Case 4:23-cv-01147-ALM Document 90 Filed 02/19/25 Page 1 of 21 PageID #: 6284
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`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`R2 SOLUTIONS LLC,
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`
`Plaintiff,
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`v.
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`DATABRICKS, INC.,
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`Defendant.
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`
`
`Civil Action No. 4:23-cv-01147-ALM
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`JURY TRIAL DEMANDED
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`DEFENDANT DATABRICKS, INC.’S OPPOSITION TO PLAINTIFF’S
`MOTION TO COMPEL DISCOVERY AND AMEND SCHEDULING ORDER
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`

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`Case 4:23-cv-01147-ALM Document 90 Filed 02/19/25 Page 2 of 21 PageID #: 6285
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`I.
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`II.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ............................................................................................................... 1
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`FACTUAL BACKGROUND ............................................................................................. 2
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`A.
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`B.
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`C.
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`D.
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`E.
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`The Asserted Patent and Claims Are Directed to an “Enhanced
`MapReduce” Technique for Data Processing ......................................................... 2
`
`R2 Accuses Only Apache Spark on Databricks’ Platform of
`Infringement ............................................................................................................ 2
`
`R2 Chose Not to Accuse Photon Even Though It Knew about Photon
`Before It Filed Its Complaint and Through Databricks’ Extensive
`Photon Discovery .................................................................................................... 3
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`R2 Never Accused
`
` Is Irrelevant ............................................... 6
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`R2 Confirmed in a Stipulation Filed with the Court that Databricks’
`Source Code Production Was Complete in December ............................................ 7
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`III.
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`ARGUMENT ...................................................................................................................... 8
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`A.
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`B.
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` So It
`R2’s Infringement Contentions Do Not Accuse
`Is Not Entitled to Discovery on Either .................................................................... 8
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`R2’s Mischaracterizations of Communications with Databricks Are Not
`a Basis to Compel Discovery ................................................................................ 13
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`C.
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`R2 Provides No Basis for Its Request to Delay the Case ...................................... 13
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`IV.
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`CONCLUSION ................................................................................................................. 15
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`Case 4:23-cv-01147-ALM Document 90 Filed 02/19/25 Page 3 of 21 PageID #: 6286
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`
`
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`CASES
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Connectel, LLC v. Cisco Sys., Inc.,
`391 F. Supp. 2d 526 (E.D. Tex. 2005) .................................................................................... 10
`
`Edward D. Ioli Tr. v. Avigilon Corp.,
`No. 2:10-cv-605-JRG, 2012 WL 5830711 (E.D. Tex. Nov. 16, 2012) ................................... 12
`
`Forterra Sys., Inc. v. Avatar Factory,
`No. C-05-04472 PVT, 2006 WL 2458804 (N.D. Cal. Aug. 22, 2006) ................................... 12
`
`Grant v. City of Hous.,
`625 F. App’x 670 (5th Cir. 2015) ............................................................................................ 13
`
`Keranos, LLC v. Silicon Storage Tech., Inc.,
`797 F.3d 1025 (Fed. Cir. 2015) ........................................................................................... 9, 10
`
`Linex Techs., Inc. v. Belkin Int’l, Inc.,
`628 F. Supp. 2d 703 (E.D. Tex. 2008) ...................................................................................... 9
`
`O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
`467 F.3d 1355 (Fed. Cir. 2006) ............................................................................................... 10
`
`R2 Solutions LLC v. Am. Airlines, Inc.,
`No. 4:22-cv-00353-ALM, 2023 WL 3938862 (E.D. Tex. June 9, 2023) ........................ 8, 9, 10
`
`Semcon IP Inc. v. ZTE Corp.,
`No. 2:16-CV-00437, 2018 WL 4501808 (E.D. Tex. Feb. 28, 2018) ........................................ 8
`
`Sol IP, LLC v. AT&T Mobility LLC,
`No. 2:18-cv-00526-RWS-RSP, 2020 WL 1911388 (E.D. Tex. Apr. 20, 2020).................. 9, 10
`
`TiVo Inc. v. Samsung Elecs. Co.,
`No. 2:15-cv-1503-JRG, 2016 WL 5172008 (E.D. Tex. Jul. 22, 2016) ................................... 10
`
`STATUTES AND RULES
`
`Fed. R. Civ. P. 11 .................................................................................................................. 4, 7, 10
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`Fed. R. Civ. P. 16(b)(4) ................................................................................................................. 13
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`I.
