Case 1:17-cv-00868-CFC-SRF Document 70-1 Filed 12/09/19 Page 1 of 122 PageID #: 1700
`Case 1:17-cv-00868—CFC-SRF Document 70-1 Filed 12/09/19 Page 1 of 122 PageID #: 1700
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`EXHIBIT A
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`EXHIBIT A
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`Case 1:17-cv-00868—CFC-SRF Document 70-1 Filed 12/09/19 Page 1 of 122 PageID #: 1700
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`EXHIBIT A
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`EXHIBIT A
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`Case 1:17-cv-00868-CFC-SRF Document 70-1 Filed 12/09/19 Page 2 of 122 PageID #: 1701
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`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
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`CIVIL ACTION
`
`NO. 19-196 (CFC)
`
`
` - - -
`Wilmington, Delaware
`Monday, April 22, 2019
`2:32 o'clock, p.m.
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`
`BEFORE: HONORABLE COLM F. CONNOLLY, U.S.D.C.J.
`- - -
`
`:::::::::::
`
`ETHANOL BOOSTING SYSTEMS,
`LLC, and THE MASSACHUSETTS
`INSTITUTE OF TECHNOLOGY,
`Plaintiffs,
`
`vs.
`FORD MOTOR COMPANY,
`Defendant.
`
`
`
`APPEARANCES:
`
`FARNAN LLP
`BY: BRIAN E. FARNAN, ESQ.
`
`-and-
`
`Valerie J. Gunning
`Official Court Reporter
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`
`
`
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`APPEARANCES (Continued):
`
` SUSMAN GODFREY LLP
` BY: MATTHEW R. BERRY, ESQ.
`(Seattle, Washington)
`
`Counsel for Plaintiffs
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: RODGER D. SMITH II, ESQ.
`
`-and-
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`ALSTON & BIRD LLP
`BY: MICHAEL S. CONNOR, ESQ.
`(Charlotte, North Carolina)
`
`-and-
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`ALSTON & BIRD LLP
`BY: NATALIE C. CLAYTON, ESQ.
`(New York, New York)
`
`Counsel for Defendant
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`P R O C E E D I N G S
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`(Proceedings commenced in the courtroom,
`beginning at 2:32 p.m.)
`
`THE COURT: Good afternoon. Please be seated.
`Good afternoon. Mr. Farnan?
`MR. FARNAN: Good afternoon, Your Honor.
`THE COURT: Good afternoon.
`MR. FARNAN: Brian Farnan on behalf of the
`plaintiffs, and with me is Matt Berry from Susman Godfrey.
`MR. BERRY: Good afternoon.
`THE COURT: Good afternoon.
`Mr. Smith?
`MR. SMITH: Good afternoon, Your Honor. Rodger
`Smith from Morris Nichols for the defendant, Ford. I'm
`joined at counsel table by Michael Connor and Natalie
`Clayton from Alston & Bird.
`THE COURT: Okay. Thank you. Good afternoon.
`MR. CONNOR: Good afternoon, Your Honor.
`MS. CLAYTON: Good afternoon, Your Honor.
`THE COURT: All right. Have you all seen I've
`posted my revised order?
`MR. SMITH: Yes, Your Honor.
`MR. BERRY: Yes, Your Honor.
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`THE COURT: Have you had a chance to read it by
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`chance?
`
`MR. BERRY: Yes, Your Honor.
`THE COURT: I'm going to be asking that you
`resubmit this once we resolve the disputes, and I will take
`any questions you have about the revised order before we
`conclude. Why don't we run through the issues.
`You're way off on some of these trial dates, so
`why don't I hear from plaintiffs first.
`MR. BERRY: Your Honor, we proposed a
`November 2020 trial date. That's approximately 22 months
`after we filed the complaint in this matter whereas Ford
`proposed July of 2021, which is about 30 months after the
`complaint was filed.
`And, Your Honor, in this case where there are
`four patents asserted, they all share a common
`specification, the same three inventors on all patents, and
`both parties agree on a five-day trial length. We think
`that 22 months after filing is more than adequate time to
`get it ready for trial, so we think November of 2020 is the
`best date.
