Yesterday, Judge Fallon addressed a motion to compel in Airbus SAS v. Anaconda, Inc., C.A. No. 25-178-CFC-SRF (D. Del.). The moving party sought to compel production of various technical information in a copyright and breach of contract case.
The Court first noted that the moving party had not adequately limited the request or sufficiently tied it to their claims.
Beyond that, the Court described how, if the party had really wanted broad technical discovery, it wouldn't have cancelled a noticed 30(b)(6) deposition on related topics after the deponent had already traveled to the US from Germany:
[W]hen Anaconda [the moving party] had an opportunity to depose a 30(b)(6) witness on the GISEH Platform, Anaconda unilaterally cancelled the deposition after the witness had already traveled to Delaware from Germany. . . . Airbus [the responding party] explains that the witness could have resolved Anaconda's alleged misconceptions "about the GISEH Platform, Airbus's use of miniforge and conda-forge, and other information related to Airbus's switch to non-Anaconda software when Anaconda began to change its terms of use in 2020[,]" which would have likely streamlined Anaconda's requests for further discovery and avoided ongoing discovery disputes. . . . The court will not require an Airbus representative to verify that "everything related to Anaconda" has been produced when Anaconda failed to depose a witness who could have clarified the proper scope of discovery. . . . Anaconda's decision to cancel the deposition is inconsistent with its position that it needs more discovery to litigate the case.
Id., D.I. 312.
The Court actually went further. It ordered that the party who cancelled would bear the costs of a further deposition:
Moreover, should Anaconda re-notice the deposition of this witness, it shall bear the expenses for the witness to appear and give testimony.
Id.
This is interesting because there was no active dispute about that issue, at least according to the motion for teleconference (D.I. 263). The typical advice would be not to bring up sour grapes or issues that weren't before the Court—but making a deponent fly here from Germany and then cancelling the depo clearly caught the Court's attention in a helpful way for the responding party.
I don't know why the moving party "unilaterally cancelled" the deposition, and the briefing here is sealed. They must have expected some blow back. But I doubt they realized that cancelling the deposition like that could subject them to an award of costs and impact their motion to compel.
Often, in cases where I'm acting as Delaware counsel, I find myself saying "the Court is probably not going to like it if you do x." This is a great example of what that means in practice.
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