Articles Posted in Discovery

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The plaintiff, Chrimar Systems Inc. and Chrimar (“Chrimar”) filed a motion to compel an additional deposition of Defendant D-Link Systems, Inc.’s (“D-Link”) corporate representative, William C. Brown. Chrimar previously took the deposition of D-Link’s corporate representative, pursuant to Federal Rule of Civil Procedure 30(b)(6).

After the deposition concluded, Mr. Brown supplied an errata sheet, correcting numerous portions of his deposition testimony pursuant to Federal Rule of Civil Procedure 30(e). In its motion, Chrimar contends that over 60 answers were materially altered and several answers were changed from “yes” to “no.” As a result, Chrimar moved the district court to compel “Mr. Brown for a second deposition in Dallas, Texas regarding the changes represented in his errata sheet.”
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The plaintiff filed a complaint against the defendant for patent infringement, trade dress infringement and unfair competition, among other claims, based on the defendants’ marketing and selling of portable vaporizers. The plaintiff contended the portable vaporizers incorporated the plaintiff’s technology.

After serving discovery, the defendants filed a motion to compel and the plaintiff did not respond to the motion to compel. After the district court issued an order to show cause why the motion should not be granted, the plaintiff filed a response to the district court’s order stating that the lawyer’s assistant had left the firm “causing communication between the Plaintiff and opposing counsel to suffer.” Plaintiffs also reported that the parties had been attempting to settle, and Plaintiffs reasonably believed that the case would already have settled. On the same date, the Plaintiff moved for a thirty day extension of time to respond to the document requests, which the district court denied because the parties had not met and conferred.
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In this patent infringement action, the Defendant, GHP Group, Inc. (“GHP”), hired the Plaintiff’s, ProCom Heating, Inc. (“ProCom”), president during the litigation. The Plaintiff then filed a request for a temporary restraining order and a preliminary injunction to preclude the Defendant from discussing the case with the Plaintiff’s former president.

To analyze the request for preliminary injunction, the district court noted that Kirchner was President of ProCom from October 6, 2014, to September 1, 2016, that during his time as President of ProCom, he was highly involved in the litigation, and that Kirchner is now Vice President of New Channel Development for GHP.
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In this patent infringement action, the defendant, High 5 Games (“High 5”), moved for an order overruling the plaintiff’s, Konami Gaming, Inc. (“Konami”), objection to an expert witness viewing confidential information. In the alternative, High 5 moved to amend the stipulated protective order signed by the parties.

As explained by the district court, the stipulated protective order entered into by the parties stated that for purposes of access to confidential documents, an “expert” is “a person with specialized knowledge or experience in a matter pertinent to the litigation who . . . is not a past or current employee of a Party or of a Party’s competitor.”
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DraftKings filed a motion to stay discovery until the district court had an opportunity to rule on the a motion to dismiss. The motion to dismiss asserted that all of the ten patents-in-suit were invalid because they claimed patent-ineligible subject matter. CG Technology opposed the motion.

The district court began its analysis by noting that the Federal Rules do not provide for automatic or blanket stays of discovery when a potentially dispositive motion is pending. Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597 (D. Nev. 2011) (citation omitted). But the district court also noted that as a general matter, courts have broad discretionary power to control discovery. See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In determining whether to stay discovery, and in light of the directive in Rule 1 to construe the Federal Rules of Civil Procedure in a manner to “secure the just, speedy, and inexpensive determination of every action,” the preferred approach is that set forth previously in Twin City Fire Insurance v. Employers of Wausau, 124 F.R.D. 652 (D. Nev. 1989).
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In this patent infringement action, the plaintiff sought production of the defendant’s document retention and document destruction policies. The defendant asserted that the request sought information protected by work product and attorney-client privilege. The plaintiff argued that the documents were merely corporate policies that could not be privileged.

The district court analyzed the issue by reviewing the court’s Default Discovery Standards and concluded that these policies are protected under those standards.
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In this patent infringement action, the defendant sought the production of documents that the plaintif, IOENGINGE, had provided to potential companies that could fund litigation. IOENGINGED claimed that the documents were protected by the work product doctrine. The defendant sought production of the withheld documents.

IOENGINE explained that the approximately 70 documents listed on the privilege log were prepared by its counsel and by the inventor of the patent-in-suit, Mr. McNulty, for litigation funders in anticipation of and during litigation.
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In this patent infringement action, the defendants filed a motion to strike an errata change to the deposition testimony of a witness, Joseph Tindall. The district court noted that if the errata were allowed, it would change an answer from “yes” to “no.” As a justification for the change, the witness contended he “did not understand the question and gave an incorrect response when [he] answered it ‘yes.'” In response, the defendants argued that the requested change was improper.
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The defendants produced documents in response to plaintiffs’ first set of requests for production and included in the production were five documents that the defendants were later claim were subject to attorney-client privilege. Before the defendants made that claim, however, the plaintiffs deposed a corporate designee of Defendants Musion Events Ltd. and Musion 3D Ltd. During that deposition the five documents in questions were marked as exhibits. For some of the documents, the deponent testified regarding the contents of the documents and even read portions of the documents into the record–all without objection as to privilege or work product.

Shortly after that deposition, the defendants’ counsel to plaintiffs’ counsel and requested a claw-back of the five documents pursuant to the parties’ protective order.
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In this patent infringement action, the defendants conducted a “piecemeal approach to discovery, reviewing only the files of select corporate employees.” The district court found that this approach was contrary to the Federal Rules of Civil Procedure and to repeated orders of the court.

In response to plaintiff’s motion to compel, the defendant cited Federal Rule of Civil Procedure 26(b)(2)(C), which allows the court to limit discovery if “the discovery sought is unreasonably cumulative or duplicative…” The district court noted that the rule “allows the court–not a party–to limit discovery where it is unduly burdensome. Absent such an order of the court, a party may not unilaterally refuse to comply with its discovery obligations.”
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