Angioscore, Inc. v. Trireme Medical, Inc. et al

Filing 363

ORDER RE: JOINT LETTER BRIEF -- FELD DEPOSITION. Signed by Judge Jacqueline Scott Corley on 11/12/2014. (ahm, COURT STAFF) (Filed on 11/12/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANGIOSCORE, INC.,

Case No. 12-cv-03393-YGR (JSC)

Plaintiff,
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v.

ORDER RE: JOINT LETTER BRIEF -FELD DEPOSITION

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TRIREME MEDICAL, INC., et al.,

Re: Dkt. No. 355

Defendants.

United States District Court
Northern District of California

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Plaintiff AngioScore, Inc. asserts claims for patent infringement and violation of state law

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against Defendants TriReme Medical, LLC, Eitan Konstantino, Quattro Vascular Pte Ltd., and QT

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Vascular Pte. Ltd. Now pending before the Court is a Joint Letter Brief regarding the upcoming

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deposition of non-party Tanhum Feld. Having considered the parties’ briefs and having had the

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benefit of oral argument on November 10, 2014, the Court hereby DENIES Plaintiff’s requests

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that the Court either require the deposition to proceed under the federal rules or bar Defendants

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from relying on any testimony obtained during his deposition.

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Defendant, Dr. Konstantino, noticed the deposition of non-party Tanhum Feld to take place

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in London, England on November 14, 2014. Mr. Feld is alleged to have played a role in the

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development of the accused device. Although neither party attached the deposition notice,

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Defendants represent that the deposition is proceeding under Federal Rule of Civil Procedure

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28(b)(1)(C) which states that “a deposition may be taken in a foreign country” “on notice, before a

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person authorized to administer oaths either by federal law or by the law in the place of

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examination.” Fed. R. Civ. P. 28(b)(1)(C). According to Defendants, all parties will have the

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opportunity at the deposition to question Mr. Feld regarding Plaintiff’s newly added state law

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claims. Plaintiff previously obtained Mr. Feld’s deposition with respect to the patent

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infringement claims via the letter rogatory process.
Plaintiff seeks an order requiring that Mr. Feld’s deposition occur in accordance with the
Federal Rules of Civil Procedure; however, Plaintiff has cited to no authority suggesting that

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Defendant’s deposition noticed pursuant to Federal Rule of Civil Procedure 28(b)(1)(C) is invalid.

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Plaintiff’s reliance on 28 C.F.R. § 92.56 is also misplaced—that provision was issued by the

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Department of State, involves the authority of embassy and consular officers to take depositions,

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and does not supersede the Federal Rules. Indeed, 28 C.F.R. § 92.55 states “[t]he taking of

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depositions for federal courts of the United States is further governed by the Federal Rules of Civil

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Procedure.” At bottom, Plaintiff’s objection to Mr. Feld’s deposition is that it would like to have

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Mr. Feld produce certain unspecified documents at the time of his deposition. However, Plaintiff

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United States District Court
Northern District of California

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could have served a letter rogatory requesting that Mr. Feld produce certain documents; notably,

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this is the same process it followed in securing his initial deposition. That the process can be

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lengthy and the close of discovery is approaching does not excuse Plaintiff from following the

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proper procedures nor does it provide a basis to prohibit Defendants from taking a properly

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noticed deposition. Nonetheless, as explained at oral argument, it would behoove Defendants,

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who are alleged to have friendly relationship with Mr. Feld, to make the deposition as fair to both

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sides as possible, including through providing both sides the opportunity to request documents

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from Mr. Feld. The Court cannot require Defendants or Mr. Feld to do so, but when it comes to

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the admissibility of his testimony at trial, the more fair and reasonable the conditions of the

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deposition the better the case for admissibility.

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Accordingly, Plaintiff’s request for relief with respect to the forthcoming deposition of Mr.
Feld is DENIED.

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This Order disposes of Docket No. 355.

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IT IS SO ORDERED.

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Dated: November 12, 2014
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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