Correct Transmission, LLC v. Nokia Corporation et al

Filing 246

MEMORANDUM ORDER - denying 168 . Signed by Magistrate Judge Roy S. Payne on 3/26/2024. (CH)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CORRECT TRANSMISSION, LLC
Plaintiff,

v.

NOKIA OF AMERICA CORP.,
Defendant.

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CIVIL ACTION NO. 2:22-cv-0343-JRG-RSP

MEMORANDUM ORDER
Before the Court is Plaintiff Correct Transmission, LLC’s Motion to Strike Nokia’s
Untimely December 15, 2023 Source Code Production. (Dkt. No. 168.). After consideration, the
Court DENIES the motion as provided below.
I.

BACKGROUND
On April 7, 2023 Nokia made its source code available for inspection and CT reviewed the

source code in May, with Nokia ultimate producing requested printouts on June 9, 2023. (Mot. at
1.) The deadline to complete fact discovery was November 15, 2023. (Id.) On December 15, 2023
the parties served rebuttal expert reports. (Id. at 2.) Along with Nokia’s non-infringement expert
report, it provided the complained of source code printouts upon which its experts relied. (Id.)
II.

APPLICABLE LAW
Rule 26 provides:
In General. A party who ... has responded to an interrogatory ... must supplement or correct its
disclosure or response: [ ] in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the discovery process or in writing.
Fed. R. Civ. P. 26(e).
Rule 37 provides:
Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party 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)
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The Court considers four factors when determining if a Rule 26 violation is “substantially
harmless” under Rule 37. Those factors are the (1) importance of the evidence, (2) prejudice to the opposing
party of including the evidence, (3) possibility of curing such prejudice by granting a continuance, and (4)
explanation for a party's failure to disclose. See Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d
546, 563 (5th Cir. 2004). The party facing Rule 37 sanctions carries the burden of showing its failure to
comply with Rule 26 was “substantially justified or harmless.” See Rembrandt Vision Techs. LP v. Johnson
& Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (Fed. Cir. 2013).

III.

ANALYSIS
CT contends Nokia “waited until after Correct Transmission made its final election of infringement

claims for trial, completed fact discovery, including depositions of Nokia’s engineers designated on topics
of non-infringement, and after the service of CT’s opening infringement report” to produce the source code
at issue. (Mot. at 4.) CT contends this prevented CT’s experts from considering the code in their reports.
(Id.)
Nokia responds that it timely produced its source code. (Opp. at 5-6.) Nokia contends that all of the
complained of source code was produced and made available for inspection in April 2023. (Id. at 6.) Nokia
argues that this means CT and its experts had access to the source code, could have printed it out, and could
have addressed it in their reports. (Id.)
On Nokia’s representation that the complained of source code was previously made available for
inspection, the Court finds that CT is not prejudiced by Nokia’s “production” on December 15, 2023 of the
source code cited in rebuttal reports. On Nokia’s representation, CT’s complaint is thus not that this source
code is newly produced, but rather that Nokia had not previously identified it as relevant. CT has not shown
prejudice based on when Nokia identified the code as relevant. That CT’s experts did not choose to review
this source code or did not independently ascertain its importance is not grounds for finding prejudice.
Without prejudice, there is no grounds to strike evidence and thus CT’s motion is DENIED.

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IV.

CONCLUSION
For
the reasons
the Court
DENIES CT’s motion to strike.
SIGNED
thisprovided
3rd dayabove,
of January,
2012.

SIGNED this 26th day of March, 2024.

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ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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