Court Corrects Deposition Count

A Norfolk U.S. District Court Magistrate Judge says plaintiff company in this patent infringement case need not presently seek leave of court to take additional depositions; counting correctly under the federal rules, plaintiff has not yet reached the limit for depositions on the five corporate defendants.

In this patent infringement case, plaintiff served deposition notices on each of the five corporate defendants pursuant to Fed. R. Civ. P. 30(b)(6). Defendants have designated several of the same 14 individuals to testify on their behalf pursuant to Rule 30(b)(6).

Plaintiff now seeks leave to take the depositions, pursuant to Rule 30(b)(1), of 12 employees of defendants not identified in defendants’ Rule 26(a)(1) disclosures , but whom plaintiff has identified as fact witnesses based on written discovery and documents produced by defendants. Defendants object that taking these depositions will cause the plaintiff to exceed the 10-deposition limit imposed on each side by Rule 30(a)(2)(A)(i), and that taking these depositions would violate a Rule 29 stipulation by the parties that purportedly limits the plaintiff to deposing only those individuals identified in defendants’ initial disclosures. The court denies plaintiff’s motion as both moot and premature.

The parties’ dispute with respect to the 10-deposition limit is premised upon a clear misunderstanding of the Federal Rules of Civil Procedure. Rule 30 provides that a party must obtain leave of court and the court must grant leave to the extent consistent with Rule 26(b)(2) if the parties have not stipulated to the deposition and the deposition would result in more than 10 depositions being taken by each side. The parties have both construed the rule as limiting the total number of depositions, including the depositions of each separate Rule 30(b)(6) designee. With five corporate defendants and multiple 30(b)(6) designees for each defendant, the total number of depositions has readily exceeded the 10-deposition limit, as calculated by the parties.

But a deposition under Rule 30(b)(6) should, for purposes of this limit, be treated as a single deposition even though more than one person may be designated to testify. The Rule 30(b)(6) depositions of the five corporate defendants count, at most, as one deposition each for this purpose, no matter how many separate depositions of the 30(b)(6) designees are actually conducted. It is the court’s understanding that the only depositions taken by plaintiff to date are those of defendants’ Rule 30(b)(6) designees, and that Google employee Derek Cook is the only individual, non-designee deponent noticed at this point. Under the Federal Rules, leave of court is not required to take Cook’s deposition, nor is it required for the next four Rule 30(b)(1) depositions noticed by plaintiff.

The court further notes that the plaintiff is limited to a total of five depositions of nonparty-non-expert witnesses by the Rule 26(f) pretrial order entered in this case on Jan. 17, 2012. As with the limits imposed by the Federal Rules, This limit of five nonparty depositions may be modified by agreement of the parties or by leave of court.

Under both the Federal Rules and the pretrial order in this case, plaintiff is entitled to take at least five more depositions without leave of court. Plaintiff’s motion is moot with respect to Cook’s deposition and the next four individual depositions, and it is premature with respect to the deposition of any additional individual deponents not yet identified. Notwithstanding, plaintiff has established good cause for the taking of Cook’s deposition and the court would grant leave to do so if leave were necessary.

I/P Engine Inc. v. AOL Inc. (Stillman) No. 2:11cv512, July 26, 2012; USDC at Norfolk, Va.; Donald C. Schultz for plaintiff; Stephen E. Noona for defendant. VLW 012-3-457, 10 pp.