Discovery - Page 2
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).
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 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).
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).
District of New Jersey (Camden)
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).
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). (Case No. 3:18-cv-11026, presiding before District Judge Michael A. Shipp; April 23, 2020 and May 22, 2020).
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).
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.” (Case No. 3:18-cv-01994, presiding before Chief District Judge Freda L. Wolfson; August 12, 2020).
Eastern District of New York (Brooklyn)
Chief Magistrate Judge Cheryl L. Pollak
Uni-Systems, LLC v. United States Tennis Association, Inc. et al. – The U.S. District Court for the Eastern District of New York in Brooklyn granted defendant’s motion for a protective order requesting that the Rule 30(b)(6) depositions occur at the same time as the Rule 30(b)(1) depositions of two fact witnesses. Finding that “it is more efficient for the fact and 30(b)(6) depositions to proceed simultaneously,” the Court also Ordered “the parties to meet and confer regarding the deposition schedule and [urged] the parties to take all precautions pursuant to the ongoing COVID pandemic, including exploring the possibility of taking depositions remotely using videoconferencing technology.” (Case No. 1:17-cv-00147, presiding before District Judge Kiyo A. Matsumoto; July 6, 2020).
Eastern District of New York (Central Islip)
Magistrate Judge Steven I. Locke
Signify North America Corp. f/k/a Philips Lighting North America Corp., et al., v. Satco Products, Inc – The U.S. District Court for the Eastern District of New York in Central Islip granted defendant’s motion to compel, holding that “(1) [plaintiff] will compile the summaries at issue containing the information it reasonably believes will be relevant to the upcoming mediation, and confer with [defendant] as part of this process; and (2) [plaintiff] will start sending notice to the Category 2 licensees and is practical under the circumstances given the present COVID-19 pandemic.” (Case No. 2:19-cv-06125, presiding before District Judge Joan J. Azrack; April 13, 2020).
Northern District of New York (Syracuse)
Magistrate Judge Andrew T. Baxter
ICM Controls Corp., et al. v. Honeywell Int’l, Inc. – On April 14, 2020, the U.S. District Court for the Northern District of New York in Syracuse granted the parties’ stipulation and order regarding the deposition of a Rule 30(b)(6) deponent who suffered a traumatic injury in early March, necessitating the deposition’s postponement, the rescheduling of which is now also impacted by the COVID-19 pandemic. The parties agreed to communicate with a view of producing the deponent for deposition reasonably in advance of June 1, 2020, as well as endeavor to produce a corporate representative on financial topics for deposition by the same time. The parties also agreed the depositions could take place virtually if in-person depositions are not possible due to the COVID-19 pandemic. On April 16, 2020, the court granted the parties’ stipulation and order permitting plaintiffs to supplement their opening expert report on infringement after the April 16, 2020 deadline due to the expert’s equipment and test boards being delayed in France as a result of the COVID-19 pandemic. According to the stipulation, the expert had been living and working in France where he had sent his equipment and materials needed to complete his expert analysis and report before he “was forced to quickly evacuate out of France back to the United States.” The stipulation allows plaintiffs to timely supplement their expert’s opening report to include oscilloscope data (which is dependent on the expert’s equipment) and “shall not extend to the substance of the report.” The stipulation also provides additional time for defendant’s technical expert to supplement his or her responsive report on infringement to address the supplemented oscilloscope data. (Case No. 5:12-cv-01766, presiding before Senior District Judge Lawrence E. Kahn; April 14, 2020 & April 16, 2020).
ICM Controls Corp., et al. v. Honeywell Int’l, Inc. – The U.S. District Court for the Northern District of New York in Syracuse denied defendants’ request to amend their invalidity contentions. Specifically, the “court recognizes that the current schedule for completion of discovery will likely need to be extended because of the COVID-19 epidemic. However, allowing defendants to pursue their new invalidity theory would further complicate and prolong discovery and the completion of pretrial proceedings. A continuance would not eliminate the prejudice to plaintiffs, who have been litigating this case for more than seven years.” The court further ordered that “pending the resolution of any appeal of this order, discovery shall continue, subject to likely modification.” (Case No. 5:12-cv-01766, presiding before Senior District Judge Lawrence E. Kahn; April 3, 2020).
