Synthes (USA) v. Spinal Kinetics Inc.
Filing
415
ORDER by Judge Whyte denying 410 administrative motion to reopen fact discovery for purpose of completing deposition of Giuseppe Molaro (rmwlc2, COURT STAFF) (Filed on 10/20/2011)
1
2
3
4
E-FILED on 10/20/2011
5
6
7
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
United States District Court
For the Northern District of California
8
SAN JOSE DIVISION
11
12
13
SYNTHES USA, LLC (f/k/a SYNTHES
(U.S.A.)); SYNTHES USA SALES, LLC; and
SYNTHES, INC.,
14
15
16
17
Plaintiffs,
v.
SPINAL KINETICS, INC.,
Defendant.
No. C-09-1201 RMW
ORDER DENYING SPINAL KINETICS,
INC.'S ADMINISTRATIVE MOTION TO
REOPEN FACT DISCOVERY FOR THE
LIMITED PURPOSE OF COMPLETING THE
DEPOSITION OF GIUSEPPE MOLARO
[Re Docket No. 410]
18
19
20
21
22
23
24
25
26
27
Spinal Kinetics moves to reopen discovery for the purpose of completing the deposition of
Guiseppe Molaro. For the reasons stated below, the motion is denied.
Molaro is an attorney who was involved in prosecuting the patent in suit on behalf of
Synthes. Spinal Kinetics timely deposed Molaro. During the deposition, Synthes asserted that
communications with Molaro concerning patent prosecution were privileged and that prosecution of
the patent in suit was protected by the work product doctrine. Spinal Kinetics objected that Synthes
improperly instructed Molaro not to answer foundational questions that sought to determine whether
privileged communications existed and the basis of the claimed work product protection.
28
ORDER DENYING SPINAL KINETICS, INC.'S ADMINISTRATIVE MOTION TO REOPEN FACT DISCOVERY FOR THE
LIMITED PURPOSE OF COMPLETING THE DEPOSITION OF GIUSEPPE MOLARO —No. C-09-1201 RMW
MEC
1
On September 12, 2011, Magistrate Judge Lloyd found that Synthes had been overzealous in
2
instructing Molaro not to answer certain questions, but that because Molaro is not a critical witness
3
to any claim or defense, Spinal Kinetics would be entitled only to depose Molaro for one additional
4
hour for the limited purpose of having Molaro (1) confirm whether the attorney-client privilege
5
existed as to topics or documents generally, (2) identify when litigation was anticipated, and (3)
6
confirm whether his understanding of claim terms is based on his own experience or upon
7
information or instructions communicated by Synthes. Judge Lloyd conditioned his order on this
8
court's determination that fact discovery should be reopened to allow for completion of Molaro's
9
deposition..
United States District Court
For the Northern District of California
10
Spinal Kinetics did not mention this issue in the Joint Pretrial Statement or at the pretrial
11
conference that took place on September 15 and September 22, 2011, after the magistrate judge's
12
order was issued. Nonetheless, apparently in light of the brief continuance of the trial date, Spinal
13
Kinetics now seeks to complete Molaro's deposition. However, Spinal Kinetics has not identified
14
what testimony they hope to gain from Molaro and does not explain how the testimony would be
15
relevant to any issue that will be tried. Reopening fact discovery at this late stage in the litigation
16
for no clear purpose is simply not justified. The motion is denied.
17
18
19
20
21
DATED:
10/20/2011
RONALD M. WHYTE
United States District Judge
22
23
24
25
26
27
28
ORDER DENYING SPINAL KINETICS, INC.'S ADMINISTRATIVE MOTION TO REOPEN FACT DISCOVERY FOR THE
LIMITED PURPOSE OF COMPLETING THE DEPOSITION OF GIUSEPPE MOLARO —No. C-09-1201 RMW
MEC
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?