Public Health Equipment & Supply Co., Inc. v. Clarke Mosquito Control Products, Inc. et al

Filing 114

ORDER DENYING re 93 Motion for Leave to Take Depositions on Written Questions That Would Not Count Against Deposition Limit (opposed) MOTION for Discovery Motion for Leave to Take Depositions on Written Questions That Would Not Count Against Deposition Limit (opposed) MOTION for Discovery Motion for Leave to Take Depositions on Written Questions That Would Not Count Against Deposition Limit (opposed) filed by Clarke Environmental Mosquito Management, Inc., Clarke Mosquito Control Products, Inc., Clarke Engineering Technologies, Inc. Signed by Judge Nancy Stein Nowak. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
PUBLIC HEALTH EQUIPMENT &
SUPPLY CO., INC.,
Plaintiff,
v.
CLARKE MOSQUITO CONTROL
PRODUCTS, INC.,
CLARKE ENVIRONMENTAL
MOSQUITO MANAGEMENT, INC.,
CLARKE ENGINEERING
TECHNOLOGIES, INC.,
Defendants.

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CIVIL ACTION NO.
SA-08-CV-0895 OG (NN)

ORDER GRANTING MOTION FOR LEAVE TO TAKE MORE THAN 10
DEPOSITIONS (DOCKET ENTRY 93)
The matter before the court is defendants’ motion for leave to take depositions on written
questions that would not count against the deposition limit (docket entry 93). Also before the
court is plaintiff’s response (docket entry 95).
Defendants’ motion is made pursuant to Federal Rule of Civil Procedure 30(a)(2)(A)(i)
which requires leave of court if the parties have not stipulated to a deposition which would
exceed the 10 deposition limit. Depositions on written questions under Rule 31 and depositions
by oral examination under Rule 30 count towards the 10 deposition limit. At the time of filing of
the motion and response, defendants had taken one Rule 30 deposition, one Rule 31 deposition,
and noticed four additional Rule 30 depositions.
Defendants argue that additional depositions should be allowed because the seven
companies to which it desires to direct Rule 31 written questions were identified by plaintiff as
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companies to whom plaintiff sold mosquito control products during the relevant time period, and
information regarding sales to those companies would be relevant to issues involving plaintiff’s
claim that it had an exclusive distributorship agreement with defendants.
Plaintiff opposes the motion arguing that defendants haven’t yet exhausted the 10
deposition limit and therefore the motion is premature, and further that the discovery would be
cumulative of information already disclosed through plaintiff’s document production –
specifically records of plaintiff’s sales activities from 2004 to 2008.
Rule 30(a)(2)(A)(i) provides that leave should be granted to the extent consistent with
Rule 26(b)(2). The latter rule directs the court to limit discovery which is cumulative or
duplicative. Defendants did not reply to plaintiff’s response and explain how the depositions on
written questions directed to the seven companies would provide additional information not
otherwise available through the sales documents already provided by plaintiff. Without that
showing, the court cannot find that defendants have justified expansion of the presumptive
deposition limit of Rule 30 by omitting the Rule 31 depositions from that total.
Accordingly, the motion for leave is ORDERED DENIED.
SIGNED on October 27, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

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