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Judge Robinson indicates court will use adverse instruction to resolve dispute over sufficiency of defendants’ document collection and production from parent

Judge Sue L. Robinson recently issued an order holding that, absent the parties’ consensual resolution to the dispute over the sufficiency of defendants’ production, the Court will “use an adverse inference jury instruction regarding infringement[.]” Intellectual Ventures I LLC v. Ricoh Americas Corporation, et al., No. 13-474-SLR-SRF (D. Del. Aug. 17, 2016).  Judge Robinson previously expressed concern that defendants were attempting to use affirmative evidence from its non-party parent, yet prevented discovery by plaintiff of other evidence.  Here, Judge Robinson concluded that the court could not assess whether defendants’ document production was sufficient because apparently defendants’ parent “made its own determinations as to what documents were relevant, without regard either to plaintiff’s document requests or any feedback from the defendant.”  Id. at 2.  Judge Robinson noted that “it is not generally up to the accused infringer (or its parent) to determine in the first instance what information is sufficient to prove (or not) infringement and, therefore, the court cannot say with any degree of confidence that document production from [defendants’ parent] has been adequate or complete[.]”  Id. at 3.  While Judge Robinson indicated the Court would use an adverse inference, the Court would not grant summary judgment of infringement.  Id.

Intellectual Ventures I LLC v. Ricoh Americas Corporation, No. 13-474-SLR

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