Beacon Navigation GmbH v. Bayerische Motoren Werke AG et al
Filing
112
OPINION AND ORDER Denying BMW's Motion to Strike (ECf No. 94 ). Signed by District Judge Mark A. Goldsmith. (JMcC)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 2:13-cv-11410-MAG-EAS
BEACON NAVIGATION GMBH,
Plaintiff,
Hon. Mark A. Goldsmith
Mag. Elizabeth A. Stafford
v.
BAYERISCHE MOTOREN WERKE AG,
BMW OF NORTH AMERICA, LLC, AND
BMW MANUFACTURING CO., LLC,
Defendants.
OPINION AND ORDER DENYING
BMW’S MOTION TO STRIKE (ECF NO. 94)
In this patent infringement case, plaintiff Beacon Navigation GmbH
(“Beacon”) alleges that defendants Bayerische Motoren Werke AG, BMW of North
America, LLC, and BMW Manufacturing Co., LLC (collectively, “BMW”) infringe
a Beacon patent on vehicle navigation technology, U.S. Patent No. 5,862,511 (the
“’511 Patent”).
Presently before the Court is BMW’s motion to strike, which is directed to
precluding Beacon from relying on certain computer source code as evidence of
infringement. The parties have submitted written briefs explaining their positions on
whether Beacon should be precluded from relying on the source code. ECF No. 94
(“BMW’s Motion”); ECF No. 97 (“Beacon’s Opposition”); ECF No. 99 (“BMW’s
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Reply”). Pursuant to Local Rule 7.1(f)(2), the Court will decide BMW’s motion to
strike without a hearing. E.D. Mich. LR 7.1(f)(2).
For the reasons stated in this opinion and order, the Court will DENY BMW’s
motion to strike.
I.
RELEVANT BACKGROUND AND PROCEDURAL HISTORY
The ’511 Patent, entitled “Vehicle Navigation System and Method,” is
directed to vehicle navigation technology. In its first amended complaint (“FAC”),
Beacon alleges that BMW infringed Claims 1 and 3 of the ’511 Patent (the “asserted
claims”) in connection with sales of vehicles with GPS navigation systems (the
“accused vehicles” and the “accused navigation systems”) prior to the ’511 Patent’s
December 28, 2015 expiration date. ECF No. 60.
Along with related cases involving the ’511 Patent,1 this case was scheduled
to move forward on the merits following an eleven-year stay pending a succession
of proceedings in the United States Patent and Trademark Office (the “USPTO”).
On October 26, 2022, the Court entered the scheduling order for this case. On
October 6, 2023, following the close of fact discovery, BMW filed its present motion
to strike. BMW’s motion to strike arose from Beacon’s admittedly delayed third
1
This case and related cases involving the ’511 Patent once belonged to an even a
larger group of related patent infringement cases involving additional Beacon
patents. The Court has previously set forth a detailed procedural history of these
cases. ECF No. 88, PageID.4120-4122. Only this case against BMW, which now
only involves the ’511 Patent, remains pending.
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party discovery of necessary infringement evidence. In the context of the ’511
Patent, an infringement determination on the merits requires the source code that
describes how the accused navigation systems work. BMW makes the accused
vehicles, but its supplier, Harman, makes the accused navigation systems, and holds
the source code in confidence. Beacon served a subpoena on Harman more than 30
days before the close of fact discovery, but ultimately obtained and produced the
source code after the close of fact discovery, and relied on the source code to allege
infringement for the first time in its opening expert report on infringement.
In its motion to strike, BMW argues that Beacon violated Federal Rule of
Civil Procedure 26(a) or (e), and moves for discovery sanctions under Federal Rule
of Civil Procedure 37(c)(1). Specifically, BMW asks the Court: (1) to strike the
portions of Beacon’s infringement report that rely on the source code; (2) to preclude
Beacon from relying on the source code; and (3) to award it reasonable costs and
attorneys’ fees related to Beacon’s disclosure of the source code.
II.
RELEVANT DISCOVERY EVENTS
In the written briefs, BMW and Beacon rely heavily on the history of this case
to support their arguments for and against discovery sanctions, and present
statements of facts about the relevant discovery events. ECF No. 94, PageID.43904395 (BMW’s Mot. Br. 1-6); ECF No. 97, PageID.4965-4973 (Beacon’s Opp’n Br.
