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Court Orders Sanctions for Failure to Produce Source Code on a Timely Basis

Plaintiffs Ericsson Inc. and Telefonaktiebolaget LM Ericsson’s (“Ericsson”) filed a motion to compel discovery of source code and technical documents, pursuant to Local Patent Rule 3-4 in the Eastern District of Texas. As explained by the district court, Patent Local Rule 3-4 requires the party opposing a claim of infringement to produce or make available “[s]ource code, specifications, schematics, flow charts, artwork, formulas, or other documentation sufficient to show the operation of any aspects or elements of an Accused Instrumentality identified by the patent claimant in its P. R. 3-1(c) chart.”

Pursuant to this local rule, Ericsson sought technical documents relating to hardware, technical documents relating to Android, and source code. The district court explained that “[t]he parties agree that the deadline for Pat. L.R. 3-4 production was May 8, 2015. The parties also do not dispute that, as of September 4, TCL had not yet complied with its Pat. L.R. 3-4 obligations. Specifically, while TCL’s production of technical documents relating to hardware is substantially complete, TCL has not made a complete production of technical documents relating to Android and TCL has not produced a complete set of source code for the accused products.”

TCL explained to the district court that its four-month production delay was due to internal misunderstandings of the documents and source code in its possession. TCL also attempted to justify its delay based on the need to address confidentiality obligations it owed to third parties whose proprietary code was allegedly incorporated into TCL’s source code.

The district court was not persuaded. “The Court does not consider a four-month delay in complying with Local Rule 3-4 excusable. Irrespective of any confidentiality obligations or difficulty locating documents, a party must fully comply with Rule 3-4 on or before the deadline unless that party (or an intervening third party) moves the Court for relief.”

As a result, the district court granted the motion and ordered TCL to produce the source code and technical documents to pay reasonable expenses incurred in bringing the motion to compel.

Ericsson Inc. v. TCL Communication Technology, Case No. 2:15-cv-00011-RSP (E.D. Tex. Sept. 2015)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or