`
`THE COURT: Okay. Let's hear from Ford.
`MR. CONNOR: Your Honor, Mike Connor for Ford.
`We had proposed as counsel indicated a July 2020
`trial date. We think --
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`THE COURT: 2021.
`MR. CONNOR: I'm sorry. 2021. Yes, Your Honor.
`We think that November 2020 is too soon.
`THE COURT: Why?
`MR. CONNOR: The issues are more complex. There
`are four patents before us, but there's more than 100 patent
`claims.
`
`There are lengthy prosecution histories related
`to these patents and related patents. There's inequitable
`conduct allegations in this case. There's a good bit of
`history between --
`THE COURT: So what makes it so special that we
`can't do two years, which is what I would expect from patent
`cases, and I've publicly said that a bunch of times. Why is
`this case so complex?
`MR. CONNOR: Well, Your Honor, we think that
`July is the right date, but we would be, if Your Honor
`chooses, obviously happy to have a date earlier in 2021. We
`think that November is too soon. That's less than two
`years.
`
`And, of course, if Your Honor chooses a spring
`2021 date, we'll be happy with that. --
`THE COURT: So here's what I'm going to do. I
`did this -- actually, Morris Nichols was on the other end of
`what I'm about to do. Because you went the to the extreme
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`of July 2021, I'm not going to split hairs. I'm just going
`to go with what the plaintiffs say, which is Morris Nichols
`benefited at the last one because they were the more
`reasonable I thought, and I'm not in the business of just
`trying to split hairs. I wish parties would figure some of
`this out instead of kind of taking extreme positions. I
`think it's extreme to be 30 months out when I think I've
`been telegraphing the parties for six months now, we ought
`to aim for 24 months.
`Now, if you had something very, very complex,
`but what you've just described, you can consult with
`Delaware counsel on both sides here, this is not the kind of
`complex case that we see in this court compared to other
`patent cases. It's just the opposite. So I'm looking at my
`calendar.
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`And I'm mindful. I want to set kind of going
`forward what people understand is, if you come to me and
`you've got these very, very extreme positions, if one of
`them seems unreasonable compared to the other, I'm not going
`to go cut the baby. I'm just going to go with the other. I
`just think it's more efficient as opposed to having somebody
`say, well, but if you can't give me the 30 months, maybe I
`will go with 28.
`So I can do November 16th of 2020, so we'll set
`that as the trial date. And we'll do a pretrial conference
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`on November 5th instead of November 2nd at 4:00 p.m.
`And are there any other dates we have to
`
`resolve?
`
`MR. BERRY: Your Honor, we would propose that we
`resolve a Markman hearing date.
`THE COURT: All right. I thought you were
`pretty close on it. You are pretty close on that. All
`right.
`
`MR. BERRY: So we had proposed a Markman hearing
`about eleven months after the complaint was on file.
`MR. CONNOR: They have October 11th, Your Honor.
`We had December the 12th of 2019.
`MR. BERRY: I think we proposed December 12th
`and I think that you proposed April the 1st, 2020.
`THE COURT: Oh, okay. You're four months apart.
`I was looking at a different date. Sorry.
`Yes, I have it. All right. And you are getting
`it in -- so let's see. Let's do the Markman on January 8,
`2020, at 9:00 a.m.
`Now, I will let you guys work out the backup
`dates, but that means you need to get the Markman brief, the
`joint brief needs to be filed by December 8th of 2020, and
`actually, that's a weekend, so let's make it December --
`would you prefer to have a Friday or an Monday deadline for
`a joint brief?
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`MR. BERRY: I prefer Friday.
`THE COURT: Well, what do you prefer?
`MR. CONNOR: Friday, Your Honor.
`THE COURT: Friday? So we'll do it then
`December 6th, 2019, you've got to file the brief here. Now,
`you're going to rework then the dates for the Markman
`hearing and I don't know if that's going to cause any other
`dates prior to that. Let's see.
