# In the United States Court of Federal Claims

No. 15

- 1307 C (Filed August 2 8

, 201 8 )
NOT FOR PUBLICATION

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* CELLCAST TECHNOLOGIES, *
LLC and ENVISIONIT, LLC, *

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Plaintiff s , *

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v. *

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THE UNITED STATES

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Defendant

, *

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a nd *

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INTERNATIONAL BUSINESS *
MACHINES CORP

. , *

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Third

- part y 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, a n 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.); Plaintiff s’ Motion to Quash Subpoenas, E C F 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 Doug las Weiser twenty

- one and twenty

- eight days

, respectively, after the discovery cut

- off. Ex. A to Pls.’ Mot. The p laintiffs argue that the depositions should not be allowed because they were noticed too late in the discovery period to be held during the t ime permitted for discovery. Pls.’ Mot. at 8

–- 2

-

10

. For their part, t he d efendants instead focus on t wo subpoenas served by

International Bu siness Machines Corp

. (IB M ) in late September of 2017 , with deposition dates selected for these two individuals which were more than two weeks
before the initial di scovery 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 find s 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

- o ff . 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 d efendants 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 (1 st Cir. 1972)). While t he parties dispute at great length who is more at fault for the failure to schedule the deposit ions 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 i n 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 e xtension to be sufficient for the remaining discovery to completed, the Court notes that at l e ast 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 defendant s 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 c laim- 3

-

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 injure d 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 we re increased due to the ir 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 p laintiffs 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 N o. 105.

Accordingly, although the fact discovery cut

- off ha s 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 f our 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 Cou rt.

I T IS SO ORDERED

s/ Victor J. Wolski
VICTOR J. WOLSKI

Senior Judge