In this patent infringement action, the plaintiff, Whirlpool Properties (“Whirlpool”) noticed several depositions of third-party witnesses near the discovery cut-off. The defendant, Filters Fast, moved for an order to stop the depositions.
As explained by the district court, “[t]he crux of the pending motion is that the Whirlpool Plaintiffs emailed Defendant on November 28, 2018, the dispositive motions deadline, attaching two third-party deposition subpoenas that noticed depositions for December 6 in Windsor, Va. and December 7 in Simpsonville, S.C. Defendant contends that Plaintiffs had never identified these potential witnesses, nor even disclosed the possibility of deposing them. Moreover, Defendant notes that these newly noticed depositions overlapped with already scheduled depositions of Whirlpool witnesses to be held in Chicago, Il. on December 5, 7, and 11. According to Defendant, Whirlpool Plaintiffs then emailed a notice on December 2, regarding a third third-party witness it intended to depose in Texas on December 11 or 12.”
In opposition, Whirlpool asserted that witnesses in question “were disclosed within three days of confirming them for depositions.” Whirlpool argued that the notice of depositions in dispute here was “reasonable under the circumstances.” ((citing Fed.R.Civ.P. 30(b)(1)). Whirlpool further argued that the third-party depositions could have been conducted by the parties’ stipulated extension of the discovery deadline – December 12, 2018. Whirlpool also contended that the depositions address non-complicated issues that would require minimal preparation.
After reviewing the parties’ briefs, the court agreed with Filters Fast “that the proposed depositions of the third-party witnesses should be quashed. Even if Plaintiffs did not intentionally withhold their plans to depose these individuals, the notice of the proposed depositions was not reasonable. The undersigned finds that Plaintiffs failed to adequately account for the travel required by Defendant’s counsel to conduct these depositions in three different states, while also dealing with overlapping depositions in another state and other on-going discovery issues.”
Accordingly, the court quashed the deposition notices as providing inadequate notice and time to travel.
Whirlpool Properties, Inc. v. Filters Fast, LLC, Case No. 3:17-CV-601-FDW-DCK (W.D.N.C. Jan. 8, 2019)
The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.