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Court Chastises Both Parties for Contentious and Unprofessional Behavior and Warns That Further “Offending Conduct” Will Lead to a Ban from Further Participation in Discovery

After a discovery dispute erupted in this patent infringement action, the court held a telephonic hearing on defendants’ motion to compel discovery and for sanctions and plaintiff’s cross-motion for a protective order. Although the court denied both motions without prejudice, it “chastised both sides for the contentiousness and unprofessionalism that has marred discovery in this case, particularly the depositions.”

The court went further finding that “[b]oth sides are at fault and the attorneys for both sides must change their behavior significantly and immediately.” The court also reminded the parties that “[i]n the March 3, 2014 preliminary pretrial conference order, the court ordered that ‘the parties and their attorneys must at all times treat everyone involved in this lawsuit with courtesy and consideration… and must reasonably accommodate each other in all matters.'”

The court then explained the parties had not complied with this directive and that would have consequences if it continued. “That has not happened and this is a problem for the attorneys. The ante now is higher: all attorneys involved in this case must comport themselves civilly and professionally in every manner at all times. This is particularly important during depositions: no repetitive questioning, no badgering witnesses, no speaking objections, 100% Marquess of Queensbury Rules.”

In particular, the court warned that further violations would result in a ban of the offending attorney. “The court shall not tolerate deposition conduct of the sort exhibited by both sides in the transcripts filed with the court. The court warned both sides that in any further discovery concern flagged for the court, the court will ban from any further participation in discovery the offending attorney, regardless where that attorney fits into the hierarchy. The court is the sole judge of what constitutes offending conduct and its threshold in this case now is particularly low.”

The court also warned that if a second violation occurred, then the court would close discovery for the offending party. “The court further warned that if it then finds a second incident of offensive discovery conduct on either side, the court will completely close discovery for that side. This is not an idle threat, it is a just order under Rule 37(b)(2)(A) and every lawyer involved in this lawsuit must read this order and abide by it.”

Water Services, Inc. v. Novozymes A/S, Case No. 3-13-cv-00864 (Wisc. W.D. Dec. 11, 2014)

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