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...Second, most of the Defendants have taken the position that Plaintiffs’ infringement contentions are deficient and have refused to produce documents to varying degrees. The resolution of these issues has taken months and delayed discovery. For example, Samsung and LG are only now producing sales and technical information for some limited set of products.
In addition, Defendants (except for Barnes & Noble) introduced additional delay by dragging their feet in agreeing to a cross-use agreement that would have allowed Plaintiffs to use the discovery produced in the ITC proceeding in the current cases. Due to Defendants’ delay, Plaintiffs’ prior counsel had no choice other than to destroy documents in its possession that contained the confidential business information of third parties (including that of Defendants), pursuant to the terms of the ITC protective order. As is typical, Defendants had labeled almost all of their production as containing confidential business information – meaning that a significant portion of Defendants’ ITC document production was destroyed. Naturally, Plaintiffs have asked for all of these documents to be reproduced in the current cases, but, as of today, Plaintiffs only have a portion of the original production.
Finally, there are the myriad of situations that cause matters to last longer than they need to. For example, Plaintiffs have been seeking dates for 30(b)(1) depositions from various Defendants since May. Nintendo stated that the earliest its witness would be available for a full day deposition would be August 24, which is 15 days before the current fact discovery cut-off. In the case of LG, Plaintiffs sent it a 30(b)(1) deposition notice on May 18 for a witness listed on LG’s initial disclosures. In response, it has taken LG until yesterday, July 8, to propose some “possible” dates for the deposition in August. Other scheduling issues remain with the other Defendants. Defendants have also refused to produce an unknown number of documents that they claim contain the confidential information of third parties, stating that they are waiting for consent from the third parties, even though Defendants have known about these documents for months. As of today, no anticipated date for the production of these documents has been given by Defendants. Other items could be added to this list, but the picture is clear: these lawsuits are not proceeding according to the very compressed timelines envisioned by Plaintiffs at the outset (i.e., a ten month fact discovery period)...
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