Articles Posted in Discovery

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In a case from the Eastern District of Texas, the district court granted an emergency motion to compel pertaining to source code contained on a stand-alone computer. In the case, Hyundai had loaded its source code on a stand-alone computer and provided a standard text-editor (Notepad), a source code editor (Notepad ++) and a comparison tool (Beyond Compare) to facilitate plaintiff’s review of the source code. The plaintiff found that this was insufficient and requested that Hyundai provide integrated development environments to facilitate the review, arguing that the integrated development environment was required to mimic the operation of the source code. Hyundai refused and the emergency motion was filed.

In filing its emergency motion to compel, the plaintiff argued that because of the modular nature of the source code, the integrated development environments would allow its experts to follow various jumps between modules contained in separate files, which would replicate the behavior of the source code during execution. The plaintiff noted that the tools it wanted installed are free and the installation is “virtually effortless.”
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In a patent case pending against Intel in the District of New Mexico, the plaintiff sought to compel the production of Intel’s future products that were under development. The litigation involved plaintiff’s claim that Intel infringed its patent for a process called “double patterning,” which is a process that allows for the manufacture of smaller, more powerful computer processor chips.

Plaintiff sought production from Intel of a certain size of Intel chips that were not yet sold to the public and that would not be marketed until after September 2012, a date which is after the plaintiff’s patent expires. Intel argue that the information was not relevant to a reasonable royalty calculation and production of the information would be overly burdensome because the processes were likely to change multiple times before the launch of the product.

The plaintiff argued that it was entitled to production of the information under the theory of “accelerated market entry” and that production of research and development documents would not be overly burdensome.
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In another decision involving sanctions for defendants failure to provide discovery, the district court for the Western District of Michigan granted plaintiff’s motion for default judgment. The default was granted because the defendant had not participated in discovery. As the district court stated, “Defendants have not participated in discovery, but rather have refused to provide depositions or responses to [plaintiff’s] written discovery requests.”

The district court went on to note that defendants’ conduct was willful in that the defendants had ignored discovery deadlines and previous orders from the district court. “Defendants have ignored discovery deadlines and other obligations imposed both by the Rules of Civil Procedure and explicit orders of the Court.”
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After a serious delay by the defendant in providing discovery, the district court granted plaintiff’s motion to strike the defendant’s answer and enter a default judgment. The district court found that the defendant continually mislead the plaintiff and the court regarding its discovery obligations and caused the case to be delayed for several years by doing so. “This Court gave [defendant] numerous opportunities to provide the requested documents, yet it chose to produce incomplete responses. . . . [Defendant] and [its counsel] affirmatively misled Plaintiffs — and more importantly, this Court — as to the production of documents and compliance with Court orders. . . . By failing to provide the discovery as ordered, [defendant] has prevented Plaintiffs from pursuing their claims and delayed this litigation for nearly seven years.”
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