Patent Lawyer Blog
In this patent infringement action, the Defendants requested that the court order a further Rule 30(b)(6) deposition of one of the deponents, Mr. Pang. In the motion, Defendants argued that Plaintiff’s counsel objected more than 300 times during the course of Mr. Pang’s deposition, and the objections impeded the fair examination of Mr. Pang.
In response, the Plaintiff argued that Defendants failed to show good cause to compel a second deposition of Mr. Pang and pointed out that during the deposition, Defendants never raised any issue with Mr. Pang’s responses or with Plaintiff’s counsel’s objections. Plaintiff also argued that its objections were necessary and were stated in a concise, nonargumentative and nonsuggestive manner and noted that Mr. Pang answered every question after Plaintiff’s counsel stated his objection on the record.
The court began its analysis by focusing on Fed.R.Civ.Pro. 30(c), which governs objections during depositions:
Objections. An objection at the time of the examination-whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition-must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce limitation ordered by the court, or to present a motion under Rule 30(d)(3).
The court then agreed that Defendants had not shown good cause to re-depose Mr. Pang. “Although Plaintiff’s counsel may have been tenacious in his unyielding objections, there is no indication that he coached the witness, or raised completely groundless objections. Indeed, Plaintiff’s counsel did not interject speaking objections or act as an intermediary by interpreting questions or assisting with answers. The Court finds Plaintiff’s counsel’s objections did not frustrate the free flow of the deposition. Mr. Pang was not precluded from answering any of Defendants’ questions, and defense counsel had adequate time to ask follow-up questions, if he felt Mr. Pang’s answers were inadequate.”
But more importantly, the court found that the defense counsel failed to address the issue during the deposition proceedings. “Moreover, although defense counsel may have been frustrated, he failed to expressly address any dissatisfaction with the deposition proceedings during the course of Mr. Pang’s deposition. Rule 30(c)(2) requires parties to state their objections on the record.”
The court specifically found that Rule 32(d)(3)(B) provides that an objection to an error or irregularity at a deposition is waived if ‘(1) it relates to the manner of taking the deposition, the form of a question, or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and (2) is not timely made during the deposition.’ Fed.R.Civ.P. 32(d)(3)(B). Here, defense counsel failed to raise any objection to Plaintiff’s counsel’s conduct on the record, and made no effort to suspend the deposition to meet and confer, or reach out to the Court for intervention.”
Accordingly, the court denied the motion for additional deposition time.
Sonix Technology Co. LTD., v. Yoshida, Case No. 12 cv 380-CAB (DHB) (S.D. Cal. Dec. 31, 2014)
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.