D. Del. Special Master: Party Objecting to Deposition Notice Must Seek Affirmative Relief

A recent decision by District of Delaware Special Master David A. White offers a rare precedent for disputes concerning the sequence of discovery. In the underlying infringement litigation, eBay objected to XPRT’s 30(b)(6) notice on the ground that it prematurely sought a deposition before document discovery concluded. XPRT insisted that the deposition proceed, and appeared at the noticed time.

eBay did not appear, and XPRT followed with a motion to compel eBay to designate a witness. The Court agreed that, absent a request for judicial intervention, eBay should have produced its witness:

“While one party may prefer that discovery be taken in a specific manner, the Federal Rules provide otherwise, and the objecting party bears responsibility for seeking appropriate relief. . . . Similarly, where the parties disagree as to the orderly management of discovery and discussions have reached an impasse . . . , the objecting party must seek relief from the requested discovery. eBay took no affirmative action in this instance, thereby depriving the Court of the opportunity to determine whether such arguments warranted relief.”

In other words, the party objecting to the deposition notice must preserve that objection by doing more than simply boycotting the deposition.

XPRT Ventures LLC v. eBay Inc., C.A. No. 10-595-SLR (D. Del. Mar. 30, 2011) (White, S.M.) (Letter Op.).

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