`MR. CONNOR: Your Honor, one thing that the
`parties are disparate on is the deadline to amend pleadings,
`join parties.
`THE COURT: Okay.
`MR. CONNOR: Obviously, the problem with the
`plaintiffs' proposal is that the deadline to amend
`pleadings, join parties that they had proposed is September
`the 25th. The document production isn't completed until
`after that, Your Honor, so I think that's a problem.
`THE COURT: So that could be potentially a
`problem, I agree. What do you say?
`MR. BERRY: How about one month after we
`complete the production of documents? Would that work?
`THE COURT: Would that work?
`MR. CONNOR: Your Honor, I think Mr. Smith has
`proposed an option for 30 days after for issues other than
`inequitable conduct, but if inequitable conduct issues need
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`to be adjusted, then it will be 60 days or a later date.
`THE COURT: I gave you room on inequitable
`conduct. Do you have a separate thing in here for that?
`MR. CONNOR: We do not, I think, Your Honor.
`THE COURT: All right. So I agree that that may
`not come up until down the road, so I'm very comfortable
`with separating those two out.
`MR. CONNOR: Okay.
`THE COURT: So given that, what would you
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`propose?
`
`MR. BERRY: Your Honor, we'd propose also
`grouping willfulness with inequitable conduct because it's
`two very similar issues with respect to joining parties.
`THE COURT: Okay. Wait a second. Time out.
`Sorry. I don't know what I was thinking here. No, you are
`the plaintiffs. Sorry.
`MR. CONNOR: Your Honor, I think that --
`THE COURT: Yes. I'm not going to tie
`willfulness to inequitable conduct. I don't think that's
`the same thing. Sorry. I understand where defendants may
`learn something during the course of discovery about
`prosecution history. That seems to be one thing.
`Willfulness seems to be -- do you allege willfulness in the
`complaint?
`
`MR. BERRY: I'm sorry, Your Honor?
`
`
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`THE COURT: And you allege willfulness?
`MR. BERRY: Yes. We withdraw the question.
`It's fine for willfulness to be the same date as the main
`date.
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`
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`THE COURT: Okay. Anyway then, sir, what do you
`
`suggest?
`
`MR. CONNOR: So for inequitable conduct, I think
`we have a discovery cutoff, and the plaintiffs' proposal is
`March 13, 2020, and I think that for inequitable conduct, a
`cutoff of February 2020 would work.
`THE COURT: All right. So we would have a
`deadline to amend the pleadings to join parties would be,
`and the plaintiff suggested -- what was the date, sir, the
`date that you would have had for -- Mr. Berry, what date did
`you have in mind?
`MR. BERRY: Your Honor, I think the relevant
`date is not the discovery cutoff. It's the deadline to
`complete your production of documents.
`THE COURT: Right.
`MR. BERRY: And that date --
`THE COURT: No. This is just to join for
`non-inequitable conduct. Right?
`MR. BERRY: We're fine with the earlier date
`that we had in here of September 25th, 2019.
`THE COURT: Right.
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`MR. CONNOR: I think we have a problem with the
`
`
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`date.
`
`THE COURT: They have a problem with the date on
`that just because of general document production. I thought
`you offered 30 days after document production.
`MR. BERRY: Okay.
`THE COURT: What would that give us?
`MR. BERRY: That would give us December 4th
`because we have a production deadline of November 4th.
`THE COURT: Okay. I think you've got agreement
`on that. Right? We can agree to join -- deadline to amend
`pleadings to join parties will be December 4th, 2019 except
`with respect to inequitable conduct. And inequitable
`conduct, what's the deadline?
`MR. CONNOR: Early February. I will have to
`look at a calendar.
`THE COURT: Mr. Berry, do you have a date in
`early February?
`MR. BERRY: I would defer to counsel.
`THE COURT: Okay.
`MR. BERRY: That's fine.
`MR. CONNOR: February 2019 would be -- 2020.
`February the 10th.
`THE COURT: Okay.
`MR. BERRY: Sure.
