Linear Group Services, LLC v. Attica Automation, Inc.
ORDER GRANTING PLAINTIFFS EMERGENCY MOTION TO COMPEL DEPOSITION ANSWERS [#67] AND AMENDED SCHEDULING ORDER. Signed by District Judge Gershwin A. Drain. (Bankston, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
LINEAR GROUP SERVICES,
Case No. 13-10108
HON. GERSHWIN A. DRAIN
ATTICA AUTOMATION, INC.,
ORDER GRANTING PLAINTIFF’S EMERGENCY MOTION TO COMPEL
DEPOSITION ANSWERS [#67] AND AMENDED SCHEDULING ORDER
On January 11, 2013, Linear Group Services, LLC (“Linear”) filed the present action
against Attica Automation, Inc. (“Attica”), seeking a declaration that Linear’s technology
does not infringe Attica’s U.S. Patent No. 6,787,724 (“the Patent"), or, in the alternative, a
declaration that the Patent is invalid. On February 28, 2013, Attica brought a counterclaim
against Linear and ND Industries, Inc. (“ND”) alleging direct and indirect infringement of
Presently before the Court is Linear’s Emergency Motion to Compel Deposition
Answers and Adjust Remaining Dates [#67], filed on March 5, 2014. Attica filed a brief in
opposition on March 24, 2014 [#74], and Linear filed a Reply [#80] on April 3, 2014. Upon
review the Court concludes oral argument is unnecessary and the Court will resolve the
instant motion on the briefs submitted. See E.D. Mich. L.R. 7.1(f)(2).
Based on the facts below, this Court grants Linear’s Motion to Compel Deposition
Answers and adjusts the remaining dates accordingly.
On September 7, 2004, Attica was granted the Patent for a sorting machine, which
is used during the manufacture of mass quantities of fasteners such as bolts and screws
with the purpose of segregating or removing nonconforming fasteners from the batch of
conforming fasteners. The abstract of the Patent states:
A sorting machine receives a bulk of workpieces or fasteners from a hopper unit into
a feed station which align the fasteners into a single file for engagement to a
transport system of an inspection station. Preferably, the transport system has a
conveyor belt with a magnetic member disposed radially inward from the belts. The
fasteners are preferably ferrous and thereby engage the conveyor belt via the
magnetic field which penetrates the belt. The fasteners are thus carried along the
transport system past a trigger sensor which sends a signal to a central controller
to timely actuate a dimensional sensing apparatus which takes an image of the
fastener and sends it to the central computer for dimensional analysis. If the
fastener fails to meet pre-established guidelines the nonconforming fastener is
ejected from the transport system via a reject mechanism. If the fastener conforms,
it continues to move along the transport system, past a counter sensor and is then
dropped off the conveyor belt of the transport system into a packaging station for
ultimate delivery to the customer.
A claim construction hearing held before this Court on January 29, 2014, resulted in the
Court interpreting all of the disputed patent claims according to their ordinary and
Linear noticed a Federal Rules of Civil Procedure 30(b)(6) deposition of Attica, and
listed 17 topics that were to be covered. Attica’s representative is its President and owner,
William Bennett (“Bennett”). Bennett is the named inventor of Attica’s patent and is the only
person listed in Attica’s Rule 26 disclosures. The deposition was originally scheduled for
February 7, 2014, but was rescheduled for February 17, 2014, due to a death in Bennett’s
family. Approximately ten minutes after the deposition began, Linear’s counsel terminated
the deposition. Linear maintains the termination was because Bennett was deliberately
evading its questions. Linear now requests this Court compel Bennett to reappear for a
deposition and pay costs, directly answer Linear’s questions, and extend the deadline for
dispositive motions. Discovery in this case was originally due by February 24, 2014, and
the Dispositive Motion deadline was March 25, 2014.
Standard of Review
Under the FED R. CIV. P. 30(b)(6)a party may notice a:
[P]ublic or private corporation, a partnership, an association, a governmental
agency, or other entity...The named organization must then designate one or more
of its officers, directors, or managing agents, or designate other persons who
consent to testify on its behalf; and it may set out the matter on which each person
designated will testify...[t]he persons designated must testify about information
known or reasonably available to the organization.
