Shijin Vapor LLC v. Bolt USA, LLC

Background

The parties submitted a joint letter brief about a discovery dispute. The dispute primarily concerned Shijin Vapor’s notice to depose Nicholas Myers, Bolt’s trial counsel. Shijin Vapor argued that the deposition was warranted because Bolt allegedly engaged in fraud when submitting trademark applications relevant to the lawsuit and because Myers allegedly made false statements connected to those applications. Bolt argued that deposing trial counsel was improper when the information could be obtained through other means and asked the court to quash, or cancel, the deposition notice.

The dispute also affected the parties’ depositions of their corporate representatives. Bolt did not appear for its noticed deposition under Rule 30(b)(6), which allows a party to designate an organizational representative to testify. Shijin Vapor stated that it would produce its own Rule 30(b)(6) witness only after Myers’s deposition.

Court’s analysis

The court applied the three-part test from Shelton v. American Motors Corp., which courts in the district had used for depositions of opposing counsel. Under that test, a party seeking to depose opposing counsel must show that: (1) no other means exist to obtain the information; (2) the information is relevant and not protected by privilege; and (3) the information is crucial to preparing the case.

The court held that Shijin Vapor had not shown a sufficient basis for deposing Myers. In particular, Shijin Vapor had not shown that no other means existed to obtain the information. Shijin Vapor acknowledged that it might obtain discovery by deposing Bolt. The court also noted that Shijin Vapor had not served interrogatories or used other methods to obtain the information from Myers and had noticed the deposition less than two weeks before the close of discovery.

Ruling

The court denied the request to depose Myers and granted Bolt’s request to quash the deposition notice. The ruling was without prejudice to Shijin Vapor seeking to depose Myers later if, after deposing Bolt’s corporate representative, Shijin Vapor could satisfy the three-part test. The court said any renewed request would require a non-conclusory, non-privileged factual basis and a showing that no other means existed to obtain the information.

The court also found Shijin Vapor’s request for permission to file a motion to disqualify Myers premature and stated that it would not consider that request unless Shijin Vapor first showed that Myers’s testimony was crucial to the case. The court extended the close of fact discovery to October 28, 2021, directed both parties to make their Rule 30(b)(6) witnesses available for deposition, and required a further joint letter brief within seven days after the close of fact discovery if the parties could not agree about whether the Shelton test was satisfied.