Southern District of New York (Manhattan)
Magistrate Judge Ona T. Wang
Wongab Corp. v. Urban Outfitters, Inc., et al. – The U.S. District Court for the Southern District of New York in Manhattan sua sponte ordered:
- counsel to work remotely;
- that no in-person depositions shall take before May of 2020 absent a showing of “exceptionally good cause;” and
- that parties planning to conduct depositions on or after May 1st shall submit a joint status letter stating their deposition plans 14 days before the planned depositions.
Notably, the order also permits counsel to email the court ex parte with private, personal, familial, or medical concerns that would necessitate further orders, provided that they advise the other parties that they will be contacting the court ex parte. On August 11, 2020, the Court granted plaintiff’s Motion for Extension of Time to Complete Discovery, extending the time to complete expert discovery because counsel was “working remotely since early March, and  had a small number of unfortunate calendaring and logistical issues arise”, such as failing to “include a number of the dates that were included in the parties’ initial planning report, including the expert deadlines.” (Case No. 1:19-cv-01660, presiding before District Judge Andrew L. Carter, Jr.; March 19, 2020 and August 11, 2020).
District of New Jersey (Trenton)
Magistrate Judge Tonianne J. Bongiovanni
Boehringer Ingelheim Pharmaceuticals, Inc., et al. v. Lupin Atlantis Holdings SA, et al. – The U.S. District Court for the District of New Jersey in Trenton granted the parties request to permit depositions to occur after the approaching close of fact discovery on July 24, 2020, due to the “extraordinary conditions” caused by the COVID-19 pandemic. According to the parties, “Government orders and health concerns concerning the pandemic have reduced or prohibited the ability and availability of witnesses and their counsel to travel to, from, and within the United States . . . [and such] conditions have reduced the ability to organize and schedule depositions within the existing fact discovery period.” On August 12, 2020, the Court entered a Stipulation and Order Concerning Remote Depositions, providing the protocol that shall apply in the case for conducting depositions via remote means. The parties agreed that all depositions of fact witnesses shall be conducted remotely due to the COVID-19 pandemic and schedule limitations which left “insufficient time to take depositions by means other than remote deposition.” The deponent, court reporter, and counsel will each participate remotely and separately, and each shall be visible to all other participants. It was also agreed that “[n]o counsel shall initiate a private conference, including through test message, electronic mail, or the chat feature in the videoconferencing system, with any deponent while a question is pending, except for the purpose of determining whether a privilege should be asserted.” (Case No. 3:18-cv-12663, presiding before District Judge Brian R. Martininotti; July 24, 2020 and August 12, 2020).
Middle District of North Carolina
District Judge Catherine C. Eagles
Fuma International, LLC v. RJ Reynolds Vapor Company – The U.S. District Court for the Middle District of North Carolina denied defendant’s motion for leave of court to conduct a for-trial deposition of a witness in China, outside of the discovery period. The Court indicated that “[n]o trial will take place until sometime next year, when it is possible the public health and travel situation may have improved.” In addition, “it is not clear when or how such a deposition could take place” because the “premise of the motion” is that the witness cannot travel and the parties agree that Chinese residents are precluded from providing depositions in China. As such, the Court found that “[i]n the absence of an explanation of how and when such a for-trial deposition, and the proffered discovery deposition, could be taken, the motion is based on speculative possibilities and otherwise is premature.” (Case No. 1:19-cv-00260; August 12, 2020).
