Magistrate Judge Burke Resolves Disputes over Identification of Accused Products and Production of Core Technical Documents

November 3, 2016

Publication| Intellectual Property

In Tessera, Inc. v. Broadcom Corp., C.A. No. 16-380-LPS-CJB (D. Del. Oct. 19, 2016), Magistrate Judge Burke resolved disputes over identification of accused products and core technical documents. Specifically, Tessera, Inc. and Tessera Advanced Technologies, Inc. (together, “Tessera”), the plaintiffs, identified products accused of infringing certain patents as those containing materials that display a certain property, but the defendant, Broadcom Corporation (“Broadcom”), stated that it neither knew nor kept records of whether its products contained materials displaying such property, and that the burden of identification should fall on Tessera. Broadcom also objected to the production of core technical documents because, it argued, Tessera’s identification of accused products could include over 1,000 products.

Judge Burke ordered Tessera to identify specific compositions it had determined display the relevant property, and ordered Broadcom to produce bills of materials regarding a “representative number” of potentially accused products, from which Tessera could identify the relevant materials. Judge Burke ordered the parties to meet and confer to determine a representative subset of potentially accused products.

Key Points:  This decision reflects the influence of the proportionality standard in Federal Rule of Civil Procedure 26(b)(1) in the Court’s resolution of discovery disputes.

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