Opinion Letter Discovery and Footnote Citation

Posted on February 12, 2008 by R. David Donoghue

Se-Kure Controls, Inc. v. Diam USA, Inc., No. 06 C 4857, 2008 WL 169029 (N.D. Ill. Jan. 17, 2008) (Cox, Mag. J.).*

Judge Cox granted in part a motion to compel discovery regarding defendant’s advice of counsel defense. The Court ordered defendants to product a technical witness that provided opinion counsel information because opinion counsel was unable to remember the substance of conversations between the two.

The Court also ordered production of communications between opinion counsel and trial counsel related to the patent in suit. These communications were within the scope of defendant’s waiver, even though a deposition of trial counsel would not have been allowed.

The Court did not allow plaintiff to take any additional fact depositions. Plaintiff argued it had waited to take certain fact depositions because the witnesses were expected to be Fed. R. Civ. P. 30(b)(6) designers regarding defendants’ willfulness defense. But the Court did not allow the deposition because fact discovery was closed and because plaintiff had deposed other witnesses on the same topics. 

The most exciting part of this opinion, however, was its form, not its substance – Judge Cox used footnotes for cites. While this format is infinitely more readable and has many prominent advocates – Brian Garner, the (new) legal writer,  Wayne Scheiss and me (perhaps not the most prominent but I am an advocate of footnote citation) – it is a bold move in the typically conservative realm of judicial writing. At least one other Northern District Judge, Chief Judge Holderman, has used footnote citation. If you are aware of other examples, let me know. 

Thank you Judge Cox.

* Click here for more on this case and related cases in the Blog’s archives.

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Court Has Enough of Long Fact Discovery Process

Posted on August 23, 2007 by R. David Donoghue

Trading Techs. Int'l., Inc. v. eSpeed, Inc., No 04 C 5312, Slip Op. (N.D. Ill. Aug. 17, 2007) (Moran, Sen. J.).*

Judge Moran denied plaintiff Trading Technologies’ (“TT”) motion to compel an additional Fed. R. Civ. P. 30(b)(6) witness. TT noticed a 30(b)(6) deposition of defendant eSpeed, Inc. (“eSpeed”) identifying twenty four topics, including someone with knowledge of the names of customers or potential customers of eSpeed’s accused products. eSpeed provided a witness on the topic, but he was only able to identify eSpeed’s customers and potential customers, he had no knowledge regarding any demonstrations to those customers or use of the accused products by those customers. TT, therefore, served a second notice, after the close of fact discovery, seeking a witness to testify regarding any demonstrations to or use by eSpeed customers. eSpeed refused to produce a witness in response to the second notice. The Court denied TT’s motion to compel because the original deposition sought only the identity of the customers, so the witness did not need to have any knowledge regarding demonstrations to or use by those customers. 

What is most interesting about this opinion, however, is the Court’s statements regarding the fact discovery history of the case. The Court shows some frustration with what appears to have been a very protracted and contentious discovery process:

Both parties in this case have been pushing discovery up to and through the close of discovery, which has been extended time and time again . . . . Enough is enough.

Trial is set to start in this case the week of September 10. Between now and then expect to see several more opinions in this case and its related cases. Additionally, I have some other obligations that week, but am planning to blog some of the trial. Stay tuned.

*You can download this opinion here and you can read much more about this case and related cases in the Blog's archives.

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