The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART AMERICAN TECHNICAL CERAMICS CORPORATION'S MOTION FOR LEAVE OF COURT TO ALLOW DEPOSITIONS OF PRESIDIO'S EXPERT WITNESSES
This is a patent infringement case involving U.S. Patent No. 6,816,356 ("The '356 patent"). Presidio Components, Inc. ("Presidio") filed suit against American Technical Ceramics Corporation ("ATC") alleging infringement of the '356 patent. [Doc. No. 1 at ¶ 10.] ATC filed a counterclaim alleging, inter alia, tortious interference with contractual relations. [Doc. No. 10 at pp. 11-12.]
Defendant/Counterclaimant ATC filed a Motion for Leave of Court to Allow Depositions of four expert witnesses designated by Plaintiff/Counterdefendant Presidio. [Doc. No. 70.] Because ATC has already taken more than ten (10) depositions in this case, Rule 30 requires ATC to obtain permission from either Presidio or the Court to take any additional depositions. Fed. R. Civ. P. 30(a)(2)(A)(i). In addition to seeking leave to take the expert depositions, ATC also requests that the expert discovery deadline and deadline for filing summary judgment motions be extended in order for ATC to take the requested depositions and prepare summary judgment motions after hearing the experts' testimony.*fn1 Id. at 1. Finally, one of the expert depositions that ATC seeks leave to take would be a second deposition of Dr. Ewell. Presidio opposes ATC's motion. [Doc. No. 72.]
The original scheduling order applicable to this case was filed September 20, 2007.*fn2 [See Case No. 07cv893-IEG, Doc. No. 22.] On June 2, 2008, the parties filed a Joint Motion to Amend the Scheduling Order to extend all remaining deadlines in the case for thirty days. [Doc. No. 13.] On June 3, 2008, the Court issued a Scheduling Order Regulating Discovery and Other Pretrial Proceedings in this case. [Doc. No. 14.] On September 26, 2008, the parties filed a Joint Motion for Extension of Time to Complete Discovery and to Amend the Scheduling Order, asking to extend remaining deadlines for a period of seven weeks. [Doc. No. 35.] On October 1, 2008, the Court granted the joint motion and issued a First Amended Scheduling Order. [Doc. No. 37.] Then, on December 16, 2008-after the conclusion of fact discovery-the parties filed a third joint motion, this time asking that the Court again modify the scheduling order and extend pretrial discovery deadlines so that they could complete expert discovery. [Doc. No. 64.] The Court granted the motion and extended the deadline for submitting expert reports until January 23, 2009, the deadline for submitting supplemental expert reports until February 16, 2009, and the expert discovery cutoff until March 9, 2009. [Doc. No. 65.] On February 20, 2009, ATC filed this motion for leave to depose four of Presidio's expert witnesses. [Doc. No. 70.]
To date, ATC has taken one expert deposition (Dr. Godshalk) on claim construction issues, which pursuant to Patent L.R. 4.3 does not count against the presumptive ten deposition limit set by Rule 30(a)(2)(A)(i), and eleven other depositions. See Fed. R. Civ. P. 30(a)(2)(A)(i), Mem Ps&As at 5. Presidio, on the other hand, has taken at most eight depositions, including experts, and argues that it purposely "tailored its discovery strategy" to ensure that it would not exceed the presumptive ten deposition limit. Opp'n at 5.
ATC seeks the Court's permission to depose the following four expert witnesses designated by Presidio: (1) Dr. Wayne Huebner, technical expert; (2) Dr. Gary Ewell, technical expert; (3) Mr. Glenn Newman, damages expert; and (4) Mr. Richard Killworth, Esq., patent prosecution practice and procedure expert. Memo Ps&As at 2. ATC, likewise, has designated a damages expert, a patent prosecution and procedure expert, and a technical expert. Id. Presidio elected to forego the deposition of one of ATC's three experts so that it would not run afoul of the ten deposition limit. Opp'n at 5, n. 3.
Federal Rule of Civil Procedure 26 governs the scope and limits of all discovery and is particularly instructive as to how parties should plan for discovery. See Fed. R. Civ. P. 26(a)(2),(b),(f). Rule 26 requires the parties to confer and develop a discovery plan "stat[ing] the parties' views and proposals on... what changes should be made in the limitations on discovery imposed under these rules...." Fed. R. Civ. P. 26(f)(3)(E).
Rule 30 governs when a party needs permission to take a deposition and provides in relevant part: "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 under this rule or Rule 31... [or] the deponent has already been deposed in the case...." Fed. R. Civ. P. 30(a)(2)(A)(i-ii). The Advisory Committee Note to Rule 30(a)(2)(A) guides counsel for the parties to consider enlarging or reducing the number of depositions permitted by Rule 30 at the initial planning meeting and again at scheduling conferences in order to "eliminat[e] the need for special motions" such as the present motion. Fed. R. Civ. P. 30(a)(2)(A) advisory committee notes, 1993 Amendments.
When considering a motion for leave to take more than ten depositions, the Court must grant leave to the extent consistent with Rule 26(b)(2), which provides pertinent part:
[T]he court must limit the frequency or extent of use of the discovery methods otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' ...