A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: deposition

Judge Andrew's In re Chanbond opinion an Friday focused primarily on reopening discovery, but it also addressed a second issue, which I thought merited a separate post.

Shortly before trial, in a reply brief, Defendants sought production of an "Advisory Services Agreement" between the plaintiff and third party IPNav. They had previously informally requested the document at a deposition, and renewed that request as part of their motion to reopen discovery after the document's importance became apparent in light of the standing dispute. Defendants request at the deposition was apparently on the record, and Plaintiff indicated it would look for the document, but Defendants did not follow up with a formal document request:

I agree with Plaintiff that Defendants …

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Tobias Eggerman, Unsplash

Depositions have been especially hard during the pandemic. Luckily, the quick proliferation of Zoom and its competitors have made it possible to take remote depositions that roughly approximate the experience of angrily objecting across a conference table.

International depositions, however, have remained problematic. In the past, witnesses could simply be shuffled from a country with hugely restrictive deposition procedures to a more friendly jurisdiction -- be it the Netherlands, the UK, a consulate, or even beautiful Delaware.

Travel restrictions and the closing of consular offices have made this a non-starter in many cases and so there has been a bit of a resurgence in proceedings under the Hague as parties struggle to get what discovery they …

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Hiroshi Kimura, Unsplash

Since the early 2000's, the District of Delaware local rules have prohibited talking to a witness about the subject matter of their deposition testimony during a deposition:

RULE 30.6. Depositions Upon Oral Examination.
From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.

It's not uncommon for visiting counsel defending depositions in Delaware cases to not know this rule. …

Unusually Spry Expert Rushes to Supplement Report
Unusually Spry Expert Rushes to Supplement Report Man Holding Handbag, Andy Beales, Unsplash

Judge Andrews recently granted a motion in limine precluding a party from presenting expert opinions that were not disclosed until the expert's deposition -- without analyzing the Pennypack factors.

The correct procedure for challenging a late disclosure of theories or evidence has long been a matter of some debate in Delaware. There are cases suggesting that the party seeking to update its contentions should move for leave to do.

More commonly, a party will simply serve updated contentions or expert reports that the opposing party moves to strike. Regardless, the motions are generally analyzed under the demanding Pennypack factors, with the usual result that the …

This morning, Docket Navigator covered Judge Bryson's D. Del. discovery opinion that was made public this week, focusing on his denial of a motion to strike errata to a 30(b)(6) deposition transcript.

But there are (at least) three other interesting points about the errata in the opinion:

  • COVID issues make deposition errata more necessary:
Mr. Rothrock had to prepare for his deposition under difficult circumstances, including having to consult remotely with others in the company. Mr. Rothrock understandably could have made a mistake during his deposition in light of the numerous topics and challenging circumstances in which he was forced to prepare. Given those circumstances, I will not disregard Mr. Rothrock’s errata.
  • The Court noted that, as usual, …