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Discovery - Page 2
District of Delaware (Wilmington) Cont'd
District Judge Maryellen Noreika
Aqua Connect, Inc. et al v. TeamViewer US, LLC – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order, after reviewing the parties Joint Statement Regarding European Depositions, providing that plaintiff may request a written deposition of the witnesses pursuant to Federal Rule of Civil Procedure 31 due to the COVID-19 pandemic. The Court further instructed the parties to continue to monitor the quarantine and travel restrictions over the next 30 days and provide a status report to the Court no later than November 20, 2020. In addition, the Court ruled that “[o]btaining a deposition under Rule 31 will [not] be grounds for Defendants to oppose another deposition live should conducting a deposition live become feasible.” On December 2, 2020, the Court entered the parties Stipulation And Order To Extend Time, to move the current schedule back approximately 90 days to accommodate the discovery needed and subsequent deadlines. The request was made because the COVID-19 pandemic “has continued to impact the ability of the parties to undertake in-person depositions and otherwise meet the current deadlines . . . [and] counsel for the parties are continuing to consider how to move the case forward during this period of continued closures and international travel limitations.” The jury trial date has been reset from September 13, 2021 to January 31, 2022. On March 22, 2021, the Court entered the parties Stipulation and Order To Extend Time to again move the current schedule back approximately 90 days to accommodate discovery and subsequent deadlines, due to the COVID-19 pandemic, because the parties were not able to undertake in-person depositions and the U.S Consulate General in Frankfurt was unable to schedule depositions. The jury trial date was reset to May 9, 2022. On June 22, 2021, the Court entered the parties Stipulation and Order To Extend Time to again move the current schedule back approximately 90 days to accommodate discovery and subsequent deadlines, because the COVID-19 pandemic “has continued to impact the ability of the parties to undertake in-person depositions in Germany and otherwise meet the current deadlines. The jury trial date was reset to August 8, 2022. On September 21, 2021, the Court entered the parties Stipulation and Order To Extend Time to again move the current schedule back approximately 90 days to accommodate discovery and subsequent deadlines, while the parties attempt to move the case forward during the COVID-19 pandemic with “continued closures and international travel limitations.” The jury trial date remain unchanged, currently scheduled for August 8, 2022. (Case No. 1:18-cv-01572; October 21, 2020, December 2, 2020, March 22, 2021, June 22, 2021 and September 21, 2021).
Chugai Pharma. Co., Ltd. a/k/a Chugai Seiyaku Kabushiki Kaisha v. Alexion Pharma., Inc. – The U.S. District Court for the District of Delaware in Wilmington granted an additional extension to the case schedule after the parties agreed that the extensions were warranted in light of the impact of the COVID-19 pandemic. The deadline for the Final Infringement Contentions was moved from August 26, 2020 to October 21, 2020. Other major dates were likewise extended with the Pretrial Conference moved from July 12, 2021 to September 27, 2021. On November 9, 2020, the Court entered a Joint Stipulation and Order to Continue Case Schedule, providing an additional extension of the case schedule “in light of the unexpected impact of the COVID-19 pandemic on travel internationally, and the delay caused by those travel restrictions on depositions in [the] matter.” On the November 16, 2020, the Court stayed the case in its entirety, other than allowing defendant to take already noticed depositions of available witnesses, until plaintiff “is able to make its currently unavailable witnesses available (1) for deposition or (2) to respond to questions without assistance or input from others.” (Case No. 1:18-cv-01802; August 18, 2020, November 9, 2020 and November 16, 2020).
Finjan, Inc. v. Rapid7, Inc., et al. – The U.S. District Court for the District of Delaware in Wilmington granted the parties’ stipulation and proposed order staying certain deadlines in the case related to expert reports, dispositive motions, and Daubert motions. As part of the justification for the request, the stipulation and order stated that “[t]he COVID-19 pandemic and resulting shelter in place laws have created substantial impediments to the Parties and their experts’ ability to complete expert reports on the current schedule. This includes the inability for experts to travel to and access Defendants’ source code, as Defendants’ facilities are currently closed through June 1, 2020.” (Case No. 1:18-cv-01519; April 16, 2020).
Sentient Sensors, LLC v. Cypress Semiconductor Corporation – The U.S. District Court for the District of Delaware issued an Order providing a Source Code Addendum To Protective Order, in light of the COVID-19 pandemic, with agreed upon “additional terms governing review of software code, firmware code, and circuit layout files.” The Addendum provides for source code inspection using a remote review computer, which shall be sent to receiving party’s outside counsel or directly to a different authorized receiving party representative. The terms in the Addendum “shall remain in effect only so long as COVID-19 restrictions are in effect at the locations of respective relevant parties, such as the location of the parties’ respective counsel and source code review consultants and experts.” Once the COVID-19 pandemic restrictions are lifted, the producing party may, at its sole discretion, provide source code pursuant to the terms of the Addendum or pursuant to the relevant provisions of the Protective Order. (Case No. 1:19-cv-01868; April 6, 2021).
Chief District Judge Leonard P. Stark
Cirba, Inc. d/b/a Densify, et al. v. VMware, Inc. – The U.S. District Court for the District of Delaware in Wilmington entered the Stipulation And Order Regarding Modification To The Protective Order reflecting the parties “special accommodation” providing a temporary modification to the inspection protocols set forth in the Protective Order to “reconcile the needs of this case with the exigencies” relating to the COVID-19 pandemic. In particular, the parties modified paragraph 48 of the Protective Order so that counsel for the producing party would provide four copies of original printouts to counsel for the receiving party within four business days of being notified that such original printouts have been made. On November 13, 2020, the Court entered the parties Stipulation Concerning Remote Depositions which recognized that the court reporter will not be physically present with the witness during any deposition due to the COVID-19 pandemic. The parties agreed the court reporter may administer the oath via videoconference. On December 8, 2020, the Court granted plaintiff’s request for an extension of the case schedule finding good cause. The Court noted that the plaintiff has been diligently complying with the Courts order to "do... significantly more", including production of 115,000 additional
responsive documents, supplemental interrogatory responses, responses to deposition notices, and witness designations. “In light of [plaintiff’s] diligence and the ongoing pandemic, and the potential for conducting twenty−plus depositions in only two weeks this month and with newly−produced documents,” the Court found the request for a short extension was reasonable. (Case No. 1:19-cv-00742; October 5, 2020, November 13, 2020 and December 8, 2020).
