*1 This is a patent infringement action. Defendant Maquet Cardiovascular LLC (“Maquet”) is the owner of several patents for guidable intravascular blood pumps and related methods. Plaintiff Abiomed Inc. has filed a complaint requesting declaratory judgment of noninfringement of three Maquet patents. Maquet has filed a counterclaim. Over time, this action has been narrowed to two claims of a single patent (the ’100 patent) which concern a component part of the blood pump.

For non-compliance with this Court's October 6, 2017 order on discovery motions, Docket No. 160, Maquet seeks the following sanctions: (1) to prohibit Abiomed from supporting or opposing any claims or defenses that relate to the design, development, structure, function or operation of the accused products; (2) to prohibit Abiomed from raising any invalidity or unenforceability claims or defenses; (3) to compel Abiomed to obey this Court's October 2017 order by producing all responsive documents; and (4) to pay Maquet's reasonable expenses in bringing the contempt motion. Docket No. 418. Maquet also seeks an order holding Abiomed in contempt of this Court's October 6, 2017 order. Id. Abiomed opposed the motion and Maquet filed a reply brief. Docket Nos. 500, 539. This Court heard oral argument on October 25, 2019. For the following reasons, this Court denies the motion for sanctions.[2]

I. BACKGROUND

On April 4, 2017, Judge Saylor endorsed an ESI order setting forth the parties’ stipulated discovery protocol. Docket No. 61. The parties specifically agreed to identify and exchange lists of custodians and search terms, confer, conduct searches and then, if necessary, identify additional custodians and search terms. Id. at 2. The parties would then confer regarding any additional custodians and terms identified, and conduct searches of custodial documents and emails relating to agreed upon topics. Id. After that, if more custodians or search terms were needed, the party seeking such information would “bear the burden of showing good cause to the Court.” Id. at 3. The ESI order also provides that on-site inspection of electronic media is not permitted absent a demonstration by the requesting party of specific need and good cause. Id. at 8.

On October 6, 2017, this Court granted in part Maquet's motion to compel Abiomed to produce certain categories of technical documents. Docket No. 160. In particular, this Court modified requests for production (“RFPs”) 9 and 10 and ordered Abiomed to produce certain documents generated prior to September 22, 2010 for the Impella 2.5, Impella 5.0, Impella CP and Impella RP products. Id. at 8-10.[3]

*2 The parties subsequently conferred regarding compliance with the order. Docket Nos. 419 at 15; 500 at 7. Abiomed represented that it would take approximately six months to complete production of all responsive documents, but the production could be accelerated if Maquet agreed to inspect the materials in person in Danvers, Massachusetts pursuant to the ESI order. Docket No. 500 at 8. Maquet initially objected to inspection but “tentatively” agreed to Abiomed's subsequent proposal to provide technical data via a cloud-based FTP system known as Box.com. Docket Nos. 419 at 15-17; 500 at 8-9. Abiomed maintains that it stated upfront that documents would only be available in read-only format, but it would set up a process for Maquet to request copies of those documents. Docket No. 500 at 9.

Abiomed submits that by June 2018, it had provided over a million documents on Box.com. Id. at 10. Abiomed alleges that Maquet proceeded to access those documents for the next year and a half during which time it took eleven depositions and raised only minor issues with the platform. Id. During this time, Abiomed also claims that Maquet did not request any copies of Box.com documents. Id. at 11.

Maquet alleges that it learned early on that the materials accessible on Box.com could be produced in PDF format, which Maquet then requested from Abiomed. Docket No. 419 at 15-17. On August 2, 2019, Maquet allegedly requested that Abiomed immediately transmit copies of all documents available on Box.com, which Abiomed was unwilling to do. Docket No. 500 at 11. Maquet submits that the Box.com platform provides only rudimentary search functionality, with no capability to download, tag, organize, copy or otherwise memorialize an inspection of its contents. Id. at 10.

Maquet argues that Abiomed has not complied with this Court's October 2017 order in two key respects: (1) by failing to produce technical documents concerning design and development activities of Dr. Walid Aboul-Hosn, the first-named inventor of the system disclosed in Maquet's ’100 patent and (2) by making responsive design and development documents available only through Box.com.

II. STANDARD OF REVIEW

A trial court has broad discretion in fashioning sanctions for failure to comply with court orders. Goya Foods, Inc v. Wallack Mgmt. Co., 344 F.3d 16, 20 (1st Cir. 2003). “Of course, trial courts do not have unbridled license to pluck dollar figures out of thin air and incorporate them in sanctions.” Id. at 19-20 (citations omitted). “But mathematical exactitude is not required: so long as a sanction is reasonably proportionate to the offending conduct, the trial court's quantification of it ought not to be disturbed.” Id. at 20 (citations omitted).

