VNUS MEDICAL TECHNOLOGIES, INC. et al., Plaintiff, v. DIOMED HOLDINGS, INC. et al., Defendants No. C 05-02972 JL United States District Court, N.D. California Filed July 26, 2007 Larson, James, United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR DISCOVERY (DOCKET # 189) Introduction *1 This is an action for patent infringement arising under the Patent Laws of the United States, 35 U.S.C. § 1 et seq. The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a). The court properly exercises personal jurisdiction over the parties based on the allegation that “Diomed has committed infringing activities in the State of California.” (Pltf. Compl. at 1). Venue is conferred by 28 U.S.C. §§ 1391(b), 1391(c), and 1400(b). All discovery in this case has been referred by the district court (Hon. Maxine M. Chesney) pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72. This Court fully considered the parties' joint statement of discovery disputes, and good cause appearing, it is hereby ordered that Defendant's motion for discovery is granted in part and denied in part. Plaintiff's request for a protective order pursuant to Fed. R. Civ. P. 26(c) is denied without prejudice. Background The parties are involved in a long-standing dispute over Defendants' alleged infringement of several of VNUS' patents concerning varicose vein treatment technology. This litigation has been ongoing since July 21, 2005, and has featured a lengthy and contentious discovery process. The non-expert discovery period was initially slated to conclude on April 13, 2007, but Judge Chesney extended the cut-off date until May 30, 2007. (D.I. 148). On May 4, 2007, VNUS produced over 15,000 pages of discovery materials. (Joint Stmt. at 4). After reviewing these new materials, Defendant Diomed responded by issuing five deposition notices of VNUS and VNUS' present or former employees as follows: Michael Mirizzi, Grace Schulz (Schulz), Diane Villegas, Arthur Zikorus (Zikorus), and a 30(b)(6) deposition of VNUS on 46 topics. (Joint Stmt. at 1). Diomed e-mailed these deposition notices to VNUS' outside counsel at 8:34 pm PST on the last day of fact discovery. (Joint Stmt. at 1). VNUS “strongly objects” to Diomed's deposition notices, and seeks exemption from compliance via a protective order issued pursuant to Fed. R. Civ. P. 26(c). (Joint Stmt. at 1). VNUS claims that the notices are late and unenforceable, that two of the proposed deponents have already been deposed in this case, that the notices exceed the ten-deposition per side limit, and that many of the notices are defective. (Joint Stmt. at 1-3). VNUS also opposes Defendants' request that the parties be permitted three months to conduct follow up discovery. (Joint Stmt. at 4). Defendants, however, contend that the parties had previously agreed to a non-expert discovery cutoff date of May 30, 2007, and that Defendants timely noticed VNUS by the stipulated deadline. (Joint Stmt. at 3). Defendants admit that they previously deposed two of the currently noticed individuals, but insist that they now need to do so again. Finally, Defendants argue that “VNUS's continuing objection to Diomed's 30(b)(6) topics... based on the theory that Diomed should have asked more interrogatories instead, is an impermissible attempt to dictate the manner in which Diomed takes discovery.” (Joint Stmt. at 4). Throughout all of these arguments, Defendants maintain the need to take “appropriate follow-up discovery based on the currently noticed depositions” as well as numerous recently-produced documents “and documents that VNUS has now agreed... to produce at an unspecified future time.” (Joint Stmt. at 5). *2 Finally, both parties have agreed to attempt to resolve two other significant discovery disputes themselves. However, they ask to reserve their right to bring to the Court's attention any further disputes arising out of discovery disagreements if such action becomes necessary. (Joint Stmt. at 5). Analysis The Diomed Deposition Notices Are Timely and Enforceable VNUS asserts that “the parties' understanding was that counsel could depose a witness after May 30 to the extent that the witness could not be made available for deposition prior to the discovery cut-off date despite counsels' best efforts to timely notice and serve such witness.” (Joint Stmt. at 1). Yet VNUS did not receive the Diomed deposition notices until “after close of business on the last day of fact discovery, with no possibility that any such depositions could take place before fact discovery closed.” (Joint Stmt. at 1). However, there is no formal document or agreement that attests to this version of the parties' understanding. The only formal agreement pertaining to the May 30 non-expert discovery cut-off date states simply that “discovery timely noticed or otherwise requested by May 30, 2007 may be completed at a later date.” (D.I. 148). The Federal Rules of Civil Procedure state that a shorter or longer time than the standard thirty days after service of the request for deposition may be allowed for production of documents if it is “agreed to in writing, subject to Rule 29.” Fed. R. Civ. P. 34. Rule 29 states that “the parties may by written stipulation... modify... procedures governing or limitations placed upon discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may, if they would