IPA Technologies, Inc. v. Amazon.com, Inc., et al. – The U.S. District Court for the District of Delaware granted the parties' motion for temporary modifications to the terms of their protective order governing review of Source Code, in light of the COVID-19 pandemic, and the resulting Federal, State, and local travel restrictions and shelter-in-place orders. The Addendum provides for Source Code inspection, on two computers capable of remotely accessing the producing party Source Code, sent by the producing party to either the receiving party’s outside counsel or instead directly to one or two of the receiving party’s source code reviewers authorized to review source code under the Protective Order. The terms of the Addendum will only remain in effect so long as COVID-19 pandemic restrictions are in effect at the locations of respective relevant parties. (Case No. 1:16-cv-01266; June 22, 2020).
Pfizer, Inc., et al. v. Teva Pharmaceuticals USA, Inc. – The U.S. District Court for the District of Delaware in Wilmington entered the parties’ Stipulation and Order to Stay the Case due to circumstances surrounding the COVID-19 pandemic. The order stays the case for two (2) months until June 30, 2020 and cancels the April 26, 2020 teleconference. Further, the parties are to “file a Joint Status Report requesting either a new case schedule, or further extension of the stay, depending on the circumstances surrounding the COVID-19 pandemic at that time.” (Case No. 1:18-cv-01940; April 23, 2020).
Special Master Chad S.C. Stover
First Quality Tissue, LLC v. Irving Consumer Prod. Ltd, et al. – The U.S. District Court for the District of Delaware in Wilmington denied plaintiff’s motion to strike portions of the third and fourth supplemental invalidity contentions of defendant. As part of its analysis of the relevant factors, the Court found that the supplementation was substantially justified because despite serving its subpoena three weeks before the close of fact discovery, the requested samples relevant to the contentions were not produced until just after the close of fact discovery. The Court noted that the defendant cannot control the producing party “especially during a pandemic.” (Case No. 19-cv-00428, presiding before District Judge Richard G. Andrews; October 19, 2020).
Special Master David A. White
TQ Delta LLC v. ADTRAN Inc. – The U.S. District Court for the District of Delaware in Wilmington, in a Special Master’s Opinion, granted Plaintiff’s Motion to Compel Inspection of Defendant’s Source Code. The Special Master ruled that the plaintiff shall be provided access to defendant’s source code, but further found that the current proposal would appear to violate both the letter and spirit of the Protective Order. Noting that the COVID-19 pandemic presents numerous challenges, the parties were ordered to meet and confer regarding the conditions under which plaintiff may view the source code. (Case No. 1:14-cv-00954, presiding before District Judge Richard G. Andrews; May 15, 2020).
Special Master Gregory B. Williams
Quest Diagnostics Investments LLC v. Laboratory Corporation of America Holdings et al. – The U.S. District Court for the District of Delaware in Wilmington, in a Special Master’s Opinion, denied plaintiff’s Motion to Preclude Theories and Evidence based on a failure to timely produce. The Special Master noted that the parties effort to schedule inspection of the files were impeded by the COVID-19 pandemic and the pandemic had an effect on both sides during discovery. After analyzing the relevant factors, the Special Master denied the request to preclude the files and also denied the request to preclude presentation of non-infringing alternatives based on a deficient interrogatory response. With respect to the interrogatory, the Special Master indicated that because of the stay of the case and its anticipated duration, there is sufficient time to conduct additional discovery to cure any prejudice, but further stated “under different circumstances than those present in this action (including, among other things, the absence of a global pandemic for some portion of the discovery period and/or several months of stay), [it] may conclude otherwise.” In a further opinion, the Special Master issued an Order denying plaintiff’s Motion to Stay and extending deadlines for additional discovery. In part, the Special Master found that plaintiff will not suffer irreparable harm absent a stay, but as a reasonable accommodation to plaintiff’s experts under the circumstances, including the challenges of the COVID-19 pandemic, the Special Master did extend the deadlines for the additional discovery. (Case No. 1:18-cv-01436, presiding before District Judge Maryellen Noreika; October 19, 2020 and October 30, 2020).
Middle District of Florida (Fort Myers)
Magistrate Judge Nicholas P. Mizell
Wherevertv, Inc. v. Comcast Corporation et al. – The U.S. District Court for the Middle District of Florida in Fort Myers granted more time to allow for fact witness depositions, finding good cause to extend the time to complete fact discovery in part due to the effect of the COVID-19 pandemic on the course of discovery. (Case No. 2:18-cv-00529, presiding before District Judge John Badalamenti; February 1, 2021).
Middle District of Florida (Jacksonville)
Magistrate Judge Patricia D. Barksdale
Depuy Synthes Products, Inc. et al v. Veterinary Orthopedic Implants, Inc. – The U.S. District Court for the Middle District of Florida in Jacksonville granted defendant's motion to compel the production of documents regarding plaintiff's products finding the information relevant and non-cumulative. The Court indicated that it presumed “counsel will work cooperatively and creatively in addressing barriers” based on the pandemic to “the extent that certain of the requested documents are only maintained in paper form at [defendant’s] premises, [and] are currently inaccessible because of stay-at-home orders in place as a result of the COVID-19 pandemic.” (Case No. 3:18-cv-01342, presiding before Senior Judge Harvey E. Schlesinger; June 30, 2020).