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`THE COURT: All right. So then that will be
`February 10th. I will go over this before we finish up.
`Okay.
`
`
`
`Then all that's left is the Markman exchanging
`of terms and whatnot, and you've got to move backwards from
`my date on that. So if you want to, when you submit the
`revised order, work that out. Okay?
`Now, plaintiff, you've asked for, you know, the
`date. If you can't get the brief by December 8th, then
`we'll get a new date, so keep that in mind. You will have
`to work with the defendants on that.
`MR. BERRY: Yes, Your Honor.
`THE COURT: All right. Does that make sense,
`
`sir?
`
`on dates?
`
`Thank you.
`
`it.
`
`MR. CONNOR: Yes, Your Honor.
`THE COURT: All right. Is there anything else
`
`MR. BERRY: I think that's it, Your Honor.
`
`THE COURT: All right.
`MR. CONNOR: I think, Your Honor, that concludes
`
`THE COURT: All right.
`MR. CONNOR: Nothing else, Your Honor, on dates.
`THE COURT: On dates. Okay. Good. So then
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`we're good on dates.
`So let's go with -- all right. Then we've got
`requests for admission is the first thing, I believe. Oh,
`no, no. We've got request for production. So on the first
`one, I'm not even used to seeing debates over this.
`MR. CONNOR: That's a request for production,
`Your Honor?
`THE COURT: Yes.
`MR. CONNOR: Oh.
`THE COURT: And plus aren't they just going to
`make them as broad? If I reduce the number, is it really
`meaningful to do that?
`MR. CONNOR: I understand, Your Honor, the
`issue, and we would like to minimize the burden of
`discovery, obviously. We don't mean to be unreasonable,
`but --
`
`THE COURT: Well, why don't we just do this.
`I'm going to just not put a number in. I don't think I've
`ever seen a number in.
`MR. CONNOR: Yes.
`THE COURT: So I'm going to go with the
`plaintiff on that. And, you know, we have discovery.
`There's unduly burdensome discovery. There's means of the
`defendant to thwart that.
`MR. CONNOR: Yes.
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`THE COURT: All right?
`MR. CONNOR: Understood.
`THE COURT: All right. Then requests for
`admission. What's the downside of what the plaintiffs
`propose on that?
`MR. CONNOR: I think those are things that
`should be worked out probably without requests for
`admission, Your Honor.
`THE COURT: I agree with you, but I mean, yes.
`You know, actually, why don't I just -- I'm not going to put
`it in there. I've had four trials in the last couple of
`months. I've not been very, what's the word, receptive to
`folks making unnecessary arguments on authenticity. I think
`this side will be reasonable on that.
`MR. BERRY: That sounds great. Thank you, Your
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`Honor.
`
`THE COURT: We'll just go with the defendant's
`on that. Just have it be 40.
`Interrogatories are agreed upon. Then we get to
`depositions.
`MR. BERRY: Your Honor?
`THE COURT: Yes?
`MR. BERRY: May I clarify one thing on
`interrogatories? I think this is true of all the discovery
`today, but it's per side, it's not per party. I think we
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`have an agreement on that.
`THE COURT: Yes.
`MR. BERRY: Okay.
`THE COURT: And that frankly limits you more
`
`than them.
`
`MR. BERRY: Yes. I just want to make sure both
`sides are on the same page.
`THE COURT: Well, are you?
`MR. CONNOR: That's fine.
`MR. SMITH: That's our understanding, Your
`
`Honor.
`
`MR. CONNOR: That's our understanding.
`THE COURT: Okay. Good. So limitation on hours
`for deposition discovery. All right.
`So the first debate is the defendants want to
`limit the number of fact witnesses, but you're in agreement
`about the number of hours?
`MR. CONNOR: Yes, Your Honor. It's our thought
`there might be 35 two-hour depositions. We don't think
`that's fair or reasonable, so we think a number of witnesses
`is an appropriate limit, and I think 15 is more than
`sufficient for this case.
`THE COURT: Is there some reason to believe --
`this is much more litigious than I'm even used to in patent
`cases. Is something going on here that I need to know about
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`this case?
