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Medidea, L.L.C. v. Depuy Orthopaedics, Inc.

United States District Court, D. Massachusetts

August 23, 2018

MEDIDEA, L.L.C., Plaintiff,
v.
DEPUY ORTHOPAEDICS, INC. et al., Defendants.

          ORDER ON DISCOVERY MOTIONS

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE

         This matter was recently reassigned to the undersigned after its transfer to this District from the Northern District of Illinois, and following the recusal of two other Judges of this Court.

         At the time of reassignment, five motions arising from discovery disputes were ripe and unresolved. Those motions are the subject of this Order.

         I. Plaintiff's Motion to Compel DePuy to Produce Documents Responsive to Plaintiff's First Request for Production (Doc. No. 78)

         The first motion arose from MedIdea's dissatisfaction with the manner in which DePuy responded to MedIdea's first set of discovery requests, and its concern that only ten weeks would remain in the discovery period by the time DePuy completed its production of responsive documents. See generally Doc. Nos. 78, 79. The motion was filed and briefed in November 2017. At that time, DePuy anticipated substantially completing its production of documents in January 2018, and fact discovery was set to conclude in March 2018. Doc. No. 79 at 2-3. MedIdea sought an order compelling DePuy to produce all responsive documents by November 30, 2017. Doc. No. 78 at 2.

         After MedIdea filed its motion, the discovery deadline was extended twice, with fact discovery ultimately concluding on August 3, 2018. Doc. Nos. 94-95, 108-09. It appears DePuy now has completed its document production. See Doc. No. 113 at 7 (describing the document production and suggesting the only items outstanding were royalty reports, which the Court addresses below). No party has sought a further extension of the fact discovery deadline.

         In these circumstances, MedIdea's first motion to compel (Doc. No. 78) is DENIED without prejudice as MOOT.

II. Defendants' Motion to Compel Infringement Contentions (Doc. No. 84)

         The second motion expressed DePuy's dissatisfaction with MedIdea's preliminary infringement contentions which, in part, cited annotated figures from a patent held by DePuy rather than photographs or figures depicting the accused product itself. See generally Doc. Nos. 84-85. DePuy sought an order compelling MedIdea “to immediately provide infringement contentions that comply with the local rules” by articulating “how MedIdea is reading the claims onto the actual accused products.” Doc. No. 85 at 16. The motion was filed and briefed in February 2018.

         After DePuy filed its motion, MedIdea amended its preliminary infringement contentions in a manner which appears to eliminate the deficiency DePuy identified. Doc. Nos. 102-06. MedIdea filed its revised infringement contentions in April 2018, after the parties had filed their claim construction briefs but well in advance of any Markman hearing. See Doc. Nos. 120, 129, 141 (setting hearing for August 2018, then rescheduling it to October 2018, then cancelling it upon reassignment). DePuy has not challenged the amended contentions.

         Accordingly, DePuy's motion to compel (Doc. No. 84) is DENIED without prejudice as MOOT.

         III. Plaintiff's Motion to Compel DePuy to Produce Documents, Produce Samples of the Accused Product, Designate a Witness for Specified 30(b)(6) Topics, and for Sanctions

         In the third motion, MedIdea complains that DePuy has refused to: 1) produce royalty reports for its knee products; 2) provide MedIdea “the various different sizes of the Accused Product” for free; and 3) designate a 30(b)(6) witness to address topics related to DePuy's document production. Doc. No. 112 at 2. MedIdea asks for an order compelling DePuy to do each of those things, and further seeks sanctions and an award of attorney's fees. Id.; Doc. No. 113 at 18. DePuy opposes the motion. Doc. No. 124. The Court will address each of MedIdea's requests in turn.

         1. Ro ...


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