District Judge Harvey E. Schlesinger
Aatrix Software, Inc. v. Greenshades Software, Inc.. – The U.S. District Court for the Middle District of Florida in Jacksonville denied plaintiff’s Daubert Motion to Exclude Opinions of Defendant’s Damages Expert, but re-opening discovery for the limited purposes of accessing the underlying, unfiltered data set relied upon and to reopen the expert deposition. The Court noted that since the close of briefing, the trial in the matter “has been delayed to the Spring of 2022 due to the challenges posed by the COVID-19 pandemic and the scheduling needs of the Court and the parties.” (Case No. 3:15-cv-00164; September 29, 2021).
Southern District of Florida (Ft. Lauderdale)
District Judge Rodney Smith
BPI Sports, LLC v. ThermoLife Int’l, LLC, et al. – The U.S. District Court for the Southern District of Florida in Ft. Lauderdale denied the parties’ joint request for an extension of time, holding that “COVID-19 alone is not a sufficient basis for extension of pretrial deadlines or the trial date. In today’s highly technological world, restrictions on movement and in-person interactions do not automatically preclude the parties from litigating their case.” The court ordered the parties to conduct depositions via video or other remote means, and further ordered that, if so unable, the parties may file a motion seeking relief provided that the motion:
- is signed by both parties;
- outlines the obstacles faced by counsel; and
- details the diligent efforts undertaken to comply with the order or the reasons why compliance is difficult.
(Case No. 0:19-cv-60505; March 18, 2020).
Northern District of Georgia (Atlanta)
District Judge Steven D. Grimberg
Sanho Corp. v. Kaijet Tech. Int’l Ltd., Inc. d/b/a j5create – The U.S. District Court for the District of Georgia in Atlanta denied plaintiff’s request to compel the appearance of a resident of Taiwan for an in-person deposition in Atlanta, “[p]articularly in light of recent developments concerning the spread of COVID-19 in the United States and across the world.” The court further ordered that said deposition be held via videoconference or teleconference and completed by May 29, 2020. (Case No. 1:18-cv-05385; March 30, 2020).
District Judge Leigh Martin May
LBH Engineers, LLC v. Archer Western Contractors, LLC, et al. – The U.S. District Court for the Northern District of Georgia in Atlanta granted Defendants Georgia Department of Transportation and State Road and Tollway Authority’s motion to dismiss, lifted the court’s stay of discovery, and directed counsel for the remaining parties to conduct a telephone conference and prepare a proposed joint scheduling order. The court “is mindful that additional time for discovery may be needed given the current pandemic.” (Case No. 1:19-cv-04477; March 31, 2020).
Central District of Illinois (Peoria)
Magistrate Judge Jonathan E. Hawley
DuraSystems Barriers Inc. v. Van-Packer Co. – The U.S. District Court for the Central District of Illinois in Peoria issued a Request For International Judicial Assistance (Letter Rogatory) To The Central Authority of Ontario to summon a witness, who is a resident of Toronto, Ontario, to produce documents and appear for a deposition. The Court further requested that the examination by deposition “be conducted by remote means in light of travel restrictions due to the current pandemic.” (Case No. 1:19-cv-01388, presiding before Chief District Court Judge Sara Darrow; October 13, 2020).
Northern District of Illinois (Eastern Division—Chicago)
Magistrate Judge Jeffrey Cole
Berkeley*IEOR d/b/a B*IEOR v. WW Grainger, Inc. et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago granted in part and denied in part plaintiff’s Motion To Compel the live deposition of a witness in California. The Court noted that by the time the motion was filed on July 23rd,“live depositions, which were an unnecessarily risky idea in the first place, became a bad idea.” In rejecting the plaintiff’s assertion that there have been “improvements in COVID-19” as “essentially meaningless”, the Court further noted that “the pandemic continues, and new cases and hospitalization numbers have again soared, as a more contagious and virulent variation of the virus is sweeping across the County – and the world – with terrifying results, causing some local governments to reinstitute restrictions on all facets of daily living.” In denying the request for live depositions, the Court stated that “we cannot and ought not ignore the dire circumstances posed by the pandemic.” The Court acknowledged that “[p]rior to the pandemic, some courts had expressed a ‘preference’ for live depositions and direct lawyer participation in them. . . [b]ut a preference is just that, a preference. No more.” The Court further indicated that “we need not slavishly honor requests like that of the plaintiff demanding in person depositions even in the midst of a worldwide pandemic.” The Court stressed that “depositions by remote means have been a feature of federal practice for many years . . . [and their] increased usage given the current pandemic should come as no surprise.” (Case No. 1:17-cv-07472, presiding before District Judge Charles P. Kocoras; August 12, 2021).
LKQ Corporation et al v. General Motors Company et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago denied plaintiff’s Motion To Compel, with some exceptions, refusing to require live depositions or providing “double the deposition time for remote depositions requiring translators.” The Court did allow for three additional hours and “in order to make depositions taken remotely of witnesses in South Korea more manageable, they will begin at 6:00 pm Chicago time and be broken into two five-hour segments over two evenings – or days, in South Korea.” As part of the Court’s analysis, it rejected the plaintiff’s request to have what the Court considered “mini-trials and oath swearing contests and inevitable challenges to statements in witness affidavits in order to find out if people are constantly working from home or sometimes working from home or have traveled for business, etc., as the plaintiff insists must occur before video depositions – rather than in person depositions – may be ordered.” The Court stated that neither this case nor any other “justifies procedures that threaten the prospective health and safety and peace of mind of deponents, court reporters, and lawyers” noting that “[c]ontrary to the suggestion in plaintiff’s motion, there is, and continues to be, a global pandemic that has, to date, taken the lives of more than 640,000 Americans alone – more lives than were lost by Americans in all of World War II – and whose virulence increases daily.” (Case No. 1:20-cv-02753, presiding before District Judge Thomas M. Durkin; September 9, 2021).