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`MR. CONNOR: I mean, we agreed on the hours. I
`think the hours is a reasonable number in line with the
`Federal Rules, Your Honor.
`THE COURT: Right.
`MR. CONNOR: My client is often a defendant, not
`so often in these types of cases, but often a defendant and
`subjected to a large number of depositions, and that's the
`concern.
`
`THE COURT: I just wonder because it's normally
`in the contexts of a class action, you know, rollover suit
`or something as opposed to a patent case. I don't know. I
`mean, how many witnesses do you think you're going to end up
`wanting to depose?
`MR. BERRY: We wouldn't expect it to be that
`many. The problem though, Your Honor, is by having just an
`hour limit, we know what the upper cap is, and an hour limit
`encourages efficiency in every deposition because you have
`incentive to do it as quickly as possible and keep your
`hours down whereas if you have a number limit there as well,
`either party, if it's subconsciously, will try to -- not try
`to, but depositions can get longer because they know that,
`you know, this is number 14 and I have plenty of time to do
`a seven-hour deposition. So it's just an efficiency thing,
`Your Honor.
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`MR. CONNOR: Of course, that doesn't really
`apply here, Your Honor, because we do have an hour limit in
`place. Right?
`THE COURT: Why don't we go with the hour limit.
`If you think you're getting harassed, I guess you can bring
`a protective order, seek a protective order to prevent that,
`and in one of our discovery disputes, I guess we could deal
`with it.
`
`MR. CONNOR: All right.
`THE COURT: Let's go with 70 hours each. Then
`we get to the next sentence. Okay. Now, this is
`interesting. Why don't I hear from Mr. Berry here for a
`second.
`
`MR. CONNOR: Okay.
`THE COURT: You know, why should they have to
`make any witness who appears at trial subject to a
`deposition?
`MR. BERRY: It's really a couple of benefits,
`Your Honor. It a benefit to both parties in the same way.
`The benefit is it allows you during fact discovery to focus
`on the opposite side, what do you need to get for your case,
`and it minimizes the number of depositions. You don't try
`to get who the other side is bringing to trial and just go
`figure out what they are going to say and try to figure out
`that before trial.
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`So you can be efficient on the number, both
`sides can depose fewer people, and then if one side
`surprises the other and puts somebody new on their witness
`list, you can do a quick deposition, especially at the time
`when you're frankly more efficient right before a trial and
`you know what the issues are going to be, and do that
`deposition close to trial.
`It doesn't come up very often, but when it does,
`it helps reduce the number of depositions during discovery
`because you don't feel compelled to look under every stone
`of where they might be having a witness who could later
`appear at trial.
`So this is something that's common that we
`propose, and both sides usually agree to at the beginning of
`the case, because it benefits both parties.
`THE COURT: All right. Let me hear from Mr.
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`Connor.
`
`MR. CONNOR: Your Honor, we think that this
`provision as written is unfair, and it actually, it could
`defeat the purpose of an orderly trial preparation and
`discovery process, Your Honor. The rules provide for and
`require Rule 26(a) initial disclosures. They provide for
`interrogatories, for witnesses having knowledge and other
`discovery means. And during the fact discovery phase, the
`parties should be required to prepare their case rather
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`than waiting until the eve of trial and postponing
`depositions that they otherwise could take during the
`discovery period.
`Mr. Berry mentioned one example. If someone, if
`an adverse party puts a new witness on his or her trial list
`that that deposition might be necessary, and it might in
`that instance, Your Honor, and an application might be
`appropriate at that time depending on the circumstances if
`some new witness is sprung at the eleventh hour. But for
`witnesses who can be taken during the normal fact discovery
`period, those depositions should be taken during the fact
`discovery period.
`THE COURT: I agree with you. I think the
`process would work in a more orderly fashion if we do not
`have this carveout, and I gave the plaintiff 70 hours, so I
`think you should have plenty of time to prepare your case.
`All right?
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`MR. BERRY: Thank you.
