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, )

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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. - 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). - 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). - 9 -

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