Case 6:17-cv-01217-EFM-ADM Document 138 Filed 08/05/21 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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` Case No. 17-1217-EFM-ADM
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`LOGANTREE LP,
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`Plaintiff,
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`v.
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`GARMIN INTERNATIONAL, INC. and
`GARMIN USA, INC.,
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`Defendants.
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`MEMORANDUM AND ORDER
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`This is a patent infringement case in which plaintiff LoganTree LP (“LoganTree”) accuses
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`defendants Garmin International, Inc. and Garmin USA, Inc.’s (“Garmin”) activity and fitness
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`tracking devices of infringement. This matter is now before the court on the parties’ dispute over
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`the extent to which Garmin must produce source code printouts in addition to the 207 pages
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`Garmin already produced relating to the accused step-counting functionality. LoganTree has filed
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`a Motion for Leave to File Its Motion to Compel Out of Time (ECF 120), which is denied because
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`the court would summarily deny the proposed motion to compel for failing to adequately meet and
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`confer, and also because LoganTree has not demonstrated excusable neglect for filing the motion
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`late. Conversely, Garmin has filed a Motion for a Protective Order Preventing the Unnecessary
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`Printing of Complete Blocks of Source Code. (ECF 129.) That motion is granted because the
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`additional source code printouts are not relevant to the accused functionality, and also because
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`LoganTree’s request violates the applicable protective order provision that prohibits requesting
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`source code printouts for purposes of review. However, the court denies LoganTree’s motion
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`without prejudice to renewing its motion to compel orally at an in-person hearing as set forth
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`below—this time, after LoganTree complies with its meet-and-confer obligations.
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`LoganTree also filed a Motion to Modify, in Part, the Amended Scheduling Order to allow
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`it additional time to serve its infringement expert disclosures once Garmin produces additional
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`source code printouts. (ECF 123.) LoganTree has not shown good cause for the requested
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`extension. But denying LoganTree the opportunity to serve an infringement expert disclosure
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`would, as a practical matter, effectively resolve the case on the merits by depriving LoganTree of
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`the opportunity to present expert testimony on the key issue of infringement. This court is required
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`to avoid imposing such a harsh sanction if the court can alleviate the prejudice to Garmin from any
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`belated expert disclosure, which the court can and will. Accordingly, the court holds all further
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`scheduling order deadlines in abeyance pending resolution of the source code issues. Once those
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`issues are fully resolved, the court will reset those scheduling order deadlines, including the
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`deadline for LoganTree to serve its infringement expert disclosures.
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`I.
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`BACKGROUND
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`On August 23, 2017, LoganTree filed its complaint in which it alleges that it is the owner
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`by assignment of all right, title, and interest in U.S. Patent No. 6,059,576, entitled “Training and
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`Safety Device, System and Method to Aid in Proper Movement During Physical Activity,” as
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`reexamined (“the ‘576 Patent”). The ‘576 Patent generally relates to an electronic device, system,
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`and method that measures, analyzes, and records data about the wearer’s body movements using
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`an accelerometer, programmable microprocessor, internal clock, and memory. (ECF 1 ¶ 16.)
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`LoganTree alleges that dozens of Garmin’s wearable accelerometer-based activity trackers
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`infringe the asserted claims of the ‘576 Patent. (Id. ¶¶ 31-38.)
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`The case was stayed for most of 2019 pending inter partes review of the ‘576 Patent. (ECF
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`37, 41.) Once those proceedings were complete, discovery opened on October 1, 2019. See FED.
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`R. CIV. P. 26(d)(1) (parties may seek discovery after the Rule 26(f) conference). (ECF 42 (setting
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`October 1, 2019, as the deadline for the Rule 26(f) conference).) On October 28, 2019, the court
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`entered the parties’ agreed protective order. (ECF 51.) It contained a number of provisions that
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`are fairly standard in a patent infringement case to protect the highly proprietary and often trade
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`secret nature of source code. (Id. ¶ 7(c).) Among other things, it requires the producing party to
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`make source code available for inspection on a standalone computer with visual monitoring by the
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`producing party. (Id. ¶ 7(c)(1).) On November 4, 2019, Garmin notified LoganTree that it would
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`make its source code available for inspection. (ECF 130-5, at 7-9 (Garmin’s Response to RFP No.
