BlackBerry Ltd. v. Facebook, Inc.
BlackBerry Ltd. v. Facebook, Inc.
2019 WL 13447227 (C.D. Cal. 2019)
September 30, 2019
Stevenson, Karen L., United States Magistrate Judge
Summary
The court granted BlackBerry's motion in part, ordering Facebook to produce ESI related to the '961 Patent Accused Products, including any ESI related to the use of OpenSSL to generate cryptographic keys for setting up a secure data connection between Facebook Messenger application and Facebook's servers using TLS connections, as well as any ESI related to the use of OpenSSL to generate cryptographic keys for other products and services with the same or substantially similar features.
Additional Decisions
BlackBerry Limited
v.
Facebook, Inc. et al
v.
Facebook, Inc. et al
Case No. CV 18-1844-GW (KSx)
United States District Court, C.D. California
Filed September 30, 2019
Stevenson, Karen L., United States Magistrate Judge
Proceedings: (IN CHAMBERS) ORDER RE: PLAINTIFF'S MOTION RE: INADEQUACY OF FACEBOOK'S DISCOVERY RELATINGTO U.S. PATENT NO. 7,372,961 [DKT. NO. 386]
INTRODUCTION
*1 Before the Court is Plaintiff BlackBerry Limited's (“BlackBerry's” or “Plaintiff's”) Motion Regarding the Inadequacy of Facebook's Discovery Relating to U.S. Patent No. 7,372,961 (the “Motion”), filed on September 3, 2019, along with the Declaration of Zachary Flood (“Flood Decl.”) and related exhibits. (Dkt. No. 386.) On September 10, 2019, Defendant Facebook, Inc. (“Defendant” or “Facebook”) filed a Response to the Motion (“Response”) with a Declaration of Heidi L. Keefe (“Keefe Decl.”) and related exhibits, including a Declaration of Kyle Nekritz (“Nekritz Decl.”). (Dkt. Nos. 424, 425.) On September 13, 2019, BlackBerry filed a Reply in Support of the Motion (“Reply”). (Dkt. No. 435.) On September 17, 2019, the Court heard oral argument on the motion and took the matter under submission. (Dkt. No. 452.)
For the reasons outlined below, the Motion is GRANTED in part and DENIED in part.
RELEVANT BACKGROUND
The Court provided a detailed summary the nature of the allegations and claims in this patent infringement action in its Order of August 19, 2019 regarding Plaintiff's Motion to Compel Production of Material in Response to BlackBerry's Requests for Electronically Stored Information. (See Dkt. No. 329.) Therefore, the Court assumes the parties' familiarity with the procedural history of this case and only discusses those facts relevant to the pending Motion.
The operative First Amended Complaint (“FAC”) identifies nine patents at issue in the case, U.S. Patent Nos. 7,372,961 (the “'961 Patent”); No. 8,209,634 (the “'634 Patent”); No. 8,279,173 (the “'173 Patent”)' No. 8,301,713 (the “'713 Patent”); No. 8,429,236 (the “'236 Patent”); No. 8,677,250 (the “'250 Patent”); No. 9,349,120 (the “'120 Patent”); No. 8,296,351 (the “'351 Patent”); and No. 8,676,929 (the “'929 Patent”) (collectively, the “Patents-in Suit”). (FAC ¶¶ 46-81 [Dkt. No. 15].) The single issues raised in the Motion pertains to the adequacy of Facebook's discovery concerning the '961 Patent. (Motion at 1.)
The allegations of the FAC with respect to the '961 Patent are as follows.[1] The '961 Parent 'is entitled 'Method of public key generation,” and was issued on May 13, 2008. (FAC ¶ 46.) The '961 Patent “discloses, among other things, 'key generation technique[s for public key cryptosystems] in which any bias is eliminated during the selection of the key.” (Id. at ¶ 90.) The FAC further explains that public key cryptosystems are used to protect and provide security for data communications systems. Specifically, ‘[s]uch systems use a private key k and a corresponding public key αK where α is a generator of the group. Thus, one party may encrypt a message with the intended recipient's public key and the recipient may apply his private key to decrypt it.’
