Opinion
ORDER RE DEFENDANT'S MOTION TO COMPEL AND PLAINTIFF'S MOTION TO COMPEL (Docket Nos. 371, 360)
EDWARD M. CHEN, Magistrate Judge.
On January 12, 2006, the Court held a hearing on both JVC's motion to compel and Nidec's motion to compel. This order memorializes the oral rulings made by the Court. A. JVC's Motion to Compel
Nidec has represented to the Court that it will not present at trial any new evidence or information obtained directly or indirectly from IME other than the evidence/information it has already produced to JVC. This answers JVC's concerns about the possibility of being sandbagged.
Nevertheless, there still remains the question whether evidence from IME is within the custody, possession, or control of Nidec. In this regard, Nidec has yet to prove it has attempted to exercise its power or influence to obtain the information from IME which JVC seeks. Accordingly, the Court orders Nidec to ask IME two questions to which JVC seeks answers - i.e., (1) whether the IME video accurately represents the process used to manufacture the stator cores and (2) whether the process shown in the IME video is used for all sixteen Nidec motors at issue. Nidec shall seek to obtain from IME answers to the above questions by January 26, 2006. Nidec shall provide answers in an admissible format to JVC.
If Nidec is not able to obtain this information from IME, then JVC may seek additional relief from the Court to the extent it is able to establish that Nidec has control over IME for purposes of discovery. In that regard it may propound discovery on an expedited basis on the question of custody, possession, and control. JVC may also employ stipulations or discovery ( e.g., RFAs, contention interrogatories) on shortened schedule to address the two factual questions to which JVC seeks answers. B. Nidec's Motion to Compel
JVC designated Mr. Nishio as its deponent on the majority of topics identified in Nidec's 30(b)(6) deposition notices. Nidec deposed Mr. Nishio for six days but now asks for additional deposition time, more specifically, twelve additional days. Nidec has not shown that such additional time is reasonable or appropriate. However, based on the factors discussed at the hearing, including original estimates contained in the joint CMC statement and time taken by JVC in deposing Nidec's 30(b)(6) witnesses, the Court shall allow Nidec to depose Mr. Nishio as a 30(b)(6) deponent for six additional days. The topics that may be covered during the six additional days are any and all topics for which Mr. Nishio was designated by JVC, including but not limited to willfulness. Nidec shall also be permitted to depose Mr. Nishio in his individual capacity as the inventor of the JVC counterclaim patent. The parties shall reach an agreement as to the number of days/hours for that deposition, separate and apart from the 30(b)(6) deposition. The depositions of Mr. Nishio shall take place in New York.
The Court rejects Nidec's argument that it should be allowed twelve additional days because the parties agreed to up to 200 hours of deposition time for fact witnesses (excluding nonparty witnesses). See Joint CMC Statement of 1/10/06, at 5. The joint CMC statement contains different provisions for fact witnesses and 30(b)(6) witnesses and thus indicates that 30(b)(6) witnesses are to be treated differently from fact witnesses.
This order disposes of Docket Nos. 371 and 360.
IT IS SO ORDERED.