GEOTAG, INC., Plaintiff, v. FRONTIER COMMUNICATIONS CORP., et al., Defendants CASE NO. 2:10-CV-265-JRG United States District Court, E.D. Texas, Marshall Division Signed June 25, 2013 Filed June 26, 2013 Counsel Adam Cooper Sanderson, Joel W. Reese, Peter Dermot Marketos, Reese Gordon Marketos LLP, Eric Putnam Haas, Gardner Haas PLLC, Jeremy C. Martin, Jonathan Nockels, Michael Tobolowsky, Stephen F. Malouf, Malouf & Nockels LLP, Kirby Blair Drake, Klemchuk LLP, Thomas C. Clark, Turner Dealy Zimmermann & Clark, Todd Shelby Spickard, Spickard Law, P.C., Dallas, TX, for Plaintiff. Gilstrap, Rodney, United States District Judge ORDER *1 Before the Court are Plaintiff GeoTag, Inc.'s (“GeoTag”) Motion to Compel Production of Source Code by Defendants Represented by Fish & Richardson, filed April 9, 2013 (Dkt. No. 565); Motion to Compel Document Production on Mobile Store Locators from Defendant Radio Shack, filed April 15, 2013 (Dkt. No. 571); and Motion to Compel Production of Source Code by Defendant Intelius, for Scheduling Order Relief, and for Relief Under Fed. R. Civ. P. 37, filed April 17, 2013 (Dkt. No. 579). The Court having considered the same sets forth below its ruling on each motion. I. APPLICABLE LAW The rules of discovery are accorded a broad and liberal application to affect their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 176, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). “A district court has broad discretion in all discovery matters....” Beattie v. Madison County Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001) (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000)); see also Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 220 (5th Cir. 2000). The party requesting discovery may move to compel the disclosure of any materials requested so long as such discovery is relevant and otherwise discoverable. SeeFed. R. Civ. P. 37; Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006) (“Federal Rule of Civil Procedure 37(a)[ (3)(B)(iii) and (iv) ] empowers the court to compel the production of documents ... upon motion by the party seeking discovery.”). The moving party bears the burden of showing that the materials and information sought are “relevant to any party's claim or defense” or “appear[ ] reasonably calculated to lead to the discovery of admissible evidence.” See Fed. R. Civ. P. 26(b)(1); Knight, 241 F.R.D. at 263. Once the moving party establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to demonstrate why the discovery is irrelevant, overly broad, or unduly burdensome or oppressive. See, e.g., SSL Services, LLC v. Citrix Systems, Inc., 2010 U.S. Dist. LEXIS 11470, 2010 WL 547478 at *2 (E.D. Tex. Feb. 10, 2010) (citing Spiegelberg Mfg., Inc. v. Hancock, 2007 U.S. Dist. LEXIS 88987, 2007 WL 4258246 at *1 (N.D. Tex. Dec. 3, 2007)). II. DISCUSSION a. Motion to Compel Production of Source Code by Defendants Represented by Fish & Richardson (Dkt. No. 565) GeoTag requests the Court to compel defendants represented by Fish & Richardson (“the Fish Defendants”) to produce source code, in native format, for all past versions of the accused instrumentalities, dating back six years before each of Fish Defendant was sued. The Fish Defendants argue that they have produced “one representative version” of source code and that parties are not obligated to collect and produce publicly available documents. The Court agrees with GeoTag that the requested past versions of source code, including client-side source code, may be relevant to at least the Fish Defendants' defense of laches. The mere public availability of information does not relieve defendants of their discovery obligations under this District's local patent rules, which clearly require parties to produce such code. See P.R. 3-4(a). Moreover, the Fish Defendants make no attempt to demonstrate that producing such information is overly broad or unduly burdensome or oppressive. Accordingly, the Court finds that GeoTag's motion to compel source code production should be and is hereby GRANTED. The Fish Defendants are ORDERED to produce source code (including client side code) in native format for all past versions of the accused instrumentalities, even if publicly available, dating back six years before each Fish Defendant was sued. Such production shall be made within ten (10) days of this Order and in accordance with the controlling Protective Order and this Court's Order on GeoTag's Motion for Clarification (see Dkt. No. 668). *2 GeoTag further seeks to compel the Fish Defendants to limit their production to only the relevant portions of the source code and to prevent any Fish Defendant from simply producing its entire website. GeoTag argues that allowing production of entire websites will bury relevant source code. The Court finds that such request is premature and not properly raised as a motion to