Northern District of Ohio (Eastern Division—Cleveland)
Senior District Judge Donald C. Nugent
Monode Marking Products, Inc. v. Columbia Marking Tools, Inc. – The U.S. District Court for the Northern District of Ohio’s Eastern Division granted defendant’s motion to compel plaintiff to produce a records custodian for deposition. In a handwritten note granting the motion, the Court stated that “[t]he requested deposition may be conducted remotely to ensure the safety of all participants.” The Court granted plaintiff’s Motion to Stay Briefing Schedule to delay the deadline for its Response in Opposition to Summary Judgment to allow for the production of all materials considered by a declarant, allow for depositions and permit any reasonable discovery necessary to address the issues raised in the motion. As part of the disputes, source code was previously not produced because a resolution “was thwarted in part due to disagreements on whether [defendant’s] proposal for in-house review of the code created undue risk to [plaintiff’s] attorneys due to the COVID-19 pandemic.” The Court found it reasonable to allow plaintiffs the opportunity to obtain discovery necessary to address the factual statements made in defendant’s motion. On January 20, 2021, the Court entered a Source Code Addendum To the Protective Order, stipulated and agreed to by the parties, providing procedures to facilitate remote source code review during the COVID-19 pandemic.(Case No. 1:18-cv-00016; April 27, 2020, December 18, 2020 and January 20, 2021).
Parker-Hannifin Corporation v. Laird Technologies, Inc. – The U.S. District Court for the Northern District of Ohio’s Eastern Division entered a joint stipulation concerning the protocol for conducting remote depositions of their claim construction experts, after concerns were raised regarding in-person depositions in light of the COVID-19 pandemic. Among a number of provisions, the parties agreed that “given the COVID-19 pandemic, the court reporter will not be physically present with the witness whose deposition is being taken . . . [but the parties will not] challenge the validity of any oath administered by the court reporter . . . .“ (Case No. 1:17-cv-00988; June 22, 2020).
District of Rhode Island (Providence)
District Judge Mary S. McElroy
Summer Infant (USA), Inc. v. TOMY Int’l, Inc. – The U.S. District Court for the District of Rhode Island in Providence entered a Notice of Remote Hearing set for August 25, 2020, to be conducted virtually via ZOOM, to address discovery disputes. The Court will send the ZOOM access information to the parties’ counsel via e-mail. (Case No. 1:17-cv-00549; August 20, 2020).
Eastern District of Texas (Marshall Division)
Chief District Judge J. Rodney Gilstrap
Bell Northern Research, LLC v. Samsung Electronics Co., Ltd. et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division ordered a Covid-19 Addendum To The Stipulated Supplemental Protective Order that is effective immediately and remains in effect until the close of expert discovery (currently October 23, 2020), providing for remote Source Code review using “specially-configured source code discovery laptops . . . which can be shipped to reviewers who are sheltering in place, and enable the recipient . . . to review code in an environment designed to approximate the security precautions that have become a longtime standard at the [producing party’s] dedicated source code discovery facility.” The discovery facility of the third party producing party “has become temporarily unavailable because of public health orders and advisories relating to [the Covid-19 pandemic].” Each reviewer provided with a laptop must “use the shipping container and/or packing materials” in which the laptop was received to return the laptop “following the completion of their review, but in no event later than 14 days after delivery.” (Case No. 2:19-cv-00286; July 30, 2020).
Image Processing Techs., LLC v. Samsung Electronics Co., Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division issued an Order On Motions In Limine, including one that was agreed upon that “[n]either party shall refer to COVID-19 in connection with a party or its witnesses (including a decision to call or not call, or as a reason excusing attendance at trial), or shall refer to a witness’s nationality, citizenship or place of residence in a disparaging manner.” (Case No. 2:20-cv-00050; June 8, 2020).
Saint Lawrence Comms. LLC v. Amazon.com, Inc., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted the parties’ renewed joint motion for a 30-day continuance on the basis of newly imposed government and public health restrictions. Notably, the court denied the parties’ original joint motion for a 30-day continuance on March 12, 2020, noting that “there are no current official travel restrictions or advisories from government health agencies.” Specifically, the court advised that while it “is sensitive to the Parties’ concerns and the hazards associated with the Coronavirus, [it] is not inclined to implement delays or grant continuances unless a party can put forward specific concerns backed by firm restrictions from a governmental/public health level of actual exposure.” (Case No. 2:19-cv-00027; March 19, 2020).
