      In the United States Court of Federal Claims
                                    No. 15-1307C
                               (Filed August 28, 2018)
                              NOT FOR PUBLICATION


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                                  *
CELLCAST TECHNOLOGIES,            *
LLC and ENVISIONIT, LLC,          *
                                  *
                 Plaintiffs,      *
                                  *
      v.                          *
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant,       *
                                  *
      and                         *
                                  *
INTERNATIONAL BUSINESS            *
MACHINES CORP.,                   *
                                  *
           Third-party defendant. *
                                  *
* * * * * * * * * * * * * * * * * *


                                       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, an 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.); Plaintiffs’
Motion to Quash Subpoenas, ECF 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 Douglas Weiser twenty-one and twenty-eight days,
respectively, after the discovery cut-off. Ex. A to Pls.’ Mot. The plaintiffs argue that
the depositions should not be allowed because they were noticed too late in the
discovery period to be held during the time permitted for discovery. Pls.’ Mot. at 8–
10. For their part, the defendants instead focus on two subpoenas served by
International Business Machines Corp. (IBM) in late September of 2017, with
deposition dates selected for these two individuals which were more than two weeks
before the initial discovery 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 finds 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-off. 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 defendants 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 (1st Cir. 1972)). While the parties
dispute at great length who is more at fault for the failure to schedule the
depositions 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 in 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 extension to be sufficient for the remaining discovery to
completed, the Court notes that at least 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 defendants 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 claim

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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 injured 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 were increased due to their 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 plaintiffs
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 No. 105.

       Accordingly, although the fact discovery cut-off has 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 four 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 Court.


IT IS SO ORDERED



                                       s/ Victor J. Wolski
                                       VICTOR J. WOLSKI
                                       Senior Judge




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