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`3).) LoganTree did not come inspect the source then, or at any time in the next eighteen months.
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`Meanwhile, the parties completed claim construction proceedings. The court issued a
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`Markman order on January 19, 2021. (ECF 106.) One of the disputed claim limitations was “first
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`time stamp information reflecting a time at which the movement data causing the first user-defined
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`event occurred,” which the court construed to mean “first time stamp information recorded or
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`noted by the system at which the movement data causing the first user-defined event occurred.”
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`(Id. at 9 (emphasis added).) On February 4, Garmin wrote to LoganTree to request that it dismiss
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`the case in light of the court’s claim construction. LoganTree’s infringement theory is based on
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`the accused products’ step-counting functionality and, according to Garmin, its system never
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`records a timestamp based on a user meeting a step goal.
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`On February 12, the court reconvened a scheduling conference to discuss remaining case-
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`management deadlines. The amended scheduling order required the parties to serve their final
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`contentions by March 15 (infringement) and April 15 (invalidity), complete fact discovery by May
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`18, serve initial expert disclosures by July 5 and rebuttal expert disclosures by August 20, and
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`complete expert discovery by September 13. (ECF 110, at 2.) Further, it set the pretrial conference
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`on September 24 and a dispositive motions deadline of October 13. (Id.)
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`LoganTree served its final infringement contentions on March 15 and (for reasons not
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`apparent to the court) revised infringement contentions on March 31. (ECF 111, 113.) Notably,
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`LoganTree served these final infringement contentions without having ever inspected the source
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`code. The issue of LoganTree inspecting Garmin’s source code did not first resurface until April.
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`It was Garmin’s counsel who—on April 12 (about five weeks before fact discovery was set to
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`close on May 18)—asked LoganTree if it was going to want to review the source code. (ECF 130-
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`6, at 2 (“[Y]ou still have not requested depositions of any Garmin witnesses or access to Garmin
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`source code. Please let us know as soon as possible if you will be requesting either depositions or
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`source code access before the close of discovery.”).) Apparently, this prodded LoganTree into
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`action. On May 3, LoganTree forwarded Garmin the sign-on to the protective order for its source
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`code expert. (ECF 130-7, at 2.) And, on May 4, the parties filed a stipulation temporarily
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`modifying the source code review procedures in light of the COVID-19 pandemic to allow remote
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`review via Citrix, with the review monitored by Zoom. (ECF 114.) LoganTree’s source code
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`expert reviewed the source code on May 6 (a half day) and the entire week of May 10-14. (ECF
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`130-3, at 10.) In the midst of that review, on May 11, LoganTree deposed Robert Blair, the Garmin
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`engineer who wrote the code that is relevant to the accused step-counting functionality and
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`Garmin’s Rule 30(b)(6) corporate designee on the source code. (ECF 128-1; ECF 130-3, at 10.)
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`Blair reviewed the source code to prepare for his deposition. (ECF 128-1, at 6:19-11:8.) However,
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`LoganTree’s counsel did not ask him a single question about how the code operates. Fact
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`discovery closed just days later, on May 18.
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`After the source code review, LoganTree requested printouts of 75 files of complete source
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`code modules totaling more than 2,600 pages of printed source code. Garmin objected to this
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`request on the grounds that it was too broad and violated the protective order provision regarding
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`source code printouts. That provision allows the receiving party to request “paper copies of limited
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`portions of source code.” (ECF 51 ¶ 7(c)(8) (emphasis added).) It explains what is meant by
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`“limited portions”—those “reasonably necessary for the preparation of court filings, pleadings,
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`expert reports, or other papers, or for deposition or trial” but a party is not allowed to “request
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`paper copies for the purpose of reviewing blocks of the Source Code.” (Id. ¶ (7)(c)(8).) Garmin
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`contended that many of the files LoganTree requested were irrelevant and included functionalities
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`within Garmin’s watches that are not accused of infringement, such as heart rate tracking, distance
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`calculations, calorie tracking, sleep tracking, and simulation code, as well as code relating to
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`unaccused products. It therefore appeared to Garmin that LoganTree was requesting exactly what
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`the protective order prohibits—seeking printouts “for the purpose of reviewing blocks of the
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`Source Code.” Despite Garmin’s objection, LoganTree maintained that its source code expert
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`insisted that he needed all 2,600+ pages.