(FAC ¶ 91.) The '961 Patent identifies “potential weakness in the public key based cryptosystems, even those which use both ephemeral keys to help maintain the secrecy of the long term private key.” (FAC ¶ 94.) The '961 Patent provided “unconventional solutions” to address the security problems related to these weaknesses. (FAC ¶ 102.) As described in the FAC, “the '961 Patent is drawn to solving a specific, technical problem arising in the context of key generation in cryptographic communication between data communication systems.” (FAC ¶112.)
*2 BlackBerry alleges that Facebook infringed the '961 Patent by
Making, using, offering for sale/lease, selling or leading in the United States, and/or importing into the United States without authority or license, products that support (i) “private key generation' for generating and sharing a public key (and including, but not limited to, encrypting messages sent to Facebook servers using Transport Layer Security) that includes or supports OpenSSL and the OpenSSL elliptic curve cryptography (“EC”) library, including the Facebook Messenger application, and related Facebook backend servers and systems (herein after “the '961 Accused Products”) that infringe at least claims 15 and 23 of the '961 Patent.
(FAC ¶ 118 (emphasis added).)
On September 14, 2018, BlackBerry served its Disclosure of Asserted Claims and Preliminary Infringement Contentions pursuant to Standing Patent Rule S.P.R. 2, which included a claim-by-claim chart of BlackBerry's infringement contentions for the '961 Patent. (Motion at 3; Flood Decl., Ex. 1.) BlackBerry served two subsequent supplementations to its infringement contentions. (Motion at 4; Exs. 2, 15.) BlackBerry maintains that its contentions “provide a detailed, step-by-step mapping of the asserted claim limitations to source code corresponding to specific cryptographic key generation algorithms contained within OpenSSL, which Facebook uses to generate cryptographic keys.” (Id. at 1 (citing Exs. 1, 2, 15).)
On August 30, 2019, Facebook served a Motion to Strike Portions of BlackBerry's Second Supplemental Infringement Contentions (the “Motion to Strike”) with respect to the '961 Patent. (Dkt. No. 376.) On September 9, 2019, BlackBerry filed an Opposition to Facebook's Motion to Strike. (Dkt. No. 412.) On September 16, 2019, Facebook filed its Reply in support of the Motion to Strike. (Dkt. No. 447.) A hearing on the Motion to Strike is scheduled for September 30, 2019 before the Honorable George H. Wu. (Id.)
THE MOTION
A. Plaintiff's Position
BlackBerry argues that even though it has consistently made clear “that the use of a specific algorithm to generate cryptographic keys is accused of infringing the ['961 Patent],” Facebook has unilaterally and impermissibly limited its discovery responses related to the scope of '961 Patent Accused Products “to a single subset of what was accused by BlackBerry: i.e., the use of OpenSSL to generate cryptographic keys for setting up a secure data connection between Facebook Messenger application and Facebook's servers using what are known as Transport Layer Security (‘TLS’) connections.” (Motion at 1.) BlackBerry contends that, by taking this narrow view of the '961 Patent Accused Products, “Facebook thus ignored the fact that BlackBerry's complaint and contentions apply the asserted claims beyond just this limited use case.” (Id.)
BlackBerry urges that “cryptographic keys generated using the accused OpenSSL code could be used for securing TLS connections between Facebook and applications other than Facebook Messenger.” (Id.) BlackBerry emphasizes that its initial infringement contentions explained that the “Accused Instrumentalities” included
*3 Facebook's products and services that generate and share a public key (and including, but not limited to, encrypting messages sent to Facebook servers using Transport Layer Security) that include or support OpenSSL and the OpenSSL elliptic curve cryptography (‘EC’) library, including the Facebook Messenger (‘FBM’) application and related Facebook backend servers and systems, and other products and services with the same or substantially similar features.
(Motion at 3, Ex. 1 (emphasis added).) BlackBerry argues that it “made clear” in the FAC, in its initial infringement contentions, and each of its subsequent supplementations to its infringement contentions, that the '961 Patent Accused Products includes more than just uses associated with Facebook Messenger. (Motion at 4.)