Magistrate Judge Susan E. Cox
Beijing Choice Electronic Tech. Co., Ltd. v. Contec Medical Systems USA, Inc., et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago granted-in-part plaintiff’s motion to compel multiple requests for discovery and granted plaintiff’s motion for leave to file its reply brief under seal. Though neither party asserted the impacts of the COVID-19 pandemic as a basis for its arguments, in multiple places throughout the 31-page Opinion and Order, the court expressed its expectation that “the parties [] work together to account for and accommodate any disruptions, restrictions, and delays that may be caused by the ongoing global coronavirus pandemic.” It is worth noting, however, that the deadline for completion of discovery was extended in this case by 49-days from May 11, 2020 to June 29, 2020, pursuant to the District Court’s Amended General Order 20-0012 and Second Amended General Order 20-0012 regarding the coronavirus public emergency. The Court granted the parties' Joint Motion To Extend Discovery Due To Pandemic-Related Restrictions On Travel From China, ruling that fact discovery closes on August 26, 2020. On October 22, 2020, the Court denied plaintiff’s Motion to compel defendant to comply with court ordered depositions, instead extending the fact discovery deadline to March 31, 2021 to allow additional time to complete the previously ordered depositions. The Court noted that defendants’ company policy forbids travel outside mainland China due to the COVID−19 pandemic and Chinese Law prohibits depositions by remote means. The Court indicated that it believes defendants' company policy “is prudent in light of the global pandemic and will not order employees to travel to Macau in contravention of those policies at this time.” On March 26, 2021, the Court granted the parties request for an additional 90 days to complete depositions finding that the ongoing COVID-19 pandemic constituted good cause for the extension. The Court found that “the circumstances preventing the depositions from taking place 5 months ago have not materially changed, and the parties have been unable to take depositions of witnesses residing in China.” On June 4, 2021, the Court granted the parties request for an additional 90 days to complete the depositions, finding that the “ongoing pandemic constitutes good cause for this extension.” On September 23, 2021, after reviewing the parties’ joint status report, the Court ordered the defendant to produce an individual and a 30(b)(6) witness for deposition. On October 14, 2021, the Court ordered the defendant to prepare and produce its CEO for a 30(b)(6) deposition on the same topics that “the recently unavailable” witness was supposed to testify about. (Case No. 1:18-cv-00825, presiding before District Judge Franklin U. Valderrama; April 8, 2020, August 3, 2020, October 22, 2020, March 26, 2021, June 4, 2021, September 23, 2021 and October 14, 2021).
District Judge Sara L. Ellis
Medline Industries, Inc. v. CR Bard, Inc. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago denied plaintiff's motion under Federal Rules of Civil Procedure 26(e) and 37(c) to strike and preclude defendant's experts from relying on a previously undisclosed redesigned kit as a non-infringing alternative, but ordered defendant to pay plaintiff its reasonable expenses, including attorneys’ fees, because the delay was not substantially justified or harmless. As part of its analysis with respect to whether the violation was harmless, the Court found that the disruption to trial factor supported a finding of harmlessness, because the violation will not disrupt trial since there is no trial date set and “given the impact the COVID-19 pandemic has had on court proceedings in this District over the past year (and the impact it may continue to have), the Court likely will not schedule a trial in this case anytime soon, regardless of whether discovery is reopened for a limited amount of time.” (Case No. 1:17-cv-07216; March 3, 2021).
Magistrate Judge Gabriel A. Fuentes
Wi-LAN, Inc., et al. v. Motorola Mobility LLC, et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago sua sponte extended the deadline for submitting a Rule 26(f) report by 28-days to April 21, 2020, and further extending all discovery deadlines in the case by 21-days. This order was issued pursuant to the court’s Amended General Order 20-0012, dated March 16, 2020, and in response to the COVID-19 public health emergency. (Case No. 1:19-cv-00941, presiding before District Judge John F. Kness; March 16, 2020).
District Judge John Z. Lee
PerDiemCo, LLC v. GPS Insight, LLC – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago granted plaintiff leave to take limited venue-related discovery directed to the question of whether the defendant had continuing operations in the Northern District of Illinois after the relevant time. The Court encouraged the parties to use electronic means to conduct the deposition, if necessary, and further noted that the inability to conduct a deposition in person shall not be grounds for an extension of the limited discovery period. (Case No. 1:20-cv-03466; December 2, 2020).
District Judge Charles R. Norgle
GlobalTap, LLC v. Petersen Manufacturing Co. Inc. et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago granted defendant’s motion to compel plaintiff to produce certain documents, reproduce other documents in legible form and supplement its initial disclosures. The Court further ordered, that [i]n light of the COVID-19 pandemic, plaintiffs must comply no later than September 8, 2020.” (Case No. 1:18-cv-05383; July 16, 2020).
District Judge Martha M. Pacold
Medline Industries, Inc. v. CR Bard, Inc. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago found good cause, after reviewing the parties’ status report, to revoke the further 28-day extension of the expert discovery deadline as provided in the Third Amended General Order No. 20-0012. The parties had completed only one of the seven necessary expert depositions in early 2020, and defendant's opposition to plaintiff's request to revoke the further 28-day extension, from August 25, 2020 to July 28, 2020, is based largely on a desire to conduct the remaining six expert depositions in person. The Court indicated that it “sees no reason to postpone the conclusion of this long-pending discovery for another month in the hope that depositions can safely be conducted in person, when there is a strong possibility that conditions surrounding the COVID-19 public health emergency will not have changed significantly.” Arguments for conducting an in-person deposition of an expert (in lieu of a remote video deposition) in a patent case were found to be not compelling. The use of remote video technology was encouraged as it “exists to reduce the cost of litigation and now to enhance its safety during a pandemic, the likes of which have not been seen in this country since World War I.” (Case No. 1:16-cv-03529; May 20, 2020).
Magistrate Judge Sidney I. Schenkier
RTC Industries, Inc. v. Fasteners for Retail, Inc. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago denied a motion to preclude without prejudice pending the required meet and confer process. Noting that it did not “wish to impose any undue burden on the parties in light of the pandemic,” the court set a briefing schedule and indicated that the parties shall meet and confer by May 15, 2020 “in the presence of a court reporter (electronically, and not in person).” The court further indicated that if the proposed dates “present a problem for the parties in light of the pandemic, they shall meet and confer and propose revised dates.” (Case No. 1:17-cv-03595, presiding before District Judge Martha M. Pacold; April 16, 2020).