Magistrate Judge Roy S. Payne
GREE, INC v. Supercell Oy – The U.S. District Court for the Eastern District of Texas’s Marshall Division denied defendant's Motion for Relief in View of Governmental/Public Health Restrictions in Response to COVID-19 Virus Impact and Motion to Compel Discovery and Depositions -- seeking a 3-month trial extension due to the COVID-19 pandemic in order to take additional depositions of plaintiff's employees -- because the defendant failed to establish that the depositions were necessary. In addition, the Court noted that the request “to compel these depositions to promptly proceed . . . is asking for an impossibility—one also contrary to this Court’s standing orders.” Moreover, the Court felt it not clear that even if the request for a 3-month continuance was granted, it would be enough to take the depositions since “[n]o one knows for sure when this pandemic will end and countries will begin to ease restrictions” and taking a deposition in Japan is a complicated and long process. Thus, even if the deadlines were delayed, the defendant may still be then in the same position as now. The final pretrial conference was reset for August 18, 2020 and jury selection was reset until September 10, 2020 at 9:00 a.m. (CDT) (Case No. 2:19-cv-00070/00071, presiding before Chief District Judge J. Rodney Gilstrap; July 21, 2020 and August 17, 2020).
Team Worldwide Corporation v. Academy, Ltd. d/b/a Academy Sports & Outdoors – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants’ Motion For Relief seeking exemption from the restriction against in-person depositions pursuant to Standing Order Regarding Pretrial Procedures in Civil Cases Assigned to Chief District Judge Rodney Gilstrap During the Present COVID-19 Pandemic. In particular, the defendants were seeking “the flexibility to accommodate the in-person attendance of one or more attorneys at witness depositions, with full remote capabilities for parties and counsel unable to attend in person, or who prefer to conduct or attend the deposition remotely . . . [submitting] that ‘hybrid’ depositions may be conducted safely and will allow for the greatest flexibility in scheduling and completing the necessary depositions.” (Case No. 2:19-cv-00092, presiding before Chief District Judge J. Rodney Gilstrap ; September 11, 2020).
District Judge Robert W. Schroeder, III
Maxell, Ltd. v. Apple Inc. – The U.S. District Court for the Eastern District of Texas’s Texarkana Division ordered a COVID-19 pandemic Addendum to the Protective Order effective immediately and remaining in effect until September 1, 2020, unless extended by agreement of the Parties or further order of the Court, providing for remote Source Code review using “dedicated, specially-configured source code discovery laptops” that may be shipped to reviewers who are sheltering in place and enable the recipient “to review code in an environment designed to approximate the security precautions set forth in the Protective Order to allow discovery of source code in this action to continue while the public health restrictions are in place.” (Case No. 5:19-cv-00036; June 25, 2020).
Uniloc USA, Inc., et. al. v. Big Fish Games, Inc. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted in part defendant's motion for an extension of deadlines for expert discovery, dispositive motions, and Daubert motions due to the COVID-19 pandemic, only agreeing to extend the expert discovery deadline three weeks from May 6 to May 27 in view of the approaching deadline. The Court acknowledged that “[t]he country is undoubtedly in the throes of a public health crisis”, however it indicated that motions like these “require something more than [defendant's] generalized concerns about COVID-19 to establish good cause.” In this case, the Court found “the defendant had not demonstrated good cause for its requested extension because its motion lacks specificity about “how the crisis has affected its deposition preparations or why it has encountered difficulty in complying with current deadlines.” The Court granted the parties’ Joint Motion to Extend Stay of All Deadlines for seven days, and staying all unreached deadlines in the Docket Control Order up to and including June 22, 2020, so the final agreement could be executed by both parties, and appropriate dismissal papers filed. The parties submitted that good cause exists for the brief extension, as “both parties have worked diligently to finalize the written agreement, and have done so amidst quarantine restrictions affecting theirs and their respective attorneys’ locations.” (Case No. 2:16-cv-00741; April 30, 2020 and June 15, 2020).
