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Court Declines to Order Defendant to Assist Plaintiff with Using Proprietary Software

Posted on December 11th, 2015

Proprietary softwareIn the patent infringement case of SFP Works, LLC v. Buffalo Armory, LLC, Case No. 14-13575 (E.D. Mich., Nov. 19, 2015), Plaintiff filed a Motion to Compel production of certain electronic data related to the heat-treating process at issue in the litigation. During discovery, Plaintiff had asked for such data, and Defendants produced it with the software required to view it. Plaintiff encountered difficulties using the software and could not view the data. Accordingly, Plaintiff filed a Motion to Compel requesting that the court order Defendant to assist Plaintiff in its efforts to view and analyze the inaccessible data. Defendant objected, stating that the Motion was untimely and also that Defendant had offered multiple solutions to the problem that Plaintiff declined.

The court agreed with Defendant and denied the motion. The discovery order required that any party with a dispute must file a Motion to Compel within 14 days after discovering the dispute. Plaintiff received the data from Defendant on February 20th; Plaintiff sent Defendant a letter complaining that it would cost $6,000 to obtain a license for the viewing software on April 3rd; in May, after Defendant offered several solutions, Plaintiff still experienced problems related to viewing the data and communicating with the software vendor. By June 10th, Plaintiff had rejected all of Defendant’s solutions and still could not view the files, but did not file its motion until June 30th, more than 14 days after June 10th. Thus, the court deemed the motion as untimely.

The court further stated that, even if the Motion had been timely, it agreed with Defendant that the Motion was “unnecessary” because Plaintiff’s Motion requested that Defendant allow it to view the data at Defendant’s facility in Buffalo, which was one of the solutions Defendant offered. Plaintiff argued that it could not avail itself of that option because it could not get an extension of the discovery deadline; the court disagreed and found that Plaintiff could have gone to the facility before the end of discovery.

The opinion underscores the importance of acting quickly in the face of production issues, and also being mindful of any timing restrictions regarding the ability to move to compel.

ILS – Plaintiff ESI Experts

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