Southern District of Indiana (Indianapolis)
District Judge Tanya Walton Pratt
Knauf Insulation, LLC, et al. v. Johns Manville Corp., et al. – On March 20, 2020, the U.S. District Court for the Southern District of Indiana’s Indianapolis Division denied defendants’ motion for oral argument in light of General Orders of the Court and closure of the building due to the COVID-19 pandemic. On March 24, 2020, Magistrate Judge Mark J. Dinsmore denied the parties’ joint stipulation regarding a stay in light of the coronavirus pandemic and sua sponte amended the Case Management Order to incorporate extensions to various deadlines. On March 26, 2020, Magistrate Judge Dinsmore granted the defendants’ unopposed motion to extend the deadline for invalidity contentions by two weeks. On June 23, 2020 the Magistrate Judge granted the parties' Joint Motion for Two Week Extension of Deadline for Liability Expert Reports requesting an extension, in part, due to the COVID-19 pandemic and related restrictions that slowed the rate at which laboratories can perform and complete testing. (Case No. 1:15-cv-00111 March 20, 2020, March 24, 2020 & March 26, 2020 and June 23, 2020).
Southern District of Iowa (Central Division—Des Moines)
Chief Magistrate Judge Helen C. Adams
Vermeer Mfg. Co. v. The Toro Co. – The U.S. District Court for the Southern District of Iowa’s Central Division in Des Moines granted plaintiff’s emergency motion to quash subpoenas for the depositions of three (3) undisclosed non-party individuals “in direct contravention of the [c]ourt’s March 20, 2020 Order extending the discovery deadline for the limited purpose of completing outstanding discovery and rescheduling depositions.” The court held that to allow the three depositions at issue to take place would be especially prejudicial to plaintiff. The original extension was premised on the parties inability to timely complete discovery “because of the emerging complications resulting from COVID-19.” (Case No. 4:17-cv-00076, presiding before Senior District Judge Charles R. Wolle; April 20, 2020).
District of Kansas (Kansas City)
Magistrate Judge James P. O'Hara
Sudenga Industries, Inc. v. Global Industries, Inc. – The U.S. District Court for the District of Kansas in Kansas City granted defendant's unopposed motion to stay discovery pending its summary judgment motion, agreeing "that proceeding with expert discovery while dual case-dispositive motions are pending is unduly burdensome at this stage, especially given the demands imposed by the COVID-19 pandemic.” The court stayed all pretrial proceedings in the case until both parties’ motions for summary judgments are filed, briefed, and decided by the presiding U.S. District Judge. (Case No. 2:18-cv-02498, presiding before District Judge Daniel D. Crabtree; April 20, 2020).
District of Kansas (Wichita)
District Judge Eric F. Melgran
LoganTree LP v. Garmin International, Inc. et al. – The U.S. District Court for the District of Kansas in Wichita entered a Stipulation of the Parties providing temporary procedures during the COVID-19 pandemic to facilitate remote source code review. It was agreed that defendant would make arrangements to allow for remote source code review via a Citrix application installed on a secured laptop during normal business hours on mutually agreed upon dates not to extend beyond the deadline for discovery. The parties retained the right “to revisit the propriety and need for [the] stipulation and for remote source code review as the circumstances surrounding the COVID-19 pandemic continue to evolve.” On August 5, 2021, the Court denied plaintiff’s Motion to Compel Out of Time discovery and granted defendant’s Motion for a Protective Order Preventing the Unnecessary Printing of Complete Blocks of Source Code, finding that the request for additional printed copies of source code encompasses information that does not appear relevant and does not comply with the protective order provision limiting printout because plaintiff is requesting the printouts for the prohibited purpose of reviewing blocks of source code. (Case No. 6:17-cv-01217; May 4, 2021 and August 5, 2021).
Western District of Louisiana (Lafayette)
Magistrate Judge Carol B. Whitehurst
Swivel Rental & Supply, LLC v. Petro Pull, LLC, et al. – The U.S. District Court for the Western District of Louisiana in Lafayette conducted a telephone conference with the parties on August 18, 2020 to consider the Plaintiff’s Motion For Protective Order For Remote Depositions Only. Following discussions by both parties, the Court denied Plaintiff’s Motion, stating that it “expects the parties to cooperate with each other and the third party witnesses to apply a COVID protocol that meets the needs of those involved in the depositions.” (Case No. 6:18-cv-01141, presiding before District Judge Michael J. Juneau; August 19, 2020).
District of Maine (Portland)
Chief Judge Jon D. Levy
Copan Italia SpA, et al. v. Puritan Medical Products Co. LLC, et al. – The U.S. District Court for the District of Maine in Portland granted in part and denied in part Motions To Amend Scheduling Order. The parties had agreed that the stay in the case should be lifted and that “some reopening of discovery is necessary given the dramatic effect that the global pandemic has had on each of them as manufacturers of swabs used in COVID-19 testing.” After reviewing the parties briefing, , the Court determined that there was good cause to reopen fact discovery as to things that have happened since the stay was put in place in May 2020, but declined to set more precise parameters in the abstract instead instructing the parties to come to it with specific discovery disputes that they are unable to resolve on their own. (Case No. 1:18-cv-00218; October 14, 2021).
District of Massachusetts (Boston)
District Judge Allison D. Burroughs
Virtek Vision International ULC v. Assembly Guidance Systems, Inc. d/b/a Aligned Vision – The U.S. District Court for the District of Massachusetts entered a Stipulation Addendum To Confidentiality Agreement And Order Regarding Treatment Of Source Code. In order to “accommodate concerns regarding safety during the COVID-19 pandemic,” the agreement provides that the receiving party may “request that [code] inspection be done remotely using a third-party virtual code review platform” if the disclosing party elects to produce the source code for inspection at the offices of its counsel or another mutually agreeable location. (Case No. 1:20-cv-10857; November 20, 2020).