BlackBerry maintains that as a result of Facebook's unilateral narrowing of the scope of accused products for the '961 Patent, Facebook has failed: (1) to fully respond to BlackBerry's Interrogatory Nos. 5 and 8 asking Facebook to identify and describe “all uses of the accused OpenSSLkey generation algorithms” (id. at 5-6)[2]; (2) to produce documents in response to BlackBerry's RFP Nos 53-56 “regarding the scope of Facebook's implementation of the Accused Features of the '961 Patent” (id. at 4)[3]; and (3) provide a knowledgeable witness on the full extent and scope of Facebook's use of the accused OpenSSL algorithms” (id. at 2). In June 2019, BlackBerry served additional RFPs “specifically targeted to Facebook's use of the accused OpenSSL source code.” (Motion at 5 (citing Ex. 9 (RFPs Nos. 180-182).)
BlackBerry asserts that Facebook only disclosed for the first time that it had unilaterally limited the scope of its discovery responses regarding the '961 Patent to information concerning Facebook Messenger during the deposition of Facebooks corporate witness, Kyle Noritz (“Nekritz”) on July 18, 2019. (Motion at 6.) BlackBerry also contends that Nekritz lacked knowledge “regarding the use of the accused OpenSSL source code outside of the context of [Facebook Messenger].” (Id. at 6-7.) But Nekritz was able to provide some testimony regarding other datasets relevant to the ‘961 Patent discovery and BlackBerry contends “on information and belief” that it appears that some of the “historical data contained in these data sets— including data that existed in the datasets as of the date of service of BlackBerry's First Amended Complaint—has been lost.” (Id. at 7-8.)
*4 BlackBerry argues that in addition to an order that Facebook “provide documents and fulsome interrogatory responses, the Court should also impose “evidentiary or other sanctions” as a penalty for Facebook's failure to preserve datasets pertaining to accused instrumentalities beyond Facebook Messenger. (Motion at 14-15.) BlackBerry argues that “[a]n adverse inference instruction is necessary, as there is no lesser sanction capable of remedying the prejudicial effects of Facebook's spoliation. BlackBerry “requests that the Court (1) provide an adverse inference instruction to the jury that 100% of Facebook's TLS connections ... utilized the accused OpenSSL source code for generating cryptographic keys; and (2) preclude Facebook from presenting any evidence or argument refuting or otherwise relating to the extent of its use of the accused OpenSSL source code for generation of cryptographic keys.” (Motion at 16.)
B. Facebook's Position
In its Response to the Motion, Facebook argues that it has provided “fulsome discovery responses” and that “BlackBerry's infringement contentions for the '961 patent specifically accused and only charted the “Facebook Messenger (‘FBM’) application and related backend servers and systems.” (Response at 1-1.) Further, Facebook contends that BlackBerry waited until just weeks before the close of discovery to expand the scope of its infringement allegations with respect the '961 Patent. (Id. at 1.) Facebook does not dispute the substance of Plaintiff's RFPs Nos. 53-56 but maintains that Facebook expressly limited its agreement to produce documents pertaining “to uses by ‘Facebook products or services identified in the First Amended Complaint of Plaintiff's Supplemental Infringement Contentions.’ ” (Id. at 2.) In addition, Facebook emphasizes that “it had already made available its source code relating to Facebook Messenger, which was the only identified accused product.” (Id.)
Similarly, Facebook argues that its responses to Interrogatory Nos. 5 and 8 included objections to those interrogatories “to the extent that it seeks information not relevant to the Accused Features and beyond the scope of the current litigation.” (Response at 3.) Facebook contends that “[i]t was not until July 2019 ... that BlackBerry murmured for the first time that other products were in the case.” (Response at 3.)
According to Facebook, the Court should reject BlackBerry's assertion that it is entitled to discovery concerning any products beyond Facebook Messenger for three reasons. (Response at 3-4.) First, Facebook insists that “BlackBerry's infringement contentions only specifically identified Face Messenger as the accused product.” (Id. at 4.) Second “BlackBerry should not be allowed to shift the burden onto Facebook to guess as to the scope of discovery simply because BlackBerry improperly used open-ended language in its contentions.” (Id.) Facebook also argues that “to the extent BlackBerry was entitled to discovery on reasonably similar products, BlackBerry failed to act diligently in seeking his discovery” because in the ten months since Facebook served its discovery responses, “BlackBerry never alleged any deficiency, and never sought to compel.” (Id.) Facebook argues that BlackBerry's delay in taking the deposition of Facebook's Rule 30(b)(6) witness “is critical and fatal to BlackBerry's argument.” (Response at 5.)