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`On June 8, the court convened a pre-motion discovery conference to see if it could help the
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`parties resolve the dispute, or at least narrow the areas of disagreement for motion practice. (ECF
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`130-3.) Garmin explained its concerns about producing code for non-accused functionalities and
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`non-accused products, the risks associated with producing complete code modules, and that
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`Garmin was not opposed to producing some amount of code reasonably necessary for the expert
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`to support his opinions, but that it was clear from the breadth of LoganTree’s request that its expert
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`was seeking printouts to conduct review in the first instance, which the protective order expressly
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`prohibits. (Id. at 9-15.) Garmin also offered to allow LoganTree’s expert further electronic review
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`to figure out what he really needed, and Garmin pointed out that he is allowed to take notes. (Id.)
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`LoganTree stated that it was relying on its expert’s representation that he needed all of the code
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`requested, but that LoganTree appreciated the offer to have more time to work with its expert to
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`see if he could narrow the request. (Id. at 15-16.)
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`The court explained that it had reviewed the applicable protective order provisions, the
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`Markman order, LoganTree’s final infringement contentions served on March 15, and Garmin’s
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`noninfringement contentions served on May 10. (Id. at 9.) The court observed that LoganTree
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`seemed to have most of what it needed without having to go to the source code (see, e.g., ECF
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`130-1 (claim charts citing product manuals and other publicly available information for most claim
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`limitations)), but could certainly understand that LoganTree would need the source code focused
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`on the disputed functionality about whether the system records a timestamp when the user meets
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`its step goal (ECF 130-3, at 17-18). The court explained that LoganTree is entitled to the source
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`code necessary to make its case, but that its expert “doesn’t get to have copies of entire modules
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`just to . . . figure out which portions he wants. He really is going to have to come back and identify
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`more targeted lines of code that he really believes are necessary. . . . [Y]ou’re really going to have
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`an uphill battle with that without putting a lot of detail on why he needs 2600 pages, 75 complete
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`files.” (Id. at 19-20.)
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`Ultimately, in order to try to narrow the areas of disagreement for motion practice, the
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`parties agreed that Garmin would produce source code printouts relating to the accused step-
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`counting functionality and “whether a time stamp is written in association, or frankly not in
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`association, with a step goal being met.” (Id. at 22-24.) The parties would then meet and confer
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`to see if they still wanted to proceed with motion practice on the remainder of the request. The
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`court ordered LoganTree, after reviewing these printed pages, to notify Garmin by June 18 as to
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`what additional pages, if any, LoganTree still wanted Garmin to produce so that the parties would
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`know the scope of their remaining areas of disagreement for motion practice. (ECF 116, at 1.) In
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`consultation with the parties, the court set deadlines for the parties to file cross-motions that would
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`be fully briefed by July 2, with LoganTree filing a motion to compel and Garmin filing a motion
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`for protective order. (Id. at 1-2.)