District Judge Richard G. Stearns
Uniloc 2017 LLC v. Paychex, Inc. – The U.S. District Court for the District of Massachusetts in Boston granted in part and denied in part defendant’s Emergency Motion For Remote Depositions filed because plaintiff “insists on attending in-person depositions of non-parties and [defendant’s] personnel, despite the current circumstances surrounding COVID-19 and the availability of remote technologies.” The Court ruled that plaintiff may attend a deposition in person provided it takes its “proposed precautions” and the witness does not object. The Court further noted that “[u]nder current pandemic circumstances the court will not require a witness to occupy an enclosed room with those other than his/her own attorney for an extended period of time.” (Case No. 1:19-cv-11272; July 16, 2020).
District Judge William G. Young
Bio-Rad Lab., Inc., et al. v. Stilla Tech., Inc., et al. – The U.S. District Court for the District of Massachusetts in Boston entered an order for a Commission to Take Foreign Deposition. The order is addressed to “Any Consular Officer of the United States Assigned to Paris, France” and requests that oral depositions be taken at the United States Embassy in Paris or remotely by videoconference on or about October 6, 2020 to October 9, 2020. However, the order goes on to specify that, “[i]n view of any current or potential COVID-19 related restrictions at the time of depositions, the parties and witnesses have consented and request to conduct the depositions remotely by videoconference at Stilla FR’s principal place of business or other location to be agreed upon by the parties.” (Case No. 1:19-cv-11587; August 20, 2020).
District of Minnesota (Minneapolis)
Magistrate Judge Elizabeth Cowan Wright
ARP Wave, LLC, et al. v. Salpeter, et al. – The U.S. District Court for the District of Minnesota in Minneapolis issued an order addressing various discovery issues, including granting defendants’ request to compel responding parties to conduct proper searches and produce all responsive documents to specific RFPs, “only to the extent that plaintiff will make good faith attempts to arrange for securing identified boxes of documents located at the ARP Wave facility in Centennial, Colorado to the extent it is reasonably possible to safely and legally do so in light of Colorado’s stay-at-home order as a result of the COVID-19 pandemic” (emphasis in original). The court further ordered that depositions take place remotely via videoconference in light of the COVID-19 pandemic. (Case No. 0:18-cv-02046, presiding before District Judge Patrick J. Schiltz; April 10, 2020).
District of Minnesota (St. Paul)
Magistrate Judge Hildy Bowbeer
Grupo Petrotemex, SA DE CV, et al. v. Polymetrix AG – The U.S. District Court for the District of Minnesota in St. Paul issued an application requesting authorization from the Swiss Federal Department of Justice and Police to take evidence and conduct remote depositions pursuant to the Hague Convention, based on a joint motion for Appointment of Commissioners with respect to depositions of witnesses in Switzerland which had been postponed due to restrictions on travel associated with the COVID- 19 pandemic. In an effort to complete the depositions before the filing of summary judgment motions, the Court had instructed the parties to initiate the Hague Convention process required to conduct the depositions by videoconference, while also monitoring “travel restrictions and public health guidance that could permit the depositions to be taken legally and reasonably safely outside of Switzerland, either in person or by videoconferencing means, sooner than they could be arranged through the Hague Convention process.” The Court granted defendant’s Expedited Motion Pursuant to Fed. R. Civ. P. 30(b)(4) ordering that the previously noticed depositions of its witnesses, that are scheduled for the week of August 3, 2020, be taken remotely using videoconferencing technology. While the Court recognized “the advantages of in-person depositions under ordinary circumstances”, it noted that “these are not ordinary circumstances” and the necessary restrictions related to the COVID-19 pandemic will likely continue for an indeterminate and potentially lengthy amount of time. With respect to a proposal by plaintiffs for a possible location option for in-person depositions that might be permissible from a legal or regulatory standpoint, the Court indicated that it “is not satisfied that travel to and from [that location] would not require a period of self-quarantine at least upon the return home for one or more of the participants, nor is the Court satisfied that the travel and in-person proceedings would not expose the participants to a substantially greater risk of contracting COVID-19 beyond what they might otherwise choose to encounter at home.” The Court further indicated it “is not willing to continue to allow the parties to take a wait-and-see approach”, ruling that the depositions must go forward because the technology is available and the parties have already secured the necessary authorization through the Hague Convention to proceed with the depositions by videoconferencing means. Finally, the parties were directed to meet and confer as to the remaining elements of a remote deposition protocol, and file a proposed remote deposition protocol. The Court issued an Order For Remote Deposition Protocol, with input from the parties, providing a protocol that “will govern the conduct of remote depositions in [the case].” The parties agreed that “the court reporter can administer the oath to each deponent remotely and such oaths shall have full legal effect under Fed. R. Civ. P. 28,” and that, pursuant to Fed. R. Civ. P. 29(a), “the recorded video may be used as if it were a recording prepared by a certified videographer and each side waives any objections based on authenticity.” The protocol indicates that the “witness shall not wear a mask or face covering of any kind during his/her deposition testimony . . . [and to the extent practicable the] head, shoulders, arms, and hands of the witness should be displayed on the screen at all times, as should any and all documents and/or other items that are on the table or in front of the witness.” In addition, “[n]o person may be physically located in the same room as the witness during the taking of a remote deposition except for a non-attorney who may be present solely for the purpose of providing technical assistance as needed.” On August 21, 2020, the Court ordered a hearings motion set for September 14, 2020 to address multiple motions filed by plaintiffs, including a motion for leave to amend the complaint and motions regarding alleged deficiencies in discovery and a motion for contempt. The hearing will be conducted via ZOOMGOV technology. (Case No. 0:16-cv-02401, presiding before District Judge Susan Richard Nelson; May 6, 2020, July 20, 2020, August 1, 2020, and August 21, 2020).
