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Dsm Desotech Inc. v. 3d Systems Corporation

January 12, 2011

DSM DESOTECH INC.
v.
3D SYSTEMS CORPORATION



Name of Assigned Judge or Magistrate Judge Sharon Johnson Coleman Sitting Judge if Other than Assigned Judge Nan R. Nolan

CASE TITLE

DOCKET ENTRY TEXT

3D Systems' Motion to Compel Desotech to Comply with Fed. R. Civ. P. 30(b)(6) and to Provide Additional and Prepared Witnesses for Further Deposition and For Sanctions in Connection Therewith [223] is granted in part and denied in part.

O [ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

I. Background

This motion concerns Desotech's patent infringement claims. On the patent claims, Desotech asserts that 3D Systems' machines that use a ZephyrTM recoater infringe two patents, US Patent Nos. 6,340,297 (the '297 Patent-In-Suit) and 6,733,267 (the '267 Patent-In-Suit).3D Systems served a Rule 30(b)(6) Notice of Deposition on Desotech on August 6, 2010 regarding patent topics. For the 30(b)(6) deposition relating to the patent aspects of this case, Desotech provided John Southwell.

The parties dispute the adequacy of Mr. Southwell's preparation for the deposition. 3D Systems describes Mr. Southwell as a "lower-level technical employee who did not work for the Somos Business Group of Desotech until after the relevant time periods." (Doc. 225 at 5). 3D Systems contends that Mr. Southwell was not properly prepared at the deposition on October 21, 2010. In its current motion, 3D Systems requests that Desotech (1) be compelled to provide a prepared witness to address the deficient topics, (2) provide such witness at 3D Systems' counsel's offices in New Jersey, and (3) compensate 3D Systems for its reasonable fees and expenses incurred in bringing this motion and retaking the deposition on the deficient topics.

Desotech says that it complied with its obligations under Rule 30(b)(6) in designating and preparing Mr. Southwell to testify on its behalf. Desotech contends that it established prior to the deposition that Desotech would not provide a witness to testify to the extent that the topics called for privileged information or the corporate knowledge of DuPont. Desotech argues that it is entitled to fees and costs for responding to 3D Systems' unwarranted and untimely motion to compel.

II. Discussion

Federal Rule of Civil Procedure 26(b)(1) prescribes the scope of matters upon which a party may seek discovery. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Under Federal Rule of Civil Procedure 30(b)(6), a "named organization must . . . designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf. . . . The persons designated must testify about information known or reasonably available to the organization." "If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation." United States v. Taylor, 166 F.R.D. 356, 360 (MD. N.C. 1996). The goal of the Rule 30(b)(6) requirement is to enable the responding organization to identify the person who is best situated to answer questions about the matter." Wright & Miller, 8A Federal Practice & Procedure § 2103 (3d ed.).

Desotech asserts several recurrent reasons to deny 3D Systems' motion to compel: (1) certain topics improperly seek to discover the mental impressions and legal opinions of Desotech's counsel; (2) Desotech is not required to have Mr. Southwell speak with former Desotech attorneys to prepare for the deposition; (3) Desotech is not able to speak for DuPont; and (4) certain information sought by 3D Systems would be better obtained through individual depositions. The Court addresses these recurrent issues below. The Court's general rulings on these issues should be applied to all specific deposition topics, without regard to whether a particular topic is discussed.

A. Work Product Doctrine and/or Attorney-Client Privilege

As for the work product doctrine, Federal Rule of Civil Procedure 26(b)(3)(A) provides that a party ordinarily may not discover "documents and tangible things that are prepared in anticipation of litigation or for trial" by opposing counsel. Rule 26(b)(3) addresses "documents and tangible things." The Supreme Court's definition of work product in Hickman v. Taylor, 329 U.S. 495 (1947) also extends to "intangible" things. U.S. v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir. 2010). "Hickman provides work-product protection for intangible work product independent of Rule 26(b)(3)." Id. (noting the Hickman court explained ...


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