Southern District of Texas (Houston Division)
Senior District Judge Nancy F. Atlas
Enventure Global Tech., Inc. v. Weatherford U.S., L.P. – The U.S. District Court for the Southern District of Texas’s Houston Division cancelled the parties’ March 25th discovery conference after the parties suggested the court decide the outstanding discovery issues on the arguments set forth in their letters and without oral argument, in light of the public health issues caused by COVID-19 and the Stay-At-Home orders issued for Houston and Harris County. (Case No. 4:19-cv-02397; March 24, 2020).
District Judge Keith P. Ellison
Fisher-Rosemount Systems, Inc. et al v. ABB Ltd. et al. – The U.S. District Court for the Southern District of Texas’s Houston Division entered the parties’ Agreed Covid-19 Remote Source Code Review Protective Order, which the parties agreed would replace Section 7.2 (Review of Source Code) in the originally entered Protective Order as a result of the COVID-19 pandemic and related travel restrictions and shelter-in-place orders “which make in-person source code review unworkable.” The protocol calls for the producing party to load its source code on a securely hosted virtual machine and to provide access to the authorized reviewer through either a network server with a publicly facing API or a source code review laptop wherein the only functionality is to access the source code virtual machine through the network server. (Case No. 4:18-cv-00178; August 6, 2020).
District Judge Lynn N. Hughes
Celltex Therapeutics Corporation v Human Biostar, Inc and R Bio Co. Ltd. – The U.S. District Court for the Southern District of Texas’s Houston Division adopted the Special Master’s recommendations regarding defendant’s motion to inspect premises, finding that the inspection was warranted and should be permitted. Included as part of the inspection parameters, it was required that the expert “must have a current negative COVID-19 test before he can enter the clean room” and “all visitors, on the occasion of the inspection, must have a current negative COVID-19 test result before entering any part of the lab premises.” (Case No. 4:18-cv-01901; July 24, 2020).
Western District of Texas (Waco)
District Judge Alan D. Albright
Synkloud Technologies, LLC v. Dropbox, Inc. – The U.S. District Court for the Western District of Texas in Waco ordered the defendant to produce its source code at the offices of its counsel of record in Palo Alto, California. The Court indicated that the inspection “shall be considered a necessary service to assist in compliance with a non-elective legally required activity.” The defendant will make the code available for inspection upon five business days’ notice when COVID-19 pandemic restrictions are in play and, once the parties agree that COVID-19 pandemic restrictions have been lifted, defendant will make the code available for subsequent inspections upon two business days’ notice pursuant to the terms of the protective order in these actions. (Case No. 6-19-cv-00526, June 18, 2020).
District of Utah (Central Division)
Magistrate Judge Dustin B. Pead
Definitive Holdings LLC v. Powerteq LLC – The U.S. District Court for the District of Utah’s Central Division denied the Plaintiff’s Short Form Discovery Motion seeking a copy of the source code files to review without opposing counsel present, finding the requested “sweeping changes to the review or production of source code” not supported or warranted under the circumstances. The court acknowledged “the trying and challenging circumstances created by the COVID-19 pandemic, which impact the parties and the review of source code,” but the court encouraged the parties “to find a workable solution.” (Case No. 2:18-cv-00844, presiding before District Judge David B. Barlow; May 22, 2020).
