In a recent Memorandum Opinion, Judge Richard G. Andrews affirmed Magistrate Judge Thynge’s September 27, 2016 oral order denying plaintiff’s motion to impose discovery sanctions for defendant’s “failure to produce IDV data.” AVM Technologies, LLC v. Intel Corporation, C.A. No. 15-33-RGA-MPT (D. Del. Dec. 19, 2016). Specifically, Judge Thynge denied plaintiff’s request that (1) defendant be precluded from “making any arguments that its timing analyses and any simulations that are based on UPF [pre-fabrication] models do not accurately reflect the manufactured products”; and (2) “a negative inference be drawn in Plaintiff’s favor due to Defendant’s failure to produce the IDV data.” Id. at 1.
Plaintiff argued that Judge Thynge’s ruling was incorrect under the Pennypack factors because plaintiff was prejudiced by defendant’s failure to produce the IDV data. Id. at 2. Specifically, plaintiff argued that that the IDV data is the “‘only evidence that definitively addresses’ Defendant’s argument that its pre-fabrication modeling results are not correlated to the manufactured products.” Id. Judge Andrews disagreed, noting that Judge Thynge found that defendant “produced data responsive to Plaintiff’s discovery request and that data provides the information Plaintiff needs.” Id. Accordingly, “there is no prejudice to Plaintiff for Defendant’s failure to produce the IDV data, which does not provide the information Plaintiff needs for verification of the modeling results.” Id. Because plaintiff failed to provide evidence that Judge Thynge’s factual findings were clearly erroneous, Judge Andrews affirmed Judge Thynge’s order. Id.