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`INTRODUCTION
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`R2 has no viable infringement theory, so it requests, under the guise of a motion to compel,
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`60 more days of fact discovery to try to concoct a theory on products R2 has not accused in this
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`case. R2 contends that Databricks has withheld source code and technical documents on two
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`Databricks functionalities—Photon
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`—neither of which is even mentioned in R2’s
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`infringement contentions, much less accused. R2 chose not to accuse Photon in its initial
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`infringement contentions, or in its following two supplemental contentions, even though it knew
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`about Photon before filing this suit, and even though Databricks has produced more than 400
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`technical documents describing Photon and provided testimony about Photon from four of its
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`witnesses deposed in this case. It was not until Databricks’ co-founder recently testified that
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` that R2 told the Court
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`that it is entitled to source code and technical documents on both
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` and Photon. But
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` R2 knew about and chose not to accuse
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`when it filed its Complaint in December of 2023.
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` that R2 contends meet the specialized “map” and “reduce” operations of
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`the asserted claims.
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`R2 cannot credibly contend that
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`.
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`. R2 therefore resorts to mudslinging and
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`outlandish accusations that Databricks misled R2 about the operation of Photon—which could not
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`be farther from the truth—to seek the requested extension so that R2 can concoct a new
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`infringement theory. R2’s baseless and highly prejudicial request to re-do this case—when the
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`1
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`parties have already served multiple rounds of infringement and invalidity contentions, conducted
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`claim construction, collectively taken more than a dozen depositions, and reached the close of fact
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`discovery (which is February 13, 2025)—should be denied.
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`II.
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`FACTUAL BACKGROUND
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`A.
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`The Asserted Patent and Claims Are Directed to an “Enhanced MapReduce”
`Technique for Data Processing
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`This is a patent case. R2 filed suit on December 28, 2023, alleging infringement of one
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`patent: U.S. Patent No. 8,190,610 (“the ’610 patent”). The patent, titled “MapReduce for
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`distributed database processing,” is directed to a purportedly “improved” version of MapReduce.
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`(Ex. A at 3:48-50.) MapReduce is a prior art programming methodology developed by Google for
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`processing big data sets in a parallel, distributed computing environment. (Id. at 1:6-16.) As the
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`name suggests, MapReduce includes two data processing functions: a map function that can
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`process data in the form of key-value pairs and a reduce function that can merge data based on a
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`common key. (Id. at 1:17-27.)1 As the claims recite and the Court’s constructions require, this
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`“enhanced” MapReduce implements specialized map and reduce functions that operate based on
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`an understanding of where data “originated.”2
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`B.
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`R2 Accuses Only Apache Spark on Databricks’ Platform of Infringement
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`R2 accuses Apache Spark of performing the specialized map and reduce functions of the
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`asserted claims. Apache Spark is an open-source analytics engine for processing large amounts of
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`1 The asserted patent acknowledges that it did not invent MapReduce. (Id. at 2:9-14.)
`2 This Court’s constructions of other claim terms make clear that the claimed “enhanced
`MapReduce” requires specialized functions. For example, the Court construed “data group” as
`“a group of data and a mechanism for identifying data from that group.” (Dkt. 71 at 6.). As another
`example, the Court’s construction also a “mapping function” that “is selected for a partition based
`on the data group the partition originated from.” (Id. at 27.) As yet another example, this Court
`construed “reducing” to require “processing the intermediate data for each data group in a manner
`that is defined to correspond to the data group from which the intermediate data originated.”
`(Id. at 30.)
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`2
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`data based on a customer’s chosen configuration for their data analytic needs. In its Complaint,
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`R2 accused “Databricks Data Intelligence Platform/Databricks Lakehouse Platform, and any other
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`platform(s) offered or provided by Databricks that utilize Apache Spark or any other similar
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`functionality” of infringing each asserted claim. (Dkt. 1, ¶ 7.) The only functionality R2 accused
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`of meeting the claimed map and reduce steps in its Complaint was open-source Apache Spark
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`operators purportedly running on Databricks’ platform.