2-10).
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As noted above, the Court entered the scheduling order for this case on
October 26, 2022. Under the scheduling order, fact discovery commenced on
October 17, 2022 and closed on July 27, 2023. The nine-month fact discovery period
was followed by a three-month expert discovery period, with deadlines measured
from the Court’s Markman decision. ECF No. 59. The Court issued its Markman
decision on July 28, 2023, and thereby set the deadlines for expert discovery. ECF
No. 87. Under stipulated amendments, the Court extended the deadlines for opening
expert reports and rebuttal expert reports to September 8, 2023 and October 9, 2023,
and extended the close of expert discovery to November 17, 2023. ECF No. 90; ECF
No. 96.
Aside from initial disclosures and contentions, the parties do not discuss any
discovery events from the first eight months of fact discovery. However, as Beacon
points out, the Court has instructed the parties in this case and related cases involving
the ’511 Patent to work with the Special Master toward settlement. From October
2022 to June 2023, Beacon reached settlement agreements with the defendants in all
of the other still pending related cases. Beacon explains that, to focus on and direct
resources toward settlement, it delayed third-party discovery of source code. In this
case, Beacon proceeded to seek source code from Harman when the close of fact
discovery was approaching and it was clear that BMW was not going to settle.
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Beacon served a subpoena on Harman on June 23, 2023, requesting document
production on July 14, 2023, and noticing a deposition on July 26, 2023. ECF No.
94-5 (BMW’s Mot. Ex. D). On July 7, 2023, Harman objected to the subpoena as
overly broad and unduly burdensome, and Beacon and Harman proceeded to meet
and confer about the scope of discovery. ECF No. 97-6 (Beacon’s Opp’n Ex. E);
ECF No. 97-7 (Beacon’s Opp’n Ex. F). In parallel, the parties discussed amending
the scheduling order. ECF No. 97-2 (Beacon’s Opp’n Ex. A). On July 26, 2023,
Beacon submitted a stipulated amendment to extend fact discovery for source code
production, including a provision to delay depositions of the parties until after source
code production. ECF No. 94-6 (BMW’s Mot. Ex. E).
On August 2, 2023, following their meet and confers, Beacon and Harman
agreed on narrowing the scope of discovery to source code. Harman agreed to make
the source code available for inspection, and provide a declaration that the source
code is authentic and representative. Correspondingly, Beacon agreed to withdraw
the other document requests, and not seek a deposition of Harman. ECF No. 97-7
(Beacon’s Opp’n Ex. F).
On August 9, 2023, the Special Master advised Beacon that the Court was not
going to enter the July 26, 2023 stipulation. On August 15, 2023, Beacon submitted
a stipulated amendment to extend expert discovery by eleven days to accommodate
its technical expert’s vacation. The Court entered the stipulation on August 17, 2023,
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thus extending the deadline for opening expert reports from August 28, 2023 to
September 8, 2023. ECF No. 90.
It turned out that in the meantime, on September 5, 2023, Harman made the
source code available for inspection. Pursuant to the protective order for this case,
Harman made the source code available for inspection by giving the parties access
to a source code computer. Together with their technical experts, the parties took
turns on the source code computer, reviewed the source code, and selected excerpts,
and produced the source code by requesting printouts of their selected excerpts from
Harman. ECF No. 79, PageID.4025-4037.
After reviewing the source code on September 5-6, 2023, Beacon served its
opening expert report on infringement (“infringement report”) on September 8,
2023, and later produced the source code from its review on September 14, 2023.
BMW reviewed the source code on September 20-21, 2023, served its rebuttal expert
report on infringement (“non-infringement report”) on October 9, 2023, and later
produced the source code from its review on October 12, 2023.
III.
LEGAL STANDARD
Federal Rule of Civil Procedure 37(c)(1) provides that district courts may
exclude evidence that a party seeks to offer but has failed to disclose pursuant to the
party’s discovery obligations under Federal Rule of Civil Procedure 26(a) and (e).
