Judge Andrew's In re Chanbond opinion an Friday focused primarily on reopening discovery, but it also addressed a second issue, which I thought merited a separate post.
Shortly before trial, in a reply brief, Defendants sought production of an "Advisory Services Agreement" between the plaintiff and third party IPNav. They had previously informally requested the document at a deposition, and renewed that request as part of their motion to reopen discovery after the document's importance became apparent in light of the standing dispute. Defendants request at the deposition was apparently on the record, and Plaintiff indicated it would look for the document, but Defendants did not follow up with a formal document request:
I agree with Plaintiff that Defendants had the opportunity during discovery to seek the documents that they now want to get. At Ms. Leane’s deposition, [she] confirmed that “there is an advisory services agreement” between ChanBond and IPNav. . . . After Ms. Leane confirmed this, Defendants’ counsel told Plaintiff’s counsel that he did not think the agreement had been produced. . . . Plaintiff’s counsel replied that he would “take a look” and Defendants’ counsel stated, “So we’re going to formally request production, obviously.” . . . There is no evidence in the record, and Defendants do not argue, that they in fact formally requested production of the ASA and that Plaintiff failed to provide it. Defendants were on notice that the ASA existed and had the opportunity to obtain the document from ChanBond. However, they failed to exercise reasonable diligence in doing so. For that reason, there is no good cause to open discovery on this ground.
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Defendants were on notice that the ASA existed and they told Plaintiff that they would be formally requesting it. . . . Defendants did not formally request it and Plaintiff therefore did not have the opportunity to formally respond. Defendants could have obtained this document, but they did not do so. The record establishes that Defendants did not pursue acquisition of the documents with reasonable diligence.
This shows why it's important to follow up and make sure that the other side actually produces documents even after the other side promises to look for them or otherwise agrees to production.
It appears that even an on-the-record discussion at the deposition was not enough to preserve Defendants' rights absent a formal discovery request, although I imagine things would have gone better for them had they brought a discovery dispute to compel production prior to the close of discovery instead of moving to reopen discovery just before trial.
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