It’s a three-post day!  In Berkeley*ieor v. Teradata Operations, Inc., No. 17 C 7472 (N.D. Ill. Aug. 12, 2021), Illinois Magistrate Judge Jeffrey Cole granted in part and denied in part the plaintiff’s motion to compel, denying it with regard to the plaintiff’s request to conduct Rule 30(b)(1) and Rule 30(b)(6) in-person depositions of a former employee of the defendant (on separate dates, requiring multiple airline trips) and also denying it with regard to the request to depose two other non-party witnesses after the plaintiff failed to subpoena those witnesses before the close of discovery, but granted it with regard to production of 142 “Highly Confidential” documents being withheld by the defendant over competitive concerns despite an agreed upon stipulation that the plaintiff would not compete with the defendant for two years after completion of the litigation.

Case Background

In this patent infringement litigation, the plaintiff’s motion to compel involved three requests:

1. Rule 30(b)(1) and Rule 30(b)(6) in-person depositions of Nancy Kalthoff, a former Teradata employee: The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California.  But the plaintiff also refused to do consecutive days due to child custody issues for one of its attorneys, so the request and issues would require opposing counsel to make four 1800-mile airline trips between Chicago and California to support two in-person depositions a week apart.  The defendant objected to the trips a week apart and suggested the deposition could be completed remotely.  The plaintiff requested the Court to compel an in-person deposition on August 5th and 11th in California near Kalthoff’s home.
2. Depositions of two other non-party witnesses: On January 5, 2021, the plaintiff noticed the depositions of two fact witnesses pursuant to Rule 30(b)(1). The defendant promptly informed the plaintiff that the two witnesses were no longer employees, and that the defendant’s lawyers did not represent them, but provided the plaintiff with their contact information. That meant Fed.R.Civ.P 45 was applicable, not Fed.R.Civ.P. 30.  However, the plaintiff refused to subpoena the witnesses, contending that since Kalthoff agreed to sit for depositions, the others should too and requested the Court to compel the depositions.
3. Production of “Highly Confidential” documents: After over a year of discussion regarding document designations, the plaintiff agreed to stipulation that they were not a competitor to the defendant and would not compete with the defendant for two years after the completion of the litigation, the defendant agreed to allow the plaintiff to “review the less than 900 (out of a production of 23,000 documents) Highly Confidential documents at issue, with the exception of TVA installation files, source code, and documentation related to the Vantage product.”  But the plaintiff wanted to review all of the documents designated “Highly Confidential”.

Judge’s Ruling

In this patent infringement dispute, Judge Cole ruled on the three disputes, as follows:

In-Person Depositions: Judge Cole stated: “For reasons that are all too obvious, as the Summer drew on – and by the time Berkeley filed its motion to compel on July 23rd – live depositions, which were an unnecessarily risky idea in the first place, became a bad idea. And the thought of multiple airline trips to take the depositions became a terrible and unacceptable one. 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. Berkeley’s unamplified assertion that there have been ‘improvements in COVID-19’, is essentially meaningless in the present context and ignores the reality of what is occurring in the country today.”

Continuing, Judge Cole stated: “The wisdom under the present circumstances of a party demanding a live deposition of a witness and requiring opposing counsel to make four 1800-mile airline trips is questionable – to say the least. Not only the ‘optics,’ but the reality of the situation are even worse as the plaintiff is demanding two separate round-trips to California for the convenience of one of its attorneys…As indicated, this portion of Berkeley’s motion is denied. Ms. Kalthoff’s deposition can be taken by video conference as can the 30(b)(1) and 30(b)(6) depositions. And, again, to be clear, Berkeley is entitled to two seven-hour sessions if need be. The dates of these depositions will be decided upon by counsel for both sides.”

Two Non-Party Witness Depositions: Noting that “Berkeley dug in, and refused to subpoena the two witnesses for months”, Judge Cole stated: “In Berkeley’s view, because former employee, Ms. Kalthoff, agreed to sit for depositions, former employees, Mr. Phibbs and Ms. Neeson, ought to have made the same concessions…But they didn’t – and they were not obligated to do so…Berkeley had about five months to subpoena the two witnesses before discovery closed. It didn’t even attempt to do so. Without a subpoena having been properly and timely served, a court simply cannot compel the two non-party witnesses to attend depositions. This portion of Berkeley’s motion is also denied.”

Production of “Highly Confidential” Documents: Judge Cole stated: “I fail to see the distinction between the 758 document Teradata claimed were highly sensitive documents and the 142 highly sensitive documents left at issue, unless, as Berkeley has been claiming all along, Teradata ‘over-designated’ the 758 in the first place. The stipulation – drafted, in the main, by Teradata – and the arduous process that went into it have to have some meaning. Teradata’s stance robs it of any. This portion of Berkeley’s motion is granted, and Teradata must produce the remaining documents – as well as TVA customer contracts – subject to the stipulation. Teradata has waived any argument it might have had regarding production of those contracts by failing to raise it in response to Berkeley’s motion.”

So, what do you think?  Do you think requests for in-person depositions should be granted, even in a pandemic?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.