A deposition provides the opportunity for the other side to examine and cross-examine a
deponent as they would at trial. FED R. CIV. P. 30(c)(1). The deponent is placed under oath
and an officer must record the testimony given. “An objection at the time of the
examination...must be noted on the record, but the examination still proceeds; the
testimony is taken subject to any objection.” FED R. CIV. P. 30(c)(2). However:
At any time during a deposition, the deponent or a party may move to terminate or
limit it on the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party...[i]f the
objecting deponent or party so demands, the deposition must be suspended for the
time necessary to obtain an order.
FED R. CIV. P. 30(d)(3)(A).
A party may make a motion to compel disclosure or discovery if “a deponent fails to
answer a question asked under Rule 31 or 30.” FED R. CIV. P. 37(a)(3)(B)(i). However,
upon a deponent’s failure to answer, opposing counsel may “complete or adjourn the
examination before moving for an order.” FED R. CIV. P. 37(a)(3)(C). For the purpose of
determining when it is proper to file a motion to compel, “an evasive or incomplete
disclosure, answer, or response must be treated as a failure to disclose, answer, or
respond.” FED R. CIV. P. 37(a)(4). If the motion to compel is granted, the court must require
the party or attorney whose “conduct necessitated the motion...to pay the movant’s
reasonable expenses incurred in making the motion, including attorney fees.” FED R. CIV.
P. 37(5)(A). However the court must not order any payment if the “movant filed the motion
before attempting in good faith to obtain the disclosure or discovery without court action”
or the opposing party’s nondisclosure or objection was “substantially justified,” or “other
circumstances make an award of expenses unjust.” FED R. CIV. P. 37(5)(a)(i)-(iii).
Linear began Bennett’s deposition by questioning him about a letter from May 2001
and whether the letter pertained to a sale by Attica of a commercial embodiment of Attica’s
patent. Linear argues a motion to compel is proper because it was forced to terminate the
deposition after Bennett continuously responded with vague and evasive answers. For
Q: [Mr. Moskal] Is Exhibit 59 a sales proposal for a machine that is covered
by your patent?
Objection to form. It calls for a legal conclusion.
It is possible.
Q: Could it be a sales proposal for some other type of machine? Or do you
believe it is a proposal or a machine that is covered by your patent:
Objection to form, asked and answered. Same
Robert Tuttle is the attorney for the defense.
objection. Calls for legal speculation.
It is possible.
Q: Do you understand this to be a sales proposal for a machine that you
believe is covered by your patent?
Objection, asked and answered.
I have answered the question.
Q: What is your answer:
A: It is possible.
Transcript at 5-6. When asked whether he believed one of his own machines was or was
not covered by his patent, Bennett only responded “it is possible.” Id. at 5. Linear maintains
that such responses are evasive because Bennett is indicating that it is possible that he
believes his machine is covered by his patent, and it is possible that he believes it is not
covered. When Linear attempted to clarify, Bennett refused to answer and would only state
“I have given my answer.”
Moreover, when Linear questioned Bennett by using language exactly from the
patent to describe the machine at issue, Bennett avoided giving a direct answer by
repeating the words in his document. For example:
Q: Okay, at the end it says, quote, “Defects will be ejected from the flow of
parts.” close quote. Do you see that?
Yes, I do.
Q: Is that describing the nonconforming parts being removed from the
transport system by the reject mechanism?
Objection. The document speaks for itself.
“Defects will be ejected from the flow of parts.”
That’s what it reads
Q: Is that describing the nonconforming parts being removed form the reject
That’s what it reads.
Transcript at 9 - 10.
Linear maintains that the questions it posed to Bennett were basic, straightforward,
and directly related to the heart of this case - whether a machine falls within Attica’s patent.
Evidence is relevant when “it has any tendency to make a fact more or less probable than
it would be without the evidence.” FED. R. EVID. 401(a). Specifically, the questions referred
to a document Bennett himself authored, a machine he describes in the document, and as
to whether the document and machine embody what is stated in his patent.