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`The following week, Garmin produced 207 pages of source code relating to the accused
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`functionality. Unbeknownst to the court, the June 18 deadline came and went and LoganTree did
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`not notify Garmin that it still wanted additional printed pages. On June 23 (the day the parties’
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`cross-motions were due), LoganTree emailed the court to request additional time to file a motion
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`to compel because, according to LoganTree, it was unable to meet the June 18 deadline to notify
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`Garmin as to what additional pages of source code it still wanted or the June 23 deadline to file a
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`motion to compel. (ECF 119-1.) Garmin had delivered the printed copies of source code on June
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`16, but, according to LoganTree, “[t]he two days from the 16th to the 18th was far from enough
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`time for LoganTree’s expert to make any evaluation.” (ECF 119-1, at 1.) Because the deadlines
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`had passed and Garmin did not consent to an extension, the court denied LoganTree’s request for
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`additional time but “without prejudice to being renewed if and when LoganTree is prepared to file
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`a motion to compel seeking additional pages of source code.” (ECF 119, at 1.) At the time, it was
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`not apparent that motion practice was imminent because LoganTree represented that it was
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`working with its expert “to try to get him to identify a narrower subset of code” so that LoganTree
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`could hopefully ultimately request something short of “all of the code.” (ECF 119-1.)
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`The next day, on June 24, LoganTree filed its motion for leave to file a motion to compel
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`out of time, attaching its proposed motion to compel as an exhibit. (ECF 120 & 120-2.) The
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`motion to compel seeks production of the entire 2,600+ pages of source code printouts that
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`LoganTree initially requested. (ECF 120-2, at 6.) Alternatively, LoganTree requests “additional
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`time to electronically review the source code and submit narrower requests for additional printouts,
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`if possible.” (Id.)
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`II.
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`LOGANTREE’S MOTION IS DENIED
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`As explained below, LoganTree’s Motion for Leave to File Out of Time Its Motion to
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`Compel (ECF 120) is denied. LoganTree’s motion to compel would be futile. Theoretically, the
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`court would deny the motion to compel for essentially the same reasons the court is granting
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`Garmin’s motion for protective order, as discussed below. But, before even getting to that point,
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`the court would summarily deny LoganTree’s motion to compel for failing to comply with its
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`meet-and-confer obligations in a genuine attempt to resolve this dispute without court intervention.
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`Furthermore, LoganTree’s motion is denied because it has not demonstrated excusable neglect for
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`not meeting the court-ordered deadline for filing the motion to compel.
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`A.
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`LoganTree’s Proposed Motion to Compel Would Be Futile
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`The court denies LoganTree’s motion primarily because its proposed motion to compel
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`would be futile. The protective order requires the parties to meet and confer in good faith if
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`disputes arise concerning the scope of printed source code. (ECF 51 ¶ 7(c)(14).) But even aside
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`from this requirement, any motion to compel “must include a certification that the movant has in
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`good faith conferred or attempted to confer” with the opposing party. FED. R. CIV. P. 37(a)(1).
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`This court “will not entertain any motion to resolve a discovery dispute” that does not comply with
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`this requirement. D. KAN. RULE 37.2. Furthermore, any such certification “must describe with
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`particularity the steps taken by all attorneys to resolve the issues in dispute.” Id. A “reasonable
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`effort to confer” requires that the parties “in good faith converse, confer, compare views, consult,
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`and deliberate, or in good faith attempt to do so.” Id.
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`In determining whether a party has complied with its meet-and-confer obligations, the court
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`“looks to all surrounding circumstances to determine whether the movant’s efforts were
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`reasonable.” Ross v. Pentair Flow Techs., LLC, No. 18-2631-HLT-JPO, 2020 WL 4039062, at *1
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`(D. Kan. July 17, 2020). “That includes looking beyond the sheer quantity of contacts and
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`examining their quality, as well.” Id.; see also Cotracom Commodity Trading Co. v. Seaboard
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`Corp., 189 F.R.D. 456, 459 (D. Kan. 1999) (“The quality of the contacts is far more important
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`than the quantity.”). The parties
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`must deliberate, confer, converse, compare views, or consult with a
`view to resolve the dispute without judicial intervention. They must
`make genuine efforts to resolve the dispute by determining precisely
`what the requesting party is actually seeking; what responsive
`documents or information the discovering party is reasonably
`capable of producing; and what specific, genuine objections or other
`issues, if any, cannot be resolved without judicial intervention.
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`Id.