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`The same was true for R2’s infringement contentions. R2’s initial infringement
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`contentions, served on June 21, 2024, identified the “Accused Instrumentalities” in this case as
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`“the Databricks Data Intelligence Platform/Databricks Lakehouse Platform and any other
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`platforms provided by Databricks that utilize Apache Spark or any other similar functionality.”
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`(Ex. B at 2.) The claim charts in the initial contentions accused only Apache Spark purportedly
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`running in Databricks’ platform of meeting every claim limitation. And that did not change in
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`R2’s two supplementations of its infringement contentions. Both its first supplemental
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`infringement contentions, served on September 20, 2024, and its second (and operative)
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`supplemental infringement contentions, served on January 9, 2025, accuse only Apache Spark
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`functionality operating in Databricks’ platform of performing the “enhanced MapReduce” recited
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`in the asserted claims. Because the only feature accused of infringement in that Databricks’
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`platform is Apache Spark, Databricks produced the source code for Apache Spark.
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`C.
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`R2 Chose Not to Accuse Photon Even Though It Knew about Photon Before
`It Filed Its Complaint and Through Databricks’ Extensive Photon Discovery
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` Photon is not accused in this case. In fact, Photon is not even
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`
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`mentioned in any of the infringement contentions R2 has served in this case. R2 chose not to
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`accuse Photon of infringement even though it has known about Photon since before it filed this
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`3
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`suit. That is clear because R2’s Complaint, filed on December 28, 2023, references Photon in an
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`excerpt taken directly from Databricks’ website, stating: “The Databricks Runtime includes
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`additional optimizations and proprietary features that build on and extend Apache Spark, including
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`Photon, an optimized version of Apache Spark rewritten in C++.” (Dkt. 1, ¶ 40 (emphasis added).)
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`R2, and its counsel, pursuant to their Rule 11 obligations, were therefore undeniably aware of
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`Photon when it filed its Complaint in this case. R2 nevertheless made the decision not to accuse
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`Photon of infringement when it filed suit.
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`Although R2 did not accuse Photon, Databricks went above and beyond its discovery
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`obligations and produced extensive discovery on Photon more than seven months ago. Since then,
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`Databricks has produced more than 400 documents describing Photon, including over 4,800 pages
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`of technical documents. Databricks made these productions on July 16, 2024. Yet R2 did not
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`accuse Photon in any of the infringement contentions it served in this case or seek leave to file
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`amended infringement contentions based on its review of the Photon documents. The documents
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`described Photon in detail. For example, Databricks produced a public-facing webpage entitled
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`“What is Photon?” on July 16, 2024. The webpage, which was publicly available on Databricks’
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`website before R2 filed suit,3 explains that Photon performs “[a]ccelerated queries that process
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`data faster and include aggregations and joins,” “[f]aster Delta and Parquet writing using
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`UPDATE, DELETE, MERGE INTO, INSERT, and CREATE TABLE AS SELECT, including
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`wide tables that contain thousands of columns,” and “[r]eplac[ing] sort-merge joins with hash-
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`joins.” (Ex. C at 1.) The produced webpage identifies a list of Photon operators, including “Hash
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`3 The “What is Photon?” webpage was published by Databricks on December 5, 2023 and was
`captured by the Internet Archive via the Wayback Machine as early as December 10, 2023.
`Available
`at
`https://web.archive.org/web/20231210112916/https://docs.databricks.com/en/
`compute/photon.html. A later updated version was also produced to R2 on July 16, 2024 as Bates
`No. Databricks_R2_00008580. (Ex. C.)
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`4
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`Aggregate/Join/Shuffle,” “Sort,” and “Array.” (Id. at 2-4.) Other publicly available documents,
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`dating back to June 2020, describe in detail the Photon engine.4
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`Not only has Databricks produced hundreds of documents describing Photon, multiple
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`Databricks witnesses deposed in this case—dating back more than two months—have explained
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`how Photon works. Denny Lee, Principal Developer Advocate at Databricks, first testified on
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`December 5, 2024 that “
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`” and that
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`.” (Ex. D at 56:12-24; see also id. at 57:5-21
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`
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`Davis, Lead Solutions Architect at Databricks, on December 13, 2024. Mr. Davis confirmed that
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`; id. at 64:17-25
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` R2 then deposed Cody
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`deposed Josh Rosen, Staff Software Engineer at Databricks, and he
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` On January 16, 2025, R2
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` Most recently,
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`Databricks co-founder Reynold Xin again confirmed on January 24, 2025 that
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`4 See https://www.databricks.com/blog/2020/06/24/introducing-photon-engine.html; https://www.
