I/P Engine, Inc. v. AOL, Inc. et al

Filing 194

ORDER DENYING AND FINDING AS MOOT and PREMATURE Plaintiff's 177 Motion to Take Deposition, as outlined in this Order. (See Order for Specifics) Entered and filed 7/26/12. (Signed by Magistrate Judge F. Bradford Stillman on 7/26/12). (ecav, )

UNITED

FILED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

JUL 2 6 2012

Norfolk Division
I/P

ENGINE,

CLEHK. US DISTRICT COURT

INC.,

NORFOLK. VA

Plaintiff,

Case

V.

AOL,

INC.,

et

No.

2:llcv512

al.,

Defendants.
ORDER

Before the Court

Take
ECF

30(b)(l)
No.

is

Plaintiff I/P Engine's Motion for Leave to

Depositions

177.

On

July

5,

opposition to the motion,

exhibits.

ECF Nos.

179,

for

2012,

the

filed on June

defendants

filed

25,
a

2012.

brief

in

together with a declaration and several

180,

186.

On July 9,

ECF No.

filed a reply brief.
undersigned

of Defendants,

187.

The motion was referred to the

disposition

pursuant

to

28

2012,

U.S.C.

the plaintiff

§

636{b){l)(A)

and the Standing Order on Assignment of Certain Matters to United
States

Magistrate

motion papers

and Rule
This

is

defendants:
Inc.

Inc.

("IAC");

(Apr.

identified above,

on the papers,
7(J)

Judges

without
78(b)

a

of

patent

(1)

Google

(3)

{"Gannett");

oral
the

1,

2002).

Federal

pursuant to Local

Rules

infringement

of Civil

case

involving

("Google");

Target Corporation

and

(5)

reviewed

the

the Court will decide this motion

hearing,

Inc.

Having

AOL,

(2)

IAC

{"Target");

Inc.

{"AOL").

Civil Rule

Procedure.
five

Search
(4)

In

corporate

&

Media,

Gannett

their

Co.,

Rule

26(a) (1)

initial

disclosures,

the

defendants

collectively

identified 14 individuals likely to have discoverable information.

The plaintiff subsequently served deposition notices on each of the
five corporate defendants pursuant to Rule 30(b)(6)
Rules of Civil Procedure.
of the same
Rule

14

of the Federal

The defendants have designated several

individuals to testify on their behalf pursuant to

30(b)(6).

The

plaintiff

now

seeks

leave

to

take

the

depositions,

pursuant to Rule 30(b)(1)

of the Federal Rules of Civil Procedure,

of

the

twelve

employees

of

defendants'

Rule 26(a)(1)

identified

as

fact

disclosures,

witnesses

documents

produced by the

deponents

is

deposition

Derek

was

plaintiff.

Cook,

not

an

based

on

employee

noticed,

of

written

The

depositions on two grounds:

(1)

One

of

side

by

Rule

the

not

yet

Google,
taken,

deponents have

defendants

and

the prospective

object

whose
by

the

not been
to

these

that taking these depositions will

cause the plaintiff to exceed the ten-deposition limit

each

in

discovery

defendant

but

eleven prospective

identified.

identified

but whom the plaintiff has

defendants.1

previously

The other

specifically

defendants

30 (a) (2) (A) (i) ;

and

(2)

that

imposed on

taking

these

depositions would violate a Rule 29 stipulation by the parties that
purportedly limits the plaintiff to deposing only those

1

Specifically,

employees
Target,

each

and

of

the

Google

plaintiff
and AOL,

Gannett.

_

o

seeks

and

—

two

leave

to

employees

individuals

depose
each

of

three
IAC,

identified in the defendants'

stated below,
moot

initial disclosures.

For the reasons

the Court will deny the plaintiff's motion as both

and premature.

A. Deposition Limits Under the Federal Rules

The Court notes that the parties' dispute with respect to the
ten-deposition limit is premised upon a clear misunderstanding of

the Federal Rules of Civil Procedure.

Rule 30 provides that "[a]

party must obtain leave of court, and the court must grant leave to
the extent consistent with Rule 26(b)(2)

...

not

.

stipulated to

the deposition and .

.

if the parties have

the deposition would

result in more than 10 depositions being taken" by each side.
R.

Civ.

rule as

P.

30(a) (2) (A) (i) .

The parties have both construed the

limiting the total number of depositions,

depositions

of each

separate Rule

30(b) (6)

With

five

for

each

defendant,

the total number of depositions has readily exceeded the

of this limit,

30(b)(6)

designee.

defendants

But "[a]

multiple

including the

corporate

ten-deposition limit,

and

Fed.

designees

as calculated by the parties.

deposition under Rule 30(b)(6)

should,

be treated as a single deposition even though more

than one person may be designated to testify."
30(a)(2)(A)
Trading,
Mar.

4,

advisory committee's note

Inc., No.
2010).

for purposes

C08-1064 RSM,

defendants count,

at most,

R.

(1993); Loops LLC v.

2010 WL 786030,

The Rule 30 (b) (6)

Fed.

at *1

Civ.