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`Here, LoganTree did not make a reasonable effort to confer with Garmin to resolve the
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`parties’ dispute without court intervention. LoganTree had ample time and numerous
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`opportunities to narrow its request and/or to articulate a more specific explanation as to why its
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`expert needs source code for more than the accused functionality. To begin with, LoganTree could
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`have used Blair’s deposition on May 11 in the midst of the expert’s source code review to figure
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`out how to more carefully tailor what printouts it needed. But LoganTree instead adjourned the
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`deposition after only approximately four hours without asking Blair a single question about the
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`source code’s operation. (ECF 130-3, at 11.) Then, LoganTree’s counsel was unable to
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`meaningfully discuss the issues at the pre-motion discovery conference on June 8, relying instead
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`on its expert’s conclusory demand:
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`MR. BARKLEY: So obviously I’m relying a lot on my expert. .
`. . a lot of my reliance is on him and him telling me . . .
`. . . .
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`THE COURT: . . . I was hoping to get into a little more detail
`with you, Mr. Barkley, but it sounds like without your expert here,
`you’re . . . relying on the fact that he’s told you he needs a lot of this
`printout, and perhaps I’m not going to be able to get into that level
`of detail with you.
`Does that sound accurate, Mr. Barkley?
`MR. BARKLEY: That’s accurate. . . .
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`(Id. at 15-20.) At that conference, the court put LoganTree on notice that it would need to narrow
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`its request or provide a more robust explanation of relevance if the matter came to motion practice.
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`(Id. at 19-20.) And the court encouraged the parties to try to use the additional time as an
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`opportunity to further meet and confer. (Id. at 29.)
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`After that, Garmin produced printouts of the source code for the accused step-counting
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`functionality and offered to allow LoganTree’s expert to go back into the code review environment
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`“if he needs more time to figure out what he really needs,” and pointed out that he could even take
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`notes. (Id. at 14.) LoganTree’s expert did none of this. Instead, LoganTree missed the June 18
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`deadline to notify Garmin what additional pages it still needed, if any. Garmin did not hear from
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`LoganTree until the day LoganTree’s motion to compel was due. At that time, LoganTree “simply
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`reiterated that its expert needed all the original code it requested.” (ECF 119-1, at 2.) This
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`effectively wasted the additional time the court had given the parties to further meet and confer.
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`But, even then, it still was not clear that motion practice was imminent because LoganTree’s
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`counsel reported that he was still “working with our expert to try to get him to identify a narrower
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`subset of code.” (Id. at 1.) The court therefore denied LoganTree’s request for an extension of
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`time to file a motion to compel, but without prejudice to being renewed if and when LoganTree
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`was prepared to file a motion to compel. (ECF 119.) The outcome of the current motion might be
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`different if LoganTree had used this additional time—whatever additional time it needed, within
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`reason—to engage in meaningful substantive discussions with Garmin. But it didn’t. Instead, it
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`filed the current underdeveloped motion the next day, advancing essentially the same generalized
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`arguments from the June 8 pre-motion conference—that LoganTree requires the complete
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`production because its expert requires “context” to understand what Garmin has produced thus far.
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`In other words, LoganTree never budged from its original position despite numerous
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`opportunities to do so and the fact that LoganTree itself repeatedly suggested that it would try to
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`narrow the request. LoganTree merely stated—over and over—that its expert says he needs the
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`entire 2,600+ pages. “Merely repeating a position and requesting or demanding compliance with
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`a discovery request does not satisfy a party’s requirement to ‘converse, confer, compare views,
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`consult, and deliberate, or in good faith attempt to do so.’” American Power Chassis, Inc. v. Jones,
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`No. 13-4134-KHV-KGS, 2018 WL 4863623, at *2 (D. Kan. Jan. 19, 2018); accord Rowan v.
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`Sunflower Elec. Power Corp., No. 15-9227-JWL-TJJ, 2016 WL 3212459, at *2 (D. Kan. June 10,
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`2016). A party cannot avoid this obligation by relying on its expert’s conclusory demands.