Finally, Facebook argues that BlackBerry lacks any factual basis to support “the extreme remedy of sanctions” because BlackBerry cannot establish that Facebook failed to take reasonable steps to preserve the missing data sets and fails to demonstrate that it has been “prejudiced by any loss of data.” (Response at 6-7.)
LEGAL STANDARD
Under Rule 26 of the Federal Rules of Civil Procedure, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). As amended in December 2015, Rule 26(b)(1) identifies six factors to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id. Relevant information need not be admissible to be discoverable. Id. In patent cases, the scope of discovery “should be liberally construed under Rule 26(b)(1) of the federal rules of Civil Procedures. See Bd. of Trustees of L:eland Stanford Jr. Univ. v. Roche Molecular Sys. Inc., 237 F.R.D. 618, 621 (N.D. Cal. 2006) (compelling production of documents under Rule 26 in patent infringement case).
*5 Rule 37 provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” FED. R. CIV. P. 37(a)(3). The party seeking to compel production of documents under Rule 34 has the “burden of informing the court why the opposing party's objections are not justified or why the opposing party's responses are deficient.” Best Lockers, LLC v. American Locker Group, Inc., Case. No. SACV 12-00403 CJC (ANx), 2013 WL 12131586, at *4 (C.D. Cal. Mar. 27, 2013).
District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When considering a motion to compel, the Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751).
DISCUSSION
A. The Discovery Sought is Relevant and Proportionate to the Needs of the Case
Following the 2015 amendment to the Federal Rules of Civil Procedure, the scope of discovery, as noted above, is defined by the claims and defenses at issue in the action. Having reviewed the SAC, the moving papers, and Plaintiff's initial and supplemented infringement contentions, the Court concludes that Facebook's unilateral limitation of its discovery responses to BlackBerry's discovery requests was unjustified and improper.
BlackBerry has consistently made clear that the scope of the accused products relating to the “961 Patent is broader than simply Facebook Messenger. During oral argument on the Motion, Facebook argued that should Judge Wu grant its motion to strike BlackBerry's Second Supplemental Infringement Contentions, this Motion becomes moot. Not so. As emphasized above, the FAC unequivocally alleges that Facebook infringed the '961 Patent by:
making, using, offering for sale/lease, selling or leading in the United States, and/or importing into the United States without authority or license, products that support (i) “private key generation' for generating and sharing a public key (and including, but not limited to, encrypting messages sent to Facebook servers using Transport Layer Security) that includes or supports OpenSSL and the OpenSSL elliptic curve cryptography (“EC”) library, including the Facebook Messenger application, and related Facebook backend servers and systems (herein after “the '961 Accused Products”) that infringe at least claims 15 and 23 of the '961 Patent.
(FAC ¶ 118 (emphasis added).) Thus, whether or not the district court grants Facebook's motion to strike BlackBerry's second supplementation of its infringement contentions, the allegations in the FAC and its earlier infringement contentions are sufficiently detailed to have put Facebook on notice that the scope of allegedly infringing products included more than the single product or service encompassed by Facebook Messenger. (See, e.g., Motion, Ex. 2 (BlackBerry's First Supplemental Disclosure of Asserted Claims, Accused Instrumentalities, and Infringement Contentions (sealed)).) Yet, Facebook appears to have strategically ignored BlackBerry's infringement allegations and contentions and unilaterally limited the scope of its discovery responses.
Facebook's argument—that, even if BlackBerry's infringement contentions encompassed accused products beyond Facebook Messenger, Facebook has provided fulsome responses to BlackBerry's discovery—is not persuasive. BlackBerry represents that it promptly and repeatedly attempted to meet and confer with Facebook to address Facebook's unilateral limitations of its discovery responses to the use of OpenSSL to generate keys for securing TLS connection for Facebook Messenger only. (Motion at 8-9.) Thus, Facebook's argument that BlackBerry has not been diligent in attempting to get the fulsome discovery it requested fails. Furthermore, Facebook cannot unilaterally limit its discovery responses and then excuse that conduct by blaming BlackBerry for not being sufficiently diligent in pursuing Facebook's misconduct.