III. DISCUSSION

A. Aboul-Hosn Documents

Maquet contends that Aboul-Hosn is one of the most knowledgeable people in the world regarding the design and development of intravascular heart pumps and, for that reason, was hired to work with Abiomed's chief technical officer on the research and design of the accused products. Docket No. 419 at 11-12. Maquet therefore submits that Aboul-Hosn's documents would reflect the design and development of the accused products and are therefore responsive to modified RFPs 9 and 10. Id. at 13-14. Thus, Maquet avers that Abiomed's failure to collect and produce his documents violates this Court's order. Id. Abiomed maintains that these documents are outside the scope of both that order and the stipulated ESI order because modified RFPs 9 and 10 do not encompass the documents, and Aboul-Hosn was not designated as a custodian. Docket No. 500 at 17-19.

As a threshold matter, Maquet misconstrues this Court's order with respect to RFPs 9 and 10. This Court stated that requests which seek “all documents and things related to” a particular topic are overbroad and subsequently ordered that only the “specific examples of types of documents contained in RFP 9 and 10 is appropriate.” Docket No. 160 at 10. Accordingly, Abiomed only had to produce, in response to RFP 9, drawings, schematics and operating instructions for the Impella 2.5, Impella 5.0, Impella CP and Impella RP products. In response to RFP 10, Abiomed had to produce only the specific kinds of documents listed therein (beginning with “schematics, engineering drawings ...”) for each of the Impella 2.5, Impella 5.0, Impella CP and Impella RP products.

*3 Nevertheless, Maquet interprets this Court's order as requiring:

Docket No. 419 at 10. Maquet also argues that these modified RFPs include “any such documents that arose out of, refer to, or otherwise relate to Dr. Aboul-Hosn's design and development contributions.” Id. at 14. Accordingly, in Maquet's view, Abiomed is in contempt for failing to produce documents relating to Aboul-Hosn's design and development contributions. Id. However, Abiomed was only required to produce the specific document types listed in RFPs 9 and 10. This Court's order did not, for example, require the production of emails and non-technical documents merely reflecting or relating to the listed document types. To the extent Maquet seeks documents (regardless of custodian)[4] outside these specific document types, Abiomed did not need to produce them in response to this Court's order. See Docket No. 160 at 8-10.

In addition, the parties’ stipulated ESI order delineates a step-by-step approach to identifying custodians and search terms and then running searches with that information. Docket No. 61 at 2. The order also expressly provides that a party seeking additional custodians/search terms must demonstrate good cause to the court. Id. at 3. Abiomed states that it did not collect or produce Aboul-Hosn's documents because Maquet did not select him as a custodian to be searched. Docket No. 500 at 18.[5] This Court's reading of the ESI order comports with that position. Accordingly, Abiomed was not required to nor need it now produce Aboul-Hosn's schematics, engineering drawings, etc. in order to comply with this Court's October 2017 order. This Court declines to sanction Abiomed on the basis of the Aboul-Hosn documents issue.

B. Box.com Discovery

*4 Maquet further argues that Abiomed should be sanctioned because Abiomed has refused to produce documents identified by Maquet on the Box.com platform in a usable format. Maquet maintains that it never acquiesced, and instead, only tentatively agreed to, Abiomed's use of Box.com because Abiomed said that the documents were duplicative of other productions and not otherwise available. Docket Nos. 419 at 18-19; 539 at 5. Abiomed argues that it has complied with this Court's order by making millions of documents available on Box.com over a period of a year and a half. Docket No. 500 at 14-17. Abiomed maintains that it should not be required to produce all those documents now. Id.

Abiomed has the better argument. This Court's October 2017 order did not discuss the form of production. In addition, the parties’ own stipulated ESI order contemplates inspection of electronic materials with the necessary showing of good cause. See Docket No. 61 at 8. Therefore, Abiomed offered to make the documents available for an in-person inspection in Danvers, which Maquet refused. Docket No. 500 at 14. Abiomed then explained that formal production would take six months to complete. Id. at 8. Accordingly, it offered to make read-only versions of technical documents available on the Box.com platform, and to provide copies of specific documents at Maquet's request. Id. at 14-15. At oral argument, Abiomed again expressed its willingness to provide Maquet with copies of documents on Box.com in response to specific requests.

Maquet has failed to identify any specific documents or category of documents missing from the Box.com platform. Nor has it adequately explained why it needs every single technical document in PDF form. Maquet appears to have made use of the documents on Box.com through August 2019. Therefore, Abiomed need not produce all technical documents on Box.com in a different format but must produce such documents based on a reasonable request from Maquet. This Court declines to sanction Abiomed on the basis of the Box.com issues.

D. Contempt

Pursuant to 28 U.S.C. § 636(e)(6), a magistrate judge does not have authority to issue a civil contempt finding where the case is not before the magistrate judge by consent. Navitag Techs., Inc., 2011 WL 3862168, at *2. In such circumstances, a magistrate judge may only certify the facts to a district judge. See 28 U.S.C. § 636(e)(6)(B)(iii). If Maquet intends to pursue an order of contempt, then it must first provide this Court with proposed facts to be certified with page references to material already in the record, or, if relying on new material, to attach such material to the proposed statement of facts. Such filing, if any, must be made within two weeks of the date of this order. Abiomed must, two weeks after Maquet files a proposed statement of facts, file its own proposed statement of facts following the same procedure.

IV. ORDER

For the foregoing reasons, this Court denies Maquet's motion for sanctions.