Exmark Manufacturing Company Inc. v. Briggs & Stratton Power Product Group
ORDER - Schiller's Motion to Compel Reopening of Deposition of Plaintiff's Damages Expert Melissa Bennis (Filing No. 281 ) is denied. Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Order. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIGGS & STRATTON POWER
PRODUCTS GROUP, LLC and
SCHILLER GROUNDS CARE, INC.,
This matter is before the court on the defendant’s, Schiller Grounds Care, Inc.
(Schiller), Motion to Compel Reopening of Deposition of Plaintiff’s Damages Expert
Melissa Bennis (Filing No. 281). Schiller filed a brief (Filing No. 282), declaration (Filing
No. 283), and index of evidence (Filing Nos. 284 and 285) in support of the motion. The
plaintiff, Exmark Manufacturing Company Inc. (Exmark), filed a brief (Filing No. 338)
and index of evidence (Filing Nos. 337 and 339) in response. Schiller filed a brief (Filing
No. 341) in reply.1
This action pertains to the alleged infringement of United States Patent No.
5,987,863 (the ʼ863 patent), which covers a lawn mower having flow control baffles.
See Filing No. 14 - Amended Complaint p. 1-4. Exmark alleges the defendants are
knowingly and actively engaging in the manufacture and sale of similar mowers that are
covered by the ʼ863 patent. Id. Schiller generally denies Exmark’s allegations and
asserts several counterclaims against Exmark. See Filing No. 57 - Amended Answer
In March of 2012, Melissa Bennis (Bennis), Exmark’s damages expert, issued an
See Filing No. 337-1 - Bennis’ 2012 Rpt.
Bennis opined patent
infringement damages owed by both defendants should be based on a reasonable
The defendant, Briggs & Stratton Power Products Group, LLC (Briggs), did not participate in this
royalty determined by application of the fifteen Georgia-Pacific2 factors and the
reasonable royalty should be five percent of the revenue derived by both defendants
from the sale of the infringing motor. Id. After a long stay and the resumption of this
case, Bennis issued a revised expert’s report on December 16, 2014. See Filing No.
337-2 - Bennis’ 2014 Rpt.
On January 23, 2015, Schiller served a notice of deposition setting February 9,
2015,3 as the date for Bennis’ deposition. See Filing No. 339-2 Ex. 4 - Notice. In the
notice, Schiller noted it “will coordinate the deposition, to the extent possible, with codefendant Briggs. . . .” See Filing No. 339-2 Ex. 4 - Notice. Briggs subsequently issued
a notice of deposition for Bennis for the same day with the understanding Schiller and
Briggs would attempt to coordinate questions to avoid duplicative questions. See Filing
No. 282 - Brief.
Schiller’s counsel agreed to permit Briggs’ counsel to start the
deposition in light of the quantum of damages Exmark seeks from Briggs. Id. at 5-7.
According to Schiller, Bennis repeatedly failed to directly respond to questions
from Briggs’ counsel, which needlessly extended her deposition. Id. at 7-9. Schiller
represents its counsel attempted to resolve these delays during a lunch break on the
day of the deposition, but was ultimately unable to reach an agreement. Id. at 9-10.
Counsel discussed the feasibility of coordinating their questions, but noted the
difference in the parties and the impossibility of coordination on all questions.
Thereafter, the deposition continued and Schiller alleges Bennis again avoided directly
responding to Briggs’ counsel’s questions. Id. at 11. At 3:34 p.m., after approximately
five-and-a-half hours of questioning, Briggs’ counsel passed the witness to Schiller’s
counsel. Id. Schiller alleges Bennis’ non-responsiveness continued and after threeand-a-half hours of questioning, Bennis and Exmark stopped the deposition. Id. at 1213.
Schiller contends it is entitled to reopen Bennis’ deposition for an additional three
hours because it has not had ample opportunity to obtain sufficient information in
discovery and the benefit of Bennis’ testimony outweighs any burden or additional
Georgia-Pac. Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1136 (S.D.N.Y. 1970) modified sub
nom. Georgia-Pac. Corp. v. U.S. Plywood-Champion Papers, Inc., 446 F.2d 295 (2d Cir. 1971).
February 9, 2015, was the last day to conduct depositions after Schiller obtained an extension of the
deposition deadline. See Filing No. 266 - Motion; Filing No. 267 - Order.
expense. Id. at 14-16. Schiller argues the discovery sought is not cumulative and
cannot be obtained otherwise. Id.
In response, Exmark contends Schiller has not shown good cause to reopen
See Filing No. 338 - Response.
Generally, Exmark contends
Bennis’ deposition was needlessly extended because Schiller’s counsel engaged in
rancorous exchanges with Bennis, repeated questions, focused on impeachment rather
than clarification of Bennis’ opinion, and failed to meaningfully coordinate its questioning
with Briggs’ counsel. Id. Exmark argues Schiller has not identified a single question
Schiller was unable to ask Bennis or Bennis failed to answer, which could justify
reopening of the deposition. Id.
