.I. 346 at 1. It looks like the Court may have sua sponte ordered the defendant to make its unavailable expert available.
Turns out, there must have been some flexibility in the expert's schedule after all. In response to the Court's order, the defendant's expert moved some things around and the defendants provided a new deposition date within the requested range:
Despite Defendants’ (and Dr. Banakar’s) already significant efforts to schedule a deposition in this matter, following the Court’s Oral Order, we consulted with Dr. Banakar in view of that Order. He has made further adjustments to his schedule, including international travel arrangements, and Defendants can now confirm that Dr. Banakar can be available for deposition in Chicago, Illinois on June 26, 2025, in lieu of the June 4th date.
D.I. 348 at 2.
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