This discovery order doesn’t contain the court’s reasoning, but the order is worth reading anyway because the parties present such diametrically opposed positions on whether discovery should be reopened on an issue, and the court clearly felt that under the facts presented it should not be – which included a broader context for the scheduling issues presented in the case.
In this order dealing with venue discovery, Judge Gilliland denied defendant’s request to inquire into the plaintiff’s litigation or company funding, and noted that the defendant must “tether its questions in [a] reasonable way to venue” and avoid repeatedly asking questions outside the scope of venue discovery. If it fails to do so, Judge Gilliland instructed the parties that plaintiff may either instruct the witness not to answer, or contact the court.
In this order dealing with venue discovery, Judge Gilliland denied defendant’s request to inquire into the plaintiff’s litigation or company funding, and noted that the defendant must “tether its questions in [a] reasonable way to venue” and avoid repeatedly asking questions outside the scope of venue discovery. If it fails to do so, Judge Gilliland instructed the parties that plaintiff may either instruct the witness not to answer, or contact the court.
Judge Kernodle denied the third party’s motion to quash a subpoena issued in a case pending in his court for the reason that FRCP 45(a)(3) requires motions to quash subpoenas to be issued in the court for the district where compliance is required, here the Northern District of Georgia, just a few states down I-20 from Tyler. (Interestingly, Ian Fleming has no fewer than two women in his novels describe James Bond as resembling Carmichael).
Judge Payne denied two of the motions, and reserved the third for a forthcoming hearing, concluding that assessments as to the witness’ credibility and correctness were for the factfinder, not the court. As to the third motion, however, the court noted that there were substantial issues with the expert’s use of prior reports.
Judge Lynn granted the motion to compel the printing of the additional 39 pages of source code which was requested shortly after the fact discovery deadline. Both parties had already consented to printing slightly in excess of the 200 page limit.
The court noted that the defendant was able to secure and produce several employees of the third-party in an effort to distance itself from the EDTX, but when the court ordered venue discovery, defendant suddenly no longer controlled that third party or its employees, and refused to produce documents from them. “Defendant’s hot-then-cold positions are not well received by the Court,” Judge Gilstrap wrote, and ordered production, adding that “[t]he parties should be mindful that the disputes addressed herein are just the kind of things to be considered when the Court is later asked to determine if this is an exceptional case under 35 U.S.C. § 285.
Judge Gilstrap granted the plaintiff’s motion to compel the defendant to produce the four witnesses identified for deposition. Noting that the plaintiffs had previously set the depositions three weeks after the notice, and the defendant did not call the court or move the court for protective order, the court ordered the defendant to pay plaintiff’s attorneys fees and costs of $6,288.25 associated with the four depositions for which the defendant witnesses failed to appear.
One of the Non-Albright Waco patent cases finally has an order! Judge Kathleen Cardone denied the plaintiff’s first two motions for venue discovery, noting that the first motion contain no certificate of conference, and the second only stated that plaintiff’s counsel attempted to confer with opposing counsel late in the day but received no response. Finding that “Plaintiff’s eleventh-hour communication does not amount to a good-faith attempt to resolve the matter” and thus did not comply with the relevant local rule,” Judge Cardone denied the motion, but without prejudice to the plaintiff’s ability to refile compliance with the local rules, and detailed what that requires.
Judge Gilstrap denied the plaintiff’s motion seeking to compel the defendant to produce expert reports and deposition transcripts from prior lawsuits the defendant had filed asserting infringement. Of note, the court italicized the word “different” five times in comparing the prior cases to the case at bar.