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Even “without awaiting a discovery request,” Rule 26(a)(1) requires a party
to disclose the information and identify the witnesses that the party “may use to
support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii). Rule 26(e)(1)
requires a party who learns that an initial disclosure or a response to a discovery
request is “incomplete or incorrect” to “supplement or correct” the initial disclosure
or the discovery response “in a timely manner.” Fed. R. Civ. P. 26(e)(1)(A). Under
Rule 37(c)(1), a party who fails to disclose information or identify a witness as
required by Rule 26(a) or (e) “is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
“Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with
Rule 26(a), that is, it mandates that a trial court punish a party for discovery
violations in connection with Rule 26 unless the violation was harmless or is
substantially justified.” Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776,
782 (6th Cir. 2003) (quotation omitted). See also Dickenson v. Cardiac & Thoracic
Surgery of E. Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 2004) (“The exclusion of nondisclosed evidence is automatic and mandatory under Rule 37(c)(1) unless nondisclosure was justified or harmless.”) (quotation omitted). “Although exclusion of
late or undisclosed evidence is the usual remedy for noncompliance with Rule 26(a)
or (e), Rule 37(c)(1) provides the district court with the option to order alternative
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sanctions ‘instead of’ exclusion of the late or undisclosed evidence ‘on motion and
after giving an opportunity to be heard.’” Howe v. City of Akron, 801 F.3d 718, 747
(6th Cir. 2015) (quoting Fed. R. Civ. P. 37(c)(1)).
IV.
ANALYSIS
At the outset, the Court notes that it was evident when this case was scheduled
that the source code from Harman was necessary infringement evidence. In its
motion to lift the stay, Beacon explained that “the best evidence of [infringement]
should be found in source code in possession of defendants, or their suppliers,” and
urged the Court to open discovery “so this case can move forward on the merits.”
ECF No. 53, PageID.3184. Likewise, in the scheduling order, the Court noted that
Beacon “will need to conduct discovery on … patent infringement” and “expects
that discovery will need to include some discovery … of Defendant’s third-party
vendors who provide the accused GPS systems.” ECF No. 59, PageID.3212.
Beacon does not dispute BMW’s argument that review and production of
source code was the subject of fact discovery, not expert discovery. See, e.g., Finjan,
LLC v. Qualys Inc., 2020 U.S. Dist. LEXIS 210427, at *4-*5 (N.D. Cal. Nov. 10,
2020) (“The plain language of Rule 26 makes clear that expert discovery means
discovery of the expert, not by the expert.”) (collecting cases).
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A.
Rule 26(a) or (e)
As a preliminary matter, Beacon argues that the Court need not turn to Rule
37(c)(1) because BMW has not established a violation of Rule 26(a) or (e). Relevant
to the below discussion, Beacon does not dispute that it produced the source code
after the close of fact discovery, and relied on the source code to allege infringement
for the first time in its expert report.
As to a discovery violation, BMW argues that Beacon’s disclosure of the
source code was untimely for two reasons. First, BMW argues that the disclosure
was untimely because Beacon did not timely seek the source code and supplement
its infringement contentions. Second, BMW argues that the disclosure was untimely
because Beacon did not obtain the source code during fact discovery. Beacon does
not directly rebut these points. Rather, Beacon urges the Court to consider the history
of this case, arguing that it supports a finding that Beacon’s disclosure of the source
code was not untimely. Among other things, Beacon points to the stipulated
amendment to extend fact discovery and BMW’s knowledge of Beacon’s plan to
obtain and rely on the source code.
Although the parties do not discuss the provisions of Rule 26 separately, the
Court finds that Beacon violated Rule 26(e) through its untimely disclosure of the
source code, particularly with respect to its infringement contentions. During fact
discovery, Beacon informed BMW that it would rely on “source code” from
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“suppliers,” but never produced any source code or relied on any source code to
allege infringement. Specifically, in its infringement contentions, Beacon cites the
behavior of position cursors during observational testing, and reserves right to
amend “upon receipt of discovery from BMW and/or its suppliers, particularly
source code and accompanying documentation that shows the detailed operation of
the navigation systems.” ECF No. 94-4, PageID.4427 (BMW’s Mot. Ex. C p. 1).
Similarly, in response to BMW’s interrogatories on Beacon’s infringement theories,
Beacon informed BMW that it would supplement its infringement contentions
“when additional discovery is obtained from Defendants and their suppliers.” ECF
No. 94-8, PageID.4821-4822 (BMW’s Mot. Ex. G p. 6-7).