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`The most conclusive evidence of LoganTree’s failure to comply with its meet-and-confer
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`obligations before filing the current motion is its alternative request for “additional time to
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`electronically review the source code and submit narrower requests for additional printouts, if
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`possible.” LoganTree makes an identical request in its July 12 response to Garmin’s motion for a
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`protective order. (ECF 32, at 7.) But LoganTree has suggested all along a willingness to press its
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`expert to try to narrow the scope of the request, to no avail. The fact that LoganTree still continues
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`to suggest that there is room for movement off its current position confirms that it failed to comply
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`with its meet-and-confer obligations. The time for LoganTree to have proposed a concrete
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`alternative was in discussions with Garmin before filing the current motion, not in briefs after
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`LoganTree forced the matter to motion practice. Seeking a do-over after the court has expended
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`time and resources ruling on a discovery dispute that is not truly ripe does nothing to further the
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`“just, speedy, and inexpensive” determination of this action. FED. R. CIV. P. 1. For these reasons,
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`the court would deny LoganTree’s motion for leave to file a motion to compel out of time because
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`LoganTree did not comply with its meet-and-confer obligations before filing the motion.
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`B.
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`LoganTree Has Not Demonstrated Excusable Neglect
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`The court also denies LoganTree’s motion because it has not demonstrated excusable
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`neglect for not filing its motion to compel on time. “When an act may or must be done within a
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`specified time, the court may, for good cause, extend the time . . . on motion made after the time
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`has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B); see
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`also D. KAN. RULE 6.1(a)(4) (accord). In determining whether the moving party has shown
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`excusable neglect, the court considers (1) the danger of prejudice to the opposing party; (2) the
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`length of delay and its impact on the case; (3) the reasons for the delay, “including whether it was
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`within the reasonable control of the movant”; and (4) whether the movant acted in good faith.
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`Perez v. El Tequila, LLC, 847 F.3d 1247, 1253 (10th Cir. 2017). The reason for the delay is the
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`most important factor, and “an inadequate explanation for delay may, by itself, be sufficient to
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`reject a finding of excusable neglect.” Id.
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`The court begins with the reason for the delay. The real reason for the delay is not entirely
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`clear, but it is clear that the delay was within LoganTree’s control. LoganTree explains that
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`counsel reviewed the motion the day LoganTree’s motion to compel was due to check for any
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`special filing requirements and realized at that time that LoganTree was to notify Garmin by June
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`18 if LoganTree required additional printed copies of source code. (ECF 120 ¶ 6.) But
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`LoganTree’s June 23 email to the court stated a different reason. In that email, LoganTree stated
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`that its expert had “far from enough time” to make any evaluation, suggesting that it was incapable
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`of meeting the deadlines. (ECF 119-1, at 1.) But LoganTree repeatedly represented both at the
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`discovery conference and in subsequent communications that it was trying to narrow the scope of
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`the request. Yet, LoganTree then sought leave to file a motion to compel where its position did
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`not budge and, worse yet, was premature for failing to adequately meet and confer with Garmin.
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`The court turns next to the length of the delay and the impact on the case. Although
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`LoganTree’s motion was just a day late, even this minimal delay caused a domino effect that has
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`derailed the case schedule. LoganTree waited more than 18 months to review the source code—
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`after claim construction, after service of its final infringement contentions, and after Garmin’s
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`counsel prodded LoganTree to come review the source code. LoganTree waited until less than
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`two weeks before the close of fact discovery to begin reviewing the source code and then did not
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`ask Garmin’s Rule 30(b)(6) source code witness any questions about the source code. LoganTree
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`then launched an eleventh-hour dispute over production of printouts by making a meritless demand
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`for 2,600+ pages of source code and failed to engage in the required meet-and-confer process with
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`Garmin, as discussed above. All of this has not only delayed briefing on and resolution of the
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`parties’ dispute over source code printouts, but LoganTree also used this unresolved issue to justify
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`not serving its infringement expert disclosures by the July 5 deadline, which the court must now
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`reset along with the other scheduling order deadlines as explained below.