`THE COURT: So I'm going to go with defendants.
`At least I'm not going to -- I'm going to reject the
`plaintiffs' proposal. And then we get to defendant's
`proposal.
`
`So, Mr. Connor, you're up here. No party shall
`be required to respond to more than 30 Rule 30(b)(6) topics.
`Okay. I mean, you like these limitations. You must live in
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`a very -- do you have kids?
`MR. CONNOR: Yes, Your Honor.
`THE COURT: I get accused of putting caps on my
`kids all my time. So no more than 30 topics. How did you
`pick 30?
`
`MR. CONNOR: We think that's a reasonable
`number. I mean, certainly, I understand how reasonable
`minds could differ, Your Honor, but I've been in many cases
`where an adverse party might serve even a hundred 30(b)(6)
`topics. Oftentimes they are overlapping. They are
`redundant. They require a lot of wasted time for objections
`and negotiations of scope in order to limit discovery
`disputes that might be presented to the Court. We think
`that in a case of this size and type with the numbers of
`issues generally being known, that some reasonable limit is
`appropriate, and we had proposed what seemed to be a
`reasonable mechanism for trying to work out any differences
`that come up on that, but that goes beyond the number, of
`course.
`
`THE COURT: And then you want to put the burden
`on the serving party to seek relief from the Court so that
`basically, if you all reach an impasse, then you're saying
`they have to go first to --
`MR. CONNOR: To file a motion to compel, yes.
`THE COURT: They probably don't object to that.
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`Well, no. Do you have an objection to that?
`MR. BERRY: We do. In fact, a fairly strong
`objection, Your Honor, because what that does, it puts the
`burden on us to know what they're going to prepare their
`witness on, whether they are going to stand on objection
`before the deposition happens.
`So, for example, if Ford were to object to a
`topic saying it's overbroad, unduly burdensome, that doesn't
`tell us whether or not they're going to prepare somebody on
`that topic. What they know internally though, are they
`going to prepare somebody, and if it's something that is so
`far off limits that they say that there can be no testimony
`on that subject, then they would seek a protective order.
`But really, there should be very few disputes
`where we'd have to go to the Court on a Rule 30(b)(6)
`deposition. If Ford has information that's relevant to the
`case, they should prepare a witness on it. If they don't
`have information, then it's an easy, we don't have that
`information.
`We don't know what they have, so by putting the
`burden on us before the deposition to go to the Court and
`try to seek relief seems like it's just inviting motion
`practice to go before Your Honor.
`THE COURT: Mr. Connor, what do you think?
`MR. CONNOR: Well, I think, Your Honor, I think
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`the way this works out and the way it has in my experience,
`the parties do negotiate the scope of the request.
`Sometimes the propounding party will limit the request to
`eliminate any objection, but I think that if an objection
`stands, that that would be the time to make a motion on it.
`Either the objections are resolved from negotiation or the
`motion to compel that is a matter of significance would have
`to be made.
`
`MR. BERRY: Your Honor, we would be happy to,
`and we'll work with Ford to try to minimize the number of
`objections, but what they're proposing here is the opposite
`of what's in the Federal Rules, which puts the burden on
`them to seek a protective order in the context of a 30(b)(6)
`deposition.
`THE COURT: All right. Well, I'm going to
`reject the defendant's, at least in my experience, unusual
`request, but I'm not going to reject it as unusual. I think
`it will out well, and I think counsel on both sides can work
`this out, negotiate and come to the Court as minimally as
`possible.
`
`MR. BERRY: Your Honor, we have one more
`deposition proposal that we skipped over that we should
`maybe address now before we move onto a different topic.
`THE COURT: All right.
`MR. BERRY: And it's that within 30 days of
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`requesting a fact deposition, that the other side provide
`dates within 30 days. So if Ford were to request a
`deposition of a plaintiff, we would provide dates within
`30 days of the request, dates for the deposition. And it's
`intended to avoid disputes to make sure the depositions
`happen quickly and the case is moving forward towards trial
`as quickly as possible.