As to Beacon’s disclosure of the source code, the Court finds that BMW’s
claims of untimely disclosure are exaggerated as to identifying Harman as the
supplier. Specifically, BMW argues that by identifying “suppliers,” and not
“Harman,” Beacon never informed BMW that it would rely on source code from
Harman. However, the subpoena, as well as the simple fact that Harman makes the
accused navigation systems, show that BMW had notice that Beacon would rely on
source code from Harman.
However, as distinguished from the actual source code and its description of
how the accused navigation systems work, Beacon’s infringement contentions
merely informed BMW of Beacon’s plan to obtain and rely on the source code.
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Without references to the actual source code, Beacon’s infringement contentions
were necessarily “incomplete,” and Rule 26(e)(1) therefore required Beacon to
“supplement” them “in a timely manner.” Fed. R. Civ. P. 26(e)(1)(A). In addition to
the plain language of Rule 26(e), the scheduling order is clear on Beacon’s obligation
to timely seek the source code in an effort to “seasonably amend” its infringement
contentions. As stated in the scheduling order, Rule 26(e) required Beacon to “timely
conduct discovery so that these contentions can be updated as soon as possible.”
ECF No. 59, PageID.3216.
Contrary to its obligation to timely seek the source code and supplement its
infringement contentions, Beacon served the subpoena on Harman on June 23, 2023,
eight months after the October 17, 2022 commencement of fact discovery. As a
result, Beacon never supplemented its infringement contentions, and instead, relied
on the source code to allege infringement for the first time in its infringement expert
report. Moreover, because review and production of source code was the subject of
fact discovery, the scheduling order in any event required Beacon to obtain the
source code during fact discovery. Beacon produced the source code on September
14, 2023, seven weeks after the July 27, 2023 close of fact discovery. Because
Beacon did not meet its obligation to timely seek the source code and supplement its
infringement contentions, and in any event did not obtain the source code during fact
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discovery, the Court finds that Beacon’s disclosure of the source code was untimely
under Rule 26(e).
Given the scheduling order and the plain language of Rule 26(e), the Court is
not persuaded by Beacon’s argument that the history of this case supports a finding
that Beacon’s disclosure of the source code was not untimely. As to supplementing
its infringement contentions, Beacon argues that it did not withhold the source code,
explaining that it could not disclose what it did not possess. However, this simply
goes to the point that Beacon did not meet its obligation to timely seek the source
code. As to the scheduling order, Beacon argues that it would have timely produced
the source code under the stipulated amendment to extend fact discovery, and had
no reason to expect that the Court would not enter the stipulation. However,
Beacon’s argument refers to the July 26, 2023 stipulation to extend fact discovery,
which Beacon expressly withdrew when it submitted the August 15, 2023 stipulation
to extend expert discovery. When Beacon produced the source code on September
14, 2023, there was no uncertainty that its production was seven weeks after the July
27, 2023 close of fact discovery.
The Court notes that Beacon’s remaining arguments do not go to showing that
the disclosure was timely under Rule 26(e), but rather, to whether the untimely
disclosure was substantially justified or harmless under Rule 37(c)(1). For example,
Beacon argues that BMW knew Beacon’s plan and could have obtained the source
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code from Harman on its own. However, Beacon has the burden of proving
infringement, and BMW’s ability did not absolve Beacon’s obligation to obtain
necessary infringement evidence. While the points Beacon raises in its remaining
arguments are not insignificant in the context of this case, the conclusion that Beacon
did not meet its discovery obligations under Rule 26(e) cannot be avoided.
Accordingly, the Court will address Beacon’s remaining arguments in the below
Rule 37(c)(1) discussion.
B.
Rule 37(c)(1)
Under Rule 37(c)(1), a party who fails to disclose information or identify a
witness as required by Rule 26(a) or (e) “is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
To guide the exclusion analysis under Rule 37(c)(1), the Sixth Circuit has
adopted five factors for determining whether a party’s non-disclosure of evidence is
substantially justified or harmless:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the evidence;
and (5) the nondisclosing party’s explanation for its failure
to disclose the evidence.
Howe v. City of Akron, 801 F.3d 718, 748-49 (6th Cir. 2015) (quoting Russell v.
