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Kimberly-Clark v. First Quality: Request to Require Defendant to Present Deposition Testimony in Plaintiff’s Case Denied Because It Would Interfere with Defendant’s Trial Presentation

As this patent infringement action proceed toward trial, plaintiff Kimberly-Clark Worldwide, Inc. (“Kimberly-Clark”) filed a request with the district court on an “extremely time-sensitive case management issue concerning the use of depositions at trial and deposition designations.” During a telephonic status conference, Kimberly-Clark requested that the district require the defendants First Quality Baby Products, LLC (“First Quality”) present at trial any deposition testimony of Kimberly Clark’s testifying employee witnesses when they are called by Kimberly-Clark instead of during First Quality’s case-in-chief.

As part of its request, Kimberly-Clark asserted that its proposed procedure would be more efficient and would prevent delay and any potential confusion that would be created by calling the same witnesses to testify, whether by live testimony or by depositions, during different phases of the trial. First Quality opposed Kimberly-Clark’s request by arguing that this type of procedure would improperly permit Kimberly-Clark to dictate the manner in which First Quality presents its case.

After the telephone conference ended, the district court denied Kimberly-Clark’s request. Although there might efficiencies in witness testimony in the procedure proposed by Kimberly-Clark, the district court found that the request would impinge upon the ability of First Quality to present its case. “Upon consideration of the foregoing, we will deny KC’s request. FQ must be permitted to present its case as it sees fit, and we cannot require FQ to present its case out of order simply for the convenience of KC. We further that KC’s proposed procedure would be more confusing to the jury than permitting the parties to call their respective witnesses during their cases-in-chief. Although some additional time may be required through this manner of presentation, in fairness, FQ’s position is well taken.”

Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, LLC, Case No. 1:09-cv-1685 (M.D. Penn. Sept. 18, 2013)

The authors of 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