Case 3:14-cv-02235-DMS-BLM Document 759 Filed 11/22/19 PageID.35763 Page 1 of 3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`APPLE, INC.,
`
`v.
`
`WI-LAN, INC., et al.,
`
`
`
`
`
`Plaintiff,
`
`Defendants
`
`
`
`AND RELATED COUNTERCLAIMS.
`
`
`
`Case No.: 14cv2235-DMS(BLM)
`
`ORDER DENYING PLAINTIFF’S EX
`PARTE APPLICATION TO STAY THE
`COURT’S NOVEMBER 7, 2019
`DISCOVERY ORDER
`
`
`[ECF No. 747]
`
`
`REDACTED—PUBLIC VERSION
`
`Currently before the Court is Plaintiff’s (“Apple’s”) ex parte application to stay Magistrate
`
`Judge Barbara L. Major’s November 7, 2019 Discovery Order and Defendants’ (“Wi-LAN’s”)
`
`opposition to Apple’s ex parte application. ECF Nos. 747, 750. For the reasons set forth below,
`
`the Court DENIES Apple’s request.
`
`On July 22, 2019, the Court issued an order compelling Apple to produce certain Internal
`
`Testing documents requested by Wi-LAN. ECF No. 674 (“July Discovery Order”). Apple was
`
`ordered to produce the specific testing documents no later than August 2, 2019. Id. at 17.
`
`Apple did not appeal the Court’s July Discovery Order, nor did it file a motion for reconsideration.
`
`See Dkt. Instead, Apple interpreted the Court’s order narrowly and produced only a few
`
`documents. ECF No. 736 at 6. Wi-LAN believed that Apple’s production did not comply with
`
`1
`
`14cv2235-DMS (BLM)
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 759 Filed 11/22/19 PageID.35764 Page 2 of 3
`
`
`
`1
`
`the Court’s July Discovery Order so, after complying with Judge Major’s Chambers Rules, Wi-
`
`2
`
`LAN filed a motion to enforce compliance with the Court’s July Discovery Order. ECF No. 696.
`
`3
`
`Wi-LAN’s motion to enforce asserted that Apple had not produced the subject Internal
`
`4
`
`Testing. Id. Apple’s opposition asserted that it had complied with the July Discovery Order but
`
`5
`
`spent much of the briefing arguing against Wi-LAN’s original motion to compel. See ECF No.
`
`6
`
`701. The Court granted in part and denied in part Wi-LAN’s motion to enforce the July Discovery
`
`7
`
`Order. ECF No. 736 (“November Enforcement Order”). In issuing its decision, the Court found
`
`8
`
`that Apple had interpreted the Court’s July Discovery Order too narrowly and clarified that Apple
`
`9
`
`was required “to provide Wi-LAN with the documents and Internal Testing that
`
`
`
`10
`
` Id. at 7. The
`
`11
`
`Court also noted that Apple had not filed a motion for reconsideration so the Court was not
`
`12
`
`addressing the validity of its July Discovery Order; it only was addressing whether Apple’s most-
`
`13
`
`recent document production complied with the Court’s Order. Id. at 6. The Court then clarified
`
`14
`
`the scope of its July Discovery Order and required Apple to produce the described documents
`
`15
`
`or a declaration containing specific information by December 2, 2019. Id. at 13-14.
`
`16
`
`On November 13, 2019, Apple filed the instant motion to stay the November Enforcement
`
`17
`
`Order pending the resolution of Apple’s “forthcoming” objections to the November Enforcement
`
`18
`
`Order. ECF No. 746. On November 19, 2019, Apple filed objections to the November
`
`19
`
`Enforcement Order, which are now before District Judge Dana M. Sabraw. ECF No. 756. Apple’s
`
`20
`
`motion requesting a stay of the November Enforcement Order argues that good cause exists to
`
`21
`
`stay the Order because Apple’s objections (before Judge Sabraw) are meritorious. ECF No. 747
`
`22
`
`at 3. Apple further asserts that the testing Wi-LAN seeks is no longer relevant because the
`
`23
`
`Court’s Daubert ruling “appears to have resolved the admissibility issue” of the subject Internal
`
`24
`
`Testing. Id. at 4. Apple argues it is prejudicial to require Apple to search for and produce the
`
`25
`
`subject documents given that they are now—according to Apple—inadmissible. Id.
`
`26
`
`Wi-LAN opposes Apple’s motion to stay the November Enforcement Order, arguing that
`
`27
`
`Apple has been ordered to produce the subject Internal Testing twice now, and the instant
`
`28
`
`motion is an attempt to delay such production. ECF No. 750 at 2–3. Wi-LAN further argues
`
`2
`
`14cv2235-DMS (BLM)
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 759 Filed 11/22/19 PageID.35765 Page 3 of 3
`
`
`
`1
`
`that Apple missed the window to object to the production of such documents when it failed to
`
`2
`
`file any objections or a motion for reconsideration in response to Judge Major’s July Discovery
`
`3
`
`Order compelling the Internal Testing. Id. at 3–4. Wi-LAN further argues that the discovery
`
`4
`
`remains relevant because it supports an affirmative report from Apple’s
`
`
`
`5
`
`6
`
`The Court finds that Apple’s latest motion is just another attempt to delay or avoid
`
` Id. at 3.
`
`7
`
`producing the identified documents. This Court issued an order in July 2019 requiring Apple to
`
`8
`
`produce the Internal Testing documents by August 2, 2019. Apple did not appeal or otherwise
`
`9
`
`challenge the Court’s order but also did not produce the required documents. This Court issued
`
`10
`
`a second order on November 7, 2019 again requiring the production of the documents. Apple
`
`11
`
`still has not complied with the Court’s order and instead is attempting to delay or avoid
`
`12
`
`production by seeking a stay of the Court’s July 2019 and November 2019 orders. Apple’s failure
`
`13
`
`to object or file a motion for reconsideration in response to the July Discovery Order waived
`
`14
`
`Apple’s right to contest its obligation to produce the Internal Testing. While Apple’s objections
`
`15
`
`to the motion to enforce will be decided by Judge Sabraw, this Court will not delay Apple’s
`
`16
`
`obligation to produce documents that were originally compelled on July 22, 2019. See July
`
`17
`
`Discovery Order. The Court finds that the prejudice to Wi-LAN—if it does not receive documents
`
`18
`
`potentially in Apple’s possession—outweighs the prejudice Apple may experience in having to
`
`19
`
`perform an additional search in compliance with the Court’s original July Discovery Order. The
`
`20
`
`Court ordered Apple to produce the Internal Testing documents no later than August 2, 2019,
`
`21
`
`nearly four months ago. Therefore, the Court will not stay the current December 2, 2019
`
`22
`
`deadline, which enforces the Court’s July 22, 2019 Discovery Order, and DENIES Apple’s ex
`
`23
`
`parte application.
`
`24
`
`IT IS SO ORDERED.
`
`25
`
`Dated: 11/22/2019
`
`26
`
`27
`
`28
`
`
`
`
`
`3
`
`14cv2235-DMS (BLM)
`
`