Articles Posted in Discovery

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In this patent infringement action, the Defendants requested that the court order a further Rule 30(b)(6) deposition of one of the deponents, Mr. Pang. In the motion, Defendants argued that Plaintiff’s counsel objected more than 300 times during the course of Mr. Pang’s deposition, and the objections impeded the fair examination of Mr. Pang.

In response, the Plaintiff argued that Defendants failed to show good cause to compel a second deposition of Mr. Pang and pointed out that during the deposition, Defendants never raised any issue with Mr. Pang’s responses or with Plaintiff’s counsel’s objections. Plaintiff also argued that its objections were necessary and were stated in a concise, nonargumentative and nonsuggestive manner and noted that Mr. Pang answered every question after Plaintiff’s counsel stated his objection on the record.
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After a discovery dispute erupted in this patent infringement action, the court held a telephonic hearing on defendants’ motion to compel discovery and for sanctions and plaintiff’s cross-motion for a protective order. Although the court denied both motions without prejudice, it “chastised both sides for the contentiousness and unprofessionalism that has marred discovery in this case, particularly the depositions.”

The court went further finding that “[b]oth sides are at fault and the attorneys for both sides must change their behavior significantly and immediately.” The court also reminded the parties that “[i]n the March 3, 2014 preliminary pretrial conference order, the court ordered that ‘the parties and their attorneys must at all times treat everyone involved in this lawsuit with courtesy and consideration… and must reasonably accommodate each other in all matters.'”
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In this patent infringement action, Plaintiffs’ filed a motion for a standard protective order to prevent the defendant from sharing confidential information. The district court denied the motion because the motion was not in the form of a joint stipulated as required by the local rules.
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In this patent infringement action, the defendant filed a motion to strike the “errata sheets” to deposition testimony of two of plaintiffs’ expert witnesses, Neill Luebke and Robert Sinclair. The plaintiff opposed the motion to strike.

As explained by the district court, “[t]here is an old joke that only lawyers and house painters can change black to white, and vise versa. In a sense, that is the situation this motion presents. Defendant complains that the plaintiffs’ witnesses Luebke and Sinclair submitted errata sheets regarding their respective depositions which starkly changed the substance of their testimonies. For example, in several instances, Sinclair changed his deposition answer from ‘no’ to ‘yes.’ In other places, a somewhat tenuous answer of, ‘I believe not,’ was changed to a dogmatic and emphatic ‘yes.’ Similarly, Luebke changed, ‘I don’t believe so,’ to ‘yes,’ and ‘At the present time, I have not,’ to ‘Yes.’ And there are other examples.”
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BNB Health Grades, Inc. (“Health Grades”) filed a patent infringement action against MDx Medical, Inc., d/b/a Vitals.com (“MDx”). During the litigation, Health Grades identified licensing agreements and associated systems that it contended could support additional contentions relating to Health Grades’ claim for indirect infringement.” After MDx declined to produce the additional information, Health Grades filed a motion to compel.
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The defendants in this patent infringement action sought the production of certain billing statements of the law firm representing CleanTech. The defendants argued that the billing statements were discoverable based on their inequitable conduct defense because a witness was unable to recall why certain information was not disclosed to the Patent and Trademark Office (“PTO”) during his deposition. Defendants asserted that the billing statements could supply the information the deponent was not able to recall.
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After plaintiff, McAirlaids, requested the deposition of one of Kimberly-Clark’s (“K-C”) in-house litigation counsel, K-C filed a motion for a protective order pursuant to Fed. R. Civ. P. 26(c) to preclude the deposition of its in-house counsel, Vicki Margolis (“Margolis”), who is an active member of its trial team. Counsel for McAirlaids requested the deposition of Margolis largely because she sent and received indemnification correspondence with K-C’s manufacturer, Beijing Beishute (“BB”), which McAirlaids asserted was highly relevant to the case.
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Dell moved to compel the production of certain internal counsel communications at the plaintiff, MLR. MLR had refused to produce the documents, claiming work product protection.

As explained by the district court, “[i]n the circumstances presented here, which are the result of MLR’s choices, the established policies underlying the work product doctrine require that the phrase ‘in anticipation of litigation’ in Fed. R. Civ. P. 26(b)(3)(A) be limited, with respect to non-opinion material, to material generated solely with respect to MLR’s relationship with a particular potential licensee/defendant beginning at the time that potential licensee/defendant is identified. Other or more general relationship to litigation will render the material presumptively business-related and not protected.”
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Following the district court’s previous order granting a motion to compel against Fujitsu, and Fujitsu’s unsuccessful appeal to the Federal Circuit, the district court ordered sanctions in the form of a civil penalty. As the district court explained, the civil penalty was designed to provide an incentive to motivate the Fujitsu Entities to comply with the district court’s orders.

The district court was less than impressed with Fujitsu’s response. “After stalling for months following Judge Cole’s 7/25/2014 order with meritless objections, overruled by this court on 8/19/2014, and an even more meritless mandamus attempt denied by the Federal Circuit yesterday, Fujitsu’s counsel cavalierly concludes ‘Fujitsu’s Response’ with ‘Fujitsu expects to have the translations ready for production by Friday, October 10, 2014.’
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In Norman IP Holdings v. TP-Link Technologies, Co., et al., the Defendants moved to stay the litigation pending completion of an inter partes review involving the patents-in-suit. The plaintiff did not respond to the motion. Thereafter, the court granted the motion and stayed the litigation pending completion of the IPR involving claim 6 of the ‘597 Patent.

Plaintiff’s complaint alleges ADTRAN infringes U.S. Patent Nos. 5,502,689 (the “‘689 Patent”), 5,530,597 (the “‘597 Patent”), and 5,592,555 (the “‘555 Patent”). Specifically, the plaintiff asserts claims 5 and 6 of the ‘689 Patent, claims 1-6, 10, and 11 of the ‘597 Patent, and claims 10, 12, and 51 of the ‘555 Patent against ADTRAN, the sole remaining defendant at the time the court decided the stay motion. The court noted that there have been 10 petitions for post-grant review of the three patents asserted by Norman. A total of 33 separate claims from the asserted patents have been canceled in the four proceedings that have been completed. The remaining six proceedings were pending at the time of the filing. In concurrent litigation, Norman alleged Nissan North America, Inc. (“Nissan”) infringes the same asserted claims of the ‘689 and ‘597 patents. Nissan filed a petition for IPR as to claim 6 of the ‘597 patent and claims 5 and 6 of the ‘689 patent. On September 23, 2014 PTAB granted Nissan’s petition for IPR as to the asserted claims in the ‘689 and ‘597 patents. During the October 7, 2014 hearing ADTRAN agreed, if the court granted a stay of the present litigation, “to be estopped as to invalidity contentions raised and adjudicated in the [Nissan] IPR proceedings.”
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