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Johnson & Johnston v. R.E. Service Co. Inc.

November 2, 2004

JOHNSON & JOHNSTON, ET AL., PLAINTIFFS,
v.
R.E. SERVICE CO. INC., DEFENDANTS.



The opinion of the court was delivered by: James Larson United States Magistrate Judge

Discovery Order Denying Docket # 138 and Granting Docket # 139

Introduction

Before the Court are the parties' letter briefs regarding their discovery dispute which they submit as provided by this Court's Standing Order at Paragraph 7(b). All discovery in this case has been referred by the district court (Hon. Saundra Brown Armstrong) as provided by Civil Local Rule 72 and 28 U.S.C. §636(b). This Court finds this discovery dispute appropriate for resolution without a hearing as provide by Civil Local Rule 7-6. The parties represent that they have held ongoing meet and confer conferences to attempt to resolve this dispute, as required by Civil Local Rule 37.

Factual and Procedural Background

This is a patent dispute between Plaintiff ("JJA") and Defendant ("RES"). JJA sued RES in May 2003. This is the third litigation between the parties, the first two having commenced in 1992 and 1997. At issue are two patents that JJA alleges RES has infringed and four patents that RES alleges JJA has infringed. The discovery requests at issue are JJA's First, Second and Third Sets of Document Requests, served March 17, 2004, March 17, 2004 and August 27, 2004, respectively. RES has been on notice that JJA wants these documents for at least two months and in some instances more than six months.

The trial court issued its claim construction order on August 16, 2004 and has set pretrial deadlines as follows:

1) Expert Disclosure and exchange of expert reports by November 12, 2004;

2) Rebuttal expert disclosure by November 19;

3) Fact witness depositions by November 19; and

4) Initial expert witness depositions by November 24.

Dispositive Motions are set for hearing January 25, 2005. A settlement conference is scheduled for February 4. Pretrial conference is March 22 and the case is set for jury trial commencing March 28, 2005.

Analysis and Conclusion

JJA's' letter brief is essentially a motion to compel and RES's letter brief is an opposition. The issue appears to be not so much whether the documents will be produced as when, but with one exception, the documents produced by RES in the previous litigation. JJA wants the RES documents in time to use them to prepare for fact witness depositions, which must be concluded by November 19, and expert witness depositions, which must be concluded by November 24.

Federal Rule of Civil Procedure 26 (b)(1)(a) provides that discovery, including requests for production of documents, shall be limited by the court if it determines that the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or that the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties resources, and the importance of issues at stake in the litigation. The court may make such a ruling on its own or on a motion by a party. Federal Rule of Civil ...


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