Magistrate Judge Cecilia M. Romero
Modern Font Applications LLC v. Alaska Airlines, Inc. – The U.S. District Court for the District of Utah’s Central Division denied plaintiff's motion for monetary sanctions after granting plaintiff's motion to compel additional initial disclosures from defendant. While the court was mindful of the potential for prejudice caused by delayed initial disclosures, it noted that “the impact of the COVID-19 pandemic on business operations is unprecedented and excuses delays in normal litigation procedures.” The Court found, therefore, that the failure to provide adequate initial disclosures was not willful or in bad faith. In addition, the Court further ruled that Plaintiff may supplement its infringement contentions after receiving the supplemental initial disclosures, and may seek further relief from the court in the form of extensions to mitigate the impact of the delayed disclosures. On August 21, 2020, the Court entered a Notice of Hearing on Motion set for September 21, 2020 to address multiple discovery motions, including a Motion to Maintain Protective Order Designations and a Motion for Contempt Sanctions and to Compel Complete Initial Disclosures. The hearing will be held via ZOOM technology. On December 3, 2020, the Court granted plaintiff’s Motion To Compel Production of Documents, ordering supplemental responses to requests for production. As part of the Order, the Court indicated that the defendant’s supplemental responses shall exclude various objections, including “any COVID delay objections.” (Case No. 2:19-cv-00561, presiding before District Judge David B. Barlow; June 8, 2020, August 21, 2020 and December 3, 2020).
Vivint, Inc. v. Alarm.com – The U.S. District Court for the District of Utah’s Central Division granted the parties’ Stipulated Motion for Partial Stay and For Extension of Discovery Deadlines, “[b]ased on the stipulation of the parties, and in light of global health concerns of the current COVID-19 pandemic, to allow sufficient time to complete expert discovery in view of the uncertainty caused by the pandemic.” The court set certain deadlines in the case related to expert reports and dispositive motions and stayed all other litigation activity before the court, with the exception of a motion for reconsideration and objections to an earlier ruling. (Case No. 2:15-cv-00392, presiding before Senior District Judge Clark Waddoups; April 16, 2020).
Eastern District of Virginia (Norfolk)
Magistrate Judge Lawrence R. Leonard
Appotronics Corp. Ltd. v. Delta Electronics, Inc. – The U.S. District Court for the Eastern District of Virginia in Norfolk granted the parties’ Joint Motion for Extension of Case Schedule, to complete fact depositions that must take place in Taiwan and China, which, “despite the parties’ best efforts”, have been delayed due to the COVID-19 pandemic. (Case No. 2:19-cv-00466, presiding before District Judge Robert G. Doumar; July 28, 2020).
The United States Court of Federal Claims
Court of Federal Claims Judge Patricia E. Campbell-Smith
University of South Florida Board of Trustees v. United States of America – The U.S. Court of Federal Claims granted plaintiff’s motion to compel the deposition of defendant’s damages expert witness. The court, however, agreed with defendant that a video deposition is warranted should defendant’s counsel and expert so desire, arguing that the COVID-19 pandemic “makes a remote deposition ‘the safest way to proceed.’” The court stated that it “will not order defendant to produce its expert witness in a manner that makes counsel or the witness unsafe during a public health emergency.” (Case No. 0:15-cv-01549; August 4, 2020).
Court of Federal Claims Judge Lydia Kay Griggsby
Geospatial Technology Associates, LLC v. United States of America – The U.S. Court of Federal Claims denied the defendant’s Motion To Stay Certain Discovery in which it was argued that the ongoing COVID-19 pandemic prevented defendant from conducting in-person searches for responsive information and documents. Although sympathetic to the challenges due to the ongoing pandemic, the Court observed that the defendant had agreed to the current schedule for supplementing its discovery responses during a telephonic discovery hearing held on March 25, 2020. In addition, the defendant failed to explain why the required searches for responsive documents and information could not be performed electronically or address what efforts it has undertaken to date to search for responsive information and documents. (Case No. 0:16-cv-00346; May 7, 2020).
Court of Federal Claims Judge Charles F. Lettow
3rd Eye Surveillance, LLC et al v. United States of America – The U.S. Court of Federal Claims granted plaintiff’s motion to conduct depositions remotely under Rule 30(b)(4) of the Rules of the Court of Federal Claims (“RCFC”). Noting that defendants acknowledge that the COVID-19 pandemic requires resort to remote means of conducting deposition, the Court granted leave for depositions to be taken either telephonically or by WebEx. The Court further indicated that Zoom should not be used, absent proof that such use would be secure. (Case No. 0:15-cv-00501; December 2, 2020).