`databricks.com/blog/2021/06/17/announcing-photon-public-preview-the-next-generation-query-
`engine-on-the-databricks-lakehouse-platform.html (describing “[f]aster time-series analysis using
`Photon compared to Spark and traditional Databricks Runtime”) (produced version attached as Ex. J);
`https://www.databricks.com/blog/2022/08/03/announcing-photon-engine-general-availability-on-
`the-databricks-lakehouse-platform.html (describing that “customers have seen 3-20x performance
`gain during previewing, which is significantly faster than in Apache Spark™”).
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`5
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`Despite information that has long been available and known to R2 regarding Photon—
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`through Databricks’ public website, Databricks’ document productions, and Databricks’
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`witnesses—R2 has not included Photon in its infringement contentions. Nor has it ever sought to
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`amend its contentions to include Photon.
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`D.
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`R2 Never Accused
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` Is Irrelevant
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`In addition to testifying about Photon, Mr. Xin testified
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`Mr. Xin further testified that
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` In other
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`words, in stark contrast to the claimed “map” and “reduce” steps of the “enhanced MapReduce”
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`disclosed in the patent,
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`Mr. Xin further testified that
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`5 The deposition transcript misspells
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` This is a transcription error.
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`6
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`like Photon, is not even mentioned in any of R2’s infringement contentions, much
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`less accused. R2 has not sought leave to amend its infringement contentions to accuse
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`nor
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`can it. No good cause exists for R2 to credibly accuse
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` infringing any of the claimed
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`“map” and “reduce” claim requirements. Unlike the accused Apache Spark,
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` including anything that could, under Rule 11, be accused of
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`meeting the “enhanced MapReduce” claims. (See Li Decl. at ¶¶ 4-5.)
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`E.
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`R2 Confirmed in a Stipulation that Databricks’ Source Code Production
`Was Complete in December
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`On December 19, 2024, R2 filed a stipulation with the Court affirming that Databricks’
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`source code production was complete. By that time, R2 had produced all of the open-source
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`Apache Spark source code for the open-source Spark functionality that R2 accused in its
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`infringement contentions, as well as
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` Databricks’ counsel confirmed in conferences with R2 counsel that
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`. Databricks
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`therefore agreed in the parties’ Joint Stipulation Regarding Source Code “that for the purposes of
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`this litigation, the open-source Apache Spark source code files identified in R2’s First
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`Supplemental Infringement Contentions is representative of Databricks’ corresponding internal
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`Apache Spark source code files in the Databricks Data Intelligence Platform,” and that R2 is
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`therefore “entitled to treat such open-source Apache Spark source code files as if it is Databricks’
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`own source code for the purposes of R2’s allegations of infringement in this case.” (Dkt. 73 at 1.)
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`Databricks further confirmed in the stipulation that it “will not use the fact that R2 relies on such
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`open-source Apache Spark source code files, as opposed to Databricks’ proprietary code files, to
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`make its infringement allegations as the basis for any defense in this action.” (Id.) With
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`confirmation that it had all the source for the accused functionality in this case—open source
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`Apache Spark—R2 agreed in the stipulation that “Databricks’ source code production is complete,
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`and R2 will not be entitled to and will not request the production of additional source code unless
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`R2 shows good cause to seek it.” (Id.)
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`Notably, before agreeing to that stipulation, R2’s counsel had deposed Databricks
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`witnesses regarding Photon (see supra, at 5-6), and had requested source code for Photon. (See
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`Ex. K.) R2’s counsel then abandoned that request when—in exchange for Databricks’ agreement
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`that open-source Apache Spark code operates in the same way as the corresponding Databricks’
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`internal code files—it stipulated that “Databricks’ source code production is complete” and agreed
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`to “not request the production of additional source code” from Databricks absent good cause. (Dkt.
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`73 at 1.) R2 now reneges on its stipulation and moves to compel additional source code.
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`III. ARGUMENT
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`A.
