In the United States Court of Federal Claims

No. 15-1307C

(Filed August 28, 2018)

NOT FOR PUBLICATION

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CELLCAST TECHNOLOGIES, *

LLC and ENVISIONIT, LLC, *

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Plaintiffs, *

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v. *

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THE UNITED STATES, *

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Defendant, *

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and *

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INTERNATIONAL BUSINESS *

MACHINES CORP., *

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Third-party defendant. *

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ORDER

Pending before the Court are two related motions---one, a motion by the 

defendants to compel depositions pursuant to Rule 37(a) of the Rules of the United 

States Court of Federal Claims (RCFC), and the other, an RCFC 45(d)(3) motion by 

the plaintiffs to quash the subpoenas commanding attendance at those depositions. 

Defendants’ Motion to Compel Depositions, ECF No. 97 (Defs.’ Mot.); Plaintiffs’ 

Motion to Quash Subpoenas, ECF No. 106 (Pls.’ Mot.). Both motions concern 

whether the defendants should be permitted to depose two inventors of the patents

that are the subject of this case. The government’s subpoenas were noticed with 

one week remaining before the close of discovery, and sought to depose Messrs. 

Mark Andrew Wood and Douglas Weiser twenty-one and twenty-eight days, 

respectively, after the discovery cut-off. Ex. A to Pls.’ Mot. The plaintiffs argue that 

the depositions should not be allowed because they were noticed too late in the 

discovery period to be held during the time permitted for discovery. Pls.’ Mot. at 8–
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10. For their part, the defendants instead focus on two subpoenas served by 

International Business Machines Corp. (IBM) in late September of 2017, with 

deposition dates selected for these two individuals which were more than two weeks 

before the initial discovery cut-off. Defs.’ Mot. at 4–7; Exs. 1 & 3 to Defs.’ Mot. 

(commanding attendance in late November of 2017). 

Because of the IBM subpoenas, the plaintiffs’ motion is, at best, moot. The 

Court finds the fact that the parties had been haggling over the timing and location 

of the two depositions for some eight months to be reason enough not to quash the 

government’s subpoenas for the mere failure to identify deposition dates before the 

discovery cut-off. Under these circumstances, the government’s forms were little 

more than a formality, as plaintiffs were long aware of the government’s desire to 

depose the two inventors. See, e.g., Ex. 15 to Defs.’ Mot. (Dec. 22, 2017 email from 

government counsel concerning Mr. Weiser). Thus, the plaintiffs’ motion is 

DENIED. The question remains, though, whether these depositions should be 

allowed to occur after the scheduled close of discovery. As plaintiffs correctly note, 

the motion by the defendants amounts to a request to extend the deadline for 

discovery one more time. Pls.’ Opp’n to Defs.’ Mot. at 1.

Such requests when made, as here, before the expiration of the period a party 

seeks to enlarge, are assessed under a liberal reading of RCFC 6(b), because of their 

potential to resolve matters more expeditiously through summary judgment. See 

Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 375, 381 (1988) (citing Johnson 

Chem. Co. v. Condado Ctr., 453 F.2d 1044, 1047 (1st Cir. 1972)). While the parties

dispute at great length who is more at fault for the failure to schedule the 

depositions within the discovery period, their prolonged disagreement is probably 

proof enough of the good cause necessary for a deadline extension. The fact 

discovery cut-off in this case has already been moved twice, to reflect the 

complexities of document production as well as the imperfect cooperation of counsel. 

See Order (Nov. 1, 2017), ECF No. 79; Order (Feb. 23, 2018), ECF No. 92. While the 

Court expected the previous extension to be sufficient for the remaining discovery to 

completed, the Court notes that at least fifteen depositions were held in the last five 

weeks of the period, see Tr. (May 16, 2018) at 30–32, indicating the parties were far 

from idle.

The defendants contend that the small number of documents retained and 

produced by these two inventors (none in the case of one) necessitated saving their 

depositions for last, after information was obtained from other sources. See Defs.’ 

Reply at 7–8, ECF No. 112; Tr. (Aug. 17, 2018) at 37, 46–47, 51; cf. Estate of 

Rubinstein v. United States, 94 Fed. Cl. 51, 52–53 (2010) (extending discovery 

period to allow deposition after document production was complete). Given the 

number of other depositions that needed to be concluded, the delay in scheduling 

these two inventor depositions, while regrettable, is understandable. Extending the 

schedule to allow these last two depositions will not delay proceedings. The claim 
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construction opinion has not yet been issued, and much time has already been 

consumed by the parties’ extensive motions practice (including nine separate 

motions from the plaintiffs). Moreover, if successful, the plaintiffs are not 

financially injured by any delays, as they are entitled to prejudgment interest. See, 

e.g., Dynamics Corp. of Am. v. United States, 766 F.2d 518, 519–20 (Fed. Cir. 1985); 

Boeing Co. v. United States, 86 Fed. Cl. 303, 322 (2009). Even if the costs of the two 

depositions were increased due to their occurrence after the current deadline---a 

fact which has not been established---these costs are likely reimbursable in the 

event the plaintiffs succeed in this lawsuit. See 28 U.S.C. § 1498. As the plaintiffs 

have pointed to no particularized prejudice they will suffer from the depositions 

going forward, and the defendants have adequately justified the sequence and 

timing of the schedule, the Court finds good cause and GRANTS the defendants’ 

motion. At bottom, there is no reason to treat these depositions differently from the 

other depositions, sought by both sides, which were allowed despite the parties’ 

inability to hold them before the then-existing deadlines. See Order (Feb. 23, 2018), 

ECF No. 92; Order (May 16, 2018), ECF No. 105.

Accordingly, although the fact discovery cut-off has passed, the defendants 

shall be allowed to depose Messrs. Wood and Weiser. The Court expects that the 

deposition of Mr. Weiser will be taken within three weeks of the date of this order, 

and that of Mr. Wood will be taken, in the United Kingdom, within four weeks of 

the date of this order. If the schedule of either deponent cannot accommodate these 

targets, the parties shall first do their utmost to arrange a mutually-agreeable later 

date for the deposition before bringing this matter back before the Court.

IT IS SO ORDERED

s/ Victor J. Wolski

VICTOR J. WOLSKI

Senior Judge