Yue v. Chordiant Software, Inc., et al

Filing 346

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 253 defendants' Motion to Compel. (hrllc2, COURT STAFF) (Filed on 12/16/2009)

1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NETBULA, LLC and DONGXIAO YUE, v. Plaintiffs, No. C08-00019 JW (HRL) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL [Re: Docket No. 253] *E-FILED 12-16-2009*

United States District Court

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For the Northern District of California

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CHORDIANT SOFTWARE, INC., STEVEN R. SPRINGSTEEL, and DEREK P. WITTE, Defendants. /

Plaintiffs Netbula LLC ("Netbula") and Dongxiao Yue sue for alleged copyright infringement of Netbula's software products. Presently before this court is defendants' motion to compel documents1 and a supplemental privilege log. Plaintiffs oppose the motion. Upon consideration of the moving and responding papers, as well as the arguments of counsel, this court grants the motion in part and denies it in part. A. Defendants' Fifth Set of Requests for Production Plaintiffs' responses to these requests were due over a month ago; and, according to defendants, those responses have yet to be served. Defendants now seek an order deeming plaintiffs' objections waived and compelling plaintiffs to produce all responsive documents in their possession, custody, or control. Plaintiffs say that, although they have not served their

The document requests at issue are Request for Production Nos. 6-12, 33-34, 36-38, 42, 58-59, 62-65, 68-70 and 78-79.
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written responses, they produced all documents called for by these requests either before or shortly after the response deadline. The failure to timely respond to a discovery request constitutes a waiver of any objection. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.1992). Nevertheless, courts have broad discretion to grant relief, on a case-by-case basis, from any such waiver upon a showing of good cause. See Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D. D.C. 1999). In exercising its discretion, the court evaluates relevant factors, including: (1) the length of the delay; (2) the reason for the delay; (3) the existence of bad faith; (4) the prejudice to the party seeking the disclosure; (5) the nature of the request; and (6) the harshness of imposing the waiver. Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005). Based upon the circumstances presented, this court finds that, on balance, a finding of waiver is not warranted. Nevertheless, plaintiffs shall serve, within 10 days of the date of this order, their written responses to these requests. In response to each request, plaintiffs shall affirm that they have conducted a diligent inquiry and reasonable search and produced all responsive, non-privileged documents in their possession, custody, or control. To the extent plaintiffs claim that any document is privileged or otherwise protected from discovery, plaintiffs shall identify each such document on a privilege log. B. Emails to and from [e-mail] Defendants sought the production of emails to and from the above-identified address relating to the pricing of the Netbula products at issue. At oral argument, however, defendants confirmed that there is no longer any issue here. Accordingly, their motion as to these documents is denied as moot. C. Netbula's website "shopping cart" records Defendants sought further production of Netbula's website "shopping cart" information. At the motion hearing, however, defendants stated that this issue is moot, except for the documents identified by plaintiffs in their opposition papers by production numbers NC1006871. Plaintiffs claim that those documents were produced on November 18, 2009, but they have no objection to producing them to defendants again. Accordingly, plaintiffs shall produce the 2

United States District Court

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For the Northern District of California

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documents numbered NC10068-71 within ten days from the date of this order. Defendants' motion is otherwise denied as moot. D. Source code revision history Defendants move to compel the source code revision history for the Netbula products at issue. Plaintiffs claim that they do not have any such revision history for the Windows version of Netbula's products. Defendants believe that there may be responsive revision histories for other versions of Netbula's products (e.g., Java version or earlier versions of the allegedly infringed Windows product). There is no apparent dispute as to the relevance of the requested information. Nor is there any assertion that the documents sought are privileged or otherwise protected from discovery. Accordingly, defendants' motion as to these documents is granted as follows: If plaintiffs have any source code revision history for any of the asserted Netbula products, they shall produce all such documents within ten days of the date of this court's order. E. Non-Native Source Code Files Defendants claimed that plaintiffs have refused to produce source code that exists only in non-native format. Plaintiffs represent to the court that all such documents have been produced. Defendants' motion as to these documents is denied. Based on the record presented, there appears to be nothing more to compel. F. Plaintiffs' Privilege Log By lumping documents together on their privilege log entries (in some instances, for periods of up to seven years per entry), plaintiffs have obscured what documents are being withheld and why. Defendants' motion as to this issue is therefore granted. Within ten days of the date of this order, plaintiffs shall serve a supplemental privilege log which identifies, on a document-by-document basis, the nature of the document being withheld and the basis for the asserted privilege or other protection. See FED. R. CIV. P. 26(b)(5). SO ORDERED. Dated: December 16, 2009 HOWARD R. LLOYD

United States District Court

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For the Northern District of California

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UNITED STATES MAGISTRATE JUDGE

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5:08-cv-00019-JW Notice has been electronically mailed to: Albert L. Sieber [e-mail] Antonio Luis Cortes [e-mail] Jedediah Wakefield [e-mail], [e-mail], [e-mail], [e-mail], [e-mail] Laurence F. Pulgram [e-mail], [e-mail] Liwen Arius Mah [e-mail], [e-mail], [e-mail], [e-mail], [e-mail] Mary Elizabeth Milionis [e-mail], [e-mail] Ryan Jared Marton [e-mail] Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court

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For the Northern District of California

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