Deposition

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Nucap Indus. Inc. v. Robert Bosch LLC, et al., No. 15 C 2207, Slip Op. (N.D. Ill. Dec. 7, 2017) (Kim, Mag. J.).

Judge Kim granted without prejudice defendants’ (collectively “Bosch”) motion for a protective order barring the deposition of Bosch GmbH’s Chairman, absent re-noticing and demonstrated need for the deposition.

Plaintiff Nucap claimed…

LM Insur. Co. v. Aceo, Inc., No. 08 C 2372, Slip Op. (N.D. Ill. July 7, 2011) (Cole, Mag. J.).
Judge Cole granted a motion to compel further deposition testimony of a witness. During a deposition, the witness testified that she thought an “individual broker” may have received “‘return’ (kickback).” When asked to identify the broker, her counsel objected that the question called for speculation and coached the witness through a speaking objection that she should not answer without “clear information.” Counsel then took the witness out of the room while a question was pending for a discussion which lasted thirty minutes. After the discussion, the witness stated that she had been “speculating” and that “I don’t feel like what I said was correct.” The Court noted that counsel’s coaching was wrong, but that the counsel’s most “disturbing” action was removing the witness to confer outside the deposition room. Furthermore, counsel never offered a justification for the conference during questioning. And in any event, the only acceptable explanation was determining whether the answer would have been privileged. However, there was no indication of that. Because of the deposition misconduct, the Court ordered that the deposition would continue in-court pursuant to the Court’s supervision. The Court also ordered an in camera conference with the witness and her counsel to determine whether there is any privilege protecting what counsel told the witness during the break in the original deposition. Finally, the Court declined to consider whether further action was necessary at the time of the opinion.
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Continue Reading In-Court Deposition Ordered Based Upon Improper Coaching and Discussions

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, Ken Adams, 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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Continue Reading Opinion Letter Discovery and Footnote Citation

Rudnick v. WPNA 1490 AM, No. 04 C 5719, Slip. Op. (N.D. Ill. Oct. 31, 2007) (Moran, Sen. J.).
Judge Moran denied defendants’ Fed. R. Civ. P. 56(f)-type motion for further discovery and ordered the parties to brief plaintiff’s motion to preclude defendants from arguing non-registration.” The Court held that the requested deposition of plaintiff was not required to determine whether plaintiff’s registrations were proper or timely. The Court explained that:
The copyright registration procedures are, apparently, many and varied. Plaintiff just wants to know if defendants believe he has followed the right procedures and, if not, what they think he needs to do.
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Continue Reading Plaintiff’s Deposition Not Required to Determine Copyright Registration

Faruki v. Eagle Seven, No. 06 C 7125, Min. Order (N.D. Ill. Aug. 10, 2007) (Mason, J.).
Magistrate Judge Mason denied plaintiffs’ motion for a protective order to prevent a third party deposition. Plaintiffs argued that the third party’s only knowledge relevant to the case was outside the relevant time frame. But the Court did not reach the merits of the motion because plaintiffs filed their motion two business days prior to the deposition. The motion was filed so close to the date of the deposition that the motion was noticed for the day after the deposition was set to be taken. Plaintiffs were aware of the subpoena and the deposition date for at least two weeks prior to filing their motion and the parties appeared before the Court during that time, but plaintiffs failed to raise the issue. The Court, therefore, denied the motion as untimely.
Practice tip: Deposition scheduling issues are often negotiated until very near the planned date, but if you think you might bring the issues before the Court make sure to warn the Court if you are appear while you are aware of the issue and, if at all possible, file your motion with sufficient time to notice your motion before the deposition is scheduled.
* The minute order is available here.
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Continue Reading Untimely Protectiver Order Motion is Denied