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`R2’s Infringement Contentions Do Not Accuse Photon or
`Entitled to Discovery on Either
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` So It Is Not
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`“Infringement contentions serve the critical function of defining the scope of discovery and
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`narrowing the issues in patent litigation.” R2 Solutions LLC v. Am. Airlines, Inc., No. 4:22-cv-
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`00353-ALM, 2023 WL 3938862, at *3 (E.D. Tex. June 9, 2023) (citing Semcon IP Inc. v. ZTE
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`Corp., No. 2:16-CV-00437, 2018 WL 4501808, at *2 (E.D. Tex. Feb. 28, 2018)). As a result, the
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`Court requires a patentee claiming infringement to identify—“as specific as possible”—each
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`accused instrumentality at the outset of the case. See P.R. 3-1(b). Under P.R. 3-1(b), “[e]ach
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`product, device, and apparatus must be identified by name or model number, if known.” Id.
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`(emphasis added). This rule “requires a patentee to lay out its theories of infringement at the outset
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`of the case, using all publicly available information, and with enough specificity to ‘give an alleged
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`infringer notice of the patentee’s claims.’” Am. Airlines, 2023 WL 3938862, at *3 (citing Linex
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`Techs., Inc. v. Belkin Int’l, Inc., 628 F. Supp. 2d 703, 706 (E.D. Tex. 2008)). The purpose of this
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`rule is to require patentees to “crystallize their theories of the case early in the litigation so as to
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`prevent the shifting sands’ approach” to patent litigation. Keranos, LLC v. Silicon Storage Tech.,
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`Inc., 797 F.3d 1025, 1035 (Fed. Cir. 2015) (internal quotation marks omitted) (addressing P.R.
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`3-1). A patentee “must seek leave of court” to accuse more products in its infringement
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`contentions. Am. Airlines, 2023 WL 3938862, at *3 (citing Keranos, 797 F.3d at 1035).
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`R2 has not accused Photon or
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` in its infringement contentions. Indeed, R2’s
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`infringement contentions never even mention Photon or
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` Instead, R2 identified as accused
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`instrumentalities “Databricks Data Intelligence Platform/Databricks Lakehouse Platform and any
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`other platform(s) [offered or] provided by Databricks that utilize Apache Spark or any other similar
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`functionality.” (Ex. B at 2.) And R2 makes no attempt to explain how Photon or
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` would
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`fall within these accused instrumentalities, nor can it. Neither Photon nor
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` is Apache Spark.
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`And R2’s catch-all language accusing “any other similar functionality” fails to accuse Photon or
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` In fact, courts in this district routinely “reject[] the use of catch-all language to satisfy the
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`requirements of [P.R.] 3-1(b),” such as the phrase “similar functionality,” which is overly-broad,
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`untethered to the claim language, and is an improper attempt to shift the burden of identifying
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`purportedly infringing activities from plaintiff to defendant. Sol IP, LLC v. AT&T Mobility LLC,
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`No. 2:18-cv-00526-RWS-RSP (lead case), 2020 WL 1911388, at *4-6 (E.D. Tex. Apr. 20, 2020)
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`(“The Court also stated that ‘this catch-all language, either in [plaintiff’s] current contentions or in
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`any future contentions, has no effect under the rules and may be disregarded by [the defendant].”)
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`(citation omitted). Courts have similarly emphasized that it is not a defendant’s job to figure out
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`what other products a plaintiff is accusing, because “[Plaintiff] knows best what its infringement
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`theory is.” Id. at *4 (quoting TiVo Inc. v. Samsung Elecs. Co., No. 2:15-cv-1503-JRG, 2016 WL
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`5172008, at *3 (E.D. Tex. Jul. 22, 2016)).
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`Although R2 alleges in its motion that it did not learn about Photon—which is
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`demonstrably false—and
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` until after discovery was underway, neither gives “R2 license to
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`employ the ‘shifting sands’ approach[] to litigation that the Patent Local Rules are designed to
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`prevent.” Am. Airlines, 2023 WL 3938862, at *3 (citing Keranos, 797 F.3d at 1035). R2 should
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`have instead sought leave to amend its infringement contentions because, as this Court has noted,
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`“[i]f the parties were not required to amend their contentions promptly after discovering new
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`information, the contentions requirement would be virtually meaningless as a mechanism for
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`shaping the conduct of discovery and trial preparation.” Am. Airlines, 2023 WL 3938862, at *3
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`(quoting O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1366 (Fed. Cir. 2006)).
