Magistrate Judge Burke Compels Supplemental Depositions of Inventors

March 6, 2018

Publication| Intellectual Property

In Integra LifeSciences Corp. v. HyperBranch Medical Technology, Inc., No. 15-819-LPS-CJB (D. Del. Jan. 24, 2018), Magistrate Judge Burke denied the plaintiffs’ emergency motion to quash, and for a protective order to prevent, supplemental depositions of two inventors, instead granting the defendant’s request to compel the depositions.

To resolve an earlier discovery dispute regarding the timeliness of a “biocompatibility” theory disclosed by the plaintiffs during expert discovery, the Court had entered a schedule permitting the defendant, HyperBranch Medical Technology, Inc., to seek additional discovery. HyperBranch then sought the depositions of two inventors, which the plaintiffs subsequently sought to quash. Although the Court believed that HyperBranch should have specifically identified the need to take additional deposition discovery in that schedule, Judge Burke nevertheless stated that HyperBranch could not have deposed the inventors on this issue in their prior depositions, since the plaintiffs did not raise their biocompatibility theory until late in the case.

Finding that the testimony would be relevant and because only two depositions were noticed, Judge Burke compelled the plaintiffs to make the inventors available for further deposition on the biocompatibility theory, limited to four hours for both witnesses.

Key Point: Even when the Court allows parties in expert discovery to rely on theories of the case that may not have been previously disclosed, doing so may expose litigants to further discovery.

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