United States District Court, D. Idaho
HOYT A. FLEMING, Plaintiff,
ESCORT, INC., et al., Defendants.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it two motions filed by Fleming (a second motion for terminating sanctions and a motion to compel and for sanctions) and three motions filed by Escort (a motion for protective order, a motion for an order to show cause and for sanctions, and a motion for a hearing). The motions are fully briefed and at issue. The Court will (1) grant in part Fleming's motions, and (2) grant Escort's motion for a hearing, and deny its motion for protective order and motion for an order to show cause and for sanctions. The Court's analysis is set out below.
Escort's Motion for Protective Order
Escort has moved for a protective order to prohibit Fleming from seeking any discovery concerning Fleming's claim that Escort fabricated source code ESC17363. In the Court's earlier decision, the Court found that Escort misled Fleming in the production of ESC17363 - source code allegedly used to operate the Pro 500 device - and awarded attorney fees to Fleming. See Memorandum Decision (Dkt. No. 178) (holding that Escort misrepresented that certain source code identified as ESC17363 operated the Pro 500 device); Memorandum Decision (Dkt. No. 208) (awarding $341, 649 to Fleming in attorney fees for Escort's misrepresentation regarding the source code operating the Pro 500 device). In reaching that result, the Court reasoned as follows:
The Court will assume the truth of Escort's representations that it did not fabricate ESC17363, and that it intended to eventually use it to operate Escort's accused devices. To find otherwise would require an evidentiary hearing following discovery. While discovery may reveal fabrication - and support a renewed motion by Fleming at that time - the Court cannot now find, on the basis of this record, that Escort has fabricated the source code contained in ESC17363. However, assuming ESC17363 was not fabricated does not resolve this motion in Escort's favor. Even with this assumption, Escort's production of ESC17363 was misleading and caused Fleming to waste considerable resources holding Escort to account.
See Memorandum Decision (Dkt. No. 178) at p. 9. The discovery process concerning the fabrication issue, contemplated in the Court's decision quoted above, is now underway. Fleming has propounded discovery requests to Escort on the fabrication issue, and Escort has responded to that request.
Escort now argues that "[t]hrough those discovery responses, ... Escort demonstrated that Escort and its counsel did not fabricate' lines of source code... [a]nd there could be no mistake about this because Escort's discovery responses show that these lines of source code actually operate Escort's products." See Escort Brief (Dkt. No. 170) at p.1. By this argument, Escort is seeking summary judgment in the guise of a request for a protective order. The Court rejects this attempt.
Escort argues next that Fleming is not entitled to discovery on this issue because whether it fabricated ESC17363 is irrelevant. The Court has fully addressed this argument in a prior decision, see Memorandum Decision (Dkt. No. 208) and will not repeat that full discussion here. It is enough to say that Escort has made fabrication an issue by asserting that lines of code in ESC17363 operate Escort's products and provide a defense to infringement. Fleming is entitled in discovery to test the validity of that defense. Moreover, Escort has opened the door to Fleming's charge of fabrication by committing misrepresentations about ESC17363 discussed in the Court's earlier decisions, cited above.
Finally, Escort argues that Fleming has abandoned its argument that ESC17363 was fabricated. However, Fleming's response brief shows clearly that it has not abandoned this issue.
For all of these reasons, the Court will deny Escort's motion for protective order. The proper course is to allow a period of time for discovery and then resolve the issue by motion. The Court will set up a schedule to resolve this issue at the hearing that is discussed below.
Escort's Motion for Sanctions & Request for Order to Show Cause
In this motion, Escort basically repeats the arguments it made in its motion for protective order, just discussed. For the same ...