Absolute Collection Servs., Inc., 763 F.3d 385, 396-97 (4th Cir. 2014)). District
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courts have broad discretion in applying the factors and need not apply each factor
rigidly. Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019).
The Court will now analyze the factors applying the facts of this case.
As to the first factor, the Court must weigh the surprise to BMW by Beacon’s
reliance on the source code. BMW argues that it was surprised because Beacon relied
on the source code to allege infringement for the first time in its infringement expert
report. On the other hand, Beacon argues that BMW was not surprised because
BMW knew Beacon’s plan to obtain and rely on the source code and could have
obtained the source code from Harman on its own.
In the context of this case, the Court agrees with Beacon. Both parties knew
from the beginning of this case that the source code could be obtained and analyzed
to definitively confirm whether or not the accused navigation systems supplied to
BMW by Harman infringed the ’511 Patent. While Beacon has the burden of proving
infringement, nothing prevented BMW from obtaining the source code from its own
supplier. BMW could have simply asked Harman if its code “rotated” and
“integrated” velocity vectors as required by the asserted claims and then subpoenaed
the source code under a confidential designation to support its non-infringement
theories. As discussed above, the Court finds that BMW had notice that Beacon
would obtain and rely on source code from Harman, as given by the simple fact that
Harman makes the accused navigation systems. While the contents of the source
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code were previously unknown, this was true for both parties. Rather than directing
its considerable resources to litigating many other issues, BMW could have obtained
the source code for itself early in this case and then immediately filed a motion for
summary judgment of non-infringement.
Because BMW knew Beacon’s plan to obtain and rely on the source code,
and, for the benefit of both the parties and the Court, could have avoided any surprise
by obtaining the source code on its own early in this case, the Court finds that the
first factor weighs against exclusion.
The second factor and the third factor are related. As to the second factor, the
Court must weigh BMW’s ability to cure the surprise by Beacon’s reliance on the
source code. As to the third factor, the Court must weigh the extent to which allowing
Beacon to rely on the source code would disrupt trial.
Initially, the Court notes that a trial date has not been set, and much if not all
of the surprise has already been cured during expert discovery. As noted above, the
parties and their technical experts have reviewed the source code and submitted their
expert reports on infringement. Ultimately, it appears that the late production of the
source code has harmed Beacon more than BMW. Beacon was only able to review
the source code days before the deadline for opening expert reports. On the other
hand, BMW was able to review the source code over two weeks before the deadline
for rebuttal expert reports. Although BMW maintains that it had to rush the
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preparation of its non-infringement report, BMW does not dispute that it declined
Beacon’s offer to extend the deadline, or that its technical expert has presented a
complete non-infringement analysis. Indeed, the Court notes that BMW has recently
filed a motion for summary judgment of non-infringement based on its technical
expert’s analysis, arguing that the accused navigation systems do not practice
multiple claim limitations.
Nonetheless, BMW argues that it cannot cure the surprise without reopening
fact discovery to depose Harman about the source code, and that reopening fact
discovery would likely disrupt trial. In response, Beacon disputes that reopening fact
discovery is necessary. Specifically, Beacon explains that Beacon and Harman
agreed that a deposition of Harman is unnecessary, that BMW never served its own
subpoena on Harman. In reply, BMW explains that the need to depose Harman only
arose from Beacon’s reliance on the source code.
The Court finds that BMW can cure any remaining surprise by Beacon’s
reliance on the source code without disrupting trial. BMW explains that it wishes to
depose Harman about the authenticity, implementation, and representativeness of
the source code. Although Beacon and Harman agreed that a deposition of Harman
is unnecessary, the Court notes that Beacon was making concessions to resolve
Harman’s objection to the subpoena. And although BMW never served its own
subpoena on Harman, the Court accepts that the need to depose Harman only arose
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from Beacon’s reliance on the source code. In the interest of curing any remaining
surprise, the Court can grant BMW leave to depose Harman. Since a trial date has
not been set, BMW can schedule a deposition of Harman during the pendency of
dispositive motions. As well, the Court will give BMW leeway to modify or
supplement its non-infringement theories before trial, including in connection with
summary judgment if BMW is able to depose Harman early enough. Because BMW
can cure any remaining surprise without disrupting trial, the Court finds that both
the second factor and the third factor weigh against exclusion.
