Free Motion to Quash - District Court of Federal Claims - federal

Case 1:92-cv-00580-EJD

Document 278

Filed 09/05/2006

Page 1 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________ ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ______________________________) SPARTON CORPORATION,

No. 92-580C Chief Judge Edward Damich

SPARTON CORPORATION'S MOTION TO QUASH THE DEFENDANT'S NOTICE OF DEPOSITION OF JAMES W. WIDENHOFER AND SUBPOENA ATTACHED THERETO PURSUANT TO RCFC 30 AND 45 Now comes the Sparton Corporation ("Sparton"), through its counsel, and moves to quash the attached defendant's notice of deposition of James W. Widenhofer and subpoena attached hereto, as amended, pursuant to RCFC 30 and 45. See Exhibit A. The defendant has purportedly attempted to

subpoena Mr. James W. Widenhofer, the inventor of the patented inventions in suit, to testify on September 13, 2006 at 9:00 a.m. Id. Mr. Widenhofer has not been

designated as an expert witness by Sparton, has provided no expert witness report to defendant, has not been served by defendant with the subpoena attached to said notice of deposition, and is a retired, and thus no longer a current, Sparton employee. See Exhibit B. I. Basis For Motion

1

Case 1:92-cv-00580-EJD

Document 278

Filed 09/05/2006

Page 2 of 6

Defendant's notice and attached subpoena are (a) in violation of the Court's May 6, 2005 Order Scheduling Discovery For The Remainder Of This Case Brought Under 28 U.S.C. §1498(a), as amended on May 10, and December 21, 2005 and (b) not in conformance with RCFC 30 and 45. A. Defendant's Notice And Attached Subpoena Are In Violation Of The Court's May 6, 2005 Order, As Amended On May 10, And December 21, 2005. The Court's May 6, 2005 Order Scheduling Discovery For The Remainder Of This Case closed fact discovery on December 31, 2006 (sic), as corrected to December 31, 2005 by order dated May 10, 2005 and as amended to January 3, 2006 by order dated December 21, 2005. See Court docket document 254. Bold and/or underscored words are for emphasis On March 28, 2006, the

supplied unless otherwise noted.

Court imposed a September 19, 2006 deadline for the close of all discovery relating to experts. See docket document 266. Mr. Widenhofer has not been designated as an expert witness by Sparton and has provided no expert witness report to defendant. Exhibit B. He thus falls under the January 3, Nearly nine

2006 deadline for the close of fact discovery.

months after the January 3, 2006 close of fact discovery, defendant now attempts to depose fact witness Mr. Widenhofer in violation of the Court's December 21, 2005 Order. This

violation compels the quashing of said notice and subpoena.

2

Case 1:92-cv-00580-EJD

Document 278

Filed 09/05/2006

Page 3 of 6

Sparton believes that defendant did not timely request Mr. Widenhofer's deposition before January 3, 2006 because it did not assert its new license defense under Contract No. N00019-70-C-0133 until it reviewed Sparton's mid-1990s produced documents immediately prior to its untimely June 27, 2006 First Amended Answer to Plaintiff's Interrogatory Nos. 1(a) and (b)(vii) and (viii). Exhibit B. Defendant's

untimely review of Sparton produced documents and untimely assertion of a new defense is not an excuse to untimely request fact discovery in violation of this Court's Orders. B. Defendant's Notice And Attached Subpoena Are Not In Conformance With RCFC 30 And 45 RCFC 30 states that "[t]he attendance of witnesses may be compelled by subpoena as provided in RCFC 45." RCFC

45(b)(1) states that "[s]ervice of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person ...." The subpoena served by defendant upon

plaintiff does not specify that service upon Mr. Widenhofer was attempted or effectuated. See Exhibit A. On information

and belief, Mr. Widenhofer has never been served the subject subpoena and resides on some island in the State of Michigan whose name and location are even unknown to Sparton's counsel. See Exhibit B. Accordingly, defendant's subpoena

should be quashed because it has not been properly served upon Mr. Widenhofer under RCFC 45(b)(1).

3

Case 1:92-cv-00580-EJD

Document 278

Filed 09/05/2006

Page 4 of 6

The subject subpoena does not specify the proposed subject matter of Mr. Widenhofer's testimony. Exhibit A. Accordingly, (a) unretained expert opinion or facts, events or occurrences relating to the on-sale defense, ECP 0465-2 and/or Sparton's development of the patented inventions in suit may be the subject of the defendant's inquiry in a deposition of Mr. Widenhofer, and (b) the defendant's new and untimely asserted June 27, 2006 defense of license under Contract No. N00019-70-C-0133 may also be the subject of the defendant's inquiry in a deposition of Mr. Widenhofer. Defendant's inquiry in a deposition of Mr. Widenhofer of the subject matter of (a) or (b) above should not be permitted under RCFC 45(3)(B)(ii) under the law of the case doctrine (i.e. Federal Circuit opinion adjudicated the on-sale defense, the subject matter of ECP 0465-2 and Sparton's conception of the patented inventions in suit) and the Court's December 21, 2005 Order (i.e. closing fact discovery on January 3, 2006) respectively. See Jamesbury Corp. v. Litton Industrial Prods., Inc., 839 F.2d 1544, 1550 (Fed. Cir.), cert. denied, 488 U.S. 828 (1988)("The law of the case is a judiciously created doctrine, the purposes of which are to prevent the relitigation of issues that have been decided and to ensure that trial courts follow the decisions of appellate courts."), overruled in other

4

Case 1:92-cv-00580-EJD

Document 278

Filed 09/05/2006

Page 5 of 6

respects, Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1042 (Fed. Cir. 1992).

5

Case 1:92-cv-00580-EJD

Document 278

Filed 09/05/2006

Page 6 of 6

In view of the above, Sparton respectfully requests that this motion be granted. Respectfully submitted, Date: September 5, 2006 s/Steven Kreiss Attorney for Plaintiff 1120 Connecticut Avenue, N.W. #240 Washington D.C. 20036 (202) 347-6382; Fax (202) 347-7711

6

Case 1:92-cv-00580-EJD

Document 278-2

Filed 09/05/2006

Page 1 of 7

Case 1:92-cv-00580-EJD

Document 278-2

Filed 09/05/2006

Page 2 of 7

Case 1:92-cv-00580-EJD

Document 278-2

Filed 09/05/2006

Page 3 of 7

Case 1:92-cv-00580-EJD

Document 278-2

Filed 09/05/2006

Page 4 of 7

Case 1:92-cv-00580-EJD

Document 278-2

Filed 09/05/2006

Page 5 of 7

Case 1:92-cv-00580-EJD

Document 278-2

Filed 09/05/2006

Page 6 of 7

Case 1:92-cv-00580-EJD

Document 278-2

Filed 09/05/2006

Page 7 of 7

Case 1:92-cv-00580-EJD

Document 278-3

Filed 09/05/2006

Page 1 of 3

Case 1:92-cv-00580-EJD

Document 278-3

Filed 09/05/2006

Page 2 of 3

Case 1:92-cv-00580-EJD

Document 278-3

Filed 09/05/2006

Page 3 of 3