Opinion
Case No. 01-71925
September 18, 2003
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION
This is a complex patent case. Defendant has filed an August 1, 2003, motion for reconsideration of a July 18, 2003, discovery order granting in part Plaintiffs' motion to compel and denying Defendant's motion for a protective order which followed a July 15, 2003, in-person hearing.
During that hearing, Plaintiffs' counsel indicated a loss of confidence in Defendant's and their counsel's willingness to act in good faith in the discovery process. Plaintiffs' counsel claimed that he was forced to use 30(b)(6) depositions with cross-examination to get complete information because of Defendant's: (1) refusal to provide requested information and documents; and (2) repeated non-compliance with several previous discovery Orders.
Defendant now contests two points of that Order. First, Defendant takes issue with the Order's order that: "To assure full compliance with this Order, with respect to all of the topics covered by this Order, Defendant should be limited in its proofs at trial to the information contained in its earlier responses and any supplements, as well as any other deposition testimony and/or deposition exhibits in depositions attended by an attorney for Plaintiffs."
Defendant argues that because the motion before the Court at the July 15 hearing was a motion to compel deposition testimony on various 30(b)(6) topics and not a motion to compel interrogatories, Plaintiffs had not given Defendant an opportunity to "cure any alleged deficiencies" in their discovery production prior to raising these issues at the hearing, thus "surprising" Defendant. This order does not preclude Defendant from curing any such deficiencies.
This dispute has been before this Court for more than two years, Discovery, now closed, had been extended several times. Moreover, the issues before the Court have changed little since the beginning of this litigation. Thus, it is impossible to believe that Defendant can truly be "surprised" by any of Plaintiffs' discovery requests, especially when Plaintiffs have been seeking the information contained in these 30(b)(6) deposition topics for more than a year. Defendant has not provided any sufficient justification to modify this portion of the alternative relief the Court granted in lieu of all the 30(b)(6) depositions Defendants were opposing.
Second, Defendant takes issue with the Order's order that with regard to Plaintiffs' deposition topic No. 32, "This is now moot because Plaintiffs have obtained these policies since filing their motion." Defendant states that there was "no proof offered in Muth's briefs or at oral hearing that `Plaintiffs have obtained these [document retention] policies since filing their motion." Whether topic No. 32 is moot because Plaintiffs "obtained these policies since filing their motion" or "found these policies since filing their motion" having reviewed the Defendant's document production more thoroughly does not alter the operative and relevant fact that the request concerning topic No. 32 is moot. A slight change of the reason for the mootness does not warrant modifying the order.
If it is later shown that Plaintiffs' counsel knowingly misrepresented the factual basis for this assertion, sanctions and other forms of discipline may be imposed. Until that time, however, the Court accepted the word of Plaintiffs' counsel on this matter,
Accordingly, for the reasons stated above, Defendant's motion is DENIED. Any party may file objections to this order within ten days of service of this order pursuant to Fed.R.Civ.P. 72(a) and Local Rule 72.l(d).