A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: depositions

tobias-eggermann-HhIHBmArf0g-unsplash.jpg
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 …

FRCP 30 was amended in December 2020 to add a meet-and-confer requirement:

FRCP 30(b)(6) Amendment
U.S. Government Publishing Office

The amendment also suggests (by removing "then") that a party may designate its 30(b)(6) witness as part of the parties' discussions before the notice goes out.

No revised PDF of the rules is available yet, but Cornell's very-frequently-relied-upon page has already been updated.

No Change to Objection Procedures

One issue that commonly arises here in Delaware is that the parties serve an FRCP 30(b)(6) notice but do not receive objections until immediately before the deposition, leaving no time to resolve the issues.

Why is that? Because there is no deadline in the FRCP or the D. Del. local rules for objections to a …

For decades, judges in D. Del. have enforced a general rule that you can’t serve 30(b)(6) topics on a party’s contentions. The rationale is simple: it just isn’t fair to burden a single witness with that much information. Contention interrogatories can achieve the same the same goal, without forcing a 30(b)(6) witness to sit for the most stressful memory test of their life.

In a discovery order on Friday, Judge Andrews highlighted an important corollary to this rule: you can’t get around it by framing your contention topic as a request for “all facts” about a party’s contentions. The judge found that all four of these examples were improper contention topics:

  • Investigations, tests, studies, surveys, interviews, reviews, analyses and …

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Here's something you don't see every day.

After a discovery dispute about bringing a parties' European witnesses to the US for deposition during the pandemic, Judge Noreika ordered that depositions of a defendants' witnesses may initially take place by written questions under FRCP 31:

ORAL ORDER . . . IT IS HEREBY ORDERED that . . . Plaintiff may request a deposition of the witnesses pursuant to Federal Rule of Civil Procedure 31. Any such deposition shall be subject to Local Rule 30.6, with the "commencement" of the written deposition being when Defendants' counsel receives the written questions and the "conclusion" of the deposition being when Defendants' counsel serves the response …

I thought this was interesting. Last week Judge Burke granted a motion to compel a plaintiff's witness to respond on questions about the plaintiff's litigation financing arrangements.

Apparently plaintiff's attorneys instructed the witness not to answer at the deposition, but in the discovery dispute they only argued that the information is irrelevant, and did not raise privilege. Since relevance is not a valid justification for an instruction not to answer under FRCP 30, the Court permitted defendant to re-ask the question and held that plaintiff's witness must answer.

About Those Redacted Versions

I say plaintiff "apparently" objected only on reasonableness grounds because plaintiff never filed the redacted version of its sealed letter brief—a common problem.

If parties continue …

When it comes time for expert depositions in multi-defendant cases, parties often disagree about how many deposition hours each side (or more specifically, each party) should get.

Judge Stark addressed this last week in H. Lundbeck A/S v. Apotex Inc., C.A. No. 18-088-LPS (D. Del.), where he permitted seven hours of expert deposition time for common issues and four additional hours for each of the nine defendants for defendant-specific issues.

Plaintiffs' depositions of certain of defendants' experts were expanded as well, to between 9 and 14 hours.

Judge Stark explained that the limits

reflect a reasonable and appropriate exercise of the Court's discretion, considering all circumstances, including the fact that this consolidated case is, in reality, …