Opinion
No. C-09-1201 RMW
10-20-2011
SYNTHES USA, LLC (f/k/a SYNTHES (U.S.A.)); SYNTHES USA SALES, LLC; and SYNTHES, INC., Plaintiffs, v. SPINAL KINETICS, INC., Defendant.
ORDER DENYING SPINAL KINETICS, INC.'S ADMINISTRATIVE MOTION TO REOPEN FACT DISCOVERY FOR THE
LIMITED PURPOSE OF COMPLETING THE DEPOSITION OF GIUSEPPE MOLARO
[Re Docket No. 410]
Spinal Kinetics moves to reopen discovery for the purpose of completing the deposition of Guiseppe Molaro. For the reasons stated below, the motion is denied.
Molaro is an attorney who was involved in prosecuting the patent in suit on behalf of Synthes. Spinal Kinetics timely deposed Molaro. During the deposition, Synthes asserted that communications with Molaro concerning patent prosecution were privileged and that prosecution of the patent in suit was protected by the work product doctrine. Spinal Kinetics objected that Synthes improperly instructed Molaro not to answer foundational questions that sought to determine whether privileged communications existed and the basis of the claimed work product protection.
On September 12, 2011, Magistrate Judge Lloyd found that Synthes had been overzealous in instructing Molaro not to answer certain questions, but that because Molaro is not a critical witness to any claim or defense, Spinal Kinetics would be entitled only to depose Molaro for one additional hour for the limited purpose of having Molaro (1) confirm whether the attorney-client privilege existed as to topics or documents generally, (2) identify when litigation was anticipated, and (3) confirm whether his understanding of claim terms is based on his own experience or upon information or instructions communicated by Synthes. Judge Lloyd conditioned his order on this court's determination that fact discovery should be reopened to allow for completion of Molaro's deposition..
Spinal Kinetics did not mention this issue in the Joint Pretrial Statement or at the pretrial conference that took place on September 15 and September 22, 2011, after the magistrate judge's order was issued. Nonetheless, apparently in light of the brief continuance of the trial date, Spinal Kinetics now seeks to complete Molaro's deposition. However, Spinal Kinetics has not identified what testimony they hope to gain from Molaro and does not explain how the testimony would be relevant to any issue that will be tried. Reopening fact discovery at this late stage in the litigation for no clear purpose is simply not justified. The motion is denied.
RONALD M. WHYTE
United States District Judge