District Judge Wilhelmina M. Wright
Willis Electric Co., Ltd. v. Polygroup Limited (Macao Commercial Offshore) et al. – The U.S. District Court for the District of Minnesota in St. Paul overruled plaintiff's objections to a magistrate judge's order denying in part plaintiff's motion to compel depositions to take place in the United States. The Court found the denial of plaintiff’s motion to compel depositions to occur in the United States “was neither clearly erroneous nor contrary to law on the basis of the COVID-19 pandemic.” In particular, the plaintiff did not demonstrate that the magistrate judge abused her discretion in considering the impact of the COVID-19 pandemic, in February and March, in light of the information available at the time and given a district court’s broad discretion in determining the location for depositions to occur. The Court granted the parties’ Joint Motion To Extend Fact Discovery Deadline In Light Of Exigent Circumstances, extending the fact discovery deadline to December 8, 2020, in part because “the Covid-19 pandemic has disrupted and continues to disrupt the parties’ ability to schedule and take international depositions in a convenient, safe, and efficient manner.” (Case No. 0:15-cv-03443; June 19, 2020 and July 30, 2020).
Southern District of Mississippi (Eastern Division— Hattiesburg)
Magistrate Judge Michael T. Parker
BNJ Leasing, Inc. et al v. Portabull Fuel Service, LLC - The U.S. District Court for the Southern District of Mississippi in Hattiesburg denied plaintiff’s Unopposed Motion for Extension of Time for Fact Discovery, seeking an extension of two months due to the COVID-19 pandemic. The Court found the Motion failed to show good cause and does not provide the specifics needed to justify moving the case deadlines, noting that the parties provide no indication why any outstanding discovery cannot be completed within the 46 days remaining before the discovery deadline expires beyond a general statement about “potential scheduling difficulties based on the ongoing COVID-19 pandemic.” (Case No. 2:19-cv-00156, case presiding before District Judge Keith Starrett; January 14, 2021).
Western District of Missouri (St. Joseph)
District Judge Stephen R. Bough
Provisur Technologies, Inc. v. Weber, Inc. et al. – The U.S. District Court for the Western District of Missouri in St. Joseph issued an Order Concerning Depositions Of Foreign Citizens Resident In The European Union, providing agreed to procedures concerning depositions of foreign citizens resident in the European Union. In view of defendant’s representation that due to the ongoing COVID-19 pandemic they will not make certain witnesses available in the United States, in addition to certain legal restrictions on the taking of depositions in European jurisdictions, the parties agreed “that foreign citizens resident in the European Union, including in Germany, or elsewhere in the European Union, who have been noticed for deposition or are designated as witnesses in response to the Notices of Corporate Deposition in the captioned cases may voluntarily sit for videotaped live interviews in Frankfurt am Main, Germany.” The parties stipulated and agreed that the interview transcripts shall be understood as, and treated in the same way as, a “deposition” as that term is used in Fed. R. Civ. Pr. Rule 30. (Case No. 5:19-cv-06021; December 13, 2021).
District of New Jersey (Camden)
Magistrate Judge Sharon A. King
Actelion Pharmaceuticals Ltd et al. v. MSN Pharmaceuticals Inc. et al. – The U.S. District Court for the District of New Jersey in Camden entered a Consent Order, granting an extension of fact discovery for the limited purpose of completing depositions that were previously noticed under Rule 30(b)(1) and 30(b)(6) and for a modest modification of the Scheduling Order. The defendant had served Rule 30(b)(1) and 30(b)(6) deposition notices seeking depositions of each of the named inventors and corporate designees of plaintiff, who reside in the country of Japan, where the ability to participate in depositions is subject the U.S.—Japan bilateral Consular Convention of 1963 and other applicable U.S. and Japanese laws and regulations and has been limited due to the health and safety risk associated with the COVID-19 pandemic. The plaintiff agreed to make one named inventor of the patent-in-suit available as a corporate representative for a deposition to occur on a mutually agreed-upon date in a manner that complies with the applicable U.S. and Japanese conventions and laws and regulations, and can protect the health and safety of the witness. (Case No. 1:20-cv-03859, presiding before District Renee Marie Bumb; December 15, 2021).
Magistrate Judge Joel Schneider
Mitsubishi Tanabe Pharma Corporation et al v. Aurobindo Pharma USA, Inc. et al.– The U.S. District Court for District of New Jersey in Camden issued a Request For Judicial Assistance To The High Court of The Canton of Zurich to summon two expert witnesses, who reside in Switzerland, for a deposition. The Court noted that the trial is scheduled for February 23, 2021, and that in the event that trial needs to be conducted remotely, or that the expert witnesses cannot travel to the United States due to the COVID-19 pandemic related restrictions, the current Letter of Request seeks the remote depositions and trial testimony pursuant to the Hague Convention, whereby the remote depositions will be held separately from the trial testimony. (Case No. 1:17-cv-05005, presiding before District Judge Renee Marie Bumb; December 23, 2020).
District of New Jersey (Newark)
Magistrate Judge Andre M. Espinosa
Razor USA LLC et al v. DGL Group, Ltd. – The U.S. District Court for the District of New Jersey in Newark entered a Stipulated Order Governing The Taking Of Remote Depositions, agreed to by the parties because COVID-19 “continues to affect the operation of the judicial system and to affect the ability of individuals to travel and to congregate . . . [and] limiting travel and promoting social distancing among witnesses and the attorneys in [the] case are legitimate reasons for remote depositions pursuant to Federal Rule of Civil Procedure 30(b)(4).” (Case No. 2:19-cv-12939, presiding before District Judge John Michael Vazquez; December 28, 2021).
