Tellabs Ops., Inc. v. Fijitsu, Ltd., No. 09 C 4530, Slip Op. (N.D. Ill. Feb. 13, 2014) (Cole, Mag. J.).
Judge Cole denied plaintiff/counter-defendant Tellab’s motion to expedite ruling upon Tellab’s motion to reclassify certain confidential documents or that Tellab’s executives could review the documents before a looming mediation. The Court denied the motion for several reasons:
- Tellabs should not have waited until four weeks before a mediation to complete briefing about documents that were reviewed as much as one year ago.
- With the motion noticed four days before the mediation and eight categories and hundreds of pages to review, the Court could not meaningfully consider the issues.
- The motion to expedite was the 1,185th document filed in the five-year-old case, with two prior mediations. Parties and counsel should already be well-versed in the case and ready for mediation based upon the already extensive schedule to date.
- Tellabs offers no reason it could not postpone the mediation instead of expending the Court’s limited resources.
Having denied to expedite its decision, the Court said it would attempt to decide the motion before the mediation.
Osiris Entertainment, LLC v. Does 1-38, No. 13 C 4901, Slip Op. (N.D. Ill. Aug. 20, 2013) (Tharp, J.).
Judge Tharp granted plaintiff Osiris Entertainment’s Fed. R. Civ. P 26(d) motion to take expedited discovery prior to a Rule 26 conference in order to discover the potential identities of the thirty eight Doe defendants otherwise only identified by their respective IP addresses in this copyright case involving the alleged infringement of the movie Awaken via BitTorrent.
As an initial matter, the Court sua sponte considered whether the thirty-eight Does were properly joined. Recognizing a district split, that mirrors a national split among district courts, the Court held that members of the same swarm may be joined in a single suit even if their direct participation in the swarm did not overlap in time, explaining:
As noted above, BitTorrent requires a cooperative endeavor among those who use the protocol. Every member of a swarm joins that cooperative endeavor knowing that, in addition to downloading the file, they will also facilitate the distribution of that identical file to all other members of the swarm, without regard to whether those other members were in the swarm contemporaneously or whether they joined it later. In that light, permitting joinder among non-contemporaneous swarm participants does not seem novel or extreme; the law governing joint ventures and conspiracies, for example, clearly permits plaintiffs to proceed against groups of defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not all of the members of the group took part in all of the actions of the group and without regard to when the members joined the group.
Citations omitted. The Court did, however, note that there would be some requirement of temporal proximity because at some amount of separation the analogy would break down. But in this instance, the alleged Does were involved over a “relatively brief” period.
Having determined that joinder was proper at least at the initial stages of the case, the Court granted Osiris Entertainment’s motion to issue subpoenas aimed at identifying the Does based upon their alleged IP addresses. The Court, however, prohibited Osiris Entertainment from publishing the Doe’s alleged identities without leave of Court, noting that there was a “substantial possibility[y]” that the individuals associated with a particular IP address were not the individuals that downloaded the allegedly copyrighted material.
Sloan Valve Co. v. Zurn Indus., Inc., No. 10 C 204, Slip Op. (N.D. Ill. Aug. 23, 2013) (St. Eve, J.).
Judge St. Eve granted defendants’ (collectively “Zurn”) Daubert motion in limine to exclude plaintiff Sloan Valve’s “corporate intellectual property practice” expert in this patent infringement case involving flush valves for use in plumbing fixtures. Zurn argued that the expert’s opinions regarding willfulness should not be allowed because they had not been sufficiently disclosed in the expert’s report. The expert sought to opine that Zurn had acted inconsistent with “normal standards of fair commerce”, thus making Zurn’s conduct was willful. The Court excluded those opinions because “normal standards of fair commerce” was never identified or discussed in the expert’s disclosures and reports. Furthermore, there were no corporate standards or other evidence of “normal standards of fair commerce” identified as having been considered by the expert in relation to his report. The Court also noted that Sloan Valve’s arguments regarding the purposes and testimony of the expert’s opinions had shifted throughout the briefing and hearing. And Sloan Valve’s failure to disclose the normal standards or corporate policies was not harmless or substantially justified. Without at least some notice of them, Zurn was unable to properly respond to them.