Richards Layton & Finger
 

Magistrate Judge Fallon Denies Motion to Compel Deposition and Production of Communications with Third-Party Deponent

May 9, 2018

In Evolved Wireless, LLC v. Apple Inc., No. 15-542-JFB-SRF (D. Del. Feb. 16, 2018), and related actions, Magistrate Judge Fallon denied Evolved Wireless, LLC’s motion to compel defendants in these cases to produce communications with third party Qualcomm, Inc. regarding topics on which Qualcomm had been deposed. Defendants in these actions had earlier raised a license defense after receiving a production made by Qualcomm pursuant to a subpoena. After Qualcomm’s deposition, Evolved sought to depose a third party (whose identity was redacted in the decision) who was apparently a party to the license agreements at issue.

The Court found that Evolved failed to demonstrate good cause for the discovery: according to the Court, Evolved neither sought the deposition before the close of fact discovery nor put the defendants on notice of the relevance or identity of the deponent during fact discovery. As to Evolved’s argument that the deposition was required to “balance the testimony” of Qualcomm, Judge Fallon noted that Evolved had the opportunity to examine Qualcomm during its deposition. The request for the deposition was thus denied.

Evolved’s motion to compel communications between defendants and Qualcomm was also denied. The Court had earlier granted Evolved leave to seek “specific, targeted requests” for discovery following the deposition of Qualcomm, but Judge Fallon found that the requests (“all communications”) were not so targeted, and that the transcript of the Qualcomm deposition did not refer to any communications with defendants. Additionally, the requested communications were found to be protected by the common-interest privilege. Finally, the Court found that a showing of waiver was not made.

Analysis: In earlier allowing the plaintiff the opportunity to request further discovery following the deposition of third party Qualcomm after the close of fact discovery, the Court stated that its purpose was “to progressively narrow the scope of discovery sought at this late stage of the proceedings, not to maintain or expand it in the midst of briefing on case dispositive motions,” and thus denied the plaintiff’s motion to compel.