Magistrate Judge Mary Pat Thynge has issued a report and recommendation on a Fed. R. Civ. P. 37 motion regarding a violation of the Court’s Protective Order. Defendant Apple brought the motion against Plaintiff MobileMedia Ideas (“MMI”), alleging that MMI’s expert did not directly review source code on a designated computer as provided in the Protective Order. Rather, Apple alleged, a non-testifying consultant printed Apple’s source code and provided it to MMI’s expert. Apple additionally alleged that a second expert also reviewed a printed copy of source code and made copies of the source code other than for purposes “reasonably necessary” to the preparation of an expert report. Judge Thynge found a violation of the Protective Order, took steps to limit future access to the source code, and allowed the parties to brief the issue of awarding fees and costs. MobileMedia Ideas LLC v. Apple Inc., C.A. No. 10-258-SLR/MPT, at 1-2 (D. Del. Oct. 31, 2012).
Considering the parties’ submissions on a fee award, Judge Thynge called “MMI’s interpretation of the Protective Order . . . dizzying” and determined that reasonable expenses should be awarded for MMI’s violation. She explained that MMI’s argument that its violation had been “substantially justified” depended on defining the term “Receiving Party” in the Protective Order in two different and inconsistent ways: “MMI cannot have two interpretations of Receiving Party—one to argue no violation and another to argue why its violation was substantially justified to avoid the imposition of reasonable expenses. MMI’s approach is ‘heads I win, tails you lose,’ and it is not entitled to switch its argument after the court determined a violation of a discovery order occurred to justify why sanctions should not be imposed.” She concluded, “with the differing applications of ‘Receiving Party’ propounded by MMI, substantially justified has not been met under Rule 37, and reasonable expenses are warranted.” Id. at 5. She therefore recommended the awarding of attorneys’ fees and costs for Apple’s counsel and found that most of the fees requested by Apple were reasonable and allowable under Rule 37.
On September 16, 2013, Judge Sue L. Robinson adopted Magistrate Judge Thynge’s report and recommendation, agreeing with Judge Thynge “that plaintiff’s interpretation of the Protective Order is nonsensical.” Judge Robinson explained that “[f]or plaintiff to argue that, while it could not print Source Code, its non-testifying expert could, is not a reasonable (perhaps not even a credible) argument in my experience.”