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Motorola, Inc. v. Lemko Corp.

November 17, 2010

MOTOROLA, INC.
v.
LEMKO CORP., ET AL.



Name of Assigned Judge or Magistrate Judge Matthew F. Kennelly Sitting Judge if Other than Assigned Judge

TITLE

DOCKET ENTRY TEXT

For the reasons stated below, the Court grants in part and denies in part Motorola's motion to compel Huawei to respond to Motorola's document requests [# 634] and Huawei's motion to compel Motorola to produce documents [# 631], and denies Motorola's motion to compel Lemko to produce source code pursuant to requests 90-99 [# 623].

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

In this order, the Court rules on Motorola's motion to compel Huawei to respond to Motorola's document requests [# 634], Huawei's motion to compel Motorola to produce documents [# 631], and Motorola's motion to compel Lemko to produce source code pursuant to requests 90-99 [# 623]. The Court is disappointed that Motorola and Huawei did not file a joint status report, as the Court specifically directed. The next time any attorneys in the case fail to comply with an order to submit a joint status report, the Court will impose an immediate monetary sanction on all involved.

1. Motorola's Motion to Compel Huawei

a. Requests 1-8, 14, 16, and 20-22. There does not appear to be a dispute regarding the scope of production pursuant to these requests. The only dispute concerns timing. The Court orders Huawei to complete production of documents pursuant to these requests by December 31, 2010. The Court also orders Huawei to begin production by no later than seven days from the date of this order and to make production on a prompt rolling basis as documents are available. If Huawei back-loads the time for production of a significant proportion of these documents without a significant justification, the Court will impose sanctions on Huawei.

b. Requests 9, 10, 12 and 13. These requests are to some extent unduly burdensome. The Court adopts Huawei's proposed approach to production as set forth on the carryover paragraph at pages 2-3 of its status report.

c. Requests 15 and 18. There does not appear to be a dispute regarding the scope of production pursuant to these requests. The Court orders Huawei to complete production pursuant to these requests by December 15, 2010 (the Court does, in fact, intend the deadline to be different from that stated above). The Court also orders Huawei to begin production promptly and to make production on a prompt rolling basis as documents are available. The Court gives the same admonition regarding back-loading as described above.

d. Request 17. The Court adopts Huawei's statement regarding the scope of production pursuant to this request as stated under heading C on page 4 of its status report.

e. Request 19. Huawei has agreed to produce certain documents in response to this request, as described at page 5 of Huawei's status report (second full sentence) and page 5 of Motorola's status report (first sentence of last paragraph). The Court is comfortable with the scope of Huawei's search as described in the fourth sentence of page 5 of its status report, with the following conditions: Huawei must identify to Motorola the persons whose hard drives are searched and must described in a sworn affidavit (or affidavits) the basis for its selection of those persons as those "likeliest to have documents responsive to this request." The Court defers the question of whether Motorola may obtain Huawei source code pending further review after production of the documents Huawei has agreed to produce. The Court orders Huawei to begin production promptly and to make production on a prompt rolling basis as documents are available. Huawei must complete its production by December 31, 2010. The Court gives the same admonition regarding back-loading as described above.

f. Motorola document request set 2. The Court orders Huawei to complete production of documents pursuant to these requests by December 31, 2010. The Court also orders Huawei to begin production promptly and to make production on a prompt rolling basis as documents are available. If Huawei back-loads the time for production of a significant proportion of these documents without a significant justification, the Court will impose sanctions on Huawei.

g. Protective order. Huawei has indicated that it wishes to designate some documents for viewing on an outside-attorney's-eyes-only basis. The current protective order does not contemplate this level of protection. If Huawei wishes a modification of the order, it must file the motion no later than Friday, November 19, 2010 and notice it for presentment on Wednesday, November 24, 2010 at 9:30 a.m. Any response by Motorola must be filed (and a complete, unredacted copy dropped off in Room 2188) by no later than 4:00 ...


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