`THE COURT: Okay. I mean, actually, it seems
`pretty reasonable. What do you think, Mr. Connor?
`MR. CONNOR: Your Honor, we're going to proceed
`reasonably within the case.
`I don't know who they're asking for depositions
`of. I have no idea at this point, Your Honor. If they
`asked for someone in senior management, we may oppose giving
`them that witness entirely, of course. If the witness is
`appropriate for deposition, it may be impossible to schedule
`such a person within 30 days from what I understand.
`THE COURT: No, no. He's not saying schedule
`within 30 days. If he is, I'm going to object to that.
`MR. BERRY: Schedule --
`THE COURT: No, no. It says --
`MR. CONNOR: Let's produce a witness.
`THE COURT: It does say that. Sorry. That's
`different than what I understood you to say. I thought you
`said, which I thought was reasonable is, they've got to give
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`Case 1:17-cv-00868-CFC-SRF Document 70-1 Filed 12/09/19 Page 25 of 122 PageID #:
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`you some dates. Within 30 days, they have to give you the
`dates, but if you mean they have to have a witness put up
`for a deposition within 30 days of the request, that doesn't
`seem right. Is that what you want?
`MR. BERRY: It is what we would like, Your
`Honor. If that's not reasonable, then what would be nice
`would be to have something set, whether it's 30 days or
`45 days, because by doing so now, it avoids disputes on
`scheduling later --
`THE COURT: So this is interesting: This is the
`first time this has come up. There is something reasonable
`about it as a general rule. Now, the problem is, you know,
`Ford is a massive company and there's just no way you can
`expect a senior executive of Ford to just know, you know, I
`can snap my fingers and be somewhere in 30 days for a
`deposition. I don't think that's -- are there overseas
`witnesses?
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`MR. CONNOR: I have no idea, Your Honor.
`THE COURT: And by the same token, I doubt the
`president of MIT would necessarily have a calendar clear for
`30 days. On the other hand, I've seen litigation where both
`sides, plaintiff and defendant, you know, delay setting
`things up and make it very difficult to expeditiously, or
`efficiently, I should say, litigate a case.
`Any thoughts, Mr. Connor?
`
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`MR. CONNOR: Your Honor, we intend to be
`reasonable and that's all I can offer. We've done many
`cases and scheduling issues come up and they're dealt with,
`and if someone has a problem, in a rare case they make an
`application to the Court. I hope that doesn't happen. I
`don't expect it on behalf of Ford witnesses, but I don't
`think this hard and fast rule is appropriate.
`THE COURT: You know, there is some irony to
`want to cap the number of topics and whatnot. Of course,
`there's some irony on your part, I guess, too, because you
`didn't want me to cap it, but put a day limitation in, Mr.
`Berry. Have you ever had one of these in a case?
`MR. BERRY: Yes, Your Honor.
`THE COURT: How often? Can you tell me a case
`where you've had one?
`MR. BERRY: Yes.
`MR. FARNAN: Your Honor, one reason we suggest
`it is because we're seeing a trend these days lately where
`parties are producing the last two weeks of discovery and it
`creates an impossible problem.
`THE COURT: And I'm seeing that.
`MR. FARNAN: That's what we're trying to
`prevent. Whether it's 30 days, 45, we just didn't want to
`get -- all of the two witnesses in the last two weeks, to
`fly them around the country taking multiple depositions, and
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`you can't do followup discovery. So we just wanted to be
`orderly and timely. We're not trying to put a burden on
`them. It is just to help to plan and do it in a timely
`fashion.
`
`
`
`THE COURT: And I am seeing that myself. I've
`noticed a lot of that in the last couple of weeks.
`Discovery conferences are before me and I'm making a
`decision, and the next thing you know, folks either have
`double digit number of depositions within three weeks, or
`what typically happens is then they want to move the
`discovery deadline back. So I do see that happen, and I
`would say this isn't the first time this particular issue
`has come before me, but it strikes me as a matter of case
`management, it would be good to come up with a solution for
`this.
`
`MR. CONNOR: I think pro
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