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Defendant Precluded from Deposing Plaintiff’s Expert Twice, Once After the Initial Expert Reports and Again After Rebuttal Reports

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Plaintiff ProconGPS, Inc. (“Procon”) filed a patent infringement action against Skypatrol, LLC (“Skypatrol”). During the expert phase of the case, a dispute arose over the deposition of plaintiff’s experts.

The parties disputed whether Skypatrol should be permitted to depose plaintiffs’ experts twice, once after Procon’s initial expert report and again after rebuttal reports are issued. Skypatrol contended that Skypatrol’s experts should be able to take Procon’s experts’ depositions into account when preparing their own reports. Procon asserted that the purpose of expert deposition is to develop cross-examination for trial and/or for a Daubert motion, but not for building a case for one’s own expert. Procon also asserted that two rounds of depositions would be impractical and would be wasteful.

The district court agreed with Procon, finding that Skypatrol had not “articulated a persuasive reason to require two rounds of depositions for plaintiff’s experts in this case. See Enns Pontiac, Buick & GMC Truck v. Flores, No. 1:07cv01043 OWW DLB, 2011 WL 2787729, at *3-4 (E.D. Cal. July 11, 2011) (rejecting argument that the plaintiffs needed to depose defense experts twice in order for the plaintiffs’ experts to prepare their reports).

The district court found that it would be more efficient and economical to have a single round of depositions and order the parties to meet and confer regarding the scheduling of depositions.

Accordingly, the district court denied the motion for two rounds of depositions.

Procongps, Inc. v. Skypatrol, LLC, et al., Case No. C 11-3975 SI (N.D. Cal. May 22, 2013)

The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.