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`R2 does not seek leave to accuse
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` or Photon, nor do the Court’s rules permit it to do
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`so. R2 must show “good cause” to amend its infringement contentions. See P.R 3-6(b). That
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`requires R2 to show it was diligent in searching public information before filing suit. See Sol IP,
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`2020 WL 1911388, at *1. R2 cannot. R2 knew about Photon when it filed its complaint and failed
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`to accuse it or seek leave to accuse it, even after Databricks produced hundreds of documents and
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`deposition testimony about it. R2’s lack of diligence eliminates any possibility of accusing Photon.
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`See id. at *1 (requiring diligence to show good cause to amend); see also Connectel, LLC v. Cisco
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`Sys., Inc., 391 F. Supp. 2d 526, 528 (E.D. Tex. 2005) (expecting plaintiffs to “rigorously analyze
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`all publicly available information”). And R2 cannot accuse
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`With no avenue to obtain additional discovery regarding Photon or
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` under the
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`Court’s rules, R2 mischaracterizes both
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` and the asserted claims to argue relevance. First,
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`R2 inaccurately claims that Mr. Xin testified
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`. He did not.
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`Although Mr. Xin explained that b
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`Mr. Xin also repeatedly
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`further explained that
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` Mr. Xin’s testimony makes abundantly clear that
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` Mr. Xin
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` infringed, it
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`should have sought leave to amend its infringement contentions to accuse it months ago—not on
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`the eve of the close of fact discovery, and not after it had already agreed that “Databricks’ source
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`code production is complete, and R2 will not be entitled to and will not request the production of
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`additional source code unless R2 shows good cause to seek it.” (Dkt. 73 at 1.)
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`Moreover, R2 has utterly failed to show good cause for amending its contentions at this
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`late date. Indeed, R2 does not show that either
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`11
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`patent as simply “merging data having different schema in a distributed system” to assert that
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`. Instead, R2 mischaracterizes the asserted
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` (Mot. at 7.) That broad characterization ignores the claim requirements, and
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`this Court’s constructions. R2 fails to show any relevance of
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` and Photon to the claimed
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`“map” and “reduce” functions that operate in specialized ways on specific “data groups.” (See
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`supra, at fn 2.) Nor can it—
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` and it does
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`not transform the unaccused Photon functionality R2 has known of since it filed its Complaint.
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`The cases R2 cites confirm that R2 is not entitled to the requested discovery. R2 cites
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`Edward D. Ioli Tr. v. Avigilon Corp., No. 2:10-cv-605-JRG, 2012 WL 5830711 (E.D. Tex. Nov.
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`16, 2012) as holding generally that source code must be produced under P.R. 3-4(a) (which
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`Databricks has done). But R2 ignores that the Court limited this ruling to source code relating to
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`“any aspects or elements of an accused instrumentality.” Id. at *3 (emphasis added). Neither
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`Photon or
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` are accused instrumentalities. And the non-precedential opinion from another
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`district in Forterra Sys., Inc. v. Avatar Factory, No. C-05-04472 PVT, 2006 WL 2458804 (N.D.
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`Cal. Aug. 22, 2006) merely held that the entire source code for accused products is discoverable,
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`absent undue burden on the defendant. Id. at *6-7. Here, R2 seeks unspecified and unlimited
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`volumes of highly confidential proprietary source code from Databricks without even a basic
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`allegation of infringement by
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` or Photon. This is the very “shifting sands” approach that is
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`prohibited the Court’s rules, particularly given R2’s stipulation that “Databricks’ source code
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`production is complete” nearly two months ago, on December 19, 2024.
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`12
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`B.
