Reald Spark, LLC v. Microsoft Corporation

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 REALD SPARK, LLC, CASE NO. 2:22-cv-00942-TL 12 Plaintiff, ORDER ON LCR 37 v. JOINT SUBMISSION 13 MICROSOFT CORPORATION, 14 Defendant. 15

16 17 This matter is before the Court on Plaintiff RealD Spark, LLC, and Defendant Microsoft 18 Corporation’s LCR 37 Joint Submission Regarding Defendant’s Objection to “Accused 19 Functionalities” and “Accused Devices” and Extension to Fact Discovery. Dkt. No. 128. Having 20 considered the Parties’ submissions, the accompanying declarations and exhibits, and the 21 relevant record, the Court DENIES Plaintiff’s discovery requests. 22 The Court assumes familiarity with the facts of the case. With regard to the current 23 discovery dispute, Plaintiff issued discovery requests which sought information or documents on 24 the Accused Functionalities or Accused Products (“Requested Information”). Id. at 7. Plaintiff’s 1 first requests for production and interrogatories dealing with the Requested Information were 2 issued on January 23, 2023. Dkt. Nos. 129-1, 129-3. Plaintiff’s second set of interrogatories 3 relating to the Requested Information was issued on October 9, 2023. Dkt. No. 129-4. On March 4 8, 2023, Defendant responded to Plaintiff’s first set of interrogatories, specifically noting the

5 following objections: 6 1. [Defendant] objects to the definition of “Accused Functionalities” to the extent it purports to cover any 7 instrumentality that is not identified in Plaintiff’s Preliminary Infringement Contentions. In its responses, 8 [Defendant] will understand “Accused Functionalities” to mean Microsoft products that incorporate “Eye Gaze 9 Correction” and optional “Stare” (also known as “Teleprompter”) features. This objection is incorporated 10 into all responses below where the definition is relevant.

11 2. [Defendant] objects to the definition of “Accused Product(s)” to the extent it purports to cover any 12 instrumentality that is not identified in Plaintiff’s Preliminary Infringement Contentions. In its responses, 13 [Defendant] will understand “Accused Product(s)” to mean Microsoft Surface Pro X and Microsoft Surface Pro 9 with 14 5G products that include Windows 10 Build 20175 and later, and Windows 11. This objection is incorporated into 15 all responses below where the definition is relevant.

16 Dkt. No. 130-1 at 3. On April 21, 2023, Defendant repeated these same objections in its 17 supplemental response to Plaintiff’s first set of interrogatories. Dkt. No. 130-2 at 3. Defendant 18 also included these same objections in its second supplemental response to Plaintiff’s first set of 19 interrogatories as well as its first supplemental response to Plaintiff’s second set of 20 interrogatories, both dated December 18, 2023. Dkt. No. 129-7 at 3; Dkt. No. 129-8 at 3. 21 Defendant stated in its April 2023 response that the accused eye gaze correction functionality “is 22 implemented only on products that include a processor with a neural processing unit (NPU), such 23 as the SQ1 processor that was released in October 2019.” Dkt. No. 130-2 at 8. Defendant also 24 1 identified four additional Microsoft Surface Pro products capable of implementing the eye gaze 2 correction technology. Id. at 14–18. 3 In its motion, Plaintiff complains about Defendant’s inappropriate redefinition of the 4 terms “Accused Functionalities” and “Accused Products.” Dkt. No. 128 at 8. In choosing the

5 reference for the objections Defendant made, Plaintiff only cites Defendant’s December 18, 6 2023, supplemental responses. Id. Plaintiff then discusses its challenge to Defendant’s objections 7 to the definitions of the two disputed terms that began on November 17, 2023. Plaintiff asserts 8 that “[n]ot until December 18, 2023 did Defendant end the charade” regarding its responses. Id. 9 at 23. Fact discovery closes January 31, 2024. Dkt. No. 91. Plaintiff requests a 30-day extension 10 of the fact discovery cutoff. Dkt. No. 128 at 15. 11 Plaintiff’s characterization of the discovery dispute at first led the Court to believe that 12 Plaintiff was unaware of Defendant’s objections to the definitions of “Accused Functionalities” 13 and “Accused Products” until November 2023. However, Defendant actually informed Plaintiff 14 of its objections to the terms in early March 2023 and then again in April 2023, many months

15 before the discovery cutoff date. The subject objections were listed as the first two objections in 16 the responses, which were on the second page of each response. Both Defendant’s original 17 response in March 2023 and its supplemental response in April 2023 made it abundantly clear 18 that Defendant was only responding with regard to its hardware. 19 The Court rejects Plaintiff’s assertion that it was misled by Defendant. Rather, it appears 20 Plaintiff either missed the objections that were asserted at least twice by Defendant upfront in 21 their responses or sat on the dispute until the end of discovery. Even if the discovery would be 22 relevant, Plaintiff had at least eight additional months in which it could have brought its dispute 23 to the Court and had it resolved in a timely manner without necessitating an extension of the

24 discovery cutoff. Thus, Plaintiff has not demonstrated the requisite “good cause” needed to 1 modify the trial schedule under Federal Rule of Civil Procedure 16(b). See Johnson v. Mammoth 2 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“Rule 16(b)’s ‘good cause’ standard 3 primarily considers the diligence of the party seeking the amendment. . . . If that party was not 4 diligent, the inquiry should end.”).

5 Accordingly, the Court DENIES Plaintiff’s request for discovery and to extend the 6 discovery cutoff. This Order resolves the Parties’ LCR 37 Joint Submission (Dkt. No. 128). 7 Dated this 30th day of January 2024. 8 A 9 Tana Lin United States District Judge 10

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