In this patent infringement action, defendant Dynamic Drinkware, Inc. ("Drinkware" or "Defendant") filed a motion to permit it to present live video testimony at trial, or, in the alternative, to take the deposition of a non-party named Dan Blondal for use at trial. The plaintiff, National Graphics, opposed the motion and filed a motion for a protective order seeking to bar the proposed deposition.

The Plaintiff opposed the motion on the ground that discovery has been closed for a full year and that trial was scheduled to start in six weeks. Although the Defendants viewed Mr. Blondal as an important witness, they never deposed him during the discovery period.

In response, the Defendants argued that this not a "pickle of their own making," as the Plaintiff puts it, but merely an unforeseen scenario arising out of the fact that their witness has recently decided to become more cooperative by being deposed or testifying live at trial via video. The district court explained that previously, "the witness had expressed a desire to remain out of the case and would not consent to such appearances, apart from a declaration he filed several years ago. Now the witness has had a change of heart and wants to help, but not to the extent of actually appearing in court."

The district court did not find these reasons compelling to either permit a deposition or the testimony via live video at trial. "[T]his is not a case presenting 'compelling circumstances' to permit testimony other than in open court. Fed. R. Civ. P. 43(a). It is true that the witness lives in a foreign country, but that country is Canada, not Mozambique. The notes to Rule 43 evince a clear mandate for live, in-court testimony. . . . Similarly, the local rules of this district provide that depositions to preserve testimony for trial must be conducted within the appropriate discovery deadlines, which have long lapsed. Civil L. R. 26(c). The mere fact that a witness has changed his mind does not warrant reopening discovery."

The district court also denied the request because there was concern that any arguments based on Mr. Blondal's testimony had been waived. "In extensive summary judgment proceedings--both sides moved for summary judgment on validity--this court addressed several invalidity arguments. If it were relevant, the time for presenting Mr. Blondal's testimony was then, not now. Summary judgment 'is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.' Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999). Summary judgment, particularly in a complex patent case like this one, is designed in part to winnow the issues down for trial. Properly done, this crystallizes the factual and legal issues posed and lessens the burden ultimately placed on the factfinder. Here, allowing additional testimony that was not before the court on cross-motions for summary judgment would circumvent that process without adequate justification, particularly when the issue of validity itself was before the court."

Accordingly, the district court denied the motion to re-open discovery or to permit the witness to testify live through video conference.

National Graphics, Inc. v. Brax LTD, Case No. 12-C-1119 (E.D. Wisc. March 18, 2016)