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`R2’s Mischaracterizations of Communications with Databricks Are Not a
`Basis to Compel Discovery
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` Because R2 cannot succeed on its motion on the merits, it resorts instead to unsupported
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`and false allegations of gamesmanship. (See, e.g., Mot. at 2 (alleging that “Databricks’ discovery
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`tactics proved worse than what R2 imagined—Databricks has been dishonest”); id. at 9 (alleging
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`that “R2 discovered Databricks’ misrepresentations”); id. at 11 (alleging “R2 just discovered new
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`evidence that is material to its infringement claims because Databricks hid it throughout
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`discovery”).) R2’s baseless allegations could not be further from the truth. As explained above,
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`Databricks produced hundreds of documents beyond its obligations under the Court’s Rules
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`relating to and describing Photon since the beginning of discovery. At no point did Databricks
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`hide Photon or
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` or attempt to mislead R2. Databricks provided ample discovery and
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`description of Photon in addition to the many publicly available resources providing the same,
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`even a cursory review of which would have informed R2 of what it is and how it is deployed. Yet
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`R2 never once sought to amend its contentions to accuse Photon of infringement, and instead
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`voluntarily stipulated to forego all additional production of source code. R2’s failure to diligently
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`litigate its potential claims is not proper grounds to compel discovery on products it never accused.
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`C.
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`R2 Provides No Basis for Its Request to Delay the Case
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`The Court should deny R2’s request to delay, on the eve of the close of fact discovery, case
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`deadlines by 60 days so R2 can try to concoct a new infringement theory on products it has never
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`accused and never sought leave to accuse. A scheduling order “may be modified only for good
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`cause and with the judge’s consent” under Rule 16(b)(4). To determine good cause, Courts apply
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`a four-part test: “(1) the explanation for the failure to timely comply with the scheduling order;
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`(2) the importance of the modification; (3) potential prejudice in allowing the modification; and
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`(4) the availability of a continuance to cure such prejudice.” Grant v. City of Hous., 625 F. App’x
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`670, 679 (5th Cir. 2015). All four factors warrant denial of R2’s request to delay case deadlines.
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`First, R2 has no good cause for attempting to accuse Photon at this late date. R2 knew of
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`Photon when it filed its Complaint and, if it had not already done so, it could have learned about
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`Photon through a cursory search of Databricks’ website. It could have therefore accused Photon
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`in its Complaint and in its initial infringement contentions. Databricks produced many of its
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`Photon webpages starting more than seven months ago. Yet R2 neither sought leave to amend to
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`accuse Photon nor accused Photon in any of its supplemental infringement contentions. After R2
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`deposed Databricks’ witness on Photon, not only did it fail to seek leave to amend, it stipulated
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`that Databricks’ source code production was complete. That
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`,
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`, does not excuse R2’s failure to timely accuse Photon. Fatally, R2 still has not
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`sought leave to amend its infringement contentions to accuse
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` or Photon.
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`Second, R2 has not shown that
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` and Photon source code and documents are
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`important to this case. Instead, R2 first posits that the source code it seeks “could demonstrate
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`another way in which Databricks infringes the patent-in-suit without the use of Apache Spark.”
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`(Dkt. 82 at 10-11 (emphasis added).) In other words, R2 demands that Databricks produce its
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`proprietary source code for unaccused products so that R2 can go on a fishing expedition to identify
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`whether those products infringe. The Court does not permit such a “shifting sands” approach to
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`patent litigation. R2 then contends that if the Court does not grant its requested relief, “R2 will be
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`limited to pursuing infringement by Apache Spark, which Databricks is vying to eliminate from
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`the case via implied license.” (Id. at 11.) Therein lies R2’s problem. Databricks has strong
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`defenses for the only products R2 accuses—namely, Apache Spark—so it needs an extension to
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`14
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`6301
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`determine whether other unaccused products may infringe. This however provides no proper basis
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`for extending case deadlines and fails to render Photon and
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` discovery “important.”
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`Third, Databricks will be prejudiced if the Court grants R2’s motion. Databricks will incur
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`additional costs to identify and produce documents and source code on Photon and
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` And
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`if R2 were to ever actually accuse them in amended infringement contentions, Databricks would
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`have to incur expenses to investigate the new allegations and respond to them. R2 would likely
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`seek additional depositions focused on
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` and Photon, which would likewise result in
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`additional costs to Databricks as well as burden its employees to prepare and sit for additional
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`depositions. In fact, R2 has already taken seven depositions of Databricks witnesses in this case.
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`This prejudice is particularly unwarranted given Databricks’ substantial production of documents
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`since the beginning of discovery relating to Photon,