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Sloan Valve Co v. Zurn Industries

November 13, 2012

SLOAN VALVE CO
v.
ZURN INDUSTRIES



Name of Assigned Judge or Magistrate Judge Amy J. St. Eve Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court grants Plaintiff Sloan Valve Company's motion for a protective order [402] barring Zurn from conducting a deposition on Sloan's final infringement contentions or pursuant to the Rule 30(b)(6) deposition notice dated January 27, 2012, Exhibit A of Sloan's motion.

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

STATEMENT

Before the Court is Plaintiff Sloan Valve Company's ("Sloan") motion for a protective order. (R. 402, Mot.) Sloan moves this Court to enter a protective order pursuant to Federal Rule of Civil Procedure ("Rule") 26(c) barring Defendants, Zurn Industries, Inc. and Zurn Industries, LLC (collectively, "Zurn"), from conducting a Rule 30(b)(6) deposition regarding Sloan's infringement contentions.*fn1 (Id.) For the following reasons, the Court grants Sloan's motion for a protective order.

Courtroom Deputy KF

Initials:

BACKGROUND

In January 2010, Sloan sued Zurn for infringement of U.S. Patent No. 7,607,635 ("the '635 Patent").*fn2 (R. 1, Compl.)On November 22, 2011, Sloan served upon Zurn its Updated Final Infringement Contentions. (Mot. at 2.) On January 27, 2012, Zurn served on Sloan Defendants' Notice of Deposition of Plaintiff Pursuant to F.R.C.P. 30(b)(6) ("the 30(b)(6) notice"), requesting a corporate witness to testify on numerous topics related to Sloan's final infringement contentions. (Id.) On March 19, 2012 Sloan served upon Zurn Supplemental Updated Final Infringement Contentions to address concerns Zurn had expressed during a March 6, 2012 meet and confer telephone conference. (Id. at 4.) On October 12, 2012, Sloan served upon Zurn its Amended Final Infringement Contentions. (Id. at 5.) Sloan seeks a protective order to bar Zurn from conducting Rule 30(b)(6) fact depositions on its final infringement contentions. (Mot. at 1-7.)

LEGAL STANDARD

The Federal Rules of Civil Procedure provide that a "court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). The moving party bears the burden of showing good cause for a protective order. See Central States, Se. & Sw. Areas Pension Fund v. Nat'l Lumber Co.,No. 10 C 2881, 2012 WL 2863478, at *2, (N.D. Ill. July 11, 2012) (citing Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994). Under Rule 26(c)(1) the Court may forbid the disclosure or discovery sought by a party or forbid inquiry into certain matters. See Fed. R. Civ. P. 26(c)(1)(A) & (D). "Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required." Gordon v. Countryside Nursing & Rehab. Ctr., LLC,No. 11 C 2433, 2012 WL 2905607, at *2 (N.D. Ill. July 16, 2012)

ANALYSIS

As a threshold matter, despite filing a Response (R. 405) and a Sur-Reply (R. 418), Zurn has largely failed to address the specific issue raised in Sloan's motion and Reply, namely whether the Court should bar Zurn from taking a Rule 30(b)(6) deposition regarding Sloan's infringement contentions. Rather than address the deposition issue, Zurn repeatedly argues that the Court should require Sloan to "produce all documents and data, including any documents and data prepared by non-testifying experts, responsive to Zurn's discovery requests." (Resp. at 3, 7-10; Sur-Reply at. 2.) Indeed, Zurn repeatedly requests that the Court enter an order compelling Sloan to produce documents and data relating to testing done on Zurn's own device. (See e.g., Resp. at 11-12; Sur-Reply at 2.) Such a request is proper in a motion to compel, not in response to this motion for a protective order. The Court, therefore, disregards these arguments and finds that Zurn has waived any argument regarding whether it may depose one of Sloan's trial attorneys regarding its infringement contentions and whether there are any "exceptional circumstances" necessitating a deposition of Sloan's non-testifying expert, as Zurn has addressed neither ...


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