If there is one thing that tends to kill discovery motions, it's delay. If you want to have the best chance of winning your motion to compel, supplement, strike, etc., you need to bring the motion early. Don't wait.
We got a good example of that last week in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH, D.I. 163 (D. Del. Apr. 9, 2024). There, a defendant sought to compel a deposition of an inventor before a Markman hearing, arguing that the testimony was important for claim construction. The Court denied the request, in part because they waited too long:
ORAL ORDER: The Court has reviewed the discovery dispute raised by Defendants . . . in which Defendants request that the Court compel Plaintiff to present . . . the sole named inventor of the one asserted patent, for his personal deposition in advance of the Markman hearing scheduled for April 12, 2024 . . . . Having done so, the Court ORDERS that Defendants' request is DENIED for the following reasons: (1) Defendants assert that it is necessary for Mr. Adenuga's personal deposition to take place prior to the Markman hearing because his testimony is critical to the matter of claim construction. . . . Despite this, Defendants waited until February 26, 2024 to serve the Rule 30(b)(1) notice regarding this testimony, which was after Plaintiff had filed its opening claim construction brief and Defendants filed their answering claim construction brief. . . . If it was truly necessary for this deposition to be taken prior to the Markman hearing, and if the deposition was going to be used to contribute to the Markman process, it seems that the deposition should have been noticed long before it was here and well prior to the beginning of claim construction briefing. This is particularly so in light of the fact that Mr. Adenuga resides in Germany.
This was true despite the allegation that plaintiffs themselves caused part of the delay:
[E]ven to the extent that Defendants are right that Plaintiff has caused some delay in scheduling Mr. Adenuga's deposition, this is not enough here to compel the deposition to happen on the requested timeline
So, yeah: don't leave good discovery motions to die on the vine. I've noticed this a lot lately. Even if you are allowed to delay, with every day that passes from when the issue first arises, a discovery motion becomes slightly tougher to win for the moving party. Over weeks and months, it adds up.
It can take a lot of work to meet-and-confer, raise, brief, and argue a discovery dispute or motion. No one wants it to end with "If it was so important, wouldn't they have acted faster?"
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