Attica argues that even if Bennett’s answers were evasive, they were not severe
enough to warrant Linear stopping the deposition. However, Bennett’s answers are
analogous to those the court found unacceptable in Citimortgage Inc. v. Chicago Bancorp,
Inc., No. 12-cv-00246, 2013 LEXIS 107131, *10 (E.D. Mo. July 31, 2013), which included
giving evasive or non-responsive answers or refusing to answer numerous questions, with
“asked and answered” considered to be the same as refusing to answer. Id. Furthermore,
the case law Attica cites in support pertain to more severe obstructions of discovery that
result in more severe consequences. For example, in Starbrite Waterproofing Co., Inc. v.
United States, 164 F.R.D. 378 (S.D. N.Y. 1996), the defendants refusal to respond to
numerous discovery requests and blatant disregard of a direct court order to comply,
resulted in the defendant’s answer being stricken and judgment entered in favor of the
plaintiff. In Garcia v. Las Brisas Quick Hand Car Wash, No. 09-22599, 2011 LEXIS 76935
(S.D. Fla. July 15, 2011), a defendant’s vague and evasive answers to the most basic
deposition questions (i.e. whether or not defendant and his wife ever owned a car wash
business together) resulted in the court compelling the defendant to answer and awarding
sanctions. In Citimortgage, No. 12-cv-00246 at *10, the court awarded sanctions for the
defendant’s refusal to provide a suitable witness under FED R. CIV. P. 30(b)(6). The instant
matter is not severe enough to warrant sanctions, but has caused enough substantial
damage to cause this Court to consider whether to permit a rescheduled deposition.
Bennett’s responses were evasive, and therefore constitute an improper failure to
respond under FED R. CIV. P. 37(a)(4). Citimortgage, No. 12-cv-00246 at *19. In such a
situation Linear could, but did not have to, continue with the deposition. FED R. CIV. P.
30(d)(3)(A) and 37(a)(3)(C). Linear’s termination of the deposition was permissible and this
Court will consequently grant Linear’s Motion to Compel Bennett to resume his deposition
and directly respond to Linear’s questions.
Bennett’s deposition was held on February 17, 2014. Discovery, which opened in
April 2013, was due by February 24, 2014. Although Linear waited until late in the discovery
period to depose Bennett, this Court will not limit Linear’s opportunity to complete Bennett’s
deposition because of the timing.
FED R. CIV. P. 16(b)(4) states that “[a] schedule may be modified only for good
cause.” While Attica argues that Linear did not act with good cause when it terminated
Bennett’s deposition after only ten minutes of questioning, as previously recognized, FED
R. CIV. P. 30(d)(3)(A) and 37(a)(3)(C) permits a party to terminate a deposition when the
deponent’s responses are evasive. Although Linear could have continued questioning
Bennett and raised its objections after the deposition was complete, there is no requirement
under the Federal Rules that it must have done so. A review of Bennett’s deposition reveals
vague and evasive answers, therefore Linear has demonstrated good cause for the
modification of the scheduling order.
Therefore, discovery will not be extended, but Linear is permitted to re-depose
Bennett within 30 days of this order. Additionally, the following dates will govern in this
Dispositive Motion Cut-off:
June 5, 2014
Final Pretrial Order due:
August 12, 2014
Final Pretrial Conference:
August 19, 2014
September 2, 2014
However, it is unclear why Linear waited two and a half weeks after Bennett’s
terminated deposition to file this motion. The deposition was held on February 17, 2014,
however Linear did not file the instant motion until March 5, 2014. Because of Linear’s
delay this Court will not award Linear costs for this motion and will require Linear to cover
the costs for reconvening the deposition.
Based on the aforementioned arguments, this Court will GRANT Linear’s Motion to
Compel Deposition Answers and Amend the Scheduling Order.
It is further ordered that Linear pay for the costs of reconvening the deposition. The
deposition is to be a videotaped deposition with both counsel and witnesses in view of the
camera because of allegations of impropriety during the initial deposition.
/s/Gershwin A Drain____
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: April 21, 2014
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 21, 2014, by electronic and/or ordinary mail.
/s/ Tanya Bankston
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