In reply, Schiller identified topic areas it would address in the reopened
deposition. See Filing No. 341 - Reply p. 3-4.
Pursuant to Federal Rule of Civil Procedure 30(a)(2)(A)(ii), if a deponent has
already been deposed in the case, a party must obtain leave of court to take a
deposition if the parties have not stipulated to the deposition.
stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court
must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the
deponent or if the deponent, another person, or any other circumstance impedes or
delays the examination.” Fed. R. Civ. P. 30(d)(1). Rule 26 provides,
On motion or on its own, the court must limit the frequency
or extent of discovery otherwise allowed by these rules or by
local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in
the action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
action, and the importance of the discovery in
resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). “The party seeking a court order to extend the examination,
or otherwise alter the limitations, is expected to show good cause to justify such an
order.”4 Fed. R. Civ. P. 30 advisory committee’s note, 2000 Amend., Sub. (d). In
determining whether a witness should be required to submit to questioning beyond
seven hours in length, the court should make a fact intensive inquiry. See Miller v.
Waseca Med. Ctr., 205 F.R.D. 537, 540 (D. Minn. 2002) (referring to Rule 30’s advisory
committee’s notes listing factors for consideration5). “Preoccupation with timing is to be
avoided.” Fed. R. Civ. P. 30 advisory committee’s note, 2000 Amend., Sub. (d). Trial
courts have “broad discretion to decide discovery motions.” Pavlik v. Cargill, Inc., 9
F.3d 710, 714 (8th Cir. 1993).
The court finds Schiller has not established good cause to reopen Bennis’
deposition, which already lasted eleven hours, nine of which were on the record.
Bennis’ answers to Schiller’s questions were responsive and her conduct did not
present any impediments to her deposition. Instead, it appears Schiller’s counsel’s
“nearly three dozen” motions to strike and interruptions of Bennis’ testimony were
factors in lengthening the deposition. See Filing No. 282 - Brief p. 12. The following
excerpt is one example of the foregoing:
Q (Schiller’s counsel). Okay. All right. How many license
agreements have you negotiated in the course of your
A (Bennis). Well, I think -Q. Not hypothetical ones, real ones, actual ones.
A. Throughout the course of my work within this context, I
think it’s fair to say that I’ve reviewed and considered
hundreds and hundreds of licenses and re- -- and certainly
been a part of the analysis of what the result of a
hypothetical negotiation would be.
Q. Okay. Now, I’m going to move to strike your testimony
as nonresponsive. And I’m going to ask you to listen very
carefully to my questions, just so we can get you out of here.
Both parties have cited a good cause standard for determination of this issue. See Filing No. 282 Brief p. 16; Filing No. 338 - Response p. 10.
As applicable in this case, such factors include reviewing numerous or lengthy documents and
questioning by multiple parties in multi-party cases.
I’m trying to get your lawyer on an airplane. All right? How
many license agreements have you negotiated?
A. And can you give me some context for your question?
A. No context?
Just have you ever negotiated a licensing
agreement -A. Well -Q. -- where you are -A. -- there are -Q. -- on one side and somebody else is on the other?
A. So is the question directed to me as a party, me on
behalf of somebody? I can think of several directions where
your question could be directed, so I was simply asking for a
Q. Did you negotiate all of those agreements?
A. All of what agreements?
Q. The ones that you just made reference to that required
you to have context.
A. I mean, I -- I’m trying to follow your question, and simply Q. It’s a simple one.
A. -- asking for -Q. Okay?
A. -- a little context.
Q. We all know what a license agreement is. Right?
A. I have reviewed hundreds of -Q. Gotcha.
A. -- license agreements.
Q. How many have you negotiated where you were on one
side negotiating and somebody was on another side
A. I can’t think of any examples where I was a party -Q. Okay.
A. -- to a license agreement.
Filing No. 337-3 Ex. 3 - Bennis Depo. p. 286-288; see e.g., Filing No. 337-3 Ex. 3 Bennis Depo. p. 289, 509-510. Another example of an inefficient use of time was the
colloquy about Bennis’ lawn mowing experience twenty years ago.
Id. at 326-329.
Schiller’s counsel could have better used his time to address pertinent questions
regarding Bennis’ opinions. Additionally, while the court understands the defendants
have different cases and counsel needed to discuss the fifteen Georgia-Pacific factors,
Schiller chose to have Briggs’ counsel, who noticed the deposition second, start the
deposition without any clear plan on the length of questioning or division of time.
Exmark and Bennis should not bear the burden of Schiller’s counsel’s tactics and
choices during the deposition. Exmark already accommodated Schiller by extending
the deposition deadline and allowing the deposition to proceed until 8:00 p.m.
IT IS ORDERED:
Schiller’s Motion to Compel Reopening of Deposition of Plaintiff’s Damages
Expert Melissa Bennis (Filing No. 281) is denied.
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.
Dated this 5th day of March, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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