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`Turning to the issue of prejudice, Garmin would be unduly prejudiced by allowing the
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`untimely motion to compel. The motion is deniable on its face for the reasons explained above.
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`Therefore, Garmin should not be put to the time and expense of responding to it. Furthermore,
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`LoganTree’s position put Garmin to the time and expense of motion practice by placing the onus
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`on Garmin to file a motion under the terms of the protective order. Allowing LoganTree’s
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`untimely motion would only prolong briefing, run up costs, and delay final resolution of this
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`Case 6:17-cv-01217-EFM-ADM Document 138 Filed 08/05/21 Page 14 of 30
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`dispute—particularly when Garmin has complied with deadlines in this case.1 Although the court
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`does not deny the motion for this reason, the delay has also prejudiced Garmin in that LoganTree
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`used this pending dispute as a justification to not timely serve its expert report, requiring the court
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`to mitigate prejudice to Garmin resulting from the delay.
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`The court cannot find that LoganTree acted in good faith. During the discovery conference,
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`the court put LoganTree on notice that it would require a more robust explanation of why its expert
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`required the sheer amount of printed copies that he did. And LoganTree continued to represent a
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`willingness to narrow the request if Garmin’s supplemental production was not sufficient. But it
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`never did these things. Instead, LoganTree filed a cursory motion to compel requesting just as
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`much as it did initially and with only slightly more explanation. This whole exercise appears to
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`be either a stall tactic or a late-in-the-game attempt at broad discovery to fashion a new
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`infringement theory.
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`On balance, the factors weigh against finding excusable neglect. If LoganTree had used
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`the additional time to meaningfully meet and confer with Garmin, the court might find excusable
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`neglect. But, on this record, LoganTree appears to be using motion practice to buy more time for
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`its infringement expert disclosure. For these reasons, the court denies LoganTree’s motion for
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`leave to file its motion to compel out of time.
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`1 LoganTree argues Garmin would not be prejudiced because Garmin’s June 8 email requesting
`a discovery conference stated that Garmin was already prepared to file a motion for a protective
`order. The court rejects this argument. For one, a party stating that it is prepared to file a motion
`is not tantamount to saying that it has drafted the motion. The whole purpose of the deadline for
`LoganTree to notify Garmin that it was still requesting additional printouts was so that Garmin
`would not waste time preparing a motion that might have been unnecessary. Even if Garmin had
`prepared a motion at the time it requested a discovery conference, the landscape of this discovery
`dispute has changed with Garmin agreeing to produce printed copies of source code related to its
`step-count functionality. The reason for the meet-and-confer requirement and the magistrate
`judge’s practice of holding discovery conferences: to narrow discovery disputes as much as
`possible so that the parties do not spend unnecessary resources briefing resolvable issues.
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`III. GARMIN’S MOTION FOR A PROTECTIVE ORDER IS GRANTED
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`Under the terms of the protective order, LoganTree’s continued request for additional
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`printed pages of source code triggered Garmin’s right to object “to the extent or relevance” of the
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`additional printouts and placed the onus on Garmin to “file a motion for relief from the Court for
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`production of the printouts that are the subject of the objection.” (ECF 51 ¶ 7(c)(14).) Garmin
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`brings its motion pursuant to this provision. As explained below, the court grants Garmin’s motion
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`for a protective order because LoganTree’s request for additional printed copies of source code
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`encompasses information that does not appear relevant. In addition, LoganTree’s request does not
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`comply with the protective order provision limiting source code printouts because LoganTree is
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`requesting the printouts for the prohibited purpose of reviewing blocks of source code.
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`A. Relevance
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`The scope of discovery is limited to “any nonprivileged matter that is relevant to any
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`party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
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`Although the scope of discovery is broad, it “is not without limits and the trial court is given wide
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`discretion in balancing the needs and rights of both plaintiff and defendant.” Gomez v. Martin
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`Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995). In other words, “[s]ome threshold showing
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`of relevance must be made before parties are required to open wide the doors of discovery and to
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`produce a variety of information which does not reasonably bear upon the issues in the case.”
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`Hofer v. Mack Tr