interfere with any time set for completion of discovery, for hearing of a motion, or for trial, be made only with the approval of the court.” Fed. R. Civ. P. 29. The extension of the non-expert discovery cut-off date through May 30, 2007, as ordered by the court in Judge Chesney's order approving joint stipulation regarding extension of discovery dates, is therefore valid and enforceable under the Federal Rules of Civil Procedure. Civil Local Rule 26-2 specifically addresses the issue of depositions, dictating that “[d]iscovery requests that call for responses or depositions after the discovery cut-off are not enforceable except by order of the Court for good cause shown.” As previously noted, Judge Chesney ordered the extension of the original dates set forth in the pretrial preparation order and stipulated that “the parties also agree that discovery timely noticed or otherwise requested by May 30, 2007 may be completed at a later date.” (D.I. 148) (emphasis added). Thus, the deposition notices comply with and are enforceable under both the Federal Rules of Civil Procedure and the Civil Local Rules. The only remaining issue pertaining to VNUS' objection of “late and unenforceable” concerns whether Defendants' e-mail sent at 8:34 pm on the final day of discovery qualifies as timely. Civil Local Rule 26-2 defines “discovery cut-off” as “the date by which all responses to written discovery are due and by which all depositions must be concluded.” The date stipulated in Judge Chesney's Order was May 30, 2007. This Order included no mention of any time restrictions on documents or notices provided by either party up until and including that date. Since defendants dutifully notified VNUS of the requested depositions before the end of May 30, 2007, the Court considers the notices timely as well as enforceable. Schulz and Zikorus May Be Deposed Again *3 VNUS objects to Defendants' request to depose Schulz and Zikorus since these individuals were already deposed on August 31, 2006 and August 9, 2006, respectively. (Joint Stmt. at 2). VNUS points out that Defendants previously presented Judge Chesney with a motion to phase discovery, which the Judge denied. (D.I. 66, 77). According to VNUS, the denial of that motion meant that Defendants were “only permitted one deposition of each witness.” (Joint Stmt. at 2). However, this misconstrues Judge Chesney's order. She denied Defendants' motion because good cause was not shown at that time, and ordered only that Defendants respond to VNUS' outstanding discovery requests. (D.I. 77). Judge Chesney made no mention of a limit on the number of times a witness could be deposed, aside from the admonition that Defendants must “comply with all relevant provisions of the Federal Rules of Civil Procedure, the Patent Local Rules, and the Pretrial Preparation Order.” (D.I. 77). A court in this district recently granted a motion to compel a second deposition, in part because the “proposed second deposition will not cover the same issues as the first deposition did.” Zamora v. D'Arrigo Bro. Co. of Cal., 2006 WL 3227870, at *2 (N.D.Cal. Nov. 7, 2006); see also Vincent v. Mortman, 2006 WL 726680, at *1 (D.Conn., 2006) (“courts frequently permit a deposition to be reopened where ... new information comes to light triggering questions that the discovering party would not have thought to ask at the first deposition”) (citations and quotation marks omitted); Collins v. International Dairy Queen, 189 F.R.D. 496, 498 (M.D.Ga., 1999) (second deposition allowed where it was likely to produce new information not obtainable in the first deposition, and a second deposition had not been shown to be unduly burdensome or expensive). Defendants believe that their situation is comparable, and that Schulz and Zikorus' second depositions would cover material, namely the host of new documents recently discovered, that was previously unavailable. VNUS, however, insinuates that Defendants acted foolishly in proceeding “in the very early stages of this case to take depositions of all thirteen inventors.” (Joint Stmt. at 2). In reality, however, Defendants waited over a year before deposing Schulz and Zikorus. VNUS' argument is especially unconvincing in light of the fact that the company waited until there was less than a month of non-expert discovery left to produce over 15,000 documents. Defendants' timing of the depositions is more reasonable than VNUS' suggestion that Defendants should have waited until all discovery was completed, at least until May 4, 2006, to begin deposing any of the thirteen inventors. Rule 30 of the Federal Rules of Civil Procedure states that “[a] party may take the testimony of any person... already deposed in the case” so long as the party seeking the deposition obtains leave of the court. Fed. R. Civ. P. 30(a)(2)(B). The Court construes Defendants' current motion as a request for leave under the Rules. Therefore, Defendants are in compliance with Fed. R. Civ. P. 30 for the purposes of this motion. The Federal Rules of Civil Procedure provide that courts should generally grant leave to retake a witness' deposition so long as this procedure would be consistent with the principles stated in Rule 26(b)(2). Fed. R. Civ. P. 30(a)(2). Rule 26 states that the court should grant leave to redepose unless: (I) the [second