B. Evidentiary Sanctions Are Not Warranted
1. Legal Standard
*6 Rule 37(e) of the Federal Rules of Civil Procedure authorizes sanctions against a party that fails to preserve electronically stored information
If electronically stored information that should have been preserved in the anticipation of conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may;
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
FED. R. CIV. P. 37(e).
Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence[,] pending or reasonably foreseeable litigation.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D. N.Y. 2003) (“Zubulake IV”) (internal citation omitted). The Court's authority to impose sanctions for spoliation arises from the court's inherent power to control the judicial process. Medical Laboratory Mgmt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 824 (9th Cir. 2002). The exercise of the court's inherent powers must be applied with “restraint and discretion” and only to the degree necessary to redress the abuse. Chambers v. NASCO, Inc. 501 U.S. 32, 435 (1991); see also Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994) (courts should choose “the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim”). Thus, the determination of an appropriate sanction for spoliation is within the court's “sound discretion” and is assessed on a case-by-case. Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (internal citations omitted).
A court's discretion “regarding the form of a spoliation sanction is broad, and can range from minor sanctions, such as the awarding of attorneys' fees, to more serious sanctions, such as dismissal of claims or instructing the jury that it may draw an adverse inference.” Apple, Inc. v. Samsung Electronics, Co., Ltd., 881 F.Supp.2d 1132, 1135 (N.D. Cal. 2012) (“Apple I”). In deciding which specific sanction to impose, courts typically consider three factors: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” Apple, Inc. v. Samsung Electronics Co., Ltd., 888 F.Supp.2d 976, 992 (N.D. Cal. 2012) (“Apple II”) (internal quotation marks omitted).
2. BlackBerry Fails to Show Intent Sufficient to Support Evidentiary Sanctions
BlackBerry argues that based on Facebook's failure to preserve portions of its databases that may have contained relevant, responsive information concerning infringing uses or products related to the '961 Patent Accused Products, the Court should impose evidentiary sanctions against Facebook in the form of an adverse inference instruction to the jury. (Motion at 14-16.) Facebook concedes that some datasets that contained information about other TLS connections beyond those used for Facebook Messenger have been lost. (Response at 7-8.) But the mere fact that evidence has been altered or even destroyed “does not necessarily mean that the party had engaged in sanction-worthy spoliation.” Ashton v. Knight Transp., Inc. 772 F. Supp.2d 772, 799-800 (N.D. Tex. 2011).
*7 Before the Court can impose the draconian sanction sought here of terminating sanctions, the party seeking such sanction must make a high threshold showing to warrant such a penalty. See FED. R. CIV. P. 37(e). Facebook contends that it did not “become aware that BlackBerry was seeking this [information]” until the July 18, 2019 deposition of Kyle Nekritz. (Response at 7.) At that point, Facebook claims that “upon learning of BlackBerry's requests, Facebook took reasonable steps to preserve the requested data.” (Id.) Facebook's claims to have been unaware of the nature of BlackBerry's requests until the Nektritz deposition are not fully credible given the clear allegations in the FAC, BlackBerry's initial and subsequent supplements to its infringement contentions, and Facebook's own objections to the scope of BlackBerry's discovery requests. Nevertheless, Plaintiff fails to meet the standard necessary to support an order imposing the severe penalty of evidentiary sanctions.
As to the first factor, the Court finds that Facebook is at fault in failing to preserve the datasets. Facebook maintains that the information was lost due to routine data retention/destruction policies that only go back either 30 or 90 days. It is well established that a party's obligation to preserve potentially relevant information attaches when litigation is reasonably anticipated. Blumenthal Distrib., Inc v. Herman Miller, Inc., No. ED CV 14-1926-JAK (SPx), 2016 WL 6609208, at *10 (C.D. Cal. July 12, 2016) (party must preserve evidence “it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence”); see U.S. v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). At oral argument, Facebook's counsel could not provide a satisfactory response to the Court's question about why the data at issue was not subject to a mandatory litigation hold. Facebook's explanation, as set out in the Nekritz Declaration, was that the data in these datasets is not considered “usage data,” but is used solely to “monitor the health of the network and trouble shoot if there are deviations from expected information in the collected set.” (See Nekritz Decl. ¶ 5 (sealed).) Arguably, Facebook offers a benign explanation for its failure to preserve the datasets in question, but that does not make Facebook's failure to preserve this evidence any less concerning. Even so, Plaintiff has not demonstrated any intent by Facebook to deprive Blackberry of potentially relevant evidence.
