United States District Court, D. Delaware
HONORABLE LEONARD P. STARK, UNITED STATES DISTRICT JUDGE
before the Court are disputes related to Plaintiffs privilege
log (see D.I. 679, 681, 702, 722, 743), a request to
take a de bene esse deposition of a witness whose
schedule conflicts with trial (D.I. 738, 742), and a motion
to strike allegedly late-produced documents and testimony
(D.I. 725, 726, 736, 740). After conducting the in
camera review ordered on February 25 (D.I. 722), and
having considered the parties' briefing and related
materials in each of the disputes, IT IS HEREBY ORDERED that:
Plaintiff may withhold Privilege Log Entry No. 1747 in its
entirety, as it is protected by attorney-client privilege.
See generally Upjohn Co. v. U.S., 449 U.S. 383, 389
(1981). Defendants do not dispute that the document at issue
contains some privileged information, but assert the
privilege does not extend to facts contained in it. (D.I.
679) Plaintiff has met its burden to show the attorney-client
privilege applies to the entire document. See In re
Spalding Sports Worldwide, Inc., 203 F.3d 800, 805-06
(Fed. Cir. 2000) (finding attorney-client privilege extends
to entirety of invention record when "the overall tenor
of the document indicates that it is a request for legal
advice or services"). Further, having now reviewed the
document at issue, the Court finds that Plaintiff is not
improperly using privilege as a "sword-and-shield"
(for reasons including that Defendants' unpersuasive
contention is based on what is purportedly missing from the
document, rather than from facts affirmatively stated in it).
Plaintiffs request to conduct a de bene esse
deposition of Upasna Patel is GRANTED. "Factors to be
considered in granting a de bene esse deposition
after the close of discovery are: the unavailability of the
witness to appear at trial; whether the deposing party knew
of the information the potential witness would testify to
prior to the deposition; and whether the opposing party will
be prejudiced by granting the deposition - with special
attention given to the question of prejudice."
Coface Collections N. Am., Inc. v. Newton, 2012 WL
6738391, at *1 n.l (D. Del. Dec. 28, 2012). Ms. Patel's
conflict, while unfortunate, is not in and of itself so
substantial that Plaintiff could not procure her availability
at trial, if absolutely necessary. Still, in the overall scheme
of this litigation and the parties' somewhat vast and
long-running disputes with one another, and given the minimal
role Ms. Patel would likely play at trial, as well as the
fact that neither side demonstrated exemplary diligence in
bringing this dispute to a head,  the Court deems it the most
appropriate exercise of its discretion to grant the
deposition and essentially afford Ms. Patel the opportunity
to complete her testimony before trial. While Defendants
may not today know all of the precise information Ms. Patel
will testify to in the forthcoming deposition, the Court will
ensure that Defendants have at least as full an opportunity
to be prepared as they would have at trial. To that end, and
to reduce any significant prejudice that could otherwise
arise from the Court's accommodation of Plaintiff s
unusual request, (i) the deposition shall occur at a date and
place selected by Defendant, provided that they are not
unreasonable and do not interfere with Ms. Patel's plans
that have given rise to the conflict with the trial schedule;
(ii) Plaintiff shall, no less than forty-eight (48) hours
prior to the start of the deposition, produce to Defendant a
set of all documents and exhibits Plaintiff will use with Ms.
Patel in her deposition, as well as an estimate of the length
of Plaintiff s anticipated examination; (iii) Defendant's
cross-examination of Ms. Patel shall not be limited to the
scope of her direct examination by Plaintiff; and (iv)
subject to the procedures by which the Court will handle
objections to use of deposition testimony at trial, both
sides may propose to designate all or any portion of Ms.
Patel's prior and/or forthcoming deposition testimony.
Defendants' Motion to Strike (D.I. 725) is DENIED. The
Pennypack factors do not warrant striking either the
Zupkosky Documents or Ugone Document: (i) they constitute
important evidence (and striking them would cause high
prejudice to Plaintiff), with respect to Plaintiffs defense
against invalidity and its claim for damages, respectively;
(ii) Defendants are not substantially prejudiced and should
not be surprised that Plaintiff produced these documents in
response to what reasonably appeared to Plaintiff as new
contentions being asserted by Defendants for the first time
after the close of fact discovery, particularly given that
Defendants' discovery requests did not clearly call for
production of the Zupkosky Documents and Defendants had an
opportunity to examine both damages experts regarding the
Ugone Document (see D.I. 736 Ex. 3-4); (iii) the
Court's ruling does not disrupt trial; (iv) there is
little unfair prejudice to Defendants, especially given
Plaintiffs representation that it has produced all documents
in its possession, custody, and control that are like the
Zupkosky Documents (so ordering a supplemental production
would yield nothing) and Defendants' expert's testimony
that the Ugone Document "doesn't change any of [his]
work;" (v) Plaintiff has provided a plausible
explanation that it only searched (and searched again) for
these materials after Defendants made new arguments; and (vi)
there is no evidence of bad faith. See generally Meyers
v. Pennypack Woods Home Ownership Ass 'n, 559 F.2d
894, 904-05 (3d Cir. 1977).
 Ms. Patel is an employee of Plaintiff.
There is little doubt that, were it absolutely necessary to
Plaintiffs case, Plaintiff could and would compensate Ms.
Patel, her family, and her friends - all of whose plans are
evidently implicated by the conflict with the trial date -
and ensure that Ms. Patel appeared at trial.
 Plaintiff knew or should have known by
early October 2018 of Ms. Patel's conflict but did not
notify Defendants until January 9, 2019. While Defendants
never indicated they assented to the requested deposition,
they also did nothing to communicate their objection to it
until February 27, 2019. (See D.I. 738 at 2 and Exs.
2 & 3)
 Even Defendants, to their credit,
"genuinely sympathize with this family conflict."
(D.I. 742 at 2)
 Defendants assert that Plaintiff
failed to timely produce two sets of documents: (1) a series
of signed confidentiality agreements ("the Zupkosky
Documents") and associated testimony sponsoring those
documents (D.I. 697 Art. 1-7); and (2) an internal document
of Plaintiff s that, in part, assesses shave clubs ("the
Ugone Document") (D.I. 726 Ex. 6).
 Interrogatory No. 22 asked to
"[d]escribe in detail all outplant tests ... that
involved razor blades with a [chromium] containing
overcoat" (D.I. 726-4 at 6-7) and Document Request No.
32 sought "[a]ll DOCUMENTS that... relate to the
subject matter of the PATENT-IN-SUIT" (D.I. 726-2 at
10). Defendants have failed to persuade the Court that the
Zupkosky Documents are responsive to either this
interrogatory or document request.
 The Court agrees with Defendants that
the Ugone Document is responsive to Document Request No. 183,
which sought "[a]ll documents referring or relating to
advertising, surveys, or studies evaluating ... shave
clubs." (D.I. 726 at 2-3) (citing D.I. 726-7 at 9)
Still, in totality, the Pennypack factors do not
favor striking it.
 There is no basis in the record to
accept Defendants' contentions that the Zupkosky
Documents are merely a "hand-selected,"
non-representative "sample of its [Plaintiffs] own