deposition] sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking [the second deposition] has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed [second deposition] outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. *4 Fed. R. Civ. P. 26(b)(2). Defendants' claim of necessity based on the massive amount of documents produced in early May of 2007 effectively nullifies the first two exceptions. A deposition cannot, by definition, be unreasonably cumulative or duplicative if it is taken on new topics Similarly, Defendants could not have had “ample opportunity” to obtain the information now sought from Schulz and Zikorus, since the realization that these individuals even possessed such information only recently came to light. The third 26(b)(2) exception is also inapplicable to the case at bar, as the two added depositions would not realistically pose a significant burden for VNUS, considering the needs of the case, the amount in controversy, the parties' resources, et seq. Common sense suggests as much, and VNUS does not clarify the issue by identifying any impending burdens. The Court therefore finds no compelling reason to deny Defendants the opportunity to depose Schulz and Zikorus for a second time. However, Defendants themselves stipulated that Schulz and Zikorus will only “be required again for a brief deposition on documents that were not available to Defendants when the initial round of depositions took place.” (Joint Stmt. at 4). Thus, the Court holds that Schulz and Zikorus' second depositions are not to exceed four hours each in length. This will help mitigate any burden the redepositions may inflict on VNUS while simultaneously allowing Defendants access to a final bit of discovery. Defendants May Exceed the Ten-Deposition Per Side Limit The Federal Rules of Civil Procedure state that a party must obtain leave of the court to take any deposition that would result in an excess of ten depositions being taken by any party. Fed. R. Civ. P. 30(a)(2)(A). VNUS notes that Defendants have already taken thirteen depositions. Plus, “Defendants noticed five... other depositions either on the eve of, or within a few weeks, of close of fact discovery... [and] VNUS agreed to go forward with these five depositions noted above, bringing the number of depositions VNUS has agreed to grant Defendants to 18.” (Joint Stmt. at 3). VNUS argues that it “should not be forced to endure another five fact depositions, particularly given the marginal utility of the depositions requested and given the close of fact discovery on May 30, 2007.” (Joint Stmt. at 3). However, VNUS' claim that the proposed depositions would be of “marginal utility” is a conclusion of fact for the Court to address, and is neither objective nor convincing. Additionally, the company's observation of the date on which fact discovery closed is irrelevant, since Defendants timely noticed the depositions by that date. The Federal Rules of Civil Procedure explicitly allow for depositions in excess of ten per side so long as the party taking the deposition obtains leave of the court. This Court finds no good reason to deny Defendants the occasion to take the five depositions timely proposed by May 30, 2007. Defendants shall not be precluded from questioning potentially material witnesses based only on VNUS' hypothetical and unidentified burdens and expenses. None of the Diomed Deposition Notices Are Defective VNUS complains that Defendants failed to issue a proper subpoena for Ms. Villegas' deposition until June 6, 2007. Defendants did, however, informally notice the deposition on May 30, 2007. (Joint Stmt. at 3). As such, Villegas' notice is proper pursuant to Judge Chesney's Order that “discovery timely noticed or otherwise requested by May 30, 2007 may be completed at a later date.” (D.I. No. 148) (emphasis added). VNUS also declares that “the 30(b)(6) notice, with 46 topics, is unduly burdensome, overly broad and duplicative for all the reasons VNUS set forth in a May 31, 2007 letter to Defendants.” (Joint Stmt. at 3). However, VNUS does not point to the location of this letter in the record, and does not reiterate any of the reasoning manifested therein. VNUS cannot seriously expect the Court to give credence to the company's battle cry of “overly broad” when VNUS itself neglects to substantiate its own gaping claims. While some of Diomed's proposed 30(b)(6) topics do seem potentially vague or broad, VNUS' opportunity to object to any specific topic has long passed. (See D.I. 183 Ex. S). The only objections to the 30(b)(6) deposition topics that VNUS managed to place on the record for purposes of this motion are its claims that the topics were “unduly burdensome, overly broad and duplicative.” However, VNUS fails to show or even allege how one, let alone all, of the multiple topics are duplicative or overly broad in any way. The company also neglects to state what sort of burden, undue or otherwise, it would face were the Court to enforce the 30(b)(6) deposition notice. Such loose and unsubstantiated objections simply do not warrant consideration by this Court: the overly broad street runs both ways. *5 The Federal Rules of Civil Procedure state that “[a] party may in the party's notice and in a subpoena name as the deponent a public or private corporation... and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf.” Fed. R. Civ. P. 30(b)(6). “Once served with a Rule 30(b)(6) notice, the corporation is compelled to comply, and it may be ordered to designate witnesses if it fails to do so.” Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628 (C.D.Cal.,2005) (citing U.S. v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C., 1996)). The Court finds it proper to enforce Defendants' 30(b)(6) summons since it was timely noticed and it described with “reasonable particularity” the matter on which Defendants requested examination. Although VNUS objects to the topics' particularity in a roundabout fashion, claiming undue burden and duplicity, it fails to allege any specifics or even point to a particular topic with which it takes issue. While Defendants neglect to offer justification for waiting until after the close of business on the final day of non-expert discovery to notice VNUS' 30(b)(6) deposition, their request is not technically defective. Common courtesy may suggest otherwise, but the law provides no basis for upholding VNUS' broad claim that Diomed's 30(b)(6) notices are somehow defective. VNUS remains obligated to designate a suitable representative to testify on its behalf, and is ordered to do so forthwith. Fact Discovery Will Not Be Extended VNUS objects that Defendants' request for a three month continuance of the discovery timeframe would “require a continuance of the dates currently set forth in the Pretrial Preparation Order entered by Judge Chesney.” (Joint Stmt. at 5). Judge Chesney has already ruled on this request, as evidenced by her July 3, 2007 order granting in part and denying in part defendants' motion to extend expert discovery, summary judgment, and trial dates. (D.I. 201). Judge Chesney's order denied Defendants' motion to extend the timeframe for expert discovery, and granted an extension of time only for the filing of dispositive motions. (D.I. 201). This Court may not alter the trial court's previously set deadlines. Any relief regarding extension of fact discovery must be addressed to Judge Chesney. The Federal Rules of Civil Procedure caution that a scheduling order “shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.” Fed. R. Civ. P. 16(b). Since Judge Chesney recently signaled her unwillingness to extend expert discovery any further in this case, this Court will continue to honor her trial schedule. Although Defendants contend that the opportunity to take appropriate follow-up discovery is essential, the Court must at some point draw a firm line regarding discovery dates. Therefore, while Diomed may take the five additional depositions that it noticed on May 30, 2007, the parties must resolve any issues regarding future discovery amongst themselves. Future Discovery Requests Will Not Be Heard VNUS complains that “Diomed objected to fourteen document requests propounded by VNUS” and steadfastly refuses to produce responsive documents (Joint Stmt. at 5). Diomed, in turn, asserts that it has issued a request for VNUS to “produce files related to its research and development of an endovenous laser treatment system for varicose veins.” (Joint Stmt. at 5). The parties have apparently agreed to resolve these document-related issues on their own terms, but “reserve their right to bring to the Court's attention any further disputes arising out of such dispute.” (Joint Stmt. at 5). *6 Civil Local Rule 26-2 states that “no motions to compel fact discovery may be filed more than 7 days after the discovery cut-off.” Since the cut-off date for non-expert discovery was May 30, 2007, the parties no longer have any right to bring to the Court's attention ongoing or pending non-expert discovery disputes. All “document-related issues” not addressed in the joint statement now before the Court are effectively null and void. The parties may not reserve rights that they do not have. Conclusion The Court finds that VNUS' objections concerning the timeliness and enforceability of Diomed's Deposition Notices are either inaccurate or unsubstantiated. Defendants have complied with the Federal Rules of Civil Procedure, the Civil Local Rules, and Judge Chesney's orders. Defendants will have a final opportunity to obtain allegedly critical information pertaining to the 15,000 pages of discovery that VNUS recently produced. Accordingly, Diomed may depose Michael Mirizzi, Grace Schulz, Diane Villegas, Arthur Zikorus, and a 30(b)(6) witness on the proposed 46 topics. VNUS is hereby ordered to make these individuals available for deposition within 14 days of this order. Diomed's depositions of Schulz and Zikorus are limited to no more than four hours each. This Court denies the protective order VNUS requested pursuant to Fed. R. Civ. P. 26(c). However, since non-expert discovery closed on May 30, 2007, VNUS may be appeased by the realization that no further fact discovery motions will be heard by the Court. The Court denies Defendants' request for the extension of fact discovery in light of Judge Chesney's previous order. Finally, the Court denies all parties' requests to bring further fact discovery disputes before the Court. Non-expert discovery closed on May 30, 2007 and no additional motions to compel were timely filed. Thus, this order constitutes the final resolution to non-expert discovery disputes in the case at bar. IT IS SO ORDERED.