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District Court Denies Discovery Served Too Close to Discovery Cut-Off

Plaintiff filed a patent infringement action, alleging that Defendant B2B Supply and Defendant Jerrell P. Squyres (hereinafter “Defendants”) infringed U.S. Patent No. 7,731,462 (the ‘462 patent). Toward the end of discovery, the Defendants served written discovery and filed a motion seeking to extend the discovery deadline by 50 days to complete fact discovery and compelling Plaintiff to produce all responsive documents, certify that its production is complete, produce witnesses for deposition, and answer Defendants’ interrogatories.

In support of the motion, Defendants argued that an extension was necessary because Plaintiff had withheld documents from production and had otherwise failed to cooperate with discovery. As explained by the district court, the Defendants argued they were unable to complete discovery because Plaintiff withheld production, provided deficient respondes to discovery, and failed to certify that it had produced all responsive documents, which prevented Defendants from using the information to serve additional written discovery requests and third party subpoenas. Plaintiff responded that it timely served its responses and objections to Defendants’ discovery requests and that it had been diligent in searching for responsive documents.

The district court found Defendants’ explanation unconvincing because they had nine months to seek court intervention concerning Plaintiff’s responses and objections to Defendants’ First Set of Requests for Production, but failed to do so. “Additionally, it was Defendants’ decision to serve their First Set of Interrogatories a mere 30 days before the discovery deadline, leaving no time in the discovery period should a motion to compel become necessary. Defendants likewise scheduled depositions for the last three days of the discovery period, leaving no room for timely objection. Under these facts, the Court finds that Defendants have been less than diligent in seeking discovery within the prescribed period and in failing to notify the Court of resulting issues.”

In addition, the district court found that “Plaintiff will suffer significant prejudice if the deadline for fact discovery is extended. Apparently assuming that the Court would grant its motion, Defendants have already served Plaintiff with their First Set of Email Production on September 15, 2015, five days after the close of discovery. However, the E-Discovery Order was entered on October 22, 2014, giving Defendants over a year to serve such requests. The Court assumes by the belated request for an extension, Defendants’ intend to make additional discovery requests, including noticing depositions. Thus, this factor weighs against granting an extension.”

Accordingly, the district court denied the request to extend the discovery cut-off deadline.

S-Line, LLC v. B2B Supply and Jerrell P. Squyres,
Case No. 3:14-CV-2294-M (N.D. Tex. Dec. 4, 2015)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or