P.

Phoenix

(W.D. Wash.

depositions of the five corporate

as one deposition each for this purpose,

-

3

-

no matter how many separate depositions of the
are actually conducted.

only depositions

It

taken by

is

the Court's

the plaintiff

designees

understanding that

to

date

are

Rule 30(b)(6)

individual,

non-designee deponent noticed at this point.

Rules,

deposition,

leave

nor

is

of

it

court

is

and that Mr.

those

defendants'

Federal

designees,

30(b)(6)

not

required

for

of

next

the

Cook is the only
Under the

required to take Mr.
the

the

four

Rule

Cook's

30(b)(l)

depositions noticed by the plaintiff.2
The

Court

further

notes

that

the

plaintiff

total of five depositions of nonparty,

Rule 26 (f)
ECF No.

is

limited

a

non-expert witnesses by the

Pretrial Order entered in this case on January 17,

83.

to

2012.

As with the limits imposed by the Federal Rules,

this

limit of five nonparty depositions may be modified by agreement of
the parties

or by leave

of

court.

Id.

Under both the Federal Rules and the Rule 26(f)
entered

five

more

motion

four
the

in

this

is moot with

deposition

identified.
individual

the plaintiff

depositions

individual

2

case,

without

respect

any

leave

entitled

of

Cook's

and

is

it

additional

The

at

least

plaintiff's

deposition and the next

premature

individual

with

respect

deponents

not

to
yet

If the plaintiff wishes to take the deposition of any
deponents beyond its

Whether

a

Rule

45

remaining allotment and the parties

subpoena

is

necessary

attendance

as

a nonparty witness who does not

be

is

another

deposed

to take

court.

to Mr.

depositions,
of

is

Pretrial Order

question.

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4

-

to

compel

the

voluntarily appear to

are unable to agree to the taking of such depositions,

the Court

will entertain a properly supported motion for leave at that time.

Any such motion should identify the proposed deponent by name and

provide specific reasons why the Court should permit the deposition
to

be

taken.

B.

The Rule 29 Stipulation

Rule 29 of the Federal Rules of Civil

Procedure permits the

parties to modify "procedures governing or limiting discovery" by
stipulation, unless the stipulation would "interfere with the time
set for completing discovery,

for hearing a motion,

or "[u]nless the court orders otherwise."
In January and February 2012,

or for trial,"

Fed. R. Civ. P. 29.3

counsel for both sides exchanged

e-mail correspondence and held telephone conference calls regarding

a discovery plan, as required by Rule 26(f)
Civil Procedure.

of the Federal Rules of

As part of this dialogue,

the parties discussed

certain stipulations with respect to fact witness depositions.
On February 7,
following language,

2012,

counsel

for the plaintiff proposed the

presumably intended for inclusion in a written

joint discovery plan or a formal stipulation:
B.

The

Fact Witness

parties

right

to

a

Depositions

agree
Rule

that

Plaintiff

30 (b) (6)

shall

deposition

on

have

the

liability

3 Although this rule formerly required a written stipulation,
the Court notes that the rule was revised in 2007 to eliminate the
writing requirement.
See Fed. R. Civ. P.
al., Moore's Federal Practice § 29.05[l]

-

5

-

29; 6 James Wm.
(3d ed. 2007).

Moore et

issues,

a

Rule

30(b)(6)

deposition

on

damages

issues; and the right to depose each fact witness
affiliated with a
defendant and who has been
disclosed pursuant to Rule 26(a)
(currently 14
individuals

for all

defendants)....

E-mail from Kenneth Brothers to Stephen E.
(Feb.

7,

2012),

ECF No.

180,

attach.

2.

Noona & David Perlson
The e-mail did not set

forth a section "A" to precede this one, and the immediately prior
e-mails suggested that this language was circulated as a follow-up
to a telephonic discussion earlier that same day.

Earlier messages

in the same e-mail chain suggest that a written discovery plan, not

submitted to the Court by either party,
On February 9,

following language,

2012,

had been circulated.

counsel for the defendants proposed the

incorporating certain "minor additions" to the

plaintiff's proposed stipulation:
B.

Fact Witness

Depositions

The parties agree that Plaintiff shall have the
right to a Rule 30 (b) (6) deposition on liability
issues lasting no longer than 7 hours,
a Rule
30 (b) (6) deposition on damages issues lasting no
longer than 7 hours; and the right to depose each
fact witness affiliated with a defendant and who
has
been
disclosed
pursuant
to
Rule
26 (a)
(currently 14
individuals
for all defendants).
Defendants have agreed to this expansion of the
deposition limitations under the Federal Rules of
Civil Procedure with the express understanding that
this will be substantially all the depositions that
plaintiff will take; any additional depositions by
plaintiff must be by
good

cause

shown.

E-mail from Margaret P.
9,

2012)

(emphasis

.

leave
.

of Court

on motion

for

.

Kammerud to Kenneth Brothers et al.

added),

ECF No.

-

6

-

180

attach.

2.

A

few

(Feb.
hours

later,

counsel

for the plaintiff responded:

"Meg,

this

thanks."