Magistrate Judge Mark Falk
Allergan Sales, LLC, et al. v. Sandoz, Inc., et al. – The U.S. District Court for the District of New Jersey in Newark granted the parties’ Stipulation and Order Amending Pretrial Scheduling Order and to Bifurcate and Stay Discovery and Trial of Defendants’ Antitrust Counterclaims, agreeing that “an extension of certain deadlines is appropriate, particularly in light of COVID-19, to permit the parties to complete discovery.” Further, to promote efficiency for both the parties and the court, the parties agreed that the “[a]ntitrust [c]ounterclaims should be bifurcated and stayed from the other claims and defenses at issue [], and depending on the resolution of those other claims and defenses, one or more or all of the [a]ntitrust [c]ounterclaims shall be dismissed or remain subject to additional renewed motion practice before the stay is lifted” as set forth in the stipulation. (Case No. 2:17-cv-10129, presiding before District Judge Claire C. Cecchi; May 4, 2020).
District Judge Esther Salas
Celgene Corp. v. Breckenridge Pharmaceutical, Inc., et al. – The U.S. District Court for the District of New Jersey in Newark granted the parties’ Stipulation Dismissing [Defendant] Natco Pharma Limited, in which Natco, in addition to agreeing to be “bound by any Judgment, Order, or decision rendered against Breckenridge[,]” agrees to provide discovery, including producing fact witnesses for deposition in the United States. Notably, the stipulation provides the following footnote on this point:
Breckenridge and Natco note that, with the exception of the language in this paragraph 4 relating to the location for depositions of Natco fact witnesses, this stipulation tracks the stipulations previously filed in Civil Action Nos. 17-3387, 18-14715 and 19-5804. Breckenridge and Natco do not agree that, as a general matter, all fact witnesses located outside the United States should be subject to production for deposition in the United States. Nevertheless, given the Court’s ruling on the issue of the location of depositions of fact witnesses in Civil Action No. 17-3387, and to avoid burdening the Court with this issue in the context of the present pandemic, Breckenridge and Natco consent to this provision in paragraph 4, albeit solely for purposes of this action. Breckenridge and Natco’s consent solely for purposes of this particular action is also supported by the fact that limited, if any, discovery in this action was agreed to in the Joint Proposed Discovery Plan submitted by the parties on April 13, 2020 (ECF No. 17). As such, Breckenridge and Natco expressly reserve the right in any action other than the present action to object to any proposal that would require the production of any foreign national for deposition in the United States. (emphasis added). (Case No. 2:20-cv-02597; May 4, 2020)
District of New Jersey (Trenton)
Magistrate Judge Douglas E. Arpert
Amgen, Inc. v. Sandoz, Inc., et. al. – The U.S. District Court for the District of New Jersey in Trenton granted the parties’ Stipulation and Proposed Order Regarding Foreign Depositions, which permits corporate representatives under Rule 30(b)(6) as well as fact witnesses under Rule 30(b)(1) to appear for depositions by way of video, in light of travel restrictions resulting from “government orders and health concerns concerning the global COVID-19 pandemic.” A telephonic Status Conference is set for May 28, 2020 at 11:30 a.m. (EDT). On April 19, 2021, the Court issued a Request For International Judicial Assistance (Letter of Request) - Permission Of Taking Of Evidence Under Hague Evidence Convention, requesting assistance of the Courts of Switzerland to compel oral testimony from an expert who submitted a report in the case. Trial is scheduled for June 14, 2021. The Letter of Request seeks the remote trial testimony of the expert pursuant to the Hague Convention, in the event that trial will be conducted remotely, or that the expert cannot travel to the United States due to COVID-19 pandemic related restrictions. (Case No. 3:18-cv-11026, presiding before District Judge Michael A. Shipp; April 23, 2020, May 22, 2020 and April 19, 2021).
Amgen, Inc. v. Sandoz, Inc., et al. – The U.S. District Court for the District of New Jersey in Newark granted the parties’ Stipulation and Proposed Order Regarding Foreign Depositions, which permits corporate representatives under Rule 30(b)(6) as well as fact witnesses under Rule 30(b)(1) to appear for depositions by way of video, in light of travel restrictions resulting from “government orders and health concerns concerning the global COVID-19 pandemic.” On September 2, 2020 the Court entered a similar Stipulation related to another third party once again indicating that any such foreign deposition “will be deemed to be useable to the same extent as if the deposition had been conducted in person in the United States.” In addition, the Order stated that “to the extent possible, the Court Reporter will be present in the room with the attorney or attorneys taking the deposition.” (Case No. 3:18-cv-11026, presiding before District Judge Michael A. Shipp; August 20, 2020 and September 2, 2020).
Magistrate Judge Tonianne J. Bongiovanni
Takeda Pharmaceutical Company Limited et al v. Zydus Pharmaceuticals (USA) Inc. et al. – The U.S. District Court for the District of New Jersey in Trenton entered a Stipulated Order Concerning Remote Depositions, providing the protocol that shall apply in the case for conducting remote depositions. The parties indicated that is presumed that all remaining depositions in the case shall be conducted remotely due to the COVID-19 pandemic. According to the protocol “any platform must allow for . . . participating attorneys and the court reporter to hear and see, and Witness, Deposing Counsel, Defending Counsel, and Attending Counsel.” It was also agreed that “[n]o person may be physically located in the same room as the witness” during the deposition except the defending attorney and a non-attorney “present solely for the purpose of providing technical assistance to the witness in using the platform.” In addition, during the deposition, “the witness may not communicate with any person, except through the platform, by any means, including through gestures, handwritten communications, email, chat, instant messaging, or text messaging.” On March 15, 2021, the Court issued a Request For International Judicial Assistance Under Article 17 Hague Evidence Convention, requesting assistance of the German Central Authority to compel oral testimony and document evidence. Although it was acknowledged that the local competent authorities may require the witnesses to attend their remote examination via videoconference at the local courthouse, the parties requested that the witnesses be allowed “to attend their remote examination from their homes, respectively, due to the current circumstances and complications related to the COVID-19 pandemic.” (Case No. 3:18-cv-12663, presiding before District Judge Brian R. Martininotti; July 24, 2020, August 12, 2020 and March 15, 2021).