As to the second factor—prejudice to the party seeing discovery—Plaintiff fails to demonstrate prejudice that would support an adverse inference sanction. The only prejudice shown here is the delay in obtaining the discovery. But the Court concludes that any prejudice can be cured by: (1) allowing BlackBerry the opportunity to obtain the discovery to which it is entitled, including complete responses to BlackBerry's Interrogatories Nos. 5 and 8, and the RFPs 53-56 and 180-182; and (2) allowing additional time for the deposition of a Facebook representative knowledgeable about the '961 Patent Accused Uses and, specifically, the OpenSSL algorithm, as to any products other than Facebook Messenger.
As to the third factor, as noted above, less severe remedies are available to address Facebook's withholding of discovery regarding the full extent of its use of the accused OpenSSL algorithm. Therefore, the imposition of terminating sanctions in the form of an adverse inference instruction is not appropriate.
Accordingly, BlackBerry's request for an evidentiary sanction in the form of an adverse inference instruction is DENIED. However, the Court finds it appropriate to allow BlackBerry to recover its reasonable expenses, including atorneys fees, incurred in brining the Motion.
CONCLUSION
For the reasons discussed above, the Motion is GRANTED with respect to Plaintiff's request that Facebook be ordered to provide additional documents and interrogatory responses based on the full scope of the Accused Products pertaining to the '961 Patent and provide fulsome discovery responses regarding the '961 Patent. The Motion is DENIED with respect to Plaintiff's request for evidentiary sanctions for discovery violations and spoliation.
*8 Therefore, IT IS ORDERED that: (1) within 7 days of the date of this Order, Facebook must provide supplemental responses to BlackBerry's RFP Nos. 53-56, 180-182 and Interrogatories Nos. 5 and 8; within 14 days of the date of this Order, Facebook must produce all nonprivileged documents responsive to BlackBerry's RFP Nos. 53-56, 180-182; and, within 21 days of the date of this Order, Facebook must provide a corporate representative for deposition of no more than three hours to provide testimony specifically on any '961 Patent Accused Products other than Facebook Messenger. Further, after conferring with Judge Wu, the Court recommends that the discovery cut-off be extended an additional forty-five (45) days from the date of this Order solely to allow for the completion of the discovery relating to the '961 Patent consistent with this Order. (See Dkt. No. 415.)[4]
Finally, the Court will permit BlackBerry to file a regularly noticed motion for an award of its reasonable expenses, including attorneys' fees, incurred in bringing the Motion.
IT IS SO ORDERED.
Footnotes
A copy of the '961 Patent is Exhibit A to the FAC. (FAC ¶ 46.)
The Interrogatories at issue are:
Interrogatory No. 5: Describe in detail any and all use of the Accused Features of the Accused Products by Defendant, their employees, agents, and/or use by third parties at Defendant's instruction, including use in the ordinary course of business as well as any use for testing, verification, or qualification purposes.
Interrogatory No. 8: Describe in detail the generation and use of cryptographic keys by Facebook, including, without limitation, an identification of the use of OpenSSL cryptographic libraries or other elliptic curve cryptographic algorithm(a) for key generation, an identification of the Facebook applications, computers, servers, or other instrumentalities that perform or are otherwise used for key generation, an identification of source code and documents that show the same, and an identification of the persons most knowledgeable regarding your answer to this Interrogatory.
(Motion at 5, 6.)
These RFPs seek:
RFP No. 53: Documents sufficient to show any Facebook product or service that uses OpenSSL for encryption.
RFP No. 54: Documents sufficient to show any Facebook product or service that uses OpenSSL for encryption.
RFP No. 55: Documents sufficient to show Facebook's design, development, evaluation, modification, testing, and use of cryptography libraries for cryptographic key generation, including without limitation the OpenSSL elliptic curve cryptographic library.
RFP No. 56: Documents sufficient to show Facebook's use of the Elliptic Curve Diffie-Helman Exchange (ECDHE) protocol for key exchange in any Facebook product or service.
(Motion at 4.)
The Court takes no position and makes no recommendation regarding the extension of any other deadlines in the case.