E-mail from Kenneth Brothers to Margaret P.

al.

9,

{Feb.

2012),

ECF No.

180 attach.

is

fine,

Kammerud et

2.

This Court has the authority to reject a Rule 29 stipulation

that serves to thwart,
Fed.

R.

Civ.

P.

may stipulate

29

.

.

.")

Corp.,

570 F.2d 899,

party

from

injustice.

favoring

full

(emphasis added);

902

(10th Cir.

improvident

The

full disclosure.

See

("Unless the court orders otherwise, the parties

.

an

rather than promote,

strong

disclosure

1978)

agreement

policy

is

of

of

In re Westinghouse Elec.

("The court may relieve a
or

the

one

that

federal

paramount

might

discovery

importance.

work
rules

The

law

favors disposition of litigation on its merits.")

(citations and

footnote omitted);

Supp.

(D.

Wyo.

with the

1995)

In re Sinclair Oil Corp.,

("The

Stipulation

Federal Rules[']

.

.

.

881 F.

should be

construed

see also Marshall v.

593

1979)

565,

568

(4th

originally designed to

Cir.

539

harmony

policy of full disclosure rather

than limiting disclosure.");
F.2d

in

535,

("[A]

expedite the

trial

Emersons Ltd.,

stipulation

of

counsel

should not be

rigidly

adhered to when it becomes apparent that it may inflict a manifest
injustice upon one of the contracting parties.")
Cas.

Co.

Moreover,

law,

v.

Rickenbaker,

"when a

trial

courts

146

F.2d

751,

753

(quoting Maryland
(4th

Cir.

1944)).

stipulation is entered into under a mistake of

may,

in

the

exercise

of

discretion and in the furtherance of justice,

-

7

-

a

sound

judicial

relieve parties from

stipulations which they have entered into in the course of judicial
proceedings."

Marshall,

593

F.2d

at

568

(quotations

omitted)

(citing Brast v. Winding Gulf Colliery Co., 94 F.2d 179, 181 (4th
Cir.

1938)).

By

its

defendants

express

purported

terms,

the

to

an

be

stipulation

"expansion

advanced

of

the

by

the

deposition

limitations under the Federal Rules of Civil Procedure."

But the

suggestion that the stipulation expanded, rather than restricted,
the availability of depositions as a discovery device suggests, at
minimum,

a

misapprehension

of

construed by the defendants,
taking

the

deposition

identified by the

the

law.

The

stipulation,

would restrict the plaintiffs

of

anyone

defendants

other

themselves

than

14

as

from

individuals

in their Rule

26(a)(1)

initial disclosures, even if most or all of the 14 are ultimately

designated by the defendants to testify pursuant to Rule 30(b)(6),4
and even if discovery reveals additional persons with discoverable
information,

such

as

Mr.

Cook.

The

effective

result

is

the

restriction of the plaintiffs to fewer than ten total depositions
and less than the full scope of discovery ordinarily permitted by
4 The Court notes that "once a corporation has produced
someone capable of speaking to the matters described in the notice
of deposition, the scope of the inquiry is guided only by the
general

discovery

standard

of

Fed.R.Civ.P.

26(b)(l)."

Overseas

Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67, 68 (D.D.C. 1999);
accord Detov v. City and County of San Francisco, 196 F.R.D. 362,
365_67 (n.d. Cal. 2000); Cabot v. Yamulla Enters., Inc., 194 F.R.D.
499, 500 (M.D. Pa. 2000); King v. Pratt & Whitney, 161 F.R.D. 475,
476

(S.D.

Fla.

1995).

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8

-

Rule 26(b)(l).

Moreover,

imposed on 30(b)(6)

the

fourteen-hour aggregate limitation

depositions similarly appears to curtail the

scope of discovery severely,

especially considering the number of

defendants and the number of 30(b)(6)

designees at issue in this

case.5
The

Court

notes

that,

notwithstanding

the

foregoing,

plaintiff has established good cause for the taking of Mr.

the

Cook's

deposition,

and the Court would grant leave to do so if leave were

necessary.

But the Court declines the defendant's invitation to

enforce the stipulation of February 9,

2012,

with respect to fact

witness depositions when leave is not otherwise required under the

Federal Rules, the Local Civil Rules, or the Court's prior orders.
Accordingly,

the plaintiff's motion is DENIED as both MOOT and

PREMATURE.

IT

IS

SO ORDERED.

Jnited states magistrate judge
Norfolk,

Virginia

July 2&>, 2012
5 Under the Federal Rules, "a deposition is limited to 1 day
7 hours."
Fed. R. Civ. P. 30(d)(l).
But "[f]or purposes of

of
this durational limit, the deposition of each person designated
under Rule 30(b)(6) should be considered a separate deposition."
Fed. R. Civ. P. 30(d) advisory committee's note (2000); Sabre v.
First Dominion Capital, LLC, No. 01CIV2145BSJHBP, 2001 WL 1590544,
at

*1

(S.D.N.Y.

Dec.

12,

2001).

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