Howmedica Osteonics Corp. v. Schilling

Filing 8

ORDER by Judge Regina M. Rodriguez on 03/5/2024. For the reasons set forth herein, Stryker's Motion to Clarify, ECF No. 4 , is GRANTED, and Petrides's Motion to Clarify, ECF No. 5 , is DENIED.(jrobe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 1:24-mc-00004-RMR
HOWMEDICA OSTEONICS CORP.,
Plaintiff,
v.
MORGAN SCHILLING,
Defendant.
ORDER
This matter is before the Court on the cross motions filed by Plaintiff Howmedica
Osteonics Corp. ("Stryker”) and nonparty Elias “Lee” Petrides (“Petrides”) at ECF Nos. 4
and 5, respectively, seeking clarification of the Court’s January 29, 2024 Order granting
in part Mr. Petrides’s Motion to Quash (ECF No. 1). In ruling on the Motion to Quash, the
Court permitted Stryker’s anticipated deposition of Petrides to go forward but prohibited
“Stryker from reexamining Petrides on topics or areas of questioning already covered in
the first deposition in case No. 20cv-01450-RBJ.” ECF No. 3. Petrides correctly notes that
the “Court likely (and reasonably) assumed that its Order would provide sufficient
guidance to the parties to appropriately limit the length and scope of Stryker’s deposition
of Petrides.” ECF 5 at 3. Nonetheless, both parties apparently deemed it necessary to
move for clarification of the January 29 Order, citing numerous unresolved disputes
concerning Petrides’s deposition. Although the need for further “clarification” of the Order

is, frankly, questionable given the contentious lawyering evident in the parties’ filings and
the straightforward answers to the parties’ inquiries, the Court addresses each motion in
turn.
Petrides’s Motion to Clarify “requests that the [January 29 Order] be clarified and
expanded” to (1) require Stryker to provide advance written notice of the specific topics
on which it intends to examine Petrides and (2) impose a time limit on the deposition.
ECF No. 5 at 6–7. While styled as a request for clarification, Petrides effectively asks the
Court to reconsider its ruling on the Motion to Quash. This is not a proper basis for
clarification, and Petrides has not identified any grounds that would warrant a motion for
reconsideration here. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000). The deposition parameters set forth in the Court’s January 29 Order are
straightforward and unambiguous. Petrides may not have a second bite at the apple
simply because the Court declined to impose the additional limitations he originally sought
in the Motion to Quash. Petrides’s Motion is therefore DENIED.
Stryker’s Motion to Clarify seeks clarification as to whether the Court’s January 29
Order (1) “require[s] Stryker to satisfy conditions not ordered by the Court to schedule the
deposition;” (2) prohibits Stryker from “questioning Petrides on newly produced
documents” or “asking prefatory questions that may cover topics from the first deposition;”
and (3) prohibits Stryker from taking a later trial preservation deposition. ECF No. 4 at 5–
6. In short, the answer to all three queries is no.
As stated previously, the Court did not order Stryker to provide an offer of proof or
narrow the duration of a second deposition. The parties are not free to litigate outside the

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confines of the Court’s rulings and the Federal Rules of Civil Procedure. Accordingly,
Petrides is directed to move forward with scheduling the deposition in compliance with
the Rule 45 subpoena and the January 29 Order.
With respect to the second issue, the Court clarifies that its January 29 Order does
not foreclose examination on later-discovered documents insofar as such documents
contain new or additional information not previously available during the first deposition.
Stryker is likewise not prohibited from asking prefatory questions reasonably necessary
for context and/or completeness. Finally, the Court clarifies that its January 29 Order does
not preclude Stryker from seeking leave to take preservation testimony from Petrides
consistent with the applicable Federal Rules of Civil Procedure. Stryker’s Motion is
therefore GRANTED to the extent that it seeks clarification of the Court’s January 29
Order on the foregoing issues.
While the Court has attempted to address the parties’ various concerns and
requests in the interests of judicial economy and efficiency, the Court stresses that it is
neither willing nor able to dictate the precise contours of the anticipated deposition in this
case. The parties are best positioned to distinguish between old ground and new—and
they should make every effort to tailor their respective questioning/objections accordingly
and in good faith. The Court is not keen to mediate routine discovery disputes that could
(and should) be resolved through meaningful conferral and reasonable accommodation.
To that end, the parties are cautioned that unnecessary and/or frivolous motions serve
only to hamper the efficient management and resolution of the proceedings and may
result in the imposition of sanctions.

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For the reasons set forth herein, Stryker’s Motion to Clarify, ECF No. 4, is
GRANTED, and Petrides’s Motion to Clarify, ECF No. 5, is DENIED.
DATED: March 5, 2024
BY THE COURT:

_____________________________
REGINA M. RODRIGUEZ
United States District Judge

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