Peerless Indus., Inc. v. Crimson AV, LLC, No. 11 C 1768, Slip Op. (N.D. Ill. May 8, 2013) (Cox, Mag. J.).
Judge Cox granted in part defendants’ (collectively “Crimson”) motions to compel depositions and documents after the close of fact discovery. Defendants sought the deposition of plaintiff’s prosecuting attorney. Plaintiff Peerless’ only argument against the deposition was that the deposition should not occur while Crimson’s invalidity summary judgment motion was pending. The Court agreed that taking the deposition now would be wasteful if summary judgment was granted and ordered that the deposition take place only if Crimson loses its summary judgment motion.
The Court could have issued the same order as to Crimson’s request to depose a third party who has allegedly an inventor of the patent in suit, but Peerless subpoenaed that deposition and then canceled it just before the close of fact discovery. But the Court held that it would have been unfair to allow Peerless’ “last minute decision” to prohibit Crimson from taking the deposition. The Court, therefore, ordered the deposition.
Finally, the Court denied Crimson’s motion to compel production of certain prototypes with leave to refile it, if Crimson lost its summary judgment motion. The Court was open to the possibility that the discovery was relevant, but there was no point in requiring the production if Crimson were to win its invalidity motion.