compel. While this Court adheres to a policy of broad discovery obligations, a party may not frustrate the spirit of open discovery by burying relevant information in a trench of irrelevance. See, e.g., ReedHycalog UK, Ltd. v. United Diamond Drilling Servs., No. 6:07-cv-251, 2008 U.S. Dist. LEXIS 93177 at 7-8 (E.D. Tex. Oct. 3, 2008) (Davis, J.). If GeoTag later believes, after production of the source code compelled above, that a Fish Defendant has engaged in abusive discovery practices by producing its entire website or otherwise obscuring relevant information, then the appropriate remedy is for GeoTag to move this Court to impose an appropriate sanction at that time. Accordingly, the Court finds that GeoTag's request to limit the Fish Defendants' production is premature and should be and is hereby DENIED. Nonetheless, the Fish Defendants should be on notice hereby that any efforts to obscure relevant and discoverable information will be viewed both seriously and negatively by this Court. b. Motion to Compel Document Production on Mobile Store Locators from Defendant Radio Shack (Dkt. No. 571) GeoTag requests the Court to compel Defendant Radio Shack to produce documents related to Radio Shack's mobile locator. Radio Shack contends that such documents are irrelevant because its mobile locator is not an accused instrumentality. The Court agrees. GeoTag has served PICs on numerous other defendants' specifically accusing their mobile locators. Here, GeoTag has served PICs accusing Radio Shack's store locator and job locator, but not its mobile locator. The Court finds that GeoTag clearly treats a mobile locator as a separate instrumentality and has not accused Radio Shack's mobile locator in this case. GeoTag alternatively argues that the mobile locator documents are discoverable because Radio Shack's mobile locator is “reasonably similar” to the accused store locator. To demonstrate that it is entitled to discovery concerning reasonably similar products, GeoTag must show that (1) its preliminary infringement contentions (“PICs”) gave Radio Shack notice of a specific theory of infringement and (2) the products it seeks discovery of operate in a manner reasonably similar to that theory. See, e.g., Honeywell Int'l, Inc. v. Acer America Corp., 655 F. Supp. 2d 650, 656 (E.D. Tex. 2009). GeoTag must also demonstrate that it has diligently sought this information. Id. Here, while Radio Shack's mobile locator has been publicly available since 2011, GeoTag provides no explanation for its delay in accusing Radio Shack's mobile locator or in seeking information related to it. Rather, GeoTag's briefing reveals that GeoTag simply was not aware of the mobile locator until it learned of the mobile locator through Radio Shack's production in February 2013. (See Dkt. No. 620 at 4.) A lack of awareness as to publicly available information, by itself, does not excuse GeoTag's failure to accuse Radio Shack's mobile locator. Accordingly, the Court finds that GeoTag's motion to compel Radio Shack (Dkt. No. 571) should be and is hereby DENIED. c. Motion to Compel Production of Source Code by Defendant Intelius, for Scheduling Order Relief, and for Relief Under Fed. R. Civ. P. 37 (Dkt. No. 579) GeoTag requests the Court to compel Defendant Intelius to produce source code, in native format, for all past versions of the accused instrumentalities, dating back six years before each of the Fish Defendants were sued. Intelius contends that it offered to produce source code in its possession and had done so before GeoTag filed the present motion to compel. Intelius also contends that it has supplemented its production and that GeoTag's motion is therefore moot. GeoTag filed the motion to compel without having reviewed these productions. Accordingly, the Court DENIES GeoTag's motion to compel without prejudice to re-urging the same upon timely review of Intelius' production. It is further ORDERED that GeoTag's concurrent request for costs is DENIED. *3 GeoTag also requests that the Court extend the deadline for GeoTag to supplement its infringement contentions. The Court finds that the request should be and is hereby DENIED AS MOOT in light of its Order regarding GeoTag's Motion for Clarification (see Dkt. No. 668). III. CONCLUSION For the reasons stated herein, it is ORDERED that GeoTag's Motion to Compel Production of Source Code by Defendants Represented by Fish & Richardson, filed April 9, 2013 (Dkt. No. 565) is GRANTED-IN-PART and DENIED-IN-PART as specified herein; GeoTag's Motion to Compel Document Production on Mobile Store Locators from Defendant Radio Shack, filed April 15, 2013 (Dkt. No. 571) is DENIED; and Motion to Compel Production of Source Code by Defendant Intelius, for Scheduling Order Relief, and for Relief Under Fed. R. Civ. P. 37, filed April 17, 2013 (Dkt. No. 579) is DENIED. So Ordered and Signed on this Jun 25, 2013.