ANGELA ADAMS LICENSING LLC et al v. WALMART STORES INC et al

Filing 93

ORDER ON MOTION TO AMEND SCHEDULING ORDER granting 83 Motion to Amend Scheduling Order By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

ANGELA ADAMS LICENSING, LLC,
Plaintiff
v.
WAL-MART STORES, INC., et al.,
Defendants

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No. 2:11-cv-5-GZS

ORDER ON MOTION TO AMEND SCHEDULING ORDER

The plaintiff, Angela Adams Licensing, LLC, moves to amend the scheduling order to
allow it to take one additional deposition, of a former employee of Defendant Homestead
International Group Ltd., Juliana Um. Plaintiff’s Motion to Amend the Scheduling Order to
Permit an Additional Deposition (Docket No. 83) at [1]-[2]. The defendants oppose the motion.
For the reasons that follow, the motion is granted.
This is a copyright infringement action involving several designs of home decor products.
At the time the motion was filed, the plaintiff had taken six depositions and four more were
planned. Ms. Um was not identified in Homestead’s initial disclosures as the creator of any of
the designs at issue, but the plaintiff learned during discovery that she might have created one or
more of the designs. Affidavit in Support of Plaintiff’s Motion to Amend the Scheduling Order
to Permit an Additional Deposition (“O’Keefe Aff.”) (Docket No. 83-1) ¶¶ 6-9.
The defendants assert that the plaintiff has not demonstrated good cause for the order it
seeks. Defendants’ Opposition to Plaintiff’s Motion to Amend the Scheduling Order to Permit
an Additional Deposition (Docket No. 86) at 1. They contend that the plaintiff no longer need
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take its noticed deposition of another former employee of Homestead, Jenny Hoitt, whose name
was included in Homestead’s initial disclosures, because Homestead’s Rule 30(b)(6) deposition
witness testified that Ms. Hoitt had told her that Ms. Hoitt was not the originator of the Ellington
design, one of the designs at issue in this case, and that Juliana Um might have originated that
design. Id. at 1-2. Homestead has amended its initial disclosure to remove Ms. Hoitt’s name.
Id. at 2.
The defendants suggest that the plaintiff depose Ms. Um and then, if that deposition
“provides good cause to take the deposition of Jenny Hoitt or any other witness, . . . Defendants’
counsel would cooperate with Plaintiff’s counsel to schedule that deposition[.]” Id. They assert
that the plaintiff has not demonstrated that the subject matter of its depositions of Ms. Hoitt or
Ms. Um would differ. They argue that they have cooperated in attempts to keep discovery costs
down and that addition of another deposition “would not facilitate the parties’ completion of
discovery or preparation of dispositive motions, but would only increase the parties’ burden and
expenditure of resources on discovery.” Id. at 4.
In response, the plaintiff offers to provide the court in camera with the topics upon which
it will seek the testimony of Ms. Hoitt and Ms. Um, and adds the following information:
1. Ms. Hoitt and Ms. Um were both Homestead designers responsible for collaborating
with the plaintiff on designs under a licensing agreement.
2. It appears that Ms. Um designed the Ellington pattern during that period.
3. During 2009, Ms. Hoitt was responsible for providing designs to the Wal-Mart
defendants.
Plaintiff’s Reply in Further Support of its Motion to Amend the Scheduling Order to Permit an
Additional Deposition (Docket No. 88) at [2].

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It appears, although it is far from clear, that both Ms. Hoitt and Ms. Um are available for
deposition in New York City, as the plaintiff states that it wishes “to attempt to take both
depositions in New York at or around the same time, if possible.” O’Keefe Aff. ¶ 12. That goal
makes sense.
The plaintiff did not learn of the possible role of Ms. Um until the Rule 30(b)(6)
deposition of Homestead. Homestead’s belated removal of Ms. Hoitt’s name from its initial
disclosure does not make her potential testimony any less relevant. On balance, the plaintiff has
made its case for the additional deposition of Ms. Um, rather than being compelled to forego the
deposition of Ms. Hoitt until the defendants are satisfied by the deposition of Ms. Um that “good
cause” exists to take Ms. Hoitt’s deposition as well. The two depositions are to be taken in the
most economical way possible and as soon as possible.
Absent a showing of extraordinary circumstances, no existing deadlines established by
the current version of the scheduling order will be modified due to the taking of this one
additional deposition.

Dated this 28th day of February, 2012.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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