As to the fourth factor, the Court must weigh the importance of the source
code. The Sixth Circuit has explained that importance “can cut both ways.” Bisig,
940 F.3d at 220. “The more important the proof, the greater the effect of preclusion,
but also the greater the harm in tardy disclosure.” Id. (quotation omitted). Here, the
parties agree that the source code from Harman is necessary infringement evidence.
BMW argues that the importance weighs in favor of exclusion because Beacon
delayed seeking the source code. Beacon argues that the importance weighs against
exclusion because discovery is complete and this case is ready to move forward on
the merits. The Court agrees with Beacon. The Court favors resolution on the merits,
particularly in a case like this one, where the parties have been involved in litigation
for over a decade, and have worked with the Special Master toward settlement
without being able to reach a settlement agreement. Because the source code from
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Harman is necessary infringement evidence, and this case is ready to move forward
to an infringement determination on the merits, the Court finds that the fourth factor
weighs against exclusion.
As to the fifth factor, the Court must weigh Beacon’s explanation for the
untimely disclosure. BMW argues that Beacon delayed seeking the source code,
risked running out of time, and lacked any reasonable expectation of obtaining the
source code during fact discovery. On the other hand, in addition to arguing that
delaying for settlement was reasonable, Beacon argues that it timely sought and
obtained the source code. Specifically, Beacon argues that it timely sought the source
code because the subpoena was timely, and that it timely obtained the source code
because the meet and confers between Beacon and Harman were reasonable.
The Court finds that Beacon’s explanation for the untimely disclosure of the
source code is unreasonable. Initially, the Court notes that delaying third-party
discovery of source code was Beacon’s own litigation strategy. Beacon does not
dispute that it knew about Harman, planned to obtain and rely on the source code,
and could have sought the source code earlier. Rather, Beacon explains that it served
the subpoena on Harman “[w]hen it finally became clear that BMW was not going
to settle” and “did so at this time because it felt that its resources were more
appropriately directed towards settlement.” ECF No. 97, PageID.4975, 4986
(Beacon’s Opp’n Br. 12, 23). The Court appreciates that Beacon followed its
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instruction to work with the Special Master toward settlement. However, compliance
with the scheduling order necessarily entails parallel, not successive, settlement
discussions and fact discovery. Beacon does not cite any suggestion from the Court
or the Special Master to focus on settlement to the exclusion of conducting fact
discovery, let alone as to the source code required to inform the merits.
In any event, Beacon risked running out of time to obtain the source code
during fact discovery. As set forth above, Beacon served the subpoena on Harman
on June 23, 2023, five weeks before the July 27, 2023 close of fact discovery. Beacon
requested document production on July 14, 2023, leaving Harman three weeks to
make the source code available for inspection, and the parties two weeks to review
and produce the source code.
Although the subpoena was technically timely, Beacon does not assert that
experienced counsel would have reasonably expected the subpoena to be timely in
the real-world, including under the protective order for this case. Specifically,
Beacon does not assert that three weeks was a reasonable time for Harman to identify
the source code and furnish the source code computer. Likewise, Beacon does not
assert that two weeks was a reasonable time for the parties to schedule access to the
source code computer, review the source code, and produce the source code through
Harman. Moreover, to state the obvious, Beacon made no allowance for the
contingency that Harman would object to the subpoena. While Beacon cites the
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reasonableness of the meet and confers as showing timeliness, Beacon does not
suggest that Harman unreasonably objected to the subpoena in the first place.
Because Beacon’s explanation for the untimely disclosure of the source code
is unreasonable, the Court finds that the fifth factor weights in favor of exclusion.
In summary, the Court has analyzed the factors applying the facts of this case,
and found that four of the five factors weigh against exclusion. The Court therefore
concludes that Beacon’s untimely disclosure of the source code from Harman was
harmless. Accordingly, the Court will DENY BMW’s motion to strike as to all of
BMW’s requests for discovery sanctions.
V.
CONCLUSION
For the reasons stated in this opinion and order, the Court will DENY BMW’s
motion to strike.
SO ORDERED
Dated: